Is this the Evidence that Libby Knew Plame Was Covert?

by emptywheel

I found something nifty today when I was playing around in all my Libby Trial evidence. It's either evidence that Libby knew Plame was covert ... or it's evidence that OVP went to some lengths to protect Dick and Bush. This involves a rethinking about the exchange from the Libby trial when Fitzgerald questioned Addington about the bogus stamp OVP used on lots of Libby's notes. Here's the passage in question:

Q Now, I wanted to talk now focus on the stamp above it that says "treated as crossed out, declassified." Now, is there such, first of all, I want to come back to "treated as," but do you know what it says underneath treated as?

A It says treated as top secret/S.C.I. all in caps...

[snip]

Q What does S.C.I. stand for?

A Sensitive Compartment Information is information that deals with intelligence sources and methods in the President's executive or classification. Executive Order 12958 authorizes the Director of National Intelligence to put specially sensitive information in a Sensitive Compartment Information. It has entire controls for dealing with that type of information. Fewer people have access to it.

Q Now, the words "top secret" or "S.C.I." are those classifications that are assigned to classified documents?

A Top secret is a classification, and the Sensitive Compartment Information is special access rule. It is not technically a clearance.

Q What about, have you seen documents, can they be properly classified as treated as top secret/S.C.I.?

A I had never seen a stamp treated as top secret/S.C.I. before documents were produced to me with that stamp on it.

Q Is that in fact a proper classification?

A The present Executive Order on classified national security information doesn't use that phrase. [my emphasis]

This part I've treated before. Fitzgerald has basically gotten Addington to admit that this "treated as" stuff is a bogus classification. Fitzgerald then points out that, on the letter he wrote accompanying this document, Addington explained that the note came to him with the stamp, "treated as Top Secret/SCI" on it.

Q When you transmitted this document to the Government, if could bring up Government's Exhibit 507, Page 2, Page 1, sorry. If we could focus down to the last paragraph of the page and just, and does that describe the document we just looked at Page 002919?

A I think that was the document number on it, yes.

Then, Fitzgerald tries to get Addington to quantify how many of the documents turned over to investigators included the treated as Top Secret/SCI stamp. Addington refuses to do so.

Q Do you recall seeing any other document in that production that said "treated as top secret/S.C.I.?"

A I don't recall, but I don't know how many documents. I wouldn't necessarily remember sitting here.

Reverting back to his prior line of questioning, Fitzgerald gets Addington to provide details about who was stamping these documents with the bogus stamp.

Q Just a question yes or no, did you put that marking in there?

A No, sir.

Q Do you know when, how and who did from personal knowledge?

A On this particular page, no. But I can say that, in the course of production, there were situations in which I received in production copies of handwritten notes of Mr. Libby's that were marked treated as top secret/S.C.I. or treated as secret/S.C.I., various stamps saying treated as some particular classification. That one, the government came back later and said give us the originals and the originals were produced. They would not have that marking on it. From that I would conclude that the documents were taken from his file, provided by his staff, Xeroxed and stamped. However, this one looks like it was stamped right on the original by someone. [my emphasis]

In this passage, Addington notes it was Libby's staff that stamped these documents. But he also notes something I hadn't thought about before: Libby's staff was stamping these documents over with a variety of classifications, not just Top Secret. So someone was either evaluating the contents before distinguishing between, say, Secret and Top Secret. Or those stamps were really supposed to communicate some kind of different treatment accorded the documents. And note, of course, Addington's point that SCI is a designation used to protect intelligence sources and methods.

The Classifications

Which led me to go back and review how Libby's notes were stamped--and to try to come up with an answer to the question of how many documents were stamped with the "treated as Top Secret" designation, the question Addington didn't want to answer.

The following documents were designated as "treated as Secret/SCI":

• Libby's June 3 notes, including a notion about an earlier Pincus article that had complaints from CIA about OVP pressure
• Libby's June 9 note--copied over from his daily diary--recording that OVP had not requested information on Wilson's trip
• The notes including the July 8 senior staff meeting where Rove talks about Wilson and the question and answer to Addington about presidential insta-declassification
• The notes from Libby's July 10 conversation with Mary Matalin
• The notes from the July 10 meeting, attended by Hadley, Cheney, and Libby, to discuss Tenet's statement (note, this note also includes a reference to the President, being "comfortable," which may relate to Tenet's statement too)
• The talking points Cheney dictated to Libby aboard Air Force Two were designated "treated as Secret/SCI"

Of all the other Libby notes submitted as a Grand Jury exhibit, only one was stamped as "treated as Top Secret/SCI": his notes from June 9, which include (among other things) the notation about the President's interest in the Kristof Niger allegations.

There is one set of talking points, stamped with the "The Vice President has seen" stamp, that has a TS/SCI handwritten in the corner. The notation looks like it could be Cheney's writing and he, after all, has the ability to classify materials, so I presume he insta-classified this as Top Secret at some point.

Perhaps most curious, Libby's July 8 notes, which have the instruction from Cheney telling him to leak something to Judy Miller, was originally stamped, "Treated as Secret/SCI," but then someone wrote in "TOP" before the word secret.

The June 12 CPD Note

But then here's the interesting bit. The first copy of Libby's notes from the conversation with Cheney where he told Libby that Plame was CPD--the one that was a copy of the original, which was used before the Grand Jury--was stamped "treated as Secret/SCI." So was the transcribed copy. But the original was stamped "treated as Top Secret/SCI." This may be what Fitzgerald was after in his questioning of Addington (which surely set up questions Fitzgerald would have asked if Jenny Mayfield or Libby himself testified). He was pointing out that Libby's staff had changed the designation on this document as soon as they were asked for the original. And they changed it to a designation that is inconsistent with their other stamping practices--unless whoever stamped it knew Plame was covert.

Treated as Top Secret/SCI

In other words, there are three documents submitted at the trial that Libby--or his staff--labeled as "treated as Top Secret/SCI." Here's what they record:

• Bush expressing an interest in the Kristof/Niger allegations on June 9
• The original copy only of the note recording Cheney passing along the information that Plame worked in CPD
• Using hand-written notation, the note showing Cheney telling Libby to pass along something to Judy Miller

Now, in truth, it isn't as simple as all this. Libby could argue there are other details from his notes on June 9 or July 8 that contained actual Top Secret information (such as details on an F-16 sale that he exhibited great discomfort about in the grand jury).

But that is not true of the note recording his conversation with Cheney. Much of that information consisted of talking points for the press (ostenisbly for Walter Pincus)--which were designed to be public and therefore not secret at all. There are details of Joe Wilson's trip. But these details show up in other documents that are classified as "treated as secret"--and by the time this was stamped in December 2003, all that information had been declassified anyway. In other words, the single piece of information that was not formally declassified at the time Libby or his staffer stamped the document was Plame's status.

This suggests one of several things. Perhaps whoever stamped the document was indicating--truthfully--that the note had been treated with the greatest secrecy. Perhaps the altered stamp indicated only that Libby was trying to protect Cheney. Or perhaps someone accidentally told the truth, indicating the information Cheney passed along was top secret.

Now that Libby's sentence has been commuted, I say we haul his ass before Congress to explain what these changing notations mean.

Comments

[Mel]

Bushco won't allow Libby to testify--that's why he was semi pardoned. They'll now claim executive privilege--still worth doing, but it will be under-reported in the media and misunderstood by most voters. The correct approach is impeachment--at the least, it will keep them too busy to attack Iran.

It's not as if no one interested can't already connect the dots--but so many still believe wmd and al qaeda links to Saddam that impeachment is the only route available. It too will fail, but, at least, Dems will look like they care about the rules of law--right now, they just look like Bush enablers. And right now, that perception is correct. So much was expected of Pelosi, we were fooled. She has been a disaster. We need a good "hammer."

[Mimikatz]

Brilliant, as usual.

[Mimikatz]

The problem is not really Pelosi, but the conservative half of her caucus. Also, since she is next in line of succession, it could have been seen as self-serving to call for impeachment as soon as she became Speaker, and would have tainted the whole legislative agenda.

Be careful what you wish for. If the Bush/Cheney years have taught us anything, it should be that corrupt means corrupt even worthwhile ends. (And they ensure that bad ends will end up even worse.)

[Maeme]

Marcy:

Without revealing too much, do you have any kind of indicators that HJC staffers read your analysis' and/or any kind of acknowledgements?

This is brillant, and needs to come out -- what can we do; should we fax this to House members? I get my hopes up and then seemingly, there are so few stellar questioners on the Committees.

[albert fall]

I am really bothered by the Right Wing Talking Point about "Armitage was the leaker" as an excuse for letting Libby off.

To my mind, that is even more damning, and they ought to be confronted with it:

Yes, Armitage was A leaker, and so was Rove, and so was Libby....which demonstrates that this was a deliberate campaign by Cheney and Bush to discredit one critic of the war, and intimidate others in government from being critical.

Covering up that deliberate campaign when the FBI and grand jury investigate is obstruction of justice....continuing to this day with the Bush demi-pardon.

[LS]

Just re-read the original Libby 6/12 note for the hundredth time.

I still believe the T stands for Tenet not telephone. I know people don't, but the rest of the note makes more sense. The first part is the CIA explaining about Wilson and that the debriefing took place there, at the CIA.

I believe the transcribed copy is wrong. I think it reads,

"Took place at our behest - functions(o/lia
/
CP
\his wife works in that div'n "

Note: The parenthesis is not closed after "lia"
and it is also not closed after IAEA.

Note: The "slash" between o and lia is identical to the "slash" right below it on the note.

It is describing Wilson as "o", maybe official, "lia" maybe liaison - which coincides with Cheney's notes on the article. This note occurred "before" he made the notes on the article.

Take a really hard close-up look at that note again.

[bmaz]

Well, yeah. A. You are on to something here; of course. B. Sometimes we prowl around in the depths of the facts to much. Anything that is ever marked "Top Secret" or anything close to it (for instance the memo on the plane that was bandied about) ought to raise pleny enough questions to check before announcing to the world that someone is a "CIA operative". This argument over classified status, covert etc has been mindless from the get go. Who the hell thinks it is ok to out critical intelligence assets and then ask questions later? Now, I say this as a matter as a public discussion, not technical legal analysis of course. The fact that Bush didn't even care to investigate this stuff internally, nor terminate anyone or remove security clearances means that this was a sanctioned hit job from the top all the way and that it is, without any question whatsoever, obstruction to pardon Libby. Ah, another good point. never call this action a commutation. Call it a pardon, because it is a form of pardon. We need to learn to brand them.

[pdaly]

Amazing.

BTW I recall Fitzgerald, at his televised Amherst speech this past spring, mentioned something about receiving text messages when his name shows up in news headlines. You could add his name to all your posts if you think he and Team USA are not already reading along to see how we (well you, Jeff, Jane, and Swopa) are doing figuring this out.

[radiofreewill]

That's right - here's the chain of Top Secret notes:

- Bush expressing an interest in the Kristof/Niger allegations on June 9
- The original copy only of the note recording Cheney passing along the information that Plame worked in CPD
- Using hand-written notation, the note showing Cheney telling Libby to pass along something to Judy Miller

This seems to capture a de-classification action, that happened to include revealing Top Secret/SCI information (Valerie's identity) that was NEVER formally de-classified - before, during or after.

It looks like Bush authorized leaking something that nobody else, especially the CIA, thought was a good idea - that Valerie Wilson worked at the CIA on weapons of mass destruction in the Counterproliferation Department.

Why wouldn't anyone de-classify that information? It's obvious - she was Covert, a National Security Asset involved in sources and methods of intelligence collection.

A possible scenario:

Bush expresses interest in both the Kristof Article and the Niger Trip.

He's shown documentation of Cheney's understanding: Joe Wilson was the Ambassador who was sent by the CIA (not OVP sez Darth) to Niger. Wilson has political motives, Cheney says. Rove gives the political motives. Libby then shows Bush the INR Memo and points out that Wilson's wife works in CPD. Alarmingly, Cheney tells Bush that people at State are saying that Wilson was sent by his wife! And, there's talk of Wilson going public! We've got to stop the Wilsons!

Cheney suggests de-classifying info from Top Secret to Secret, so it can be released by Libby to Miller. Since Miller's notes indicate she was told Valerie worked in WINPAC in that meeting - one can only assume that Valerie was deemed a political target, as opposed to a National Security Asset.

Libby leaks Valerie's identity to Miller, possibly while disclosing the as-yet not declassified, in part or whole, NIE. [Imvho, I think he sat down with her in her hotel room and showed her the NIE like a photo album, and then additionally leaked the Trip Report/ Summary and the INR Memo.]

The Trail of memos in evidence that relied on the 'copies' of the originals, clearly shows the declassification from Top Secret to Secret so the information could be released to Miller.

Once Fitz asks for the original of the note - still slumbering in Libby's files - he sees that the original is marked Top Secret.

One can only assume he did not find a matching official formal de-classification authorization to go with it.

Her identity may have been released - incredibly recklessly - solely on Bush's okay as a Political move, spurred on by his 'everything's Political' inner circle.

[*xyz]

Mel - The answer is the power of impeachment.

If Libby tries to avoid testifying before congress based on executive privilege, then impeachment of those he is protecting is necessary in order to supercede such privilege. Extraordinary times require extraordinary measures.

Haul Libby in, make the Bush administration use executive privilege to protect him, then begin impeachment proceedings immediately. It is time.

[*xyz]

Mimikatz - you said:

"Be careful what you wish for. If the Bush/Cheney years have taught us anything, it should be that corrupt means corrupt even worthwhile ends. (And they ensure that bad ends will end up even worse.)"

If you are referring to impeachment as a corrupt means to a worthwhile end, I must strongly disagree. Impeachment is the only means by which our democratically-elected leadership can now get at the truth about what the executive branch has been doing in our name. It is by no means corrupt. If I misunderstood you, Mimikatz, I do apologize.

Also, there are a few larger points to be made here that I would like to mention. These points are in response to arguments against impeachment that I am hearing from others in the blogosphere (not Mimikatz).

There are many folks who argue against impeachment on the grounds of the possible political backlash that might ensue as a result.

I say that the burden is clearly on those who are anti-impeachment to explain (i) what that backlash might be, (ii) why such backlash is a plausible outcome, and (iii) whether fear of *possible* backlash is a worthwhile, defensible reason not to begin impeachment proceedings that will help to reestablish the system of constitutional checks and balances that our founders intended.

Also, those who use the Clinton impeachment as the basis for their predictions of a backlash in the event that Bush is impeached are completely deluded. The facts and the national mood are totally different now. Apples and oranges.

[AlabamaYankee]

TS/SCI is indeed a valid classification. When I was in the defense industry The company worked for did highly classified work so much of the professional and technical staff held Top secret clearances. We were, however,cleared only for the programs we worked on, so my Top Secret clearance couldn't give me access to programs or information I was not cleared to know about. IMO it seems odd that the Vice President's office would need SCI ratings.

We took these security rules very seriously; even though I've been out of the industry for twenty years I don't talk about the programs. It infuriates me to see the utter disregard for the security of the United States that is a hallmark of the failed bush administration.

[phred]

xyz -- Let me also add that given the retention of the Republican majorities in Congress along with Bush's win in 2004, the claims of a backlash against Republicans due to the Clinton impeachment are entirely overblown.

One other point to add is that this is all about corruption, and if there is one thing voters hate it is corruption. IIRC, that was the 2nd big issue in the 2006 elections (after the Iraq war). Impeachment proceedings would bump that right up to the number 1 spot in 2008.

The Dems have everything to lose (swing voters) and nothing to gain (more pieces of legislation that will be felled by the veto pen?) by not pursuing impeachment.

[*xyz]

Phred - I agree with your points. So not only is the Clinton
comparison a matter of apples and oranges, the common belief that
impeachment 'backlash' occurred after the Clinton impeachment may also be incorrect (I don't have enough data to draw a definitive conclusion).

The bottom line is that there is something very concern trollish about many of the 'backlash' arguments against impeachment of Bush and/or Cheney. If I were a betting man I would in fact wager that impeachment would boost the approval of Democrats in Congress - in large part because of the corruption angle that you mention.

Given Congressional duties to protect the Constitution on one hand and specious and unsupported predictions about the possible spectre of political backlash on the other, the Constitution must win every time.

[tnhblog]

There is an article over at rawstory in which Novak is trying to justify his animus against Wilson. He says he got annoyed with Wilson referring to the actions of the previous admin in the first person plural. Novak is blowing smoke and a BS artist. Wilson has been in the foreign service since 1976, through both Reuplican and democratic admins. Novak knows that Wilson is not referring exclusively to the Clinton admin. His lies are becoming more and more viscious and bogus. He says it is not surprising that he referred to Wilson as an asshole. But that is not the whole quote. He said-"Wilson's an asshole. His wife sent him. She works at the CIA." That is almost word for word the smear that Rove and Libby concocted to discredit Wilson. In other words, the smear was meant to insunuate that Wilson was an asshole because his wife sent him on a junket. Novak is becoming sickening.

[Katie Jensen]

xyz and phred,

I would also like to add that as a matter of principle not impeaching for fear of backlash, is the same principle that keeps a battered woman in a dangerous marriage. We all need to be ready because I think it's possible there will be a back lash (war in Iran or terrorist attack-with lots of spin against dems who don't have their priorities straight), but I think the solution is a good safety plan, good strategy.

When I am working with battered women the reality is that the woman is truly in more danger when she confronts the behavior with protection orders and fleeing. That is when a battered woman is most likely to end up dead. This group so far, has made it clear that there is always a consequence for speaking out against them.

Since we are not all going to flee the country and run to a shelter, it seems the only viable solution against them is to be effective in the confrontation. Our democracy gave us tools to do this. If they are not adequate tools we need to know it now. We might as well try to use them, do our best and let the facts fall to history and to those who follow us to fix the problem.

If we don't use the tools, then we don't know where the holes are. I am thinking we all learned some important things from Iran/Contra and from the Clinton impeachment. We need to use what we learned.

As a woman who has been part of the woman's movement fighting to change sexual assault and domestic violence laws since 1988, this fight doesn't appear to be too different. I would like it to be quick short battle, but this does not fit my review of the facts. These neo cons have been building power for a very long time. They resort to law breaking to achieve their goals. They protect themselves financially and also legally. We have to think long term, not just short term.

I don't pretend to have the solutions but I would love to see a panel on t.v discuss this issue. I would like to see legal analysts, law enforcment officials, FBI and CIA people come together for a discussion about the best way to solve our "administration" problem.

I realize that some folks won't see it as a problem but to have the discussion framed this way, would be powerful. Not illegal. What tools of democracy do we have to deal with this issue? What is the goal. Could this be a series done on olbermann??

[rhfactor]

Marcy, what color is your batphone with a direct line to Commissioner Gor - I mean Fitz?

[Neil]

I recall Fitzgerald, at his televised Amherst speech this past spring, mentioned something about receiving text messages when his name shows up in news headlines. Posted by: pdaly | July 04, 2007 at 13:27

That's right. He has a google search bot sending him hits on "Patrick Ftizgerald." He got one titled "Patrick Fitzgerald is a thug" and deleted it.

Google search bots will report matches found in news sources or websites or both.

[Jodi]

Two parts here.

1. Libby's Appeal is still alive and will continue.

===>>> He does not have to and will do nothing that will jeopardize his case.

2. I read emptywheel's comments and heard John Dean speak and also the other comments about Libby coming before another grandjury with immunity (would that affect his conviction) or a Congressional Committee with immunity (likewise his conviction might be affected) and people here and elsewhere saying he would have to talk. He couldn't take the Fifth or plead executive immunity.

I can visualize the setting:

Mr Libby sitting quietly his hands folded. His wife behind him.

~Sir (or Sirs) I am a convicted liar. I thought I had told the truth. A prosecutor and a judge and a jury determined I lied.
... at this time I realize that perhaps I am confused. It was a time of stress, and after working a most difficult stressful job for years perhaps I had a bit of a nervous breakdown, and am just confused about that whole period.
Therefore I must say that I am not sure I remember those events correctly, those little bits that I might think I remember.

My wife had thought perhaps I need some therapy. I am beginning to think I do, and am looking into it. But the trial and the appeals have kept me from it and have stressed me still further.

If you wish to ask questions, you may, but respectfully, I am not reasonably certain of anything.~

[Martiki]

Katie

I like your suggestion. Although there is a segment of the population that would never be with us, I believe there is a large portion of the population that (if aware of what is going on) would be up in arms. An ongoing discussion by a panel of experts might open some eyes.

[emptywheel]

Jodi

Just a clarification. I have not recommended giving Libby immunity. Why do that, when Fitz has the evidence to charge him with Espionage in his back pocket?

[Petrocelli]

Wow, EW ... Fitz can charge Libby with espionage? Have you written about this earlier?

I really should get over here more often !!!

[rhfactor]

My Independence Day gesture for her majesty Madame Speaker, who is my Congressional Representative in San Fran:

http://i169.photobucket.com/albums/u210/quicksite/pelosi-flag2.jpg

I think her strategy is so flawed (to restore "rule of law" by not using "rule of law", but rather letting clock run out, and clear everything up with a PRESUMED De. President), and her presumptions so wrong (that Public would be repelled by impeaching Cheney, or Bush, or Gonzo, or any combo and seen as simply tit for tat political theatre. That's BELTWAY C.W., and consultant HACK wisdom that cost us taxpayers $$ for her to receive. She hasn't a clue about the psychology of America -- and how much they love immersive crime drama. THIS TV series would be way more compelling than Clinton's TV series -- which had limited subject matter, almost no evidence, a lot of posturing, and for some a vulgar central theme. But in THIS live TV Crime series, there's tons of evidence, a cranky bad guy (Cheney), arms deals, Halliburton pielines from Caspian Sea, guy who shoots people in face and F.U's everyone, has a secret batcave. This is GOOD STUFF.

But the main reason I believe Madame Decider is so cluelessly wrong in her continuing her recalcitrant behavior ever since Lady Decider decided last year that "I" was off the table -- is the psychology of the American public.

Impeaching Bush would be disasterous in my view, from this perspective: Half of America enabled him, endorsed him, voted for him a second time even when many of these "threats" to Constitution were presented during the Kerry campaign. Thus, impeach Bush and there is major cognitive dissonance from large portion of public feeling, unconsciously, implicated... and the predominant way that people relieve such cognitive dissonance is to remain in denial, and to close eyes and ears and feel sorry for Bush.

HOWEVER: They know deep down that things have gone really south during the Bush Presidency. They were asleep at the wheel, and hated liberals so much they'd send Bush back inot office just to spite the left -- BUT: There is underlying psychology that I believe would produce win-win results in the all-important Court of Public Opinion -- which matters FAR more than the Senate Court and the red-herring of "we'd never get the votes":

People have no such feelings of affection toward Cheney. And for Cheney to be impeached, many things get accomplished:

* Their guilt gets assuaged -- as they transfer all the lying and cheating and law-breaking onto CHENEY - emotionally tapping into the vast fool of perception that "Cheney's the one who's been running everything backstage anyway, so it's probably mostly been Cheney all along"

* No one at all has been punished for all the massive and cumulative failures of Bush admin, from 9/11 lack of readiness, to lying into a phony pre-emptive strike costing thousands of US lives and ruining the lives of hundreds of thousands more who are injured physically and mentally, to the failures of readiness for Katrina and its response, to Libby outing a spy upon orders, etc. I believe swing voters in America feel the same deep sense of "there's been not a shred of acountability all these years. Everyone always dodges and no one is punished for these failures".

So all of THOSE feelings get transferred onot Cheney as well -- because underlying it all, it's actually true.

* Those on the left and center who DO value our country's rule of law, and value the checks and balances of govt, and have been f*d over for 7 years with the timid Dem "strongly worded letter" approach to oversight and opposition -- we would finally get a huge cathartic experience, a deep exhale that FINALLY the Dems have stepped up to the task they were sent to Congress to do.

My point? People from wide spectrum would WELCOME the impeachment of cheney, it would satisfy many deep needs for accountability, and thus Pelosi is utterly clueless in her assumptions re political theatre and tit for tat.

It amazes me sometimes how dense they are.

oops -- sorry! I'm a newbie here from the dKos society, and I just used comment space on Marcy's document-classification topic to insert my view of Madame Pelosi and her numerous shortcomings in reading the landscape deeply -- she has only superficial views.

Thus my flag, which hangs outside my house as we speak.

happy Independence day!

[desertwind]

Bush's clemency statement repeats the canard: "...They say that had Mr. Libby only told the truth, he would have never been indicted in the first place."

Even editorials opposed to the commutation (Rocky Mtn News is one) repeat this as if it's gospel. And, of course, this has been one of wingnuttery's major talking points all along.

But, as Marcy illustrates once again, Libby might have been tried (and convicted) of more serious crimes if he'd told the truth,

Let's do all we can to put the kibosh on this crap.

[KM]

TS/SCI is indeed a valid classification.

Alabama -- EW doesn't of course dispute this. What isn't a valid classification is "treated as TS/SCI" or "treated as S/SCI", which EW probably should have put between quotation marks throughout.

[emptywheel]

Petrocelli

Well, yes, but then he has to rely on Judy Miller as a witness. She did remarkably well in the trial, but lightning generally doesn't strike more than once.

He probably could get him for the leak of classified info to Novak on July 9, too, but then Novak is lying his ass off to protect Libby, so Novak, too, will make an unreliable witness.

[Neil]

Prosecutors choose to not indict if they do not have the evidence to convict.

(We'll put the ethically challanged Nifong aside as the exception that proves the rule.)

Sometimes, prosecutors will indict on lesser crimes because they do have the evidecne to convict on those counts. The rationale is that some measure of justice is attained.

We all believe, perhaps know, Bush and Cheney have had willful disregard for the rule of law, have broken it in violation of our bill of rights, fraudulently sold a war of choice, and corruptly dispense our national resources to their friends in busines with no bid contracts and graft. The questions is can we prove it?

Consequences are the only effective incentive to curb this secrecy enabled executive law breaking.

If we have the evidence to prove an impeachable offense, then I have no cause of concern about proceeding, in fact I think it is necessary. If we cannot prove the case, then it strengthens their hand.

[pdaly]

Neil,
That is the lesson Neocons learned from Watergate: Not 'Don't do it again' but rather 'Don't get caught.' All their slick moves are to erase, hide or attack the evidence whether the evidence comes in the form of documents, testimony, or whistleblowers.

[Jodi]

emptywheel,

Sorry, I didn't mean to infer you said something you didn't. I was summarizing you along with John Dean (before I came here, I thought he was a myth from long ago) and others as well.

I have heard about selective immunity of various kinds from say Fitzgerald or Congress, where Libby would have to answer certain questions. Use immunity? I am not a lawyer enough to keep the types straght.

However I heard also that President Bush could have given Libby a very selective pardon also.

I really thought they were leading up to a respite like Christy spoke of.

But the gist of what I said is that here is a man proven in court to be a liar, and I could then see how he could easily say:

~~Excuse me Sir, but I don't think my memory is very reliable, and obviously it has been called wrong by a jury of 12 good DC citizens, but I would be glad to guess, conjecture, and speculate a bit.~~

With that kind of lead in, I dare say, Mr Libby could never be charged with perjury.

[Neil]

WTF?

[Neil]

fix italics

[Neil]

.

[darclay]

There are too many pols beholden to big business such as Hal,Bowing etc,etc that it is unlikely that any Dems or Rep are going to jepordize their money coming in. There is no telling what these corps have on our elected officals why else would they be afraid to act? Just a thought.

[Mauimom]

As the parent of two kids [even though they're now college-age], when I heard Marcy say "playing around in all my Libby trial evidence," I could just picture her in the middle of a bunch of Legos, fitting them together in myriad forms, building, building.

We honor your genius and await your next masterpiece!!

PS - Tomorrow I'm going to the local crafts store, buying a few t-shirts, some stencils & fabric paint, and creating "freeway blogger" items I can wear: "IMPEACH"

[Mauimom]

As the parent of two kids [even though they're now college-age], when I heard Marcy say "playing around in all my Libby trial evidence," I could just picture her in the middle of a bunch of Legos, fitting them together in myriad forms, building, building.

We honor your genius and await your next masterpiece!!

PS - Tomorrow I'm going to the local crafts store, buying a few t-shirts, some stencils & fabric paint, and creating "freeway blogger" items I can wear: "IMPEACH"

[tnhblog]

In the article about Novak I mentioned above, Novak claims he would do it again. That is, he would knowingly out an NOC. If Novak is daring the system to charge him on IIPA, why doesn't the system take him up on it?

[Sara]

Katie, I think you have exactly the right idea. You want mainstream first class political discourse on the question, what do we do when we have a totally out of control administration. If that could happen with something other than bleach blonds screaching at each other on TV -- it would serve to make legitimate various congressional approaches, be they testimony before committee by significant witnesses, production of real documents, or yes, investigation as a prelude to Impeachment.

Right now, impeachment is not really in the realm of legitimate, because those who seriously understand it are marginalized. Before you can begin that process, you have to change that -- You have to bring the advocates in from the margin, and hear out their arguments. It happened in 1973 in the wake of the Saturday Night Massacuer, when at least a hundred members of congress registered disgust by returning to DC and throwing resolutions into the hopper. (and then it took 9 more months till the committee perfected and past the resolutions of impeachment.) But what made discussion of it all legitimate was the fact that the hopper was filled with resolutions, which forced serious discussion.

[bmaz]

Katie jensen and Sara - You both know quite well by now my thoughts on impeachment. At this point i don't even care who, just unleash the impeachment investigatory powers on some target; they are so broad they will get us pretty much everywhere we want to go. I very much liked Katie's battered woman syndrome analogy. Our side of the fence does have some of that pathetic aspect to it doesn't it?

[KLynn]

EW

Insightful and awesome observations! You made my 4th with this digging through evidence (as did listening to Olbermann over and over).

The fireworks finale in our fair city was sponsored by Exxon Mobil. The music played for the finale was the "Death To The Republic" theme from Star Wars. Our 14 year old son found it odd and appauling (as did we). He began to wonder how many cities Exxon sponsored the finale and was the music their request?

He did a search when he got home and found there were other cities Exxon sponsored. Now he wants to find out how many of those were the finales and what music was used. In his words, "Creepy and awful!"

Now my question:

Based on the information you have found, has anyone from JPF's team looked at the inconsistencies in the paperwork in terms of document protocol (dating and security stamps)? It is my understanding that Libby's position has prescribed protocol and there are extreme protocols for various types of documents and document information. Libby has been described as having an ability to manage volumnes of information and tasks. Which should mean he was responsible and consistent in his position in terms of security protocol and document handling (i.e. stamping and dating)?

You have found a piece that will force the hand for Security Oversight of Documents in the Executive Office. Now, oversight has to happen. Surely if the document trail in the evidence shows inconsistencies of protocol regularly in praxis, does that not beg the question, "Was there an inside practice of CYA (tampering with evidence)? A security audit which would look at Libby's original files, would be able to confirm this (i.e. if Libby's original files meet protocol but the evidence stands outside of protocol methods)?

Thanks for some sunshine on our rainy 4th!

[Jeff]

This issue is tracked in the book, though much of the rest of it took place in the context of legal wrangling, so it had to be summarized rather than transcripted. (Feb 8 and 12 and 14, I believe.) But also one day got away, which is interesting and important - Feb. 1, where the issue of the stamps intersected with the dispute over introducing Libby's NDAs. As you know, the prosecution ended up getting to use one, and only one of Libby's NDAs, and not the others, which dealt precisely with these other compartments and so forth. Bonamici argued that the stamps bolstered the prosecution's argument for introducing the others on Feb 1, and made clear that part of what they intended to argue was that LIbby was specifically involved, himself or perhaps directing others, in stamping the documents for production. here's Feb 1 a.m., starting with the defense arguing agains tthe introduction of the NDAs:

THE AGREEMENT WE REALLY OUGHT TO BE TALKING

2 ABOUT IS THE ONE THAT MR. LIBBY SIGNED FOR CLASSIFIED

3 INFORMATION. THE GOVERNMENT ALSO WANTS TO OFFER ONE, TWO,

4 THREE, FOUR, FIVE OTHER AGREEMENTS, ALL OF WHICH HAVE TO DO

5 WITH PARTICULAR S.C.I. COMPARTMENTS.

6 THERE HAS BEEN ABSOLUTELY NO SUGGESTION THAT

7 MS. PLAME OR MS. WILSON'S EMPLOYMENT WAS IN ANY OF THESE

8 COMPARTMENTS. AND I'M JUST -- YOU KNOW, CLEARLY THOSE

9 FIVE --

10 THE COURT: WOULD HE HAVE ANY REASON TO BELIEVE --

11 BECAUSE I THINK, AGAIN, IT'S WHAT WAS IN HIS MIND. WOULD HE

12 HAVE HAD ANY REASON TO BELIEVE THAT SHE WOULD HAVE FALLEN

13 UNDER ANY OF THESE OTHER AGREEMENTS?

14 MS. BONAMICI: WELL, YOUR HONOR, HE HAS STAMPED A

15 NUMBER OF THE DOCUMENTS THAT WERE PRODUCED IN HIS

16 DISCLOSURE, INCLUDING THE DOCUMENT THAT REFLECTS THE NOTES

17 OF HIS CONVERSATION WITH THE VICE-PRESIDENT, "S.C.I." SO IN

18 OUR VIEW, AT LEAST EXHIBIT B -- 5B SHOULD GO IN.

19 WHETHER HE WOULD OR WOULD NOT HAVE REASON TO

20 BELIEVE THAT HER EMPLOYMENT WOULD HAVE FALLEN INTO ANY OF

21 THE OTHER AREAS, IN OUR JUDGMENT, ISN'T AS IMPORTANT AS THE

22 FACT THAT HE KNOWS THAT HE WOULD LOSE HIS SECURITY

23 CLEARANCES IF IT WERE DETERMINED THAT HE VIOLATED ONE -- I

24 MEAN, IT'S NOT AS THOUGH IF HE VIOLATED THE NONDISCLOSURE

25 AGREEMENT WITH RESPECT TO A LOWER LEVEL OF CLASSIFICATION,


75

1 THE GOVERNMENT WOULD ALLOW HIM TO KEEP THE HIGHER LEVELS OF

2 SECURITY CLEARANCE THAT HE MAINTAINS.

3 HE UNDERSTANDS, WHEN HE SIGNS THESE DOCUMENTS,

4 THAT ALL OF THESE CLEARANCES ARE AT RISK IF HE VIOLATES ANY

5 ONE OF THEM. AND HE NEEDS ALL OF THESE CLEARANCES TO

6 PERFORM THE DUTIES OF HIS JOB.

I'll put the Feb 1 p.m. in the next comment.

[Jeff]

Opening Feb 1 p.m. they take up the issue, and the defense argues, on the basis evidently of Mayfield's gj testimony, that Mayfield and not Libby put the stamps on, but interestingly Bonamici disagrees with respect to one document in particular, it seems:

You will recall, Ms. Bonamici pointed out that that
15 note, Government's Exhibit 104, was stamped treated as top
16 secret S.C.I. Your Honor, the government has, knows from
17 Ms. Mayfield, who's testified, that that is something she
18 doesn't go through and try to make decisions. She is the one
19 that puts the stamp on it, not Mr. Libby. And they don't go
20 through and try to make distinctions about classification
21 levels or even classification. They just stamp everything.
22 That's why that was done.
23 It would be completely unfair, in light of what the
24 testimony is that the Government has, to suggest that that is
25 any indication that anyone in Mr. Libby's office thought --
0006
1 THE COURT: There is no testimony about that,
2 wouldn't that potentially be confusing to the jury? And is
3 this really just cumulative of what they already have, if
4 they have 5-A? Isn't that the crux of what your position is?
5 MS. BONAMICI: Well, Your Honor, one step at a time
6 working backward. It's not cumulative to put into evidence a
7 nondisclosure agreement that the defendant signed with
8 respect to a category of classified information for which a
9 piece of evidence is going to come in into evidence. In fact
10 I believe it has already been -- I'm not sure whether it's
11 been put into evidence or not. But it's going to come into
12 evidence, that it was produced to the Government by the
13 defendant.
14 I don't agree with the characterization of the
15 manner in which the particular stamp was placed on this
16 particular document. But that document does bear a stamp
17 that reflects an S.C.I. compartment. That's something over
18 and above your basic classified information. So I don't see
19 how it is prejudicial to put in a nondisclosure agreement
20 that the defendant signed, that reflects the category --

Shortly after that the judge becomes very interested in whether the contention is that Plame fit in one of those compartments. Then they have a sidebar which is, i think, a mini-CIPA hearing. The prosecution more or less gets derailed in its efforts to enter these other NDAs, too confusing to the jury and so forth, and basically gives up on entering the other NDAs. That may explain why in the event the prosecution gave up on making anything of the stamps, and in fact the parties ended up reentering the document without the stamp and the judge gave the jury an instruction about that. Finally, worth noting that the defense argued something should be done about the stamp issue more or less as soon as the prosecution finished its case and did not make anything of it, which might suggest that the prosecution had to do something with it on its own and wasn't just holding it back in case Mayfield or Libby testified for the defense, especially since the prosecution didn't really put up a fight and agreed to removing the stamp from the exhibit and having the judge give an instruction.

[bmaz]

Jeff - For technical legal reasons in trial process, I think you have this pretty much right here as to how it might have played out. I think the prosecution did a quick mental benefit analysis and just decided the effort and further stringing out of the jury with intricate details just was not worth the extra evidence they would generate. In light of the verdict structure, that was clearly a correct analysis.

[KLynn]

bmaz

I get how it was correct then. Is it correct now?

[bmaz]

I am not sure of your question KLynn. Be happy to give the best answer I can if you explain though.

[KLynn]

Are Marcy's findings meaningful despite the direction taken during the trial with this paper trail? I hope this makes sense...
They seem like they could be...

[Tom Maguire]

Re the notion of an espionage charge against Libby for the leak of the Wilson trip three days before Tenet told the world - has anyone bothered to read the statute? My goodness:

Section 793. Gathering, transmitting or losing defense information

(a) Whoever, for the purpose of obtaining information respecting
the national defense with intent or reason to believe that the
information is to be used to the injury of the United States, or to
the advantage of any foreign nation...

I can stop right there - who wants to bet that Fitzgerald is prepared to argue that Libby leaked info about the Wilson trip *with the intent to harm the US* three days before Tenet released the same info in a press statement?

Too funny. And let's not even imagine how the press would react to an Espionage Act prosecution of a harmless, routine leak like that - a leak bracketed by the Wilson op-ed and the Tenet statement.

[bmaz]

Well, you got me there slightly Mr. Maguire. Slightly. I think the use of the term"espionage" by somebody on this thread may be due to an inadvertent use of that term by me on another, earlier, thread. So, this misnomer is probably my fault, but that is not the statute I was referring to some time ago.

[bmaz]

KLynn - Oh, yes, absolutely this is still meaningful. Without question. How it plays out; now that is a better question and one for which I have no clue.

[KLynn]

bmaz @ 7/6/07 00:12

Thanks for your help. To continue...

Is this evidence for the ISOO issue of the Executive Branch that Chaney is fighting against while Congress fights for this oversight? In addition, it appears to be clear evidence agaist LibbyChaney for committing treason? If in fact the "star" on the wall at CIA is in relation to the outing, then, would premeditated murder charges apply (and premeditated attempted muder against Plame)? In my readings, I thought I came across the issue of different charges apply if treason results in death of an agent even if the agent targeted, in the end, did not become the victim. I know crazy, but hey let's pull out all the stops on possibilities!

Is it true this could be brought to Walton's attention by Fitz as "new" information has come to light? Or, can Walton look at it on his own an rule on it - it's in the trial evidence?

In this case, would they (CIA) refer this to Congressional oversight along with continuing further FBI investigating? Would it just be best for Congress to just take this and move on it as their oversight? Would FItz just continue? This is so different from the Ames treason case and yet has legal overtones which are similar.

It appears this could have a multilayered approach to indictment. What is the best approach from the standpoint of "no wrangling or wiggle room" for the administration?

Crazy questioning, I know... But it is better to be asking then sit on my...hands!

[radiofreewill]

"I can stop right there - who wants to bet that Fitzgerald is prepared to argue that Libby leaked info about the Wilson trip *with the intent to harm the US* three days before Tenet released the same info in a press statement?"

Tom - Where is the formal de-classification authorization - within the security protocols - for the Miller leak on the 7th?

It doesn't exist. Libby said he didn't leak to anyone, he heard Valerie's name from Russert on the 10th.

And, it's clear if you review Libby's own make-a-stamp "Treated as..." paperwork, that (besides following no apparent protocol of his own) he has withheld from the prosecution the key 'declassification authorization' he got from Bush via Cheney to disclose something to Miller.

For someone who signed an SF312 - Libby, especially - to leak just the still-classified Trip Report/Summary (or its contents,) outside the protocols, is enough for reasonable suspicion of espionage. For all Libby knew, Miller could have been a spy.

Libby leaked Valerie's name, position, and employment at the CIA. What was Miller's need to know?

How is what Libby did - in transferring classified information - different than what Ames, Pollard, and Walker did?

Except, of course, that Bush and Cheney told him to do it...and in the process, he outed OUR own spy.

Using the "Libby (or by proxy, Bush or Cheney) was just a lunk-head who didn't know what he was doing when he outed OUR National Security Asset and her CIA Front Company" is not a viable defense for someone who has signed an SF312.

When Libby signed his SF312, he knew that leaking classified information outside the protocols is, just by the act, indicative of *intent to harm the US*.

[radiofreewill]

My apologies, the Miller leak was on the 8th.

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