Condi, AIPAC, and the A1 Cut-Out

by emptywheel

You'll recall that the AIPAC defendants called Condi and Stephen Hadley to testify about how they routinely leak classified information. Well, the government claims that these two, at least, don't have to testify.

 

Secretary of State Condoleezza Rice and other senior intelligence officials should not be forced to testify about whether they discussed classified information with pro-Israel lobbyists, federal prosecutors argued in a closed-door court hearing Friday.

Two former American Israel Public Affairs Committee lobbyists facing espionage charges have subpoenaed Rice, National Security Adviser Stephen Hadley, Deputy National Security Adviser Elliott Abrams and several others to testify at their trial next year.

If their testimony is allowed by U.S. District Judge T.S. Ellis III, the trial could offer a behind-the-scenes look at the way U.S. foreign policy is crafted.

(Note, it's unclear whether the government is claiming just Hadley and Rice don't have to testify, or whether they're making the same claim for the others who have been subpoenaed, including Richard Armitage and Anthony Zinni.)

Basically, the Administration is arguing it should be able to keep its strategy of using A1 Cut-Outs secret. By A1 Cut-Out, I'm referring to the Administration's practice of leaking classified information to a journalist--usually at the NYT and, until she was gone, often to Judy Miller--who then publishes it on the front page of the paper. The Administration then points to that story, pretending that they don't know the information remains highly classified. The Administration famously did this with the aluminum tubes story, but it comes in really handy when you're trying to drum up wars against countries whose names have four-letters starting in "Ira."

The claim Hadley and Condi shouldn't have to testify about this practice is completely bogus (no doubt the Administration is worried that Henry Waxman will follow-up on the story). Not least, because Libby effectively admitted to the strategy in his March 24, 2004 grand jury appearance.

Q. And also is it your understanding that if you tell someone classified information that's been published in a newspaper already or is learned from a non-classified source and merely repeated, that you're not committing a crime?

A. It's sort of a complicated question. If, if, if you're telling somebody something that's from public sources, I don't think it's classified. I don't think that's wrong, if you're telling people un -- excuse me, it is wrong -- if you're telling -- if you're talking to someone about what is unclassified, I don't think there's anything wrong with that generally speaking. There may be some odd set of facts, but generally it would be okay. My understanding is that if something has been cleared for use in the press and has been used in the press, that it's been in effect unclassified and is okay to refer to, my understanding is that, technically, if something has appeared in the press through a leak but has not been unclassified, you're not supposed to talk about it. I don't know whether it's a crime or not, but I think you' re not supposed to talk about it.

Q. So that if a -- you knew a fact that was classified in your current position that you learn today from a classified document or a classified briefing, and tomorrow without you playing any role in it whatsoever it ran on the front page of a newspaper, those facts are reported by a columnist that, you know, here is what the government plans to do regarding a certain crisis in the world, and that's a classified fact that appears in the newspaper, do you understand that you're entitled by law to direct other columnists to that article in the newspaper, not saying, "here's what I know is a classified fact," or not saying, "here's what I got from a classified briefing, but you might want to pick up the New York Times and read the story on page one?

A. I'm sort of uncomfortable because I don't know -- I mean, there are a lot of variations of these things and I haven't looked at the law for it, so I'm not totally --

Q. I'm, I'm asking for your state of mind. I'm not asking you to explain the law to the Grand Jury. I'm glad you mentioned that so I can tell them. I'm not asking Mr. Libby as an attorney to tell you what the law is. I'm trying to understand in your mindset what you think the law is, right or wrong.

A. My understanding is, if something is on the front page of the paper because in effect the President has directed that it be put out, that those things are commonly done and people then talk about them. So that if he says, I'm going to do a certain initiative or something and somebody then puts that out publicly, that that's then something that's okay to talk about.

Q. Even if it's classified?

A. Well, I think at that point it wouldn't be classified. But you know, that's why I -- did it get into the paper -- often things get into the paper that the President has told Dr. Rice go talk about. Or that Dr. Rice has cleared or somebody has cleared. I don't mean to keep using her. Secretary Powell has cleared through the process that it's okay to talk about. It's previously in a classified document but they've been told to go talk about it and so they go talk about it, and those things would be okay to talk about because they were cleared through public discussion. Lots of things start as classified and then become unclassified and come out in the paper. But if someone has purloined a document -- stolen a document or something and then that document appears, or a fact appears that there are times when that is not okay to talk about. Safest thing is just not to talk about it. [my emphasis]

You gotta love the fact that Fitzgerald mentions the NYT's A1 specifically here. It probably took a great deal of self-restraint to avoid mentioned Judy specifically.

Libby here is effectively admitting precisely what AIPAC defendants Weissman and Rosen allege--the Administration routinely leaks classified information in the interest of advancing a particular policy agenda.

And while I do think the FBI has real concerns about their activities, this challenge raises a really good point. How can you charge two guys for espionage when the Administration's own actions basically sanction precisely the behavior they've been charged with? How can you charge someone else for leaking classified information when top Administration officials do it routinely?

No wonder Cheney doesn't want to release details of the materials he has classified and declassified.

Comments

[JohnLopresti]

There was an announcement of another opportunity scheduled to ask that A-1 Cutout in person at an event six weeks from now the reporter's perspective.

[Ishmael]

Good work by the AIPAC lawyers, right out of the greymail playbook. If they succeed in getting the subpoenas, look for a quick resolution of the case on "national security" grounds.

[earlofhuntingdon]

Private conversations not intended for public dislcosure among administration officials and representatives of foreign govts should be and are protected from disclosure. Identical conversations with reporters, where the discloser intends the information to be made public, ought not be protected. There's a fundamental difference. One is the conduct of diplomacy. The other is psy-ops, propaganda or message management intended to influence public debate.

[JohnLopresti]

Information is a form of patronage, though some reporting last spring concerning the ruckus about purged US attorneys seemed to indicate actual checkwriting might have been involved in one instance to keep the influence streamflow fluid.

[Sara]

Odd -- the rules on Security Clearance are quite clear. Anyone who has a clearance is prohibited from either confirming or denying anything they have learned from classified sources without first checking to see whether something has been properly declassified.

In otherwords if the NYTimes published the information that yes indeed the Moon is made of Green Cheese, and we have budgeted X Dollars to send mice up to eat it, and that was classified, anyone with a security clearance is prohibited from comment until they check the proper classification of the initial intelligence or classification status of the mouse translunar program.

[readerOfTeaLeaves]

Fits in perfectly with the 'we create our own reality' School of Mediated Politics. It must be quite a rush repeatedly punking the press, the public, and Congress. And for narcissists who require constant admiration to shore up their fundamentally weak sense of personal superiority, it must REALLY be a rush. One can safely assume that Punking the World provides a stronger rush than even coke or booze. Like drugs, it's probably addictive; dopamine receptors in the brains of Bu$hCo members and their allies probably demand their daily hit of "punk'd 'em!" , dopamine-delivered euphoria.

Maybe these asshats aren't so stupid, after all. This strategy is perfect:
1. They don't have to articulate policy.
2. They don't have to defend policy.
3. They don't have to provide documentation, nor be accountable.
4. They can't be questioned -- after all, THEY haven't said anything.
5. They deny anything unpleasant.
6. They can't be ridiculed, nor scorned, since THEY haven't done anything.
7. If anything does go wrong, they're the 'victims' -- in every instance.

Actually, one ought to marvel at how well this has worked for Bu$hCo and its allies in oil, energy, and god-only-knows-where-else. It's an ideal strategy for any narcissist with an inflated sense of superiority, who can't tolerate being questioned, ridiculed, nor threatened. Works perfect, every time.

Which means that until Congress and the press play by Different Rules, Bu$hCo will continue to punk us all. For Example # 8,925,634, see: "Iran, War in the Offing" click on the NYT website today.

[Elvis Elvisberg]

I guess Ishmael's reaction must be the right one-- this is about trying to get the administration to call the prosecutors off.

Because I don't see why it helps the defendants as a legal matter. Obviously it helps on sympathy and theatrics, but the statute presumably doesn't include a "it's ok to jump off a bridge if all your friends are doing it" provision.

[R.H. Green]

The final question(from Fitzgerald?)in this otherwise helpful article seems nonsensical. It might be that there is the superflous word "I" in the phrase, "...that I had been given...". Makes more sense without the "I". Sorry for the minutia.

[Rick B]

How can you charge two guys for espionage when the Administration's own actions basically sanction precisely the behavior they've been charged with? How can you charge someone else for leaking classified information when top Administration officials do it routinely?

How?

Easy. Charge them and try them. If they make the effort to defend themselves by saying "Our political superiors are doing it." force them to name names and charge them also. If they don't use that defense, send them to prison and let everyone know it is still a crime.

It is a crime to follow an illegal order. It is even worse to perform an illegal act "Because they did it."

How can you charge them? Simple. The prosecutor just has to do his job of enforcing the law.

[Mary]

RickB - the guys who are being charged don't fall in that scenario.

The AIPAC trial is a very weird trial. What you have was the "first round" trial of a guy named Larry Franklin and your argument would have applied there. He was charged with meeting with "lobbyists" and a "diplomat" with the Israeli embassy too IIRC, and passing on classified info about the US plans vis a vis Iran (they weren't warlike enough for Franklin) in his hopes that Israelis would be able to bring more pressure to bear on the Administration to go to war with Iran.

But the current trial involves the lobbyists to whom Franklin TOLD the information. They are being charged because he TOLD them classified info. It really is the case and the rulings that will open the door to the suits against reporter like Dana Priest who were told classified info about black sites and torture.

In any event, the lobbyists are claiming that sure, Franklin told them stuff about Iran - but hell, everyone in Washington was telling them stuff - some of it the same stuff - about Iran. So how where they supposed to know that it was ok when Hadley and Rice and others would tell them something, but when Franklin told them the same thing it was a crime for them to hear it from him?

In essence - and I've oversimplified and overstated on the lobbyists behalf, but that is the easiest distillation.

EW - don't forget Abrams when you query about others who have been subpoenaed, including Richard Armitage and Anthony Zinni

[emptywheel]

Mary

I presume Abrams would get the same treatment as Condi (from when she was NSA) and Hadley (now in that position, then her Deputy). That is, I think you can make an argument that members of the National Security Council don't have to testify, since they're counselors to the President. Armitage and Zinni are more remote.

Though it's not clear from the story whetehr that's what the govt is arguing--or whether they're arguing something broader.

[MarkH]

Shouldn't they be able to make the point that THEY are not under any obligation to censure themselves on anything, as they never took an oath to protect classified information?

Couldn't they point to Robert Novak as someone who received and published classified information (NOC Plame job/work) as an example of this occurring and not being punishable?

Couldn't they ask specifically for the legal code which they were supposed to be bound to? It doesn't exist as I've never seen it and I'm as civilian as they were.

The whole case is bogus and just an attempt to scare journalists into not printing some things.

That they do ask journalists to print classified information is quite amazing and should lead to prosecutions on it's own accord. Who could have imagined that leaking classified information could be punishable by 20-life in a high security prison?

[readerOfTeaLeaves]

Since the A-1 won't work unless it's secret, it's going to remain secret.
If you don't believe that the law applies to you, you simply don't apply it to your own actions.
So far, this strategy has served BushCheney magnificently.

Too bad about those lobbyists.

[bmaz]

I guess the thing that strikes me about this case is the fervor with which the government pursues the AIPAC boys with on charges that easily could have been tailored to fit a whole host of people in the Plame outing, but were laughed off.

[dipper]

R of TL:

I think you've nailed it.