Clowns to the left of me / Jokers to the right, here I am / Stuck in the middle with you.

Sorry for the lull – work is crazy busy and I went on our annual Memorial Day motorcycle trip on the new bike.

I’m almost done with Nick Cohen’s ‘What’s Left’ and loving it – he’s talking about Bad Philosophy and Dirty Hands like he’s been reading me. I wish it was a little less polemical, but will have a lot to say about the book if I can get a few hours to put something together.

But what prompted me to write and use the Stealers Wheel lyric as a title were two newsblips – Newsweek’s trumpeting that Valerie Plame was, in fact ‘covert’, and the Washington Times stirring the pot on Annie Jacobsen’s instabook charges that Northwest Flight 327 was a terrorist dry run.

Boy, I’m just shaking my head over both of these.First, let’s go to the left side of the board.

Glenn Greenwald (writing as himself) trumpets this on Salon: Right-wing noise machine: Plame not covert. Well, great – except that it’s prosecutor Fitzgerald’s filing that makes the claim. Now there’s an obvious joke about leftists, Stalin, and show trials, but personally, I’m unhappy with the thought that Greenwald might grant someone – say, Patterico – the right to make claims like these and suddenly enshrine them as fact. When the legal process concludes that she was covert, I’ll happily accept that determination – and even apologize to whichever of Greenwald’s personae he deems appropriate.

Now, the right.

In the Washington Times, Audrey Hudson comments on the release of a federal report on how the Flight 327 incident was handled and leaps directly to the Isle of Conclusion:

The inspector general for Homeland Security late Friday released new details of what federal air marshals say was a terrorist dry run aboard Northwest Airlines Flight 327 from Detroit to Los Angeles on June 29, 2004.

Several portions of the report remain redacted. The release stems from a Freedom of Information request by The Washington Times in April 2006. The Times first reported on July 22 that this and other probes and dry runs were occurring on commercial flights since the September 11 terrorist attacks.

Let’s be clear. Nothing in the report (pdf available here) makes that conclusion. I’ll repeat. Nowhere that I could find it in the real report was it so concluded.

Hudson cites current and former air marshals:

“This report is evidence of Homeland Security executives attempting to downplay and cover up an unmistakable dry run that forced flight attendants to reveal the air marshals and compel the pilots to open the flight deck door,” said Robert MacLean, a former air marshal who was fired last year for revealing that the service planned to cut back on protection for long-distance flights to save money.

Look, I think our air marshall program is inadequate. I know that the agencies running them are bureaucracies full of careerist trolls.

But none of this is remotely dispositive. Patterico thinks that the marshalls onsite – the ones who said “We Don’t Freak Out In Situations Like This.” – are in CYA mode. C’mon Patrick – that’s silly. They made contemporaneous comments to that effect. They controlled the situation. And to bring up what they said at the time:

LOS ANGELES | July 22, 2004 – Undercover federal air marshals on board a June 29 Northwest airlines flight from Detroit to LAX identified themselves after a passenger, “overreacted,” to a group of middle-eastern men on board, federal officials and sources have told KFI NEWS.

The passenger, later identified as Annie Jacobsen, was in danger of panicking other passengers and creating a larger problem on the plane, according to a source close to the secretive federal protective service. (hat tip Patterico)

I’ve written a bunch about this, and nothing here (in the current blog posts, news articles, or in the report itself) changes my view of what probably happened or of the relatively useless morass airport security has become.

XLRQ cites the report:

Other Comments
TSA noted in comments that it disagreed with our report language that there was a lack of coordinated action between the FAMS and FBI. Our audit identified examples where the Department’s investigators were interviewing individuals and taking other investigative actions without the direction or knowledge of the FBI. Because we also found activities where the FBI and the Department were clearly coordinated, we revised the report language to say the investigations were “sometimes” uncoordinated.

TSA also commented that it believed a referral of the suspicious activity that occurred on Flight 327 did not merit referral to the HSOC. TSA’s comments note, “The decision not to contact the HSOC was decided only after the FAMS and FBI leadership jointly determined that the subjects could be cleared. The reported suspicious activity was determined to be unfounded, and not a terrorist threat and therefore did not merit an HSOC referral.” We believe the HSOC clearly signaled a referral was merited by logging the Flight 327 matter into its database on July 26, 2004, following a July 22, 2005 Washington Times article, and an inquiry from the White House Homeland Security Council.

So the air marshals onsite are in CYA mode – but the bureaucrats in Washington aren’t?

109 thoughts on “Clowns to the left of me / Jokers to the right, here I am / Stuck in the middle with you.”

  1. A.L., I don’t think you are being entirely fair here. I haven’t read Newsweek’s account, but I did read Greenwald and there’s virtually no difference between your account and his, i.e. that the claim of “cover” is according to Fitz and documents in his filing. Your post suggests that Greenwald does NOT attribute the claim to Fitzgerald’s fillings.

    What’s more, Greenwald’s post is about the other side having made “unequivocal” claims that she was not covert and he backs up this with many examples.

    But for the life of me, I can’t see what’s wrong with Greenwald posting that Fitzgerald is claiming she was covert.

  2. This is Greenwald’ claim: “Yesterday’s story about Plame’s covert status is based upon the CIA’s own internal documents. Those are consistent with the initial conclusion of the CIA that she was covert, the subsequent confirmation from the current CIA Director (handpicked by Bush and Cheney) that she is covert, which in turn was confirmed by Plame herself when testifying under oath, as well as by the Republican prosecutor’s emphatic claims in court.”

    I believe the story he is referring to is an NBC report, but I could be wrong about that. You can disagree with all those listed who claim she was covert, but there is surely nothing wrong with listing them to support your belief she was covert.

  3. _as well as by the Republican prosecutor’s emphatic claims in court.”_

    For which he was chastized by the judge, right?

  4. _”as well as by the Republican prosecutor’s emphatic claims in court.”_

    I didnt realize there was an office for _Republican_ prosecutors. Is that an elected or appointed position? How many years of kicking the elderly and dispensing ketchup soup does it take to qualify?

    It was a claim by THE prosecutor. Which holds equal weight to whatever the defense lawyer decides to posit.

  5. The details make it clear that it was indeed a terrorist dry run.

    Men from Syria, a State Sponsor of Terrorism, and assassin of Heads of State. Behaving in a terrorist fashion. The second time from that particular promoter.

    If someone burns a cross on the front lawn of a black man, I don’t need the government to tell me that’s a hate crime.

    The actions speak for themselves. A terrorist dry run.

    Rushing to the cockpit, at the last minute diverting to the first class bathroom, pretending not to know each other, switching seats to block all emergency exits, going into the bathroom with a McDonald’s bag and making the thumbs up sign, etc. are all marks of a terrorist dry run designed to measure responses of the flight crew and possible air marshals as well as the passengers.

    What this episode shows is that political correctness takes a back seat to passenger safety and the safety of those on the ground. Lesson: passengers are on their own and ought to act accordingly. The life they save will indeed not just be their own but others as well.

    The Syrians should have been sent to Gitmo for an extended stay. However, PC platitudes ruled the day.

  6. Mark B.,

    “I didnt realize there was an office for Republican prosecutors.” Too bad you weren’t Monica Goodling’s boss.

  7. Touche. The problem with trying to defend this administration on any one thing is the ridiculous amount of crap they _did_ try to get away with.

  8. Jim, I’ve written about this ad nauseum. They didn’t commit a terrorist act, unless terrorizing a nervous soccer mom constitutes terrorism – in which case we have a whole new set of problems.

    And it’s not political correctness that leads me to this – it’s good tactics.

    It was absolutely worth detaining them and the air marshals were absolutely right to be all over them. But they checked out clean – read the report, they really did – of anything except behaving badly on an airplane. And if that’s Gitmo-worthy, I’ve got a few dozen people I’d like shipped there from my last flight from Las Vegas.


  9. A.L., not at all. I was merely quoting Greenwald to show that his claim is not the unreasonable or clownish claim that you made it out to be. I think his portrayal of the known facts is fairly accurate and that the conclusion he draws from them is a reasonable one.

    I would add that, generally speaking, we are all free to draw our own conclusions prior to the legal process running its lenghty course and that even then we are free to disagree with what the legal process decides.

  10. I’ll burn in Hell with a French poodle in my ass before I’ll pay those Salon hacks to read Glenn Greenwald. There are plenty of neanderthal trolls out there giving away better stuff for free.

  11. mark – I’ll disagree, with the caveat that puffery and strong claims are an inherent part of the political process (even when made by a sitting President…). I reread Greenwald’s post in case I’d been too hasty (which I sometimes am) and his tone is clear; those who claimed otherwise were liars, etc.

    OK, the prosecutor made a claim. That’s material, but I value our system of governance in which not only are his claims no greater than those made by the defense lawyer – they are actually devalued compared to those of the defense.

    Much like the Flight 327 hand-waving, Greenwald’s attempts to produce truth from strongly-made argument. Maybe, maybe not. But I’m, not calling the Syrian musicians terrorists based on what I see, nor am I calling those who challenged Plame’s status (including me) wrong based on what’s here.


  12. Okay, so I clicked the sponsor logo, read an extra page of ads, and then I got the article.

    Boy, was that worth the effort. 90% of the article is quotes, and the other 10% consists of the word “right-wing”. I guess I can rest assured that it was actually written by Greenwald, and is not a forgery concocted by Karl Rove. It even includes a comment section, so Glenn’s sock puppets can heap praise on him.

    If this is representative of Salon’s premium content, I find it highly suspicious that people are making money selling such dishwater, especially people who are so cozy with the goddamn CIA.

  13. A.L.

    You are two for two with this post. I appreciate your careful parsing of the Washington Times. Basically, the Times found three disgruntled (ex) air marshals who are second-guessing their former colleagues who were on the plane. OK, I didn’t expect even that much. But in view of the fact the FBI and the TSA and the DHS all seem to feel that the musicians weren’t terrorists, it’s still an uphill climb.

    And while I think Plame was a covert agent, it’s finally determined when the judge says so in his sentencing, not when the prosecutor say so in his request. (Many of the explanations of why Plame wasn’t covert turn on 007-inspired beliefs of what NOCs can and can’t do, which are silly—but we’ll soon be to the bottom of this.)

  14. A.L., I wish I could just let this go but I think I have a point worth making here. There’s also an unnoticed irony. You & Greenwald are making miror image claims: he, that claims against Plame’s covertness are not the indisputable facts that the makers say they are; and you, that claims for her covertness are not the indisputable fact the makers say they are. But you take him to task for this, while allowing yourself a great deal more latitude.

    Greenwald’s post is principally dedicated to arguing AGAINST a host of people who have argued that her un-covertness is a FACT. Surely, you must side with him on this point. I don’t think anyone can read his post and argue that this is not his chief point. He uses new “evidence”–the NBC report–to bolster his case that the claims against Plame are far from proven FACTs, and he, Greenwald, shows examples of such assertions. Just as you claimed that her covertness is not FACT. But Greenwald doesn’t say it is FACT. Obviously he believes Plame was covert and believes he has good reasons for that belief.

    But the point he’s pushing here (or there, rather) is the exact same point you are pushing…though I think you have chosen a bad example.

    That the prosecutor has made the claim is, as you say, material. I’d say it’s material enough to say the claim is a reasonable one to make.

  15. mark – he’s not claiming that “she may be or likely is” and that the people who said otherwise are wrong, he’s saying that she IS and that the people who say otherwise are liars.

    Does that distinction make sense?


  16. A.L., yes the distinction makes sense but I don’t think it is appropriate. I think that you are saying that she is not….meaning, of course, that in your considered opinion she is not….in the same way that he is saying she is. I don’t think he is saying that the others that he quoted were liars so much as that they were willfully ignoring sound evidence that suggested that their opinions were not settled fact and were actually presenting their opinions as fact (much as you are accusing him of presenting his opinions as fact).

    Look A.L., I’ve never heard of this Greenwald guy before today. Maybe he has a history that you are aware of that I am not of going over the top. The post you linked to today of his, however, just doesn’t strike me as an example of any egregious, clownish argument that ought to lead to head-shaking. In fact, it reads very much like the kind of post that is frequently found on here on WoC. Only, of course, the conclusion is one that is frowned upon by most of this site’s regular contributors. I just don’t thnk you were playing fair in this instance. No one’s perfect.

    Again, mabye he deserves your ire based on performance over time and I just walked in on the wrong day.

  17. AJL: _And while I think Plame was a covert agent, it’s finally determined when the judge says so in his sentencing, not when the prosecutor say so in his request._

    Wait a minute, I thought AJL and I had some sort of “loose understanding”: on the Plame case.

    In any event, I still think that Fitz. didn’t *know* her status. He certainly knew information which he could use to argue that she might be covered by the statute (which I don’t think is synonymous with “covert”), but the issue entailed too many evidentiary, legal, constitutional and practical problems for a perjury case. The defense repeatedly indicated its desire to litigate the “covert” status issue, and the prosecution wouldn’t allow it or access to the info. And now after the cheap shot in closing argument, Fitz. makes another cheap shot at sentencing. I hope someday when I face a jail sentence, I get an opportunity to confront the information used against me.

    I decry such criminalization of politics in the future President Clinton administration.

  18. AL –

    I have to agree with you about the “relatively useless morass airport security has become”, but having now read the IG report, I agree with the “terrorized soccer mom” over you.

    Nothing in the report (see pages 8 and 9 and Exhibit C) indicates that the marshals had to disclose their identity because of the concerned passagners. Indeed, on page 44 it indicates that the female concerned passanger (presumably Ms. Jacobson) thought that the guy standing in the aisle with his arms crossed for much of the flight was an Air Marshal, but in fact he was another passanger who was also (and apparently independently) concerned about what he saw.

    I also note that the promoter was involved in a previous air incident in January 2004 (page 4 and elsewhere), that he had become a resident alien less then a year earlier (page 31), and that there was something redacted about his return flight to the US following all of this (page 36). I am also disturbed that they questioned the second bnad member using the promoter as an interpreter, since the guy claimed not to speak english (page 33)(I am unclear whether this is the same guy they moved from the exit row who claimed not to understand english when he was asked to move but who had spoken english with the gate agent upon check-in).

    The visas for the group in question had expired only a couple of days before all of this and the paperwork was pending (and later issued) to extend them, so I am not terribly concerned about that (I was before I read this entire thing).

    And yes, the report to the HSOC after everything hit the papers is certainly CYA-ing in DC.

    I also read the Wash Times article to say the “conclusions” were those of a fired Air Marshal, not the IG report.

    Bottom line – this could be a dry run probe and to think so appears entirely justified by the facts as laid out in the IG report. That probably does not rise the level of “legal proof” however, so not locking everyone up is not surprising.

  19. Greenwald puts more thought into one sentence than you put into an entire month’s worth of posts, at best.

    mark, he should be on your daily read list. He’s by no means deserving of the simple-minded criticism by the One-Armed Liberal.

  20. Capotal, you’re not writing from Brazil, are you? – that’s the problem with credibility, you know. Once you pawn it…

    mark – I get your point. I don’t believe she was, and I believe that those who claimed she was were wrong, but a) that doesn’t make them liars – there’s a legitimate argument to make that she was or was close enough to matter – and b) I understand that like guilt, it’s ultimately a legal determination that will be made through the legal process, and I’ll accept the outcome of that process (absent some glaring issue).

    Is that better?


  21. It’s simply preposterous to claim – which is the gist of the right-wing argument at present (see, eg: AL’s post) – that Fitzgerald is lying through his teeth about the summary of employment.

    That’s just not a serious argument. At a minimum, Fitz’s claims are due some serious deference, since lying in this manner would open him to serious ethics sanctions.

    I eagerly await AL’s post about how Vince Foster’s death is connected to this somehow.

  22. the issue entailed too many evidentiary, legal, constitutional and practical problems for a perjury case.

    You’ve got it completely backwards. The factual issues that constitute “covert status” per the statute are very easy to discern if one has the sources available; the kicker is the question of intent.

  23. The defense repeatedly indicated its desire to litigate the “covert” status issue, and the prosecution wouldn’t allow it or access to the info.

    Why, I simply couldn’t imagine why a prosecutor would try to exclude arguments irrelevant to the crime at hand that would muddy the waters.

  24. jpe – prosecutors make all kinds of claims that are later adjudicated not to be true and yet they keep their licenses to practice law – or that’s the way I’m told it’s supposed to work.


  25. Let’s be clear: Anne Jacobsen is not a soccer mom. She was a right-wing pundit before the flight as well as after. You could argue that her punditry experience made her especially sensitive (rightly or wrongly) to the behavior of a group of Middle Easterners. You could also argue she saw a heaven-sent chance to do something even Michelle Malkin never did, to participate in the news instead of just comment on it.

  26. AJL –

    Frighteningly, this is another place I agree with you…if she wasn’t so self-promoting in the whole thing, I’d feel less cynical about this whole thing.


  27. _Why, I simply couldn’t imagine why a prosecutor would try to exclude arguments irrelevant to the crime at hand that would muddy the waters._

    If its irrelevant, why does Fitzgerald’s sentencing recommendation key on Plame’s “covert” status? How many months in jail is Libby expected to serve due to her “covert” status, an issue the defense was not allowed to investigate and challenge?

    I hope the answer is zero, and the judge won’t allow it. But is Fitzgerald bringing this up for sentencing purposes or to deflect personal criticism?

  28. AL,

    In fairness, it’s possible for people with squeaky-clean records to conduct a dry run for the benefit of ideological allies or even just personal friends. Indeed, you’d hope that people without clean records in this regard wouldn’t get visas or be flying in large groups.

    Which is not to say this was actually a dry run, just that the fact that they didn’t have Osama on speed dial doesn’t prove its all A-OK.

    And while I think Plame was a covert agent, it’s finally determined when the judge says so in his sentencing

    I see no reason to expect the judge to say anything about it, and also no reason to think that the judge would know enough to form an opinion.

  29. PD, I think I can explain. Plame’s covert status is irrelevant to the charge against Libby of lying. He either lied or he didn’t lie and Plame’s covert status (or lack thereof) is not material.

    However, during sentencing, the judge can take extenuating circumstances (for or against) into account in determining just where to chose along the range of possible sentences. Since Libby was covicted of lying, if the lie did little harm, then the sentence should be lighter than if the lie had harmful consequencs. If she was covert, and Libby’s lies prevented Fitzgerald from carrying out his investigation, then you might expect a harsher sentence.

  30. mark, when Padilla gets convincted, does the government in the sentencing phase get to give the judge all the previously undisclosed FBI/CIA reports on Padilla’s involvement with dirty bomb plots and high-level al-Qaeda meatings? I say they shouldn’t.

  31. Pd, I don’t think that’s the same thing. Alleged crimes not convicted of shouldn’t be allowed. This is entirely different. If I was convicted of murdering you, your mom could tell the court how much she missed you, what a great guy you were, and your wife could explain how you supported 3 kids, etc., etc. etc., in determing how much damage I cause by my act. If Plame was covert and exposure damaged her career and Libby obstructed justice in obstructing the investigation to determine and convict the culprit then more damage was done than had she not been covert. At least that’s the argument as I understand it and on its face, it seems a reasonabe one.

  32. _If Plame was covert and exposure damaged her career and Libby obstructed justice in obstructing the investigation to determine and convict the culprit then more damage was done than had she not been covert._

    I understand that. But the defense asked for information prior to trial that would allow them to independently determine whether she was covert. They were not allowed because it was legally irrelevant.

    Now we are sentencing it is relevant? Fine. Shouldn’t the defense now get access to the information previously denied as irrelevant? Shouldn’t they get the opportunity to cross-examine CIA personnel, including Plame? If they get that opportunity, then I am probably satisfied, but that’s not my understanding of the role of the sentencing memorandum.

    _Alleged crimes not convicted of shouldn’t be allowed. This is entirely different. If I was convicted of murdering you, your mom could tell the court how much she missed you, what a great guy you were, and your wife could explain how you supported 3 kids, etc., etc. etc., in determing how much damage I cause by my act._

    I disagree. Plame’s “covert” status is an element of a crime. The term has no meaning other than as an element of crime. This is a far cry from evidence at a sentencing that the victim has suffered and the defendant’s family would suffer.

  33. PD, I don’t see how her status can be considered an element of the crime, which was lying to a grand jury, lying to FBI officers and obstrucing justice.

  34. Since we’re on the subject of Plame again, I think Fitzgerald summed it up with:

    Let me say two things. Number one, I am not speaking to whether or not Valerie Wilson was covert. And anything I say is not intended to say anything beyond this: that she was a CIA officer from January 1st, 2002, forward. I will confirm that her association with the CIA was classified at that time through July 2003. And all I’ll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent. We have not charged that. And so I’m not making that assertion. [October 28, 2005]

    Lawyerly obfustication or not, it seems clear enough to me. If he could make the case that Plame was covert, I doubt he would have failed to bring that extra barrel of pitch to the witch-burning.

    And I’ll ask my perennial Plame questions again:

    1) Since when do covert CIA agents allow themselves to be photographed for Vanity Fair magazine, when undercover FBI agents avoid having their pictures taken even at private occasions?

    2) If blowing Plame was such a huge deal, who made it one? If Wilson and Plame hadn’t started screaming at the top of their lungs, this would have been forgotten as soon as it happened. Thanks to them, everybody who cares is now aware of the CIA-front company in New Jersey that she was working for, and if she was jeopardized then her own publicity-seeking has jeopardized everybody else connected with it.

    3) What are covert CIA agents doing getting mixed up in diplomatic and State Department business?

    4) What gives alleged patriots like Plame, Wilson and the preposterous Larry Johnson the right to attack the executive officials under whose authority they operate? Are they arguing that their careers are more important than executive authority, or that politics is more important? Or is the chance to damage Bush/Cheney more important than anything?

    5) Why is Robert Novak getting a free pass here? Is it because he is a fellow anti-war Israel-basher?

    6) Why is David Corn of The Nation, who was the first to publicize Plame by name as a “covert” agent, getting a free pass? Maybe Hillary Clinton is justing lying in wait, ready to have the IRS audit him as soon as she gets her mitts back on the power levers.

    7) What is the status of a “covert” CIA agent in the United States, where the CIA has no writ to operate, and why is the paranoid left so lacking in curiosity about that?

  35. Fitzgerald is seeking to sentence Libby for the charges about lying *and* the charges for violating the Identities Protection Act (which created the “covert” status) and the Espionage Act. Fitzgerald:

    bq. *Because the investigation defendant was convicted of endeavoring to obstruct focused on violations of the IIPA and the Espionage Act, pursuant to USSG s. 2J1.2(c)(1), the court much calculate defendant’s offense level by reference to the guidelines applicable to such violations.*

    “Here at page 8″:

    The Probation Office disagrees, asserting the Libby was never tried for those offenses, nor were they proven at trial. (Page 10) Nor would I add was Libby given the opportunity to confront the evidence of these new charges or cross-examine the witnesses against him.

  36. If I’m reading this correctly, Fitzgerald believes that if one obstructed an investigation into murder, it would be appropriate for him to ask for the death penalty at this point. If subsequent investigation revealed that no murder took place (it was a suicide), murder would still provide the sentencing framework, but the judge would have discretion to depart from the sentencing guidelines. (Page 13)

    No investigation needed here. Fitzgerald knows. Sleep well liberals.

  37. Mostly I’m just waiting for the judge, but I’m again struck by the non sequitur nature of so many arguments against Plame. Using Glen’s numbering.

    (1): Sometimes successful covert agents are highly photographed. Ever seen a baseball card of Moe Berg? Read about Eli Cohen? Some FBI undercover agents are going to be re-used, probably with a different cover story. Lifetime agents like Plame, Berg, and Cohen are leading cover lives that are as natural as possible. The defense of the White House involves creating “rules” for covert agents that are historically inaccurate and often defy common sense.

    (6): Are you seriously suggesting that the reference “Wilson’s wife” is not an outing of Plame in a place where marriages are public records? Corn gets a pass because his article was subsequent to the outing of Wilson’s wife. (Would you like to argue that had Novak had written V-lerie P-ame, Corn would still be to blame?)

    (7): Another argument not really worth the bytes that went into it. No one is suggesting that Plame was involved in (potentially unlawful) counter-espionage or black bag jobs within the United States. Her status as a covert agent should have been kept hidden after her return to (a) protect the front Brewster-Jennings, (b) protect her from retaliation, (c) protect her sources overseas, and (d) protect the intelligence she had gathered from actions foreign powers might take if aware their secrets had been compromised. The reason the left is not interested in this question is that it is stupid. Is the Wishard right calling for the execution of all agents stationed abroad, on the grounds they can not be permitted back into the United States? If not, it shouldn’t waste everyone’s time with such fabricated, almost facetious, gotcha “arguments”.

  38. TalkLeft has Libby’s response, which includes better references to the Probation report. Summary:

    bq. Turns out, the Probation Department calculated Libby’s guidelines at 15 to 21 months, before applying any departures. And, it found at least three grounds for departure from the guidelines . . .

    bq. If the Court agrees with the Probation Department and Team Libby that the base offense level is 14 and no enhancements apply, all Libby needs is a 2 point departure to reach a level 12 and a split sentence range of five months in prison and five months on home detention (think, Martha Stewart.)

    bq. If the court agrees more than one departure ground is warranted, Libby’s guidelines would likely be in the probationary range and it’s unlikely Libby will be sentenced to any time.


  39. AJL:

    Her status as a covert agent should have been kept hidden after her return to (a) protect the front Brewster-Jennings, (b) protect her from retaliation, (c) protect her sources overseas, and (d) protect the intelligence she had gathered from actions foreign powers might take if aware their secrets had been compromised.

    How do her subsequent actions reflect a desire to all of those things? Apart from protecting herself from retaliation by the foreign powers she spied on – a very minor concern once you’re back at Langley – she shows no interest in anything except money, publicity, and smearing administration officials with wild accusations.

    I’m glad the left is concerned about the safety of agents abroad. They showed no such concern when Counterspy revealed dozens of such agents, at least one of whom was assassinated.

    They had no enthusiasm for the law that was enacted by Congress as a result of Robert Welch’s murder, either. Incidentally, some have drawn a parallel between the administration’s position and the defense offered by Counterspy: that Welch had already been blown in a foreign publication.

    The same parallel applies to Plame. Congress rejected Counterspy’s explanation on the grounds that revealing information is not the same thing as publicizing it. Which is exactly what Plame has done, splashing it all over the media to a far greater extent than Counterspy ever could have. How this might affect persons other than Saint Valerie Plame, and future operations, is still not explained.

  40. AJL –

    BTW, I don’t care whether you blame Novak or Corn. Nobody seems interested in blaming either one of them, since there’s no political payoff. Corn and Isikoff did more than anybody else to turn this into a story, so I guess Scooter Libby’s scalp rightfully belongs to them. Those who are obsessed with hatred and revenge for imaginary conspiracies owe them congratulations. (And that will be quite a heap of congratulations.)

    As for Novak, he has repeatedly said that he hunted out the information he printed, and that nobody came to him with it. Since Novak is as much an enemy of Bush ME policy as Wilson and Plame are, he doesn’t fit the script that the left has written for this heart-wrenching drama, so he gets edited out.

    Finding out that the source was Richard Armitage was a real anticlimax too. At that point Corn and Isikoff started distancing themselves from he plot they’d written themselves, in which evil Bushers punished Wilson and Plame.

    But at least they got somebody for something, and when your ideology is 90% mindless spleen, that certainly counts for something, doesn’t it?

  41. Glen, once Plame was outed, she was outed. Along with the front company and everything else. What she chose to do after that didn’t matter one damn bit in terms of the issues I outlined (and you know it).

  42. AJL:

    What she chose to do after that didn’t matter one damn bit in terms of the issues I outlined (and you know it).

    No, I don’t know any such thing, and that’s where we disagree.

    There was a lot of talk about how the Bush administration compromised national security to “get” Joe Wilson. Well, that scenario has utterly evaporated. The only motives are on the other side, and the question is what those motives are and what they hope to achieve.

    I think “Christopher Hitchens”: summed it up better than I could, though I don’t agree with him that the Intelligence Identities Protection Act is “appalling and unconstitutional”.

  43. PD, perhaps the judge will rule differently and with good reason…I don’t know, I’m not a lawyer. All I am suggesting is that I believe evidence of a crime and evidence of the consequences of a crime are treated differently under the law and this seems to be a reasonable thing.

    As I understand it, there’s a set of rules regarding what is and what is not allowable as evidence during a trial for a crime. During a sentencing hearing the rules of evidence to determine what the consequences of that crime were are somewhat different. They are presented to a judge, rather than a jury, who has wider lattitude than a jury in making a determinations. I guess he will use his judgement, what whith being a judge and all.

    My understanding is that Fitzgerald will make a claim that she was covert using a summary statement from the CIA declaring her so. Libby’s lawyers no doubt will make a counter claim.

    Again, this seems a reasonable process to me.

  44. “An unclassified summary of outed CIA officer Valerie Plame’s employment history at the spy agency, disclosed for the first time today in a court filing by Special Counsel Patrick Fitzgerald, indicates that Plame was “covert” when her name became public in July 2003.”

    AL sort of suggests that this is merely a slick statement by a slick lawyer and dismisses as such. This perspective is dishonest. Anyone could check the CIA doc.s and verify. The CIA has held all along that Plame was covert. That is why they brought this case to the prosecutor’s attention.

    For all of you stating that Plame’s status should not have a bearing on sentencing, you are just plain wrong. Extenuating circumstances are normally and appropriately taken into account by the court. Happens a thousand times a day across our great land.

    Say there are two cases of obstruction of justice. Case 1. A man has witnessed a jay walking incident. No one was hurt or anything, the cops just want to know who to give the ticket to. Case 2. A man has witnessed a soddomy and murder of an 8 year old child, but refuses to reveal the identity of the perp. Same law broken by both men. Do you really suppose the punishment should be equal?????

    Come on. This is pretty simple stuff made complex only by the rightwing’s need to try to rationalize away the fact that their leaders are treasonous slime.

  45. PD, mark,

    IAAL, and this sort of thing is quite literally my bread and butter.

    Mark’s right about part of it: judges can consider things at sentencing that they wouldn’t at trial. The trial is about guilt of a specific offense; things like mitigating and aggravating circumstances are likely to bias the jury, so they stay out. But, as avedis correctly points out, the “badness” of an offense depends partly on those circumstances, and is appropriate in deciding the sentence.

    As to Fitz’s argument that he gets to use the sentencing guidelines for crimes neither charged nor convicted, I will not express my personal opinion. Rather, I will quote from the Sentencing Guildelines section 1B1.2(a):

    Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e. the offense conduct charged in the count of the indictment or information of which the defendant was convicted).

  46. _”The CIA has held all along that Plame was covert.”_

    The CIA doesnt get to decide post facto who is covert. There is very specific law delineating that.

    You guys are right that this all goes towards extenuating circumstance rather than guilt or innocence- but that should actually help Libby. Realistically Plame was working out of Langely and even if she was found to be covert by the letter of the law, she was never going back over seas and certainly not in any more danger than before. It wouldn’t take James Angelton to figure out the woman that drove to CIA headquarters everyday was CIA.

  47. Mark B.,

    “The CIA doesnt get to decide post facto who is covert. There is very specific law delineating that.”

    I’m guessing that it is a bit more complicated than that. The ability to decide whether someone is covert or not according to the law depends upon access to knowledge that the CIA can classify. The CIA also makes the initial decision of who to give cover to and who to send oversees (& who to tell the truth to, for that matter). So, in the end, the CIA does really control the decision of who is covert and who is not.

    The only way a judge could determine whether a CIA employee was covert or not is from information given to the judge by the CIA…so if the CIA wants to say someone is covert, from a practical standpoint, that person IS covert.

  48. BTW, I expect that this sentencing hearing will be a hellish 2-day affair during which the defense will have more than enough time to parse Fitz’s claims. I expect that the presentence report from the PO has about 100 objections to it (those are not public, like the report itself, so we won’t see them) and we’ll get what amounts to a mini-trial.

    I said before that I didn’t expect the judge to rule on the “covertness” question, but in light of what I’ve learned since, I actually do expect such a ruling, although personally I would hardly consider it definiative.

  49. #52) My understanding is that is what not about danger, it was about having a non-official cover (or farther in the past OC)in which she could gather information discretely and in plain view. This is a very common endeavor, especially with ambassadors (example: “My Father, the Spy”: Again, I’m not CIA, I only understand loosely how this works. Wether or not she was covert, the CIA took offense to the original action, and asked for a trial. During that trial, Libby lied to the prosecuter. We can debate this as long as we want, but in the end the judge will make a decision, half of us will be pissed, the other half will say I told you so, and hopefully this argument will end.

    _GW#45:Apart from protecting herself from retaliation by the foreign powers she spied on – a very minor concern once you’re back at Langley – she shows no interest in anything except money, publicity, and smearing administration officials with wild accusations._

    You forgot the part about investigating weapons of mass destruction as an expert for the CIA. Although, I can’t imagine why such an expert would be needed today…

  50. According to Glen, even after Plame is outed in hundreds of newspapers worldwide as a covert agent, then the real blow to national security is what she does afterwards.

    As I said, one way to look at this issue is whose arguments don’t even make sense. Wishard’s argument that there are still intelligence assets to be protected after all the newspapers outed Plame is an example of one that makes no sense whatsoever. Even the Andorran Secret Service would have been on to her by then; you think they really needed confirmation from Vanity Fair?

  51. welcome back, avedis!!

    The issue, as I understand it is a semantic one. The CIA used ‘covert’ and ‘classified’ to cover things which are, in essence secret. The law under which Scooter was investigated (but not charged, oddly enough) has a very specific definitiion of ‘covert’.

    So it’s eminently possible for Plame to have been designated ‘covert’ by the CIA and yet for Libby to be innocent of violating the law against revealing the identity of covert agents.

    Make sense?


  52. To make my previous argument a little more classy:

    Look, there are several really good arguments out there on wether plame was/was not covert. Many of them are better illustrated here than in any newspaper/tv show/pollitical speech I’ve seen so far. Both sides have based their evidence on statements by CIA & pollitical officials, Plame’s work experience, and their beliefs on how the CIA is supposed to work. At this point, both arguments seem plausible, (based on AL’s last post, both arguments may even be correct under extenuating circumstances). Honestly, I don’t think we’re ever going to get a clear, definitive answer.

    Lord knows we’ve tried…

  53. Rob Lyman, I’m just a layman, but isn’t the problem I’m complaining about part of the reason these sentencing guidelines were ruled unconstitutional (when treated as mandatory)?

    The prosecution wants 30-37 months. The Probation Department says less than 15-21 months. The main point of departure is how you treat the violations of the laws that Fitzgerald said were irrelevant.

    The “SCOTUS”: ruled that the judge could not find facts that the jury did not find or the defendant did not confess which would increase the sentence. (I assume this means that there is no parity, the defendant can ask the judge to make all kinds of findings to relax the sentence)

    It looks to me like under these sentencing disputes that it matters less whether Libby was convicted of 1 or 5 of the counts against him, as whether there was a violation of the laws not charged.

    (Rob, if you don’t feel comfortable addressing these points because of what you do, I understand)

  54. PD, it seems to me you are misreading the SC decision–or at least its appropriateness here. The “fact” in the Libby case, should the judge decide to consider it, will not push his sentence beyond the maximum of what he would otherwise get. It will simply help to determine the sentence within the permissible range. There’s no extra punishment involved here. Libby can get x to z number of months for the offense alone, with or without “facts” not found by a jury. The judge can use “facts” not found by a jury to chose a sentence WITHIN that range. To go OUTSIDE that range he could not use facts not found by a jury.

  55. PD, I’ll be vague enough that I won’t get in trouble.

    The SCOTUS ruled that the judge could not find facts that the jury did not find or the defendant did not confess which would increase the sentence.

    You’re missing a part of that sentence. Corrected, the sentence should read: The SCOTUS ruled that the judge could not find facts that the jury did not find or the defendant did not confess which would increase the sentence beyond the statutorily defined maximum.

    The context in which this usually comes up is drug weights. The statute gives punishment ranges for different drug weights: “not more than X years” for 5 grams, “not more than Y years” for 50 grams, etc.

    If the indictment says only “distribution of cocaine,” then the judge can’t determine the drug weight at sentencing and bump the punishment up beyond what the “under 5 grams” statute would allow. The “mandatory” guideline system required him to do that; now, the guidelines are merely “advisory” so the judge doesn’t face a dilemma, Constituion v. Guidelines. In practice, it means the jury gets asked what the drug weight was (or it gets spelled out in the plea agreement) so that the right part of the statute can apply.

    But there is–and was, even before–no constitutional problem with the judge departing from the guidelines, or moving about within them, so long as the sentence remains within the statutory range.

    I believe that right now SCOTUS is considering whether judges get to presume the guideline range itself to be “reasonable” or not, or if they have to make a separate finding.

  56. That editorial contains error after error after error after error. A green attorney with 3 months experience in federal court could have told them that.

    I have neither the time nor the inclination to detail them all, but surely some of the better blawgs will do so. Maybe Volokh?

  57. _”The only way a judge could determine whether a CIA employee was covert or not is from information given to the judge by the CIA…so if the CIA wants to say someone is covert, from a practical standpoint, that person IS covert.”_

    I think this is wrong, but if its true it would be extraordinarily scary. Is the judicial branch required to take the uncorroborated word of the executive branch as gospel?

    Regardless I think this comes down to whether _Libby_ knew she was covert. The woman openly worked for the CIA, which is kinda the basis for this problem. She was both a covert and an overt agent. Only the CIA…

    _”My understanding is that is what not about danger, it was about having a non-official cover (or farther in the past OC)in which she could gather information discretely and in plain view._”

    Right, but working directly for the CIA rather blew up her unofficial cover on its own. I mean this is crazier than Double Secret Probation if the CIA is serious in the claim its making. This is the same problem i have with the argument about the damage done to her previous contacts and front companies- if the CIA was really so concerned why in gods name would they hire the woman on openly?

    Her undercover ‘cover’ was already so text book Company it didnt take a genius to figure out even without her driving to Langley every day. She graduates with a degree in advertising, goes to work out of college for the US government, is ‘jr consular officer’ at an embassy, sent to school for international relations, and then amazingly becomes an ‘energy analyst’ for a (shell) company with a legal address listed as a US embassy. Could anything shout ‘CIA’ more loudly? I bet they made her wear a trench coat everywhere.

    I think its important to remember the context of the CIA being the most disfunctional, incompetant, pathetic government organization in the history of this nation. I suppose knowing that, it wouldnt be wise to assume the CIA wouldnt hire on a covert agent as a CIA analyst, but maybe Libby didnt think that far.

  58. mark, Rob:

    Let me be clear that I’m not making a legal/constitutional argument. I wouldn’t know how. I making an argument from the underlying principle that a person should not serve an additional sentence on the basis of charges that were not made, that were actively prevented from being evaluated by the jury and that are based on evidence that the defense did not get an opportunity to confront.

    Since the guidelines are discretionary, I would guess that there is nothing illegal about any of this. But that just brings us back to what judgment the judge should exercise.

    BTW/ The judge has already told the jury that he doesn’t know whether she was “covert” and he said this after looking at CIA referral documents and other evidence that was not shared with the defendant.

  59. Frankly, I am surprised at how low the sentence might be. With about 25 years maximum, I thought Libby was looking at somewhere in the neighborhood of 7 years. While I think the charges were crap, they did relate to important issues of national security and I think that would weigh on the heavy side of a sentence.

    If Libby gets out on probation and never serves a day in jail, Fitzgerald will have harmed his cause more than helped it. I can’t see that happening.

    I was also going to comment that I see very little indication on left-leaning blogs for any sympathy to these concerns, but I am not correct. I notice that “TalkLeft”: totally disagrees with Fitzgerald in urging the Court to apply the guidelines for the IIPA and Espionage Act. Burried without explanation though.

  60. PD,

    [What follows is a personal opinion, to be distinguished from some of my more professional comments above]

    As I reflected on this while running, I realized that in some sense it doesn’t matter what her status was. It matters that Libby knew what Fitz was investigationg.

    To go back to avedis’ example, if the police tell you they’re investigating the rape and murder of a child, then lying to the grand jury is more serious than if they tell you they’re investigating jaywalking. If it later comes out that there is no child at all, and the whole thing was made up by some disturbed woman who doesn’t even have any children, that doesn’t really detract from the wrongfulness of lying in such an important matter.

    In any case, a jury probably shouldn’t know the nature of the underlying investigation, because it might influence their determination of guilt.

  61. _As I reflected on this while running, I realized that in some sense it doesn’t matter what her status was. It matters that Libby knew what Fitz was investigating._

    I think I agree. And I believe what Fitz was investigating was whether any national security laws were violated. I don’t believe the CIA referral specifically referenced any particular statute. The focus on the “covert” statute is probably misleading. Libby had to have known the investigation was about national security and not jaywalking or philandering and should have addressed the investigation with the requisite level of seriousness and candor. These all seem to be considerations that the judge can make w/o specifically addressing the “covert” question.

  62. Looking for sentencing discussion on law blawgs, I see that there is a case decided yesterday that might have some bearing.

    The Tenth Circuit Court of Appeals reversed a 30 year sentence on a drug crime where the sentence appears to be based primarily on information that was discovered during the investigation that the defendant professed the desire to sexually abuse and kill children. The 30 year sentence was within the sentencing range (up to life), but it was over two-and-a-half times the top end of the sentencing guidelines.

    The Appeals Court said it wasn’t reasonable to sentence the defendant as if he had been tried and convicted of attempted criminal sexual abuse or solicitation of murder, when his crime of conviction was sale of meth.

    “USA v. Allen”:

    I’m probably asking for trouble here . . .

  63. “The issue, as I understand it is a semantic one.”

    Yeah, sure, bob and weave you hypocrite….you and Bill – “define the meaning of sex” – Clinton.

    The woman was a CIA agent working on extremely important and sensitive projects….you know…those WMDs that many here – including you – fear will fall into the hands of the bad guys and be deployed against our civilian populations….yeah, the very ones that you think were in Iraq and rendered the invasion a prefereable action……but you would excuse “scooter” (what a fag name BTW) and Cheney and whomever else for wantonly bandying about her name on a technicallity????? Do you not have any sense of perspective? Is it up to Scooter (faggot) Libby to to twist the envelop of the law when our nation’s security is at stake? When lives are on the line?

    This isn’t a Left versus Right gotcha game. This is serious shit that all Americans – regardless of political persuasion – should take seriously.

    If there was even a shred of doubt then caution should have been the rule. This nonsense about parsing covert versus undercover versus secret versus 007……….it doesn’t wash. Faggot Libby and Loser Armitagehad had no business blabing – like gabby teenage girls – to the press or anyone else without the expressed permission of the CIA; at least that’s the perspective from the adult world. Want to make any more excuses for traitors? Personally, I’d like to shoot the sissy bastards.

  64. In my view, avedis is being far more civil than is warranted around these dangerously incoherent parts…..

  65. So toss-off “fag” and “faggot” labels maintain a high level of discourse, in your view, Cap?

    That’s revelatory.

    You (and Avedis, and anyone who’s feeling snarky) might want to review the “WoC comments policy”: .

    Avedis skates with a warning because the labels were applied in order to revile a public figure. But it’s still not what we look for as a tone for comments (or even posts — and nobody’s perfect, I acknowledge we’ve had a few florid posts over time).

    Rule #5 speaks of civility. Sufficient incivility carries consequences.



  66. Except that Libby isn’t the leaker. It will be a great day when all leakers are prosecuted, not just scape goats in the Bush administration that never actually leaked anything. Why isn’t some of the outrage and in prosecutory power directed at Armitage? You know, the actual leaker?

    It would be especially interesting if some that leaked to damage the Bush administration are ever prosecuted instead of held up as heros. After all, it’s not a left vs. right thing. Right?

  67. lurker:

    Why isn’t some of the outrage and in prosecutory power directed at Armitage?

    Because the investigators determined that the leak was accidental and without ill intent; no actus reus, no mens rea, no crime.

    Even if Armitage had deliberately revealed Plame to Novak, in a malicious attempt to destroy Western Civilization, it would have been very difficult to convict him for it. The Identities law is very weak and places such a high burden for the prosecution that no one has ever been convicted under it, and no one ever will be.

    It was vastly easier to indict Libby for perjury, even though Libby was nothing to do with Plame, Armitage, or Novak.

  68. avedis, some things never change, do they. Here’s a clue, so you’ll have at least one – we’re talking about matters of law, so words do matter. And save the homophobia for Kos or firedog lake, OK…

    And did I miss your deep and abiding outrage over the press revealing the SWIFT monitoring program? No I didn’t…

    Wilson acted politically when he started writing opeds. The political reaction was unsurprising; as I noted back at the time, Bush was stupid for not putting his foot down on this – but trading in this kind of positioning is stuff that happens in DC all the time. As I said then, if someone on Bush’s team broke the law, bummer for him.

    So save the pained outrage for the funny papers. And keep the homophobic rants to other sites, or you’ll be asked to leave again – permanently.


  69. FYI…there are openly gay bloggers at both Kos and FDL, as well as Americablog, One-Armed…Any here? Comments like that only serve to illustrate that you’ve apparently isolated yourself from some the most progressive and far reaching parts of the Liberal…heck, entire….blogosphere. I suppose that’s what it takes to maintain fringe views…

  70. And furthermore, here’s evidence that those of you who react with visceral repulsion at my suggestion that Bush lied about the war in Iraq are on the fringe:

    58 percent.
    Number of Americans who believe the Bush administration has deliberately misled the American public about the war in Iraq, according to a new CNN poll.

    That’s right….MOST AMERICANS think that solidiers are dying in Iraq because of a lie. You should really think a little harder about whether you want to continue to exhibit so much outward contempt for your fellow citizens with the good sense to go around the RIghtwing media to see the truth of the matter….that is, unless you want to keep riding this sinking ship called the Republican party down to the bottom of the ocean…

  71. “Why isn’t some of the outrage and in prosecutory power directed at Armitage? You know, the actual leaker?”

    Good question. There should be. However, let’s get something straight here. Armitage was a leaker, not the leaker. Just because Armitage may have leaked doesn’t make it OK for other government official – appointed or elected – to go a head and leak.

    And, another thing, who here is silly enough to believe that Armitage is so goofy to mindlessly gossip out Plame’s name to a reporter. Why would he even be aware of that fact? Show of hands please. Talk about needing to get a clue. At any rate, Armitage should be removed from Washington. Loose lips sink ships, right?

    “Wilson acted politically when he started writing opeds”

    Irrelevant excuse making for treasonous leaing of classified info……….’bout the same as pointing to the rape victim and saying, “she had it coming. Lok how short her skirt was!” Or the assualt victim, “He had it coming! He pissed me off”.

    “we’re talking about matters of law, so words do matter”

    Yes they do. Apparently the CIA is saying that Plame was covert. So there you have it. The doc.s have been declassified and I’m sure they will be quoted verbatum soon enough. Will that be good enough for you? If the CIA itself says that Plame was covert? Of course I be here to remind you when this opportunity to get a real clue becomes available to you.

    So you’re sensitive to the term “fag”. Well, I don’t normally use it and I won’t here again. Though this sensitivity is curious coming from the management of a blog that regulary tolerates commenters advocating genocide, nuclear war, war generally (all against Islam). That’s a problem with the overly PC – they’re engaged in it to cover up their own confusion and lack of sensitivity.

  72. Capitol:

    Your most recent post, however heartfelt, does not appear to be particularly germane to this thread.

    Having said that: One problem with polls is that they don’t always mean what you want them to mean.

    For example: I can believe that the administration has lied about some things related to Iraq, without believing that they lied to get us into Iraq.

    And I can believe that all administrations lie much of the time. In fact, I do believe that.

    Two problems with people are that they favorably enumerate things and commit category errors all the time.

    I see evidence of both in your most recent post.

    Topic drift, however impassioned, is not something we want to foster.

    There are a zillion places on teh Interweb to bloviate in the manner in which you have just done. May I suggest that you do it there, and not here?



  73. avedis -

    At any rate, Armitage should be removed from Washington. Loose lips sink ships, right?

    Armitage left the State Department two years ago.

    Your question as to why he was not prosecuted has already been answered, “here is more”: Armitage never even consulted a lawyer.

    Long before he went after Libby, Fitzgerald knew that the leak came from Armitage, and Fitzgerald concealed the fact. He asked Armitage not to come forward.

    It’s never too late to catch the last train to Cluesville, friend.

  74. “Armitage acknowledged that he had passed along to Novak information contained in a classified State Department memo: that Wilson’s wife worked on weapons-of-mass-destruction issues at the CIA. (The memo made no reference to her undercover status.” from GW’s link.

    Why was Armitage passing along classified information to Novak?

    This sort of thing is excusable?

    Anyhow, the story doesn’t hold water; not does it leave the Bush admin looking clean.

    First, What Armitage did or didn’t do and his reaons remain irrelevant to the fact that Libby and possibly other also leaked information. People like you, Glen, like to gloss right over that.

    Second, the outing of someone of Plame’s status is serious. Bush himself said so and Bush also said that he would find the leaker(s) and deal with him (them). So there is the Bush admin turning Washington inside out in their investigation, but Armitage is just sort of lost in space, untouched – nay, totally unaware – of the intense investigation by the WH into the leaker’s identity??????????????????

    The problem is that the WH did not investigate nor were they interested in any in identifying the leaker. That smells really bad. Or they implemented a lame investigation that didn’t even touch the State Depertment; again smelling very bad.

    You and AL and all your rightwing apologist zombies can play junior laywer and quote whatever Johny Cochran legal angle you want in defense of Armitage, Scooty scoot, et al. I still say the spirit of the law – if not the letter – was violated something horendous. Worse, our national security may have been compromised. Equally as descpicable, Plame and other men and women who have put their lives on the line to serve our country were sacrificed – potentially onto death – because of gabby sissies in the Bush admin blabbing to reporters about things they had no right to talk about outside of those with theright security clearance and a need to know -for whatever reason.

    I don’t understand how any grown up that takes the service and defense of this country seriously could so readily excuse the behavior of the Bush admin in this case.

  75. avedis –

    Libby never leaked information. He was not accused of leaking information. Read the thread, if nothing else.

    The White House does not investigate criminal matters. Armitage did not work for the White House. The Justice Department investigated, and Armitage was interviewed by the FBI.

    Your knowledge of this entire subject is nil. Nonexistent. That is to say: nothing plus dick. But if we grade the left on a curve, you’d probably get a B minus.

  76. Sorry GW….red herrings all around on your part.

    GWB said he would make sure the leaker(s) were brought to light. Whether this be through the Justice Department or some other means, it doesn’t matter. The point is that Bush did nothing to further the identification of the leaker and his boy scooty scoot obfuscated the investigation – aided and abbetted the leakers – by Fitz (which, BTW, was initiated at the behest of the CIA – not the WH).

    FYI – organization – private, not-for profit, govrnmental, for profit publicly owned – all hold internal investigations of staff concerning security breaches and that sort of thing. And we are talking about the WH here. They have a large staff and immense resources dedicated to monitoring the activities of insiders.

    If Bush had wanted to identify the leaker he could have held an internal WH investigation – like he said he would – and then turned the leaker over to he Justice Dept.

    Come on Glen you are desperately reaching and your points are more and more ridiculous. That is because you are attempting to defend the indefensible.

  77. Big C (#77) –

    Yes, I’m very aware that among the true progressives in this country racist, sexist and homophobic comments (and attitudes) are considered Quite Kewl. That’s one reason I’m more than happy to see myself standing somewhere other than there. I don’t think that the current crop calling itself ‘progressive’ is very (progressive). I’d suggest Nick Cohn’s “What’s Left” as a very interesting set of comments on that, among other things (a post is in the works).

    Avedis, for grins, before you sling on me or anyone else here, try reading what I’ve written about this, mmm’kay?? Go to the search box, type “plame” and “armed liberal” and see what comes back.


  78. Avedis,
    I’m 99 and 44/100 percent sure that once there is a special prosecutor appointed, he is the one that has sole authority to investigate the events assigned by his commission. Any Whitehouse involvement after that could be construed as obstructing justice. I’m confused that you expect the Whitehouse to do more.

  79. Lurker and another red herring – this time from you.

    Bush had several months to do an internal investigation and identify the leaker (just as he promised he would) before Justice came on board.

    Either Bush is an effette ineffectual wimp or he did not have his staff do what was necessary. There is no way that had an effective POTUS honestly ordered that staff reveal the source of the leak that the source would have remained unknown to the POTUS.

  80. Here you go Lurker, someone agrees with me.

    “Here’s a case where he’d (Bush) have been well served – he’d still be well served – to get in front of the issue, mount a convincing internal investigation, and share the results with the public. It wouldn’t be hard; everything in the White House is logged.” Armed Liberal

  81. Congrats on learning how to search the archives!

    But, as it turns out, Armitage wasn’t part of the Whitehouse. The only red herrings flopping around here are yours.

  82. nice try, Lurker. Other leaks – there were others, like Rove, scooty – cetainly fall directly within the WH.

    But you are playing a semantic game anyhow. The State Department is part of the Executive branch in that its directing members are appointed by and work at the pleasure of the Executive (see Rice, Condoleeza or Powell, Colin, etc).

    So the scenarion should have been GWB says to Powell, “this is serious – this leak. Some of your people could have had access to the classified info. Find out who did, why and whether or not they were part of the leak. Report back to me this time next week”.

    Additionally, POTUS would have inside sources of info. that he could have used.

    Did that happen?


    Based on the story being floated by rightwingers – that Armitage did it all by mistake and felt bad about it and came forward when he “discovered” he was the leak – it seems that if POTUS had asked at the time, Armitage would have admitted then and there. So he wasn’t asked. POTUS did not do what AL and I think he should have and what he said he would.

    Why not?

  83. Anyone who Crosses the Elephant has to be destroyed. In this case, Darth Cheney took the matter in hand. He was Scooter’s boss, remember? And Scooter’s false story was a successful attempt to avoid telling us about Cheney’s involvement.

  84. And Scooter’s false story was a successful attempt to avoid telling us about Cheney’s involvement.

    And Sandy Berger stole documents to cover for Clinton, so they both ought to go to jail, right, Andrew?

    And your idea that “anyone who crosses the elephant must be destroyed” is a mind-blowing example of projection.

    I’m sorry that you guys wanted Rove and Cheney’s blood for your birthday, and all you got was a pair of socks.

  85. “…Sandy Berger stole documents to cover for Clinton, so they both ought to go to jail, right, Andrew?”

    I can’t speak for Andrew, but I think we need to clean up politics. So, yes, if a crime was committed, Clinton and Berger should be tried and, if convicted, an appropriately sentenced.

    Now, that being said, what does it have to do with the price of tea in China or the actions of traitors currently in the WH?

    Are your morality and ethics so mal-developed that you remain fixated at the low level of ,”those guys do it too” as your moral compass?

    Also, your moral equivalence is overlooking the fact that even crimes that appear similar in some regards can be considered very different at sentencing time due to their seriousness. So Clinton’s CYA would not have the same sentence as Libby’s for obfuscating an investigation into breaches of national security that leave our country more vulnerable to nuclear terrorism.

    A shorter Glen Wishard, “Look over there! It’s Bill Clinton!”


  86. obfuscating an investigation into breaches of national security that leave our country more vulnerable to nuclear terrorism.

    That’s a part of the case that has never been made, only repeatedly asserted. Just because Plame was working on those issues doesn’t mean she absolutly had to be covert, or that “blowing” her made her less effective as an analyst in McLean. Maybe Fitz will make it at sentencing, but until I see more than bald assertions, I have to rate the Plame “outing” as less serious than the SWIFT outing, or the publication of the tail numbers of CIA aircraft, neither of which has rated a special prosecutor.

  87. For many years, we heard endless complaints about how much money we were spending investigating Bill Clinton, at the behest of “The Party of Investigations”.

    This Plame investigation is ongoing, and will probably go on for years. (The Iran-Contra investigation finally folded its weather-beaten tents only a couple of years ago.) Long after the last grand jury is dismissed, lawyers will be billing the government for hundreds of thousands of hours of paper shuffling.

    So far no one has been indicted for violating the Identities Act (and I say again, no one ever will be) and one person has been convicted of perjury-not-related-to-oral-sex, which is a crime even to Democrats. That’s it.

    Beyond this, you have nothing but speculation about cover-ups, bitches about the investigation, and partisans pushing their indictment wish-lists. All of which is utterly bootless to argue about. The Plame-gaters will never get what they want, and neither will they stop demanding it, so the issue can rightfully be declared dead at this point.

    Meanwhile, the great Valerie Plame is suing the CIA for classifying information that she needs in order to cash in on her book deal. I predict that Plame and Joe Wilson will wind up suing each other over royalties, and maybe suing Corn and Isikoff, too. Lawyers will bill hundreds of thousands of hours, which will hopefully trickle down to junior partners and secretaries, buying groceries and paying for college educations.

    In this country, these days, that’s a happy ending.

  88. Saddly Glen there is some truth to what you just said. Largely this because Libby obfuscated the investigation and layers are greedy and able to confuse people like you. That is why Libby’s crime is serious and – returning to the initial concept of AL’s post – why it is relevant to the sentencing whether or not Plame was, indeed, covert.

    It is equally sad that you – and many like you – are unable to distinguish between violating the laws of the land to *1.* supply weapons to death squads and terrorists – in fact, the number 1 state sponsor of terrorism (Iran/Iran Contra) – and *2.* casually revealing classified info pertaining to CIA agents working on nuclear weapons prolifration and *3.* lying about a blow job.

    Ah yes, but Bill Clinton did #3 and liberal are dirty and evil so we automatically multiply his crime by a seriousness factor of 10,000.

  89. ah…lawyers not “layers”

    and one more thing, Glen; the Iran/Contra wasn’t just this sort of nebulous legal snipe hunt that you imply. People – high ranking people – were actually convicted and sentenced. The only reason they’re out of prison and working (in some cases for the current admin.) is because Reagan/Bush pardoned them. And then Ollie North became some sort of weird culture hero for rightwingers……go figure?!?!?!?

    So justice was served until Republican POTUS undid it.

  90. PD, and others concerned about Fitz’s attempt to apply the IIPA sentencing guideline, if you’re still reading, I took another peek at the law:

    USSG sec. 2J1.2(c) (Obstruction of Justice) says:

    If the offense involved obstructing the investigation or prosecution of a criminal offense, apply sec. 2X3.1 (Accessory after the fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.

    Unfortunately, I can’t examine 2X3.1 or the other cross-references for you, or offer an opinion on what this means (although I do have one…).

  91. Thanks Rob, I am fast reaching the conclusion that this is just a weird case and that my effort at self-education might be wasted. Still, it is a high-profile case and if Fitzgerald gets to do it, then other prosecutors will as well. I would expect more observations from the left-side like this one from a commentor at “talkleft”:

    bq. _Regardless of how one feels about the outcome here where Libby is concerned, I believe Fitzgerald has been setting precedents throughout that should concern every last one of us._

    Anyway, the main reason why the case is weird is that I recognize that the commission of a serious crime often involves the commission of several additional crimes that may not be charged for one reason or the other. I am thinking of an armed robbery, which might involve a number of vehicular offenses which the prosecution doesn’t bother with, but the jury incidentally hears about during the trial. I have no problem with the judge considering the “larger story” of the crime and aggravating the sentence based upon those uncharged crimes.

    Here though, Fitzgerald took the position that the uncharged criminal conduct was legally irrelevant to his case. He precluded testimony on this issue and prevented the defendant from confronting the evidence on this issue. It is the opposite of the normal case in which the prosecutor actively seeks to get evidence of the uncharged crimes before the jury and the defense wants the issues to be limited to the specific charges.

    It seems to me that if Fitzgerald can do this, it will encourage prosecutors to bring charges based upon conduct during the investigation of the crime, as opposed to the crime itself.

  92. My other beef with Fitzgerald’s argument is that he concludes that Libby should be sentenced for the violations he intended (the IIPA and the Espionage Act). I think in this way he is arguing that Libby conspired to have these laws violated and is thus an accessory after the fact.

    My problem is that even if Libby did everything set out in the indictment, he didn’t necessarily need to intend these laws to be violated. He could have lied to avoid personal embarrassment, civil liability or simple politics (never admit to anything that would give your political opponents ammunition). These are not necessarily excuses, but he could have lied for reasons less severe than the reason Fitzgerald presumes.

  93. Oh crap. Here is a non-verbatim portion of the exchange today:

    [Libby’s Attorney]: . . . We’re still in the position where we don’t know if she was covert. It is fundamentally unfair when we try a case, we don’t get discovery, we exclude it.

    [Judge] Walton: I don’t think we can equate relevance of my ruling wrt culpability *if you felt that info was important for your client to obtain fair sentencing. I would have entertained that, but I got no request as it relates to sentencing.*


    The Judge has not ruled yet, but it looks like a lot of my blathering on this issue was a waste of time, Libby’s attorneys may have just screwed up.

  94. PD, I’d strongly encourage you to find yourself a copy of the Sentencing Guidelines at a local library. I finally read Fitz’s memo, and to be precise, he isn’t arguing that Libby deserves a particular sentence, he’s arguing that the guidelines require a particular sentence. He claims in his memo that essentially everything bothering you comes straight from the law, not out of his head.

    I won’t comment on whether he has the law right, but if you had a guidelines manual, you could follow his argument from section to section.

  95. Libby gets 30 months. I think the issue most Winds readers were interested in, *was she covert,* was not decided by the judge. He applied the cross-reference based on the notion that the prosecutor was investigating potential violations of those crimes:

    bq. _The objective behind cross-referencing as it relates to obtstruction is that it’s envisioned when law enforcement officials start an investigation and they go to citizenry to find out whether an offense has been committed, it is the obligation of the citizenry to cooperate, when a person is put on notice of what the govt is investigating. I think that’s what this cross-referencing provision is designed to reach. *You only look at whether a legitimate investigation was taking place,* it’s my view the x-referencing does apply, as it relates to the obstruction. I may not reach wrt the perjury conviction, I have questions whether it would apply._

  96. Rob, I did read the two sentencing provisions referenced in #98. A bit oblique for me, I’m afraid, but I’m trying. Obviously, the judge agreed with Fitzgerald’s law. OTOH, I think attorney bloggers at TalkLeft, Sentencing Law and Policy, and the White Collar Crime Blog didn’t think the cross-reference would apply. So did the Probation Office, so I gotta think this is an unsettled area of law.

  97. Fair enough. If I understand correctly (given limited time to look into this) the controversy over the cross reference comes from the commentary by the drafters, which suggests that it should apply when the obstruction is intended to help the defendant or another escape punishment for a serious crime. Then you can argue that, since no one was convicted or even charged with the IIPA violation (and thus perhaps there was no IIPA violation at all), no cross reference.

    But note, the commetary makes it explicit that the obstructor himself need not actually be guilty or even charged with the “serious crime” in question. The only question is whether somebody else has to be.

  98. _If I understand correctly (given limited time to look into this) the controversy over the cross reference comes from the commentary by the drafters, which suggests that it should apply when the obstruction is intended to help the defendant or another escape punishment for a serious crime._

    That is my understanding of Fitzgerald’s argument, but I’m not sure that is how the judge viewed it:

    bq. _if you come to me in reference to very serious social offense, there’s a difference. Cross-reference for obstruction does apply. *We still have issue of … govt never presented any evidence that Libby knew what her status was. Either negligence or recklessness that resulted in that being disseminated to press.*_


    bq. _My take on evidnece presented, *no evidence that Mr Libby knew that Ms Wilson status was,* but being NSA for VP seems to me that anybody in that high level position had a unique obligation that before they said aything said anything associated iwth national security agency. Take every effort possible they woul dknow that that person was not in position taht could compromise them, others, or this nation._

    These statements don’t suggest to me that the judge thought Libby had intended to aid in the violation of any law, but that given his position of authority and responsibility for national security matters, he was grossly reckless towards that possibility.

  99. The “high-level position” thing will be interesting on appeal, if it is the principal basis for using the cross-reference. I don’t see anything in the rule or the commentary about high-level positions.

  100. _The “high-level position” thing will be interesting on appeal, if it is the principal basis for using the cross-reference._

    I don’t think that was the judge’s basis. That part actually comes much later in the transcript where I believe the judge is wrapping-up and concluding that departure from the guidelines is not warranted. (On one hand, Libby has served as a valuable public employee, while on the other hand, the public should expect more from him)

  101. “My take on evidnece presented, no evidence that Mr Libby knew that Ms Wilson status was, but being NSA for VP seems to me that *anybody in that high level position had a unique obligation that before they said aything said anything associated iwth national security agency*. Take every effort possible they woul dknow that that person was not in position taht could compromise them, others, or this nation.:

    I couldn’t agree more (especially the bolded portion). That is the way grown-up professional do things. That is why we allow them to be in charge of very serious things…that’s why they get paid the big bucks… you know?

    That is point that many rightwingenuts want to overlook; hopefully for mere partisan politics and not because they are truly either a) so stupid and juvenile as to not understand this 2) so morally depraved that they do not understand this.

    And this goes for Armitage as well. For christ’s sake that Iran Contra figure was SF in Vietnam and was, himself, a covert operative and he doesn’t know to not take precautions so as not to allow his (alleged) girly gossipy tendencies get out of control?

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