Occam's Chainsaw

Lewis “Scooter” Libby, chief of staff to Vice President Cheney, has been indicted on charges of obstruction of justice and perjury for his testimony before a grand jury. Special Prosecutor Patrick Fitzgerald describes these charges as every bit as serious as the original allegation of leaking the statutorily protected identity of a covert intelligence agent, which charge has specifically NOT been included in this indictment.

Whether or not one agrees with it, the commonly understood explanation for Scooter Libby’s purpose in identifying Plame as the promoter of her unqualified husband for the trip to Niger, was to show the partisan political motivation for a report that has no underlying merit. If identifying Plame were a prosecutable offense under the Intelligence Identities Protection Act, why is Libby not being charged for that?

More fundamentally, if the “outing” of Plame is not a prosecutable offense, why did we need a special prosecutor appointed?

Next, if the “outing” of Plame is not a prosecutable offense, why was the Grand Jury impaneled?

Finally, if the “outing” of Plame is not a prosecutable offense, why should any testimony have been coerced from ANYONE in the matter?

This excerpt from the ACT defines agents :

§ 426. Definitions
For the purposes of this subchapter:
…
(4) The term “covert agent” means—
(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—
(i) whose identity as such an officer, employee, or member is classified information, and
(ii) who is serving outside the United States or has within the last five years served outside the United States; or …

From this it’s still not clear to me whether someone like Plame had functioned as a covert agent within the previous five years. Some articles I’ve seen describe Plame’s recent employment as having been under a “front” organization that has now had its cover blown along with hers, but true or not, it’s not being discussed much. So we are navigating murky areas where the ethics and legalities are not absolute. I suppose this is why such thorny debates end up in the courts for resolution.

The use of a special prosecutor has historically fetched up against charges of partisan distortion and abuse, charges that are sometimes fully justified. Just days before the presidential election of 1992, when Bill Clinton was in a three-way race with Ross Perot and George H.W. Bush, the special prosecutor Lawrence Walsh announced indictments against Caspar Weinberger, Reagan’s former Secretary of Defense. The timing of the indictment regardless of its merit, had NO OTHER REASON than as deliberate vindictive attempt to smear Bush on the eve of the election; it was abandoned after he lost the election.

Robert S. Bennett, a former federal prosecutor and a member of the defense bar since 1971, before he defended William Jefferson Clinton throughout the scandals that eventually resulted in his impeachment, disbarment, and conviction for lying to a grand jury, had served as counsel to Caspar Weinberger. Here is an excerpt from an article he published in the Loyola of Los Angeles Law Review in 1996:

One of my clients, former Secretary of Defense Caspar Weinberger, was victimized by an independent counsel who used the media to justify his investigation — an investigation long in tenure but short in results. Indeed, in June 1992, only days after a five-count indictment was returned against Caspar Weinberger, the independent counsel appeared on the television program Nightline. During that appearance, Lawrence Walsh explained how “as long as [his office] continue[s] to work up toward the center of responsibility, it’s very difficult to give a good reason for stopping [the investigation of Iran-Contra].”

After we successfully moved to dismiss a key part of that indictment, the independent counsel, fully aware of the media feeding frenzy that would result, returned a second indictment that attempted to re-package the dismissed charge against Weinberger. He did this only days before the 1992 presidential election, and the new indictment unnecessarily included specific, inculpatory references to then-President Bush. Predictably, this caused front-page headlines and lead television news stories focusing on Iran-Contra in the final days of the campaign, at a time when Weinberger stood indicted but not yet tried. We successfully argued that the new charge should be dismissed … but the impact of the news coverage was irreversible.

In representing Weinberger, therefore, one of the most delicate yet important tasks we had was to communicate to the public, including politicians and the press, was that he was being abused by an overly zealous prosecutor. In particular, I determined that it was important to take advantage of the independent counsel’s missteps by showing that this second indictment—and its politically damaging language — was not a legal necessity, but that it was either, at its most benign, a media strategy to hype the case, or at worst, a calculated effort to cause political damage to President Bush.

Had we not been able to do this, we might not have succeeded in obtaining a pardon for Weinberger. President Bush, who appreciated the unfairness of the actions of the independent counsel, did the right and honorable thing by pardoning him, and the public accepted the pardon with little criticism. This public acceptance was largely the result of their recognition that Weinberger should not have been charged. This was accomplished, in part, by aggressive press advocacy in response to the independent counsel’s public statements.

A further example of this unfair conduct — arguably permitted by the Independent Counsel statute — was Walsh’s final report to Congress. This public report attempted to justify the independent counsel’s almost seven-year investigation and failed prosecutions. The special division of the court overseeing the independent counsel was highly critical, finding that the report:
[R]epeatedly accuses named individuals of crimes, although in many instances the individual was never indicted, if indicted was never convicted, or if convicted the conviction was reversed. These accusations include charges that named individuals were guilty of a conspiracy charged in a count that was dismissed before trial, that various named public officials engaged in efforts to obstruct justice, where such individuals were never indicted, let alone convicted, and instances in which the Report charges that individuals were “factually guilty” even though the United States Court of Appeals for the District of Columbia Circuit had reversed the only conviction relevant to the charge under discussion.

Why are there no consequences for such blatantly partisan abuse of power by an appointed special prosecutor? It’s a legacy of the Democratic Party’s frenzy in getting Nixon out of the Oval Office. They were so pleased with themselves, they created the legislation which provided for special prosecutors like the one that Clinton had to deal with.

The entire Iran-Contra conflict hinged on the Boland Amendment, which has never been tested on the merits of its constitutionality. That was an amendment made to the 1973 War Powers Act by a Democrat-dominated (i.e., Left-inclined) Congress extremely sympathetic to Nicaraguan Communists, and extremely hostile to Ronald Reagan. Prohibiting the direct COVERT aid to the Nicaraguan Contra forces by U.S. Agencies, the amendment was first passed in 1982, but later repealed as the excesses and atrocities by the Communists became undeniable. During the short period during which it was in effect, Reagan’s staffers found loopholes that seemed to allow them to do an end run around the strict wording of the amendment. Angry Democratic Congressional leaders demand prosecution of those who were responsible for defying their will.

In essence, Boland (House Amendment 461 to HR 2968) was the intrusion of the House of Representatives into matters of foreign policy, which the U.S. Constitution clearly and exclusively assigns to the Executive Branch. So it has been argued that the Boland amendment was one of many attempts to short-circuit and undermine the Constitutional separation of powers, and to criminalize otherwise legitimate exercises of Executive authority by partisan acclamation.

One of the most wonderful aspects of our country is that it is a central belief that information should be available to the public, even when it might be damaging in the short run. “The truth shall set you free” is a phrase that has a lot of meaning to many of us. There are certain processes that we protect, such as Grand Jury proceedings. In those, people called to testify are specifically denied legal counsel, so those proceedings are kept sealed except for any indictments resulting. Our military is recognized as requiring the right to protect its bases, ships, planes, activities, plans, etc. from public scrutiny. The various intelligence agencies are protected from having their activities divulged and monitored publicly. And the identities of COVERT agents of all those organizations are protected from public disclosure by the Intelligence Identities Protection Act of 1982, Public Law No: 97-200.

I invite all readers to take a look at the brief of that legislation, particularly noting that it repeatedly iterates that the protection is intended for the identities of COVERT agents. From some reports Valerie Plame had not been a covert operative for some seven years at the time she was publicly identified as an employee of the CIA.

Wikipedia (a fascinating online “open-source” encyclopedia) has an extensive and amazingly up-to-the-minute article about the Plame-Wilson business, and conjectures that the vehemence of the pursuit of this investigation may be in response to an unidentified CIA operative’s death resulting from the leak. The article shows pages from what is described as the “CIA Book of Honor” for agents killed in the line of duty, and says journalist Wayne Madsen alleges that at least one anonymous star on the CIA’s Wall of Honor is for an agent whose execution in a hostile nation was a direct result of the “outing” of Plame.

Wayne Madsen, it must be noted, has also claimed that an Israeli submarine launched a cruise missile responsible for the bomb damage to the Navy ship USS Cole in Yemen’s Aden Harbor. How can we ever determine whether a statement from someone like Madsen has any credibility whatsoever?

Prosecutor Fitzgerald indicated that Mr. Libby’s testimony that he was only passing along information he had earlier received from other reporters conflicts with the investigators’ reconstruction and correlation of various interviews indicating Libby had earlier knowledge of Plame’s CIA status from other government officials. Fitzgerald repeatedly declined to characterize the release of her identity as a prosecutable offense (see Intelligence Identities Protection Act of 1982) but suggested that Libby’s testimony, if shown to be untrue, is prosecutable as obstruction of justice and perjury, nonetheless.

Okay. Let’s consider that by a comparison.

Smith, neighbor of Jones, calls the police and reports that he has seen evidence that Jones is storing stolen merchandise in his house. The police arrive at Jones’s front door with a warrant. Jones, knowing he has no stolen merchandise in his home refuses to allow them entry and stands in their way. This is resisting arrest, and interfering with a sworn officer in the conduct of his duties. The police take him into custody and he is charged with those crimes, which are entirely separate offenses, prosecutable even when the search shows the home to be devoid of any evidence of any crime.

Maybe Smith honestly believed Jones was a lawbreaker. The judge who issued the search warrant, and the police who attempted the search were obliged to do so. But the citizen whose home and peace were wronged is obliged to stand aside and let the police enter, or face the consequences.

Its the American way, and should be equally applied to all citizens.

In that case, why isn’t Sandy Berger in prison for all the lies he told about “forgetting” that he had somehow inadvertently managed to stuff a bunch of top secret memos and documents into his socks, his pockets, and his underpants when he was given access to the National Archives of the United States before he was to testify before the so-called 9-11 Commission?

He did finally enter a guilty plea to lesser charges, and has been fined and had his security clearance revoked FOR A YEAR, as though a clearance is a guaranteed right that somehow he deserves to get a chance to have renewed. Excuse me, but when a man shows such utter contempt for the trust he was given, he should never be allowed to have that privileged access again while he breathes.

Let me be very specific about Sandy Berger’s crimes: When he was called to testify before the 9-11 Commission to clarify the responses and actions of the Clinton Administration to the threat of terrorism, he used the trust given him to FIND THE RELEVANT DOCUMENTS AND DESTROY THEM SO NONE OF US WILL HAVE A CHANCE TO KNOW WHAT WAS DONE.

Denying, hiding, or destroying information vital to the people charged with evaluation and planning for our defense is just as bad, morally, as giving information to our enemies.

Here was a man who was much higher up in Clinton’s staff than Scooter Libby is in the current administration, and whose offense against our country I regard as being in the same class as giving top secret information to the enemy. The only reason I can figure he got out of the prison sentence that would be swiftly handed to most of us common folk, is that he managed to wangle a plea-bargain, and avoid the most serious charges he should have faced.

Maybe also, because he didn’t lie to a Grand Jury; he only lied to sworn officers, and possibly in court, but not to a Special Prosecutor and a Grand Jury.

During 2002, the intelligence agencies of the French, the Russians, the Germans, and the United Nations itself all indicated they had amassed credible evidence that Saddam was continuing to develop and stockpile WMD and other offensive technologies, including ongoing attempts to secure materials, expertise, and means to construct and deliver nuclear weapons.

The attempts of Iraqi agents to purchase “yellowcake” — i.e., refined uranium dioxide, so-called because of its brilliant yellow hue — have been verified and amplified by multiple sources. The amateurish and clearly partisan attempts by Joseph Wilson and his supporters to cast doubt on the British intelligence reports which prompted the Administration’s pre-invasion concerns underscore the delusional anti-Bush hysteria characterizing the illogic of the Left. Now that they find their original premise resoundingly disproven, they’re attempting to torpedo the administration by distorting the purpose of a law meant to protect the identities of CIA field agents, NOT regular, easily identifiable employees.

The Intelligence Identities Protection Act was drafted specifically to protect agents operating with fabricated identities and occupations in foreign countries — far from the protections under which we critics of America operate. They are immediately vulnerable to murder, kidnapping, or other violent acts if exposed. A fine example of such a case was the 1975 murder of CIA Athens station chief Richard Welch, shortly after having been publicly identified by leftists eager to frustrate and dismantle the CIA. The woman who drafted the law, former deputy assistant attorney general Victoria Toensing, has emphatically declared that the law does not apply to CIA employees who work openly in domestic metropolitan offices clearly identified as part of CIA. And in fact, Valerie Plame, the CIA-employed wife of Joe Wilson, who recommended him for the mission to check the yellowcake story despite his lack of any experience or credentials, had quit working as a covert agent fully seven years prior to having her name brought out in this matter. The Left continue to raise a furor and attempt to characterize legal acts as criminal because in the absence of REAL issues, it serves their goal of undermining the administration.

The irony is that the modern Democratic Party has for many decades openly detested and worked openly to frustrate the CIA, and through publishing and leaking confidential testimony and cutting intelligence funding, has enfeebled U.S. intelligence capabilities. Now that the threat of Islamic terrorism has shone a brilliant light on the shortcomings of our intelligence apparatus, the same idiots who were pleased to gut that apparatus, are the first and loudest to complain, and to posture and pretend to be outraged at the alleged endangerment of precisely the same CIA employees that elected Democrats willingly threw to the wolves earlier.

There are conflicts and hatreds that have erupted and continued with only lulls and breathers for thousands of years before Catholic Europe, Capitalism, or America appeared on the scene. Islamic zealots had been slaughtering their opponents for centuries before the British Isles were fully Christian. In the middle east where Christianity originated, Muslim armies moving into the territories we now call Egypt, Iran, Syria, Lebanon, et al, encountered communities composed primarily of Christians and Jews going about their business as they had for centuries.

The Prophet Mohammed during his life captained military assaults on villages and populations that opposed him, and approved the summary execution of captives. In the first decade after his death, the leadership of his new militant faith changed hands several times as one aspirant murdered his predecessor and took his place. In the first century after his death, Islam had been imposed on a vast swath of territory from the Levant north, south, west and east, by ruthless military onslaught. Islam has been in bloody conflict with the people it encounters as it has expanded since the seventh century. Islamic fanatics are currently engaged in slaughtering and brutalizing Hindus in India and Pakistan, Buddhists and Christians in Malaya and the Philippines, Animists in Darfur, Atheist Russians in Chechnya, Progressive Liberals in the Netherlands, and coreligionist Muslims in Africa, North America, Asia, the nations of the former Soviet Union, and on and on...

Yet there are people who want us to believe Islamic terrorism is no more than a justifiable response to American support of Israel, Conservative Republicans, Pat Robertson and Jerry Fallwell, cheeseburgers, short skirts, and corporate greed.

Saddam Hussein has been one of many persistent enablers and supporters of Islamic terror in the middle east. Long before the 2003 invasion he had famously advertised huge cash rewards to the families of Palestinians willing to act as suicide-murder-bombers against Israelis. High altitude photographs taken only months before the invasion show images of commercial airliners in camps far from any airport, confirming testimony that they were being used to train terrorists in airline kidnapping and terrorism.

Documents captured in the invasion reveal visits and meetings between various terrorist groups and officials of Saddam’s Ba’athist regime. The investigation by Paul Volcker, which was welcomed by the U.N., the Democrats, and Liberals who described him as objective, fair, evenhanded, and trustworthy — meaning they never believed for an instant that he would do anything to defame the U.N. — proves, amplifies, and details the allegations of criminal, corrupt embezzling and fraud by the U.N. and all the parties who dragged their feet and vehemently opposed the United States determination to actually enforce the sanctions and penalties that the United Nations Security Council had officially decreed.

In the armistice following Iraq’s invasion of Kuwait, the United Nations demanded Saddam abandon the development and manufacturing of a number of advanced weapons systems, and Weapons of Mass Destruction. United Nations Inspection Teams had spent most of a decade attempting to persuade Saddam to give proof he had destroyed his known weapons manufacturing programs. He defied them, obstructed them, threatened them. On more than 200 occasions his military fired at allied aircraft patrolling to enforce the “no-fly zone” ESTABLISHED BY THE UNITED NATIONS. The United Nations over a decade issued scores of reports of violations by Saddam of the terms of that armistice and the restrictions the U.N. had decreed.

As to the issue of WMD, it’s vital to keep in mind that the amount of Anthrax spores needed to infect many tens of thousands of humans can be stored in a five-gallon gas can; the amount of Cesium-137 sufficient to poison and kill tens of thousands of victims has been extracted from a discarded cancer radiotherapy unit by scavengers using household tools. Considering that Saddam was given months to dismantle, export, and hide the evidence before the U.S. invasion, it is truly delusional to characterize the subsequent failure to locate any huge stores as proof that Bush lied. After all, Madeline Albright, Al Gore, and Bill Clinton had earlier on many occasions publicly advocated the removal of Saddam’s regime as a threat to American and international security, because of the WDM, his open support of terrorism, and unrepentant bellicosity.

Someone please correct me if this account of the timeline is incorrect.

• In 2002 British Intelligence reports indicated Saddam Agents were seeking to find sources for “yellowcake” in Niger to supply their country’s illegal nuclear weapons development.

• In 2003 Bush refers to this report as one of scores of justifications for ultimatum & invasion. He also cited a long history of well-documented violations by Saddam’s regime.

• Valerie Plame, who had not operated covertly for more than seven years when identified, promotes her husband as the proper person to make trip to Niger to investigate validity of report, claiming he would be well qualified “because he has lots of contacts there.”

(Her husband Joe Wilson is a former diplomat NOT intelligence agent, nor analyst, nor investigator... a former DIPLOMAT. I don’t see that being a former diplomat indicates ANY particular skill or preparation for the task of investigating the clandestine contacts and backstreet dealing that would have been involved in Iraqi agents trying to SECRETLY negotiate the purchase of Uranium that would have resulted in international criminal prosecutions of those involved.)

• So Joe Wilson goes to Africa, spends a little time, comes back with a report claiming to have found nothing to substantiate the British account.

(SO FREAKING WHAT? That WILSON found nothing in no way discredits the original intelligence. HE IS NOT A SPY. HE IS NOT AN INVESTIGATOR. HE IS NOT QUALIFIED TO BE MAKING INTELLIGENCE ANALYSES. THAT IS WHY WE HAVE INTELLIGENCE AGENTS DOING INTELLIGENCE WORK, NOT DIPLOMATS.)

• Not satisfied with the response to his report, WILSON then goes public with his opinions, and amplifies and expands them in an Op-Ed essay in the New York Times, claiming to have thus proven that Bush cynically based his invasion rationale on unverified British intelligence. BUSH LIED; PEOPLE DIED.

(Pause to reflect…)

(1) Joe Wilson’s uncredentialed personal opinion should never have been given credence as having any significant bearing on the issues, because he is not nor has he ever been an intelligence analyst, field agent, or investigator.

The NYT should have SOME sort of standard for qualifying the credentials of those whose views they give such amplification, or at least they owe it to the public to make some statement accompanying such Op-ED pieces.

(2) The attempted purchase of yellowcake was merely one item in a huge list of persistent deliberate provocations and violations of the armistice that suspended hostilities in the 1991 Gulf War.

(3) The Mainstream Media have been for years deliberately distorting and misrepresenting the wide context of the War, the history of Islamic Terrorism against ALL their neighbors and their own people for many centuries, as well as refusing to report positive developments in Iraq, or any news that would tend to reveal their malignant and intentional bias against the Bush administration and Republican/conservative values generally.

The underlying story is that Valerie Plame appears to have lobbied to have her husband selected for the trip, and He in turn made the trip, the report, and the subsequent PUBLIC attack on the President’s intentions, for no other purpose than to undermine policies with which they disagree for political reasons, regardless of the truth of the yellowcake story. Unless you think that the Islamic terror attacks on U.S. embassies, The USS Cole, 9-11, Bali, Madrid, London, Saudi Arabia, Turkey etc. are all disconnected, and no more a threat to U.S. and international stability than so many Tupperware parties.

Again I ask, and I really think we need to know the answers:

• If identifying Plame were a prosecutable offense under the Intelligence Identities Protection Act, why is Libby not being charged?

• If the “outing” of Plame is not a prosecutable offense, why was a special prosecutor appointed?

• If the “outing” of Plame is not a prosecutable offense, why was the Grand Jury impaneled?

• If the “outing” of Plame is not a prosecutable offense, why should any testimony have been coerced from ANYONE in the matter?