Outing Plame: Why BushCo Thought They'd Get Away With It

[leveymg]

Bob Novak wrote Wednesday that Fitz knows who outed Plame, but hasn't prosecuted the miscreant because, Novak claims, that top Administration official committed no crime. http://www.suntimes.com/output/news/cst-nws-novak20.html

Of course Fitz knows who outed Valerie Plame. Novak told Fitz who both of his sources were.

That's why Bob, "The Prince of Darkness", wasn't locked up along with Judy Miller in the Alexandria City Jail.

As has long been evident to many of us here, the Plame outing was designed from the beginning to avoid prosecution under the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.)(IIPA). The complex evidentiary requirements of the Act determined how the participants in the conspiracy to out Plame structured the crime.

Don't gloat, Bob. Nobody's really off the hook.

Here's a sketch of how Bush-Cheney have to date succeeded in avoiding prosecution under the Intelligence Identities Protection Act, but how that legal victory may have the most severe political consequences.

MORE below.

leveymg's diary :: ::

Prosecution under the IIPA is extremely difficult, and the White House lawyers knew it when they structured the crime.

First, there's the requirement that the government official who outs an intelligence agent is authorized to receive the classified information that identifies a covert U.S. intelligence officer or a foreign agent working for the U.S. That effecively imposes the requirement on the prosecution to produce a classified document that specifically identifies Plame, and a showing the accused had possession of that information. There are several versions of a classified State Department Bureau of Intelligence & Research (INR) document that identify Valerie Wilson as a "WMD manager" that Scooter Libby obtained before he allegedly discussed it with Judy on July 8, 2003. A version of that same document was reportedly shared around by other WH staffers at about the same date, roughly a week before Novak's column appeared.

Second, the classified information source or sources have to identify the intelligence agent who is outed as a covert operator. This is where evidence gets difficult. There are several versions of the INR and a source document that identify Valerie Wilson. While all are marked Secret, each is somewhat different in the classification stamps at various places where Valerie is referenced. This creates some area for lawyers to argue whether Libby and others actually understood that Plame was undercover.

Third, the government official has to knowingly and willfully reveal the identity of the covert agent to someone not authorized to receive that classified document. Sharing information with other persons who have security clearances or an unintentional slip of the tongue wouldn't be prosecuted under the Act. This is where an IIPA prosecution gets really complicated, as Bob Woodward, who first learned about Plame (perhaps from Cheney, perhaps from Hadley), may have a residual security clearance from his pre-Washington Post days as a briefing officer for the Office of Naval Intelligence (ONI), and Judy Miller may have been granted some sort of security clearance in 2003 when she was imbedded with a WMD-hunting unit in Iraq. Woodward and Miller may have been chosen to act as cut-outs for this reason. Even if it could be shown that this pair of quasi-spook journalists really didn't have clearances to receive such information, the President has claimed to have a summary power to declassify documents, even without seeking the normal approval of the head of the agency that did the original classification. Bush and Cheney have already made such a claim in the case of a section of a CIA October, 2002 National Intelligence Estimate (NIE) that Scooter had admitted he shared with Miller. We do not yet know whether Bush or Cheney will make such a claim on the INR notes that reference "Valerie Wilson" as a WMD manager. The same written classication procedures would mandate that then Secretary of State Powell have signed off on the release of the INR notes. Neither Tenet nor Powell have indicated that they gave their approval prior to the release of any classified documents that might reveal Plame.

**

THE REAL CONSEQUENCES OF PLAMEGATE

One can certainly see why Novak is under the impression that Rove and whoever the second high Administration source who outed Valerie Plame to him might have believed that they would escape legal consequences under the IAIPA. Too bad for Libby and Rove that there are laws against lying to federal Grand Juries and prosecutors.

The crowning irony is that the lies were unnecessary from a legal standpoint. Libby and Rove, and all the rest who face indictment might have successfully avoided prosecution because of the legal issues outlined above. So, why did they lie? There's only one explanation. It was to protect Bush and Cheney from the POLITICAL consequences of outing Plame. The object of all those counts of Perjury and Obstruction of Justice was to get Bush-Cheney re-elected. That was a criminal conspiracy in itself, and one which the system needs to most severely punish the top-tier ring-leaders for their crimes of state.

There's a doctrine of law called "unlawful enrichment". People who obtain ill-gotten gains from crime are forced to forfeit these gains, and compensate the victims. When the crime is essentially political, how are gains to be forfeited retroactively? The answer to that is surprisingly simple. The election of 2004 would have gone the other way if Americans had learned then what they know now about the actions of the Plame conspirators. That constitutes fraud, which nullified the 2004 Presidential election. George W. Bush and Richard Cheney ceased to be President and Vice President, if ever they really were, some sixteen months ago. Any pardons they may subsequently issue should be treated as a nullity. Indeed, all that they have done since January 20, 2005, can be considered a legal nullity.

It's the right and duty of the American people to make such political judgments and enforce them as we see fit. If we, the jury, decide to defer imposition of sentence to after the upcoming elections, that's fair and would be wise. If, however, the political and legal system manifestly fail again due to fraud, far sterner penalties may be justified by the severity of the crime. The system has just one more bite at the apple.
________________
2006, Mark G. Levey

[jimshoes]

1. That's because...

"if the president does it, that means it's not illegal"... or so said Dick Nixon.

[leveymg]

3. That's the REALLY BIG PICTURE analysis, alright.

But, look what happened to Nixon.

[pacalo]

2. Just as Fitz explained at the pc, "the FBI officers would have gone

on their way" if they had been told the truth; the consequences would then have been political. But just like Nixon, these guys love power & it will be their undoing. I'm glad they don't have a high regard for history; it's as though they're using Nixon's playbook & everyone knows the results but them.

[leveymg]

4. It's like they're locked in the same repeating Twilight Zone episode.

Different suits, largely the same faces and identical personalities. That Hubris rock rolls back and forth over them on a fifteen year cycle. This time, let's make sure the rock is big enough to keep them from popping up again in 2020.

[pacalo]

5. Your last sentence, in particular, will be prophetic.

This time, with no checks & balances, people are growing even more frustrated & angry because we're feeling like hostages with no recourse. When this nightmare is over, who is going to vote for another Republican (besides those who don't give a hoot)?

[yodermon]

6. I just re-read Fitzgerald's press conference

trascript, when his GJ indicted Scooter.
You know what statute he never mentions? the Intelligence Identities Protection Act. (IIPA).
You know what statute he does mention? By name? USC 18 SECTION 793, The Espionage Act
He doesn't just mention it, he opines on it for several paragraphs:

QUESTION: Was the leaking of her identity in and of itself a crime?

FITZGERALD:... And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.

That is a difficult statute to interpret. It's a statute you ought to carefully apply.

I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is in England the Official Secrets Act.

Let me back up. The average American may not appreciate that there's no law that's specifically just says, "If you give classified information to somebody else, it is a crime."

There may be an Official Secrets Act in England. There are some narrow statutes, and there is this one statute that has some flexibility in it.

So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act.

I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute.

I find it interesting that in response to the question: "Was the leaking of her identity in and of itself a crime?" we do NOT get Fitz's comments on the IIPA, but on the friggin ESPIONAGE ACT.

I wonder why that is?

And I wonder why we (in the press, blogosphere, and general public) are even talking about the IIPA, which has a higher standard of proof than the Espionage Act, which Fitz saw fit to mention by name?

Very curious.

(edited to add link to press conf. transcript: http://www.washingtonpost.com/wp-dyn/content/article/2005/10/28/AR2005102801340.html )

[leveymg]

7. McNulty's going after the AIPAC guys under the Espionage Act

Personally, I have some extreme reservations about applying it that way to recipients of leaked classified documents. However, I think it would be appropriate to prosecute the PLAME leakers. The relevant portions of the 1917 Espionage Act are as follows:

The Espionage Act of 1917

Sec. 1

...

(e) whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, or information, relating to the national defence, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be list, stolen, abstracted, or destroyed, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or both.

...

Sec. 5

Whoever harbours or conceals any person who he knows, or has reasonable grounds to believe or suspect, has committed, or is about to commit, an offence under this title shall be punished by a fine of not more than $10,000 or by imprisonment for not more than two years, or both.

In the specific fact circumstances of the Plame case, it could be applied to Libby who Judy Miller and other sources relate that Scooter referred to an abstracted section of the October, 2002 NIE when he discussed the document with Judy over breakfast in the dining room of the St. Regis Hotel on the morning of July 8, 2003. If they had instead met in the more business-like surroundings of Scooter's WH office, and he had simply paraphrased the contents, then this section of the EA might not apply, as there would have been no removal or abstracting. This stricture also seems to make prosecution of Cheney and Bush, as they can claim they did not know that Scooter would remove or classified documents opr have them abstracted.

I think Fitz is looking for a knockout punch, and might threaten Scooter, Rove and others with prosecution under the EA, but it appears difficult to directly prosecute the top-tier guys (Bush-Cheney) with it. Federal conspiracy law and precedent applies here.

Hope this is responsive to your excellent point.