Unclaimed Territory - by Glenn Greenwald


I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, October 31, 2005

The way to attack Alito

It will be tempting to attack Samuel Alito's abortion jurisprudence on the ground that, in Planned Parenthood v. Casey, he voted (in lone dissent) to uphold as Constitutional the Pennsylvania statute requiring women seeking an abortion to first certify that they notified their husbands of their intent to do so. Anti-Alito commentators are already trumpeting his Casey dissent in launching their attack.

But for those who want to defeat this nomination, the goal has to be to convince those dreaded moderates -- the ones comprising the Senatorial Gang of 14 and beyond -- that Alito is too ideologically and judicially extreme to be a suitable replacement for Sandra Day O'Connor. This line of attack seems destined to fail in that objective, and worse, obscures a far more effective way to wield Alito's Casey dissent against him.

A law requiring a woman to notify her husband before she can abort her baby (not that she obtain consent of her husband, and not that she notify the father of her baby -- only that she notify her husband, if she has one) -- does not seem that it would greatly offend very many people beyond the hard-core, absolutist pro-choice minority, which is going to oppose Alito no matter what.

After all, the "husband notification" law in question was enacted by the Blue-state Pennsylvania legislature and signed into law by its Democratic Gov. Casey (hence the case name). It is consequently difficult -to put it mildly- to use Alito's Casey opinion (which simply found the law Constitutional) to depict him as some sort of crazed anti-abortion fanatic well outside of the mainstream. He may be that, but his Casey opinion doesn't demonstrate that, at least not in a way likely to convince those who need convincing.

A far more effective approach for using Alito's opinion in Casey is to use it to illustrate that he is the polar opposite of the moderate Justice O'Connor, and therefore entirely inappropriate to replace her. Remember -- it is not merely that the U.S. Supreme Court rejected Alito's conclusion in Casey when that case reached the Highest Court. Far more significantly, the Court rejected Alito's constitutional analysis of this statute by a narrow 5-4 decision, and expressed its holding in a Joint Opinion issued by Justices Kennedy, Souter -- and Sandra Day O'Connor.

Thus, we need not speculate about whether a Justice Alito replacing Justice O'Connor would alter the delicately maintained ideological balance of the Court. We know that it would -- drastically and radically. Indeed, they reached precisely opposite conclusions in Casey, one of the most important and controversial cases of the last 25 years defining the Constitutional rights of American citizens, and Justice O'Connor expressly held that Alito reached the wrong constitutional conclusion.

Luckily, with Casey, we have a live, breathing example of how different Alito would be from Justice O'Connor. After all, Justice O'Connor signed an opinion there directly repudiating the approach of Alito to analyzing abortion rights. That is the real value of Alito's Casey dissent -- to demonstrate what a fundamentally different jurist he is from the now-widely admired, moderate O'Connor.

This approach would shift this part of the debate from whether it is really all that horrendous to require that husbands be notified before their babies are aborted (something on which there would likely be substantial debate) to the much more potent question (from an anti-Alito perspective) of whether we want to (a) roughly maintain or (b) radically alter the centrist balance which the Court has maintained for the last 25 years, at least.

American citizens get engaged and react strongly when they believe there is about to be a profound shift towards an extreme (see the reaction to Bork, the rejection of the Gingrich Congress, Clinton's efforts to change military policy towards gays, Hillary's health care plans, Bush's anti-social security efforts, etc.). It seems much more likely that average citizens and moderate politicians would be galvanized by a threat to shift the ideological balance of the court much more so than by the notion that Alito thinks husbands should be notified before their wives get abortions.

Independently, this approach will also help to alleviate the not insignificant problem that Alito was confirmed unanimously by the Senate for his Court of Appeals seat, with many leading Democrats and important swing-Republicans praising him to the sky.

It may be the case, this approach will enable one to argue, that Alito was an acceptable choice for a 3rd Circuit Court of Appeal seat, but his ideological extremity and marked departure from O'Connor's jurisprudence makes him uniquely ill-suited to occupy the centrist, balance-maintaining seat being given up by Justice O'Connor.

Saturday, October 29, 2005

Responses to Libby Defenders

If the only defenses which Lewis Libby is going to have at trial are the ones which have so far been circulated online (including in the comments section to my last post), he is in serious trouble.

The excuses (both legal and political) being made on his behalf, at least thus far, rest upon clear factual and/or legal distortions, and do not even appear to be intellectually honest. Here is the summary of (and responses to) the most common Libby defenses:

(1) Nothing Libby did with regard to the “leak” itself was illegal because Valerie Plame was not a “covert” agent.

Whether Plame was “covert” or not, the fact that she was employed by the CIA was indisputably classified, and the law prohibited Libby from doing exactly what he did – i.e., disclosing that classified information to those not authorized to receive it (the reporters).

The Indictment makes absolutely clear that: (a) Plame’s employment with the CIA was classified (see Paragraph 1(f)): “At all relevant times . . . Valerie Wilson was employed by the CIA, and her employment status was classified”); and (b) Libby disclosed this classified information to reporters. Although he was not indicted on that charge, he clearly engaged in that illegal conduct.

It is illegal to disclose classified information to individuals who are not cleared to receive it. Period. While there is a specific 1982 criminal statute which specifically criminalizes the outing of overseas covert CIA agents and which does require that the agent be covert, the general laws prohibiting unauthorized disclosure of classified information merely require that the disclosed information be classified (which Plame's CIA employment at the time indisputably was).

(2) It is now clear that Libby committed no underlying crime; his only crime was the cover-up.

Just because someone isn’t indicted for a crime doesn’t mean they didn’t commit the crime, nor does it mean that the prosecutor can't prove the crime. The absence of a specific charge in an indictment does not mean that the defendant did not commit that crime.

There are lots of reasons relating to prosecutorial discretion as to why a Prosecutor would opt not to indict someone on a particular charge even where the Prosecutor believed that crime was committed and he could prove it.

Here, there are many potential reasons why Fitzgerald may have opted not to seek an indictment on the underlying crime (all of which he hinted at or expressly stated in his Press Conference):

(a) Fitzgerald has Libby so completely nailed on these serious obstruction and perjury counts that he did not need to cloud the indictment with more difficult-to-prove, complex charges;

(b) Fitzgerald feels he lacks all of the evidence necessary to prove the requisite intent on the "leaking" charges precisely because Libby’s lying and obstruction prevented him from obtaining clear evidence in that regard;

(c) Fitzgerald has general policy concerns about the Espionage Act, the statute which arguably criminalizes the disclosure of classified information, becoming tantamount to the odious States Secret Act in England, and he opted not to bring charges under the Espinoage Act due to those policy concerns; and,

(d) Fitzgerald is hoping to induce Libby into cooperating as part of a plea bargain and intends to hold over his head the threat of additional indictments relating to the leak itself as leverage in those negotiations.

Any of these are perfectly legitimate (and hardly unusual) reasons for Fitzgerald not to have sought indictments directly arising out of the outing of Plame. In all events, the lack of such an indictment (thus far) is far from a declaration by Fitzgerlad that no crime was committed when Plame’s CIA employment was disclosed.

To use the absence of an indictment as some sort of proof that Libby was found to be innocent of wrongdoing concerning the “leak” -- or that no crime was committed when her employment was leaked -- is simply dishonest.

If anything, the Indictment implicitly alleges that Libby did commit a crime by leaking her CIA employment to reporters because, at all times, that information was “classified.”

(3) Libby had no reason to lie or cover-up because he didn’t commit an underlying crime in the first place.

When Libby was interviewed by the FBI beginning in October, 2003, and when he testified in front of the Grand Jury beginning in March, 2004, he obviously didn’t know that Fitzgerald, in October 2005, would ultimately refrain from indicting on the underlying charges. To the contrary, the foremost fear in Libby's mind at that time had to be that his disclosure of classified information to reporters would be discovered.

After all, that was the charge which prompted the investigation and led to the appointment of Fitzgerald. Libby knew that – and he also knew that he did indeed disclose to several reporters the indisputably classified information that Plame worked for the CIA. He had every reason to want to cover that up.

Strictly on a legal level, at the time he was speaking to the FBI and testifying in front of the Grand Jury, Libby had every reason to fear that what he did in disclosing Plame’s CIA employment to reporters was illegal. It is easy to understand why he would want to lie about the source of the information – if reporters already had the classified information and it was reporters who passed it on to Libby, then that would be a perfect, complete defense to the potential crime that was being investigated.

By stark contrast, if Libby told the truth about what happened – i.e., if he admitted that he obtained the classified information of Plame's employment from the CIA and from Cheney and then disseminated it to reporters – that would be a confession to actions which quite likely did, indeed, constitute a crime.

It makes perfect sense that he’d want to cover up that conduct by lying about it. He lied about it for the same simple reason all common perjurers in that situation lie: because they are petrified that if the truth were known about what they did, they will be convicted and imprisoned. And so they lie in order to prevent others from discovering what occurred.

Beyond purely legal considerations, Libby also had ample motivation to lie for political reasons. What he did was facially ugly and politically damaging. Legalities aside, he learned from the Vice President and the CIA the classified information that Wilson’s wife worked for the CIA and then disclosed that information to reporters.

The fact that he first learned from the Vice President dragged Cheney into this scandal (as a political matter, if not a legal one). Worse, in the Fall of 2003, Scott McClellan, succumbing to increasing media questioning, was forced to emphatically and expressly assure the public that Libby (among others) had no role in the disclosure of Plame’s CIA employment, independently providing motivation for Libby to avoid discovery of what he really did.

It is hardly difficult to imagine Libby -- when talking to the FBI and the Grand Jury -- wanting desperately to avoid these politically damaging revelations, especially as they pertained to his boss. He thus had ample motivation, both legal and political, to lie both about the source of his knowledge that Plame worked for the CIA as well as what he told reporters about this.

(4) This is about nothing more than Libby’s understandably getting a few dates confused well after the events occurred.

Even the people advancing this excuse can’t possibly believe it. What is important is not the date on which Libby learned of Plame’s employment with the CIA (i.e., June 4 v. June 14 v. July 10). If it were only a failure to recall dates accurately, there would almost certainly be no charges.

What matters here is the means by which Libby learned of Plame’s employment – whether it was simply by having reporters pass unconfirmed rumors to him (as he falsely claimed), or whether he learned this information from multiple high-level Government sources who confirmed it to him as fact (i.e. whether he learned it due to his access to classified government secrets).

No rational or fair person could find the suggestion credible that Libby simply forgot that he learned of Plame’s CIA employment from other government officials. This excuse could be credible if he had learned about Plame's employment during one casual or routine conversation in which it was discussed in passing. But that is not what happened – not even close.

The Joe Wilson/Valerie Plame matter was one of great importance and prominence for Libby throughout June and early July. As the Indictment documents, he was told about Plame not on one occasion, but on multiple occasions.

And he wasn’t hearing it from mid-level government bureaucrats. He heard it first from the Vice President of the United States (early June), then from a “senior CIA officer” (June 11), then from the “Under Secretary of State” (June 12), then during a discussion with a “CIA briefer” (June 14), and finally from the Counsel to the Office of Vice President (July 8).

That's four separate ocassions when Libby learned about Plame's CIA employment from high- level officials, and one ocassions when he learned it as part of a CIA briefing.

Plainly, the subject of Plame’s CIA employment was something that was being discussed in the Vice President’s Office repeatedly and systematically over the course of five (5) weeks. Libby learned this information as fact from executive and intelligence officials at the highest levels, including his boss, the Vice President.

Just as importantly, Libby not only repeatedly heard from other Bush officials about Plame’s employment, he himself repeatedly disseminated that information, including to the Administration’s Press Secretary on July 7, and, of course, to reporters on multiple occasions beginning in June.

The notion, then, that Libby simply “forgot” that he had this information confirmed as fact by multiple, classified Government sources -- and that he instead simply “mis-remembered” and mistakenly thought that he only heard it from a couple of reporters as rumors – is facially incredible, insultingly so. There was a concerted effort underway by multiple Bush officials to find out about Wilson and his wife, and Libby, being at the center of that effort, did not “forget” that it happened.

And, contrary to the excuses being made on Libby’s behalf, there was not all that much time that elapsed between the events themselves and the first lies about them told by Libby. In fact, there was very little time which elapsed.

The first allegedly false statement he gave to the FBI occurred on October 14 (see COUNT THREE, Paragraph 2) – a mere three to four months after the relevant events occurred. When one notes additionally that there was ongoing and quite public uproar over the Plame disclosures during that time period (which is what prompted the investigation in the first place), it is simply absurd to assert that the matter of Plame’s CIA employment was some inconsequential little detail which, particularly during that time period, could simply have slipped Libby’s mind.

What happened here appears quite clear. Libby knew he had obtained the information about Plame’s CIA employment from high-level Bush officials and intelligence officers and that, as a result, it would certainly be slimy, and quite possibly illegal, for him to have disclosed this classified information to reporters. As a result, he did not want it known (understandably so) that he did that, and so he lied to the FBI (and then the Grand Jury) by claiming that he learned of Plame’s CIA employment from reporters, and not from classified Government sources.

The real mystery is why so many people seem to be pretending that Libby’s motives to lie are non-existent or perplexing. In disclosing to reporters the classified information of Plame's CIA employment, what Libby did was wrong and almost certainly illegal. He lied about it because he did not want it known that he did it. What is confusing about that?

Friday, October 28, 2005

Libby's Indictment does not depend upon the recollection of reporters

Foreshadowing what is sure to be a popular line of attack on Lewis Libby's indictment, right-wing bellweather Michael Ledeen, in National Review's Corner, announces that the Indictment "stinks," because, he claims, the Indictment rests on nothing more than mere discrepancies in recollections between Libby and the reporters with whom he spoke:

I finally concluded that (the Indictment) says that Libby lied to the grand jury (and elsewhere the FBI) when he testified that he told (Cooper, Miller or Russert) things that in fact he did not tell (Cooper, Miller or Russert).

If that is right, it means that this poor man may well have been indicted because his memory of those conversations differs from the journalists'. And Fitzgerald chose/wanted? to believe the journalists' memories. Pfui.

To this non-lawyer, that's not good enough to shake up the staff of the vice president of the United States. Isn't perjury a knowing lie?

Why should Fitzgerald assume, even if he thinks he KNOWS that the journalists' memories are all reliable, that Libby didn't misremember the conversations?

This entire claim is simply untrue. A central prong of the Indictment is that Libby lied to the Grand Jury and to the FBI not only about what he said to reporters, but also about when and how he first learned that Wilson's wife worked for the CIA.

According to the Indictment, Libby told the Grand Jury that he first heard of Plame's CIA employment during a July 10 telephone conversation with Tim Russert, and that he was "surprised" to learn of this during that conversation (see Paragraph 32(a)(ii)) (cited Indictment paragraphs are excerpted below).

That testimony is false, alleges the Indictment, because Libby had known about Plame CIA's employment well before he ever spoke with Russert. Indeed, the Indictment lists four (4) separate occasions prior to his conversation with Russert when Libby was informed that Plame worked for the CIA ((see Paragraph 33(a)(ii)), including his early June conversation with Vice President Cheney, his June 11 conversation with a "senior CIA officer," and his June 12 conversation with an Under Secretary of State.

In each of these conversations between Libby and senior government officials prior to his June 10 conversation with Russert, he was told that Plame worked for the CIA. Thus, the Indictment alleges, Libby lied to the Grand Jury and the FBI when he claimed that he heard about Plame's CIA employment for the first time when he heard it from Russert.

Moreover, the Indictment identifies conversations which Libby had prior to his June 10 conversation with Russert in which Libby told others that Wilson's wife worked for the CIA, including his July 7 conversation with Ari Fleisher. Clearly, as Patrick Fitzgerald pointed out in his Press Conference, Libby could not have learned of Plame's CIA employment during his July 10 conversation with Tim Russert if he was telling Ari Fleisher about it 4 days earlier.

These allegations have nothing whatsoever to do with Libby's recollections of his conversations with reporters, nor does this allegation that he lied under oath depend in any way upon the reporters' recollections about their conversations with Libby.

Rather, the Indictment relies upon what is, presumably, the testimony of other Bush officials which prove that Libby knew of Plame's CIA employment long before he spoke with Tim Russert on July 10. And we know now that Libby's own notes reveal that he learned of Plame's CIA employment in early June when Cheney told him - more than a month before the July 10 date he gave to the Grand Jury.


UPDATE: Several comments have advanced the argument that Paragraphs 32 and 33 of the Indictment are vague and could be read to simply mean that Libby told the Grand Jury he was "surprised" to hear from Russert that Plame worked for the CIA (because Russert shouldn't know about it) -- rather than that he was "surprised" to hear the fact itself that she worked for the CIA.

While the paragraph is not perfectly drafted, this is not a credible argument, because Paragraph 32(a)(ii) makes clear that Libby told the GJ that he "was surprised to hear that Wilson's wife worked for the CIA" - not that he was surprised to hear it from Russert. Clearly, Libby was telling the GJ that, before his conversation with Russert, he didn't know about Plame's employment.

But regardless of that ambiguity, Paragraph 2 of COUNT FIVE (Perjury) makes it even clearer. It quotes Libby as saying this to the GJ about his July 12 conversation with Time's Matt Cooper:

"I was very clear to say reporters are telling us [about Plame's CIA employment] because in my mind I still didn't know it as a fact. I thought it was - all I had was this information that was coming in from the reporters."

That's about as clear as it gets - Libby told the GJ that as of July 12 when he talked to Matt Cooper, he didn't know for a fact that Plame worked for the CIA because he only heard this as a rumor from reporters. That testimony is false and does not require any reliance on reporters to prove it to be false.

If you show that testimony to the jury at Libby's trial - and then follow it up with all the government officials (including Cheney, the senior CIA official, etc.) who will testify that they TOLD Libby before July 12 FOR A FACT that she worked at the CIA - he will be convicted.

When you add to that the testimony of other officials (such as Ari Fleisher) to whom Libby disclosed this information about Plame before talking to reporters, the trial would be a bloodbath. You do not even need any testimony at all from reporters to prove this perjury.

That's why this Indictment is so powerful - assuming its allegations are accurate, Libby clearly lied about when and how he learned about Plame/CIA in a way that is demonstrable and proven by multiple credible sources.

Thus, this excuse from Libby apologists that the Indictment is simply the by-product of some he-said/she-said dispute with reporters regarding who said what during Libby's discussions with reporters is absurd and false.

The Indictment is based upon what appears to be fact after fact demonstrating that Libby knew of Plame's identity long before the event he cited to the Grand Jury as the time he first learned of it. The Indictment also rests on numerous facts showing that Libby learned of this from many officials in the Bush Administration, and not from Tim Russert.

Since a critical issue in Fitzgerald's investigation was how Libby learned of Plame's CIA employment, it is hardly a surprise that he decided to indict Libby for lying so repeatedly and transparently about this central issue.

Say what you want about the Indictment, but one thing that cannot be said truthfully about it is that it depends upon the recollections of reporters and differences between their recollections and Libby's. On the face of the Indictment, it rests on far more substantial ground than that.


Relevant indictment paragraphs:

32. "Defendant LIBBY made the following materially false and intentionally misleading statements and representations, in substance, under oath . . .

(a)(ii) - "At the time of this conversation [with Russert], LIBBY was surprised to hear that Wilson's wife worked for the CIA"

33. "It was further part of the corrupt endeavor that at the time defendant LIBBY made each of the above-described materially false and intentionally misleading statements and representations to the grand jury, LIBBY was aware that they were false in that: . . .

(a)(ii) At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA; in fact, LIBBY had participated in multiple prior conversations concerning this topic, including on the following occasions:

The Indictment then lists nine (9) separate occasions prior to the Libby conversation with Russert when Libby was either told that Plame worked for the CIA or when he told others that she did -- thus proving that he lied to the Grand Jury when he said he first learned of it during his conversation with Russert.

Monday, October 24, 2005

Brazilians refuse to give up the right to bear arms

Here in Brazil, the country yesterday held a nationwide, single-issue referendum. The question: whether the country should ban the commercial sale of firearms. The result: roughly 66% against the gun ban, with only 34% in favor of it.

The lopsided rejection of the gun ban is extraordinary. When the referendum was first introduced, polls consistently showed a huge majority -- as much as 80% -- in favor. It was widely expected the gun ban would pass easily. Brazilians, living in a country with the second-highest gun-murder rate in the world (after Venezuela), instinctively favored proposals to ban the sale of guns as a quick fix for reducing the nation's rampant violence.

But as citizens became more informed and thought more rationally about the issue, their opinions changed radically. Brazilian television stations gave each side free commercial time to argue its position, ensuring fair and informed debate. As Brazilians thought more about the gun ban, opposition steadily grew, culminating in the astounding and lopsided defeat for the gun ban referendum.

Brazilian cities are plagued with epidemic gun violence. Organized criminal gangs based in the favelas (slums) of Brazilian cities are often better-armed than the police. Ordinary street criminals are well-stocked with firearms. And the perception is widespread among the citizenry that the Government is inept at providing its citizens with basic security and protection.

From these premises, Brazilians perceptively concluded that the absolute worst option would be for its law-abiding citizens to disarm en masse, leaving them even more vulnerable and undefended against the nation's well-armed criminals -- who (being criminals) would, of course, defy the gun ban and continue to stockpile firearms.

Brazilians realized that the last thing they wanted to do was to bestow upon the nation's theives, muggers, kidnappers and murderers the peace of mind of knowing that they can invade whatever homes they want or assault whomever they want with impunity, free of the fear that their victims may be as well-armed as they are. Nor did Brazilians want to cede the right to protect themselves to a Government which so drastically fails to fulfill its duty of protecting them.

Equally persuasive was the argument that a disarmed citizenry is more vulnerable not only to criminals but to government tyranny as well. In a country with a (relatively recent) history of military dictatorships and state repression, the argument that firearms played a crucial role in some of the 20th Century's most glorified citizen-led fights for freedom -- in Tiananman Square in China, by Nelson Mandela in South Africa, and by various repressed populations in World War II -- resonated loudly. Brazilians concluded that they were in far greater danger giving up the right to bear arms than they were in keeping that right.

Regardless of one's views on gun control, the referendum was a potent illustration of democracy at its most virtuous. The public debate was vigorous, open and substantive. Voters listened to the arguments that were advanced on both sides, a majority actually changed its mind as a result of the debate, and they then made an informed and rational choice concerning one of the nation's most pressing issues.

As a result of the referendum -- both the result and the process leading up to it -- personal security and political liberty are substantially healthier in Brazil.

Sunday, October 23, 2005

How about rank and serial number?

In the middle of the big, wet, worshippful French kiss to I. Lewis "Scooter" Libby masquerading as a news article in today's Washington Post, we find this seemingly insignificant but profoundly disturbing nugget:

Several aspects of Libby are subject to varied interpretations, or at the very least, casual mystery. Libby is loath to disclose -- even to close friends -- what the "I" stands for in his name. Matalin credits USA Today with "breaking" the story that Libby's first name is "Irv" (though other publications had reported "Irving" and public databases list him as "Irve").

Cheney's office would not confirm or deny what the "I" stands for.

Cheney's office refuses to disclose Libby’s real name? Is that really true?

I mean, a penchant for excess secrecy is one thing. But don’t we have the right to know the names -- y’know, the actual legal names, rather than merely the nicknames -- of our highest and most powerful governmental officials? That seems sort of basic, doesn’t it?

According to the Post article, Libby is one of the most powerful people in our Government and one of the most influential presidential aides in history:

Libby is distinctive for the power and authority he wields, a product largely of Cheney's outsize role in the Bush administration. Libby holds three titles: chief of staff and national security adviser to Cheney, and assistant to Bush. Like few other advisers, he attends the highest level of White House meetings. He attends the weekly gathering of Bush's top economic advisers and -- according to Bob Woodward's book "Plan of Attack," about the Bush administration's run-up to the Iraq war -- was one of two non-principals who attended National Security Council meetings with the president after Sept. 11, 2001 (the other was Condoleezza Rice's then-deputy, Stephen Hadley).”

He's one of the most powerful people in our Government, shaping matters of war and peace, life and death. And yet he won’t tell us his real name, and the Administration also refuses to tell us.

For the Administration's symbolic contempt towards basic precepts of transparency and responsiveness which this absurd secrecy reflects, if for no other reason, shouldn't this refusal to tell us “Scooter” Libby’s real name be provoking lots of outrage?

Why I wrote that incriminating letter to Judy, by Lewis Libby

Readers of today’s New York Times article and Washington Post article featuring I. Lewis “Scooter” Libby were told what a brilliant, cunning, careful master strategist, philosopher, thinker, intellectual and patriot Libby is, whose dedication to protecting America’s national security is matched only by his four-dimensional analytical mind, his photographic memory, and his contemplative powers.

Revoltingly mindless propaganda or not, it does seem clear that Libby is neither stupid nor intentionally self-destructive. For this reason, there had to be some line of rationale dancing around in Libby’s head which led him to include several paragraphs of transparent testimony-coaching in his letter to Miller even after he was expressly warned not to do exactly that by the Prosecutor in whose hands Libby’s fate rests.

So why did he do it? What led this masterful, prescient, strategic genius to write a letter which, quite predictably, became public and could, by itself, send him to prison for a nice, long time?

Miller’s lawyer, Bob Bennett, called Libby’s letter both "foolish" and “stupid." But is that really all there is to it? This scheming, supremely cautious genius just suddenly woke up one day and engaged in reckless, self-destructive behavior without any rationale? He just did something "foolish" and "stupid," in a matter this important?

Unlikely. Highly unlikely. Instead, there are several possible explanations -- even justifications -- for Libby’s fateful decision, explanations which render his decision to write this letter far from "stupid," notwithstanding how poorly the decision may have turned out for him:

(1) Sheer Desperation - Libby may have concluded that as risky as it would be to defy Fitzgerald’s warning and send this testimony-coaching letter to Miller, it was even riskier not to signal to Miller what she should say. And it is quite possible that Libby may have been right in this risk-benefit assessment.

If it is the case that Libby told the Grand Jury that he never disclosed Valerie Plame’s CIA employment to any reporter, and if it is the case that he told the Grand Jury only about his July meetings with Miller but omitted the June 23 meeting, then Libby would be understandably petrified once Miller decided to testify that she would contradict those claims. If Libby falsely denied to the Grand Jury that he disclosed Plame’s CIA employment and omitted his June 23 meeting with Miller, he did so because he expected that Miller would never testify.

But once 85 days in prison wore down her resolve (as it was intended to do), and it became clear that she would no longer melt away in jail in order to protect Libby, he had to panic. The thought of Judith Miller sitting in front of the Grand Jury and recounting how Libby told her in June that Plame worked for the CIA - after Libby expressly and repeatedly denied under oath not just the conversation but the existence of the June meeting itself -- would have sent any rational person into panic mode. That testimony, by itself, could easily result not just in his indictment, but in his conviction.

In that situation, it is not hard to imagine that Libby thought his future depended upon Miller’s keeping her mouth shut about the June meeting. He would have concluded that every other goal (including the “Rule #1” goal of not angering Patrick Fitzgerald) was subordinate to ensuring that Miller not “remember” the June meeting.

A rational person takes huge risks when the situation is desperate. You don’t jump out of your third-story window because you’re in a rush to make an appointment, but -- as risky as it is -- that is exactly what you do if your house is on fire and it’s your only chance for escaping.

When Miller finally caved and agreed to testify, Libby’s house began to burn. If she “remembered” that he told her about Plame’s CIA employment at the June meeting, he was finished. And so he opted for the enormously risky path of doing everything possible to prod her not to remember that meeting.

As we know now, Libby’s desperate bid to mold Miller’s testimony, at least in this regard, failed. By the time she was sprung from her cell, Miller’s first goal was to avoid a return to prison, and so she spilled her guts about the June meeting and about Libby’s disclosure of Plame’s CIA employment, directly contradicting the suggestions she believed Libby was making in his “aspens” letter.

So the gamble worked out horribly for Libby on all fronts. Not only did Miller go in and contradict his testimony on critical points, but the testimony-coaching letter became public (and, worse, known to Fitzgerald), thereby exacerbating his problems greatly.

But the fact that the scheme failed does not mean that the choice to pursue it was irrational. Libby was screwed in the absence of a letter to Miller, because Miller certainly would have testified about the June meeting (or, at the very least, Libby's disclosures about Plame's CIA employment) had she not been coached to avoid testifying about it. Thus, sending the letter in the hopes of avoiding that testimony, while risky, may have been advisable (legalities aside) under the circumstances.

(2) Tricked again by Fitzgerald - One of the odd features of the Plame investigation is the almost universal praise, even reverence, for all aspects of the entity known as “Patrick Fitzgerald.” Friend and foe alike obsequiously praise “Fitz’s” intellect, shrewdness, integrity, and tenacity. In the blogosphere, he has reached demigod status, the “Kaiser Souzy” of the prosecutorial world: silent and invisible, yet feared and all-powerful. Every development, no matter how small or coincidental, is interpreted as the ingenious by-product of Fitzgerald’s omnipotence and masterful planning.

Much of this is overblown, and is plainly motivated by an aching desire on the Left to believe that the Great Savior has finally arrived, in the person of a U.S. Attorney from Chicago, to slay the evil-doers in the Bush Administration and rescue the captive nation from its 5-year nightmare. Nonetheless, it is difficult to avoid the conclusion that Fitzgerald has impressively remained many steps ahead of those in the crosshairs of his investigation and their lawyers.

Did Fitzgerald lure Libby into his blatant testimony-coaching by: (a) encouraging Libby to communicate with Miller while (b) purposely leading Libby to believe that Fitzgerald would never know what Libby said?

In his September 12 letter to Libby’s counsel encouraging Libby to communicate with Miller, this is what Fitzgerald said:

“In closing, let me be clear that I cannot, and am not, seeking to compel a commun- ication either from Ms. Miller or Mr. Libby or their counsel, nor do I wish to be copied on such correspondence or to participate in any such conversation. I am simply making plain that any communication reaffirming Mr. Libby’s waiver would not be viewed as obstructive conduct. Rather, it would be viewed as cooperation with the investigation.”

So here, Fitzgerald is telling Libby: “Go write to your friend Judy in prison. I won’t mind. I’d even appreciate it if you do it. And oh, don’t worry - speak freely to her and don’t worry about anything. I don’t want to know what you say and I won’t know.”

Or, to put it another way: “Go ahead and write to Judy, please. But don’t tell her what to say in her testimony. But don’t worry about the warning I just gave you, because I won't ever know what you write.”

What an odd thing for a prosecutor to say. What prosecutor purposely avoids being privy to information related to his investigation -- even going so far as to request that he not be told what two crucial witnesses are saying to each other when talking about the investigation? It’s one thing for Fitzgerald not to demand that he be privy to the communications, but to purposely request that he not be made aware of the Miller-Libby communications (which he is simultaneously encouraging) is very unusual indeed.

At the very least, Fitzgerald’s “desire” not to be informed of Libby’s communications with Miller must have put the notion into Libby’s head that he was free to say anything he wanted to Miller without anyone ever knowing. That belief almost certainly influenced his risk-benefit analysis (see (1)) in favor of trying to coach Miller’s testimony even once Fitzgerald warned him not to.

After all, if Fitzgerald himself asked not to see Libby’s letter to Miller, what risk was there in Libby’s signaling to Miller what her testimony should be in the letter? If a witness tampering letter is sent and nobody hears it, has the witness been tampered with? Based on Fitzgerald’s assurances that he did not want to see the letter, Libby probably concluded that he was free to do what he wanted in his letter to Miller.

As we now know, and as was painfully predictable, not only Fitzgerald, but the whole world, got to read Libby’s letter soon after he sent it. And Fitzgerald -- after assuring Libby’s counsel that he had no desire to see the letter -- has obviously taken quite a keen interest in it now. He clearly spent some quality time with Miller in the Grand Jury room asking her about the letter and whether she believed it was an attempt to shape her testimony.

That looks like a pretty clear and clever trap, doesn’t it? Given Libby’s desperate need to ensure that Miller forgot about the June meeting, and given Fitzgerald’s affirmatively purported desire not to see Libby's letter to Miller, is it really that hard to understand why Libby decided to try to use the letter (which Fitzgerald encouraged him to send) as an opportunity to save himself by trying to steer Miller’s testimony?

And as for Fitzgerald’s quite unusual and oh-so-earnest assurance that he had no desire to see Libby’s letter to Miller -- nope, no desire at all -- was that: (a) simply an unintended opening for Libby to commit one more crime in his letter to Miller, or (b) did Fitzgerald know that it was likely that Libby would be a naughty boy in his letter to Miller if Fitzgerald assured him that he would not see the letter (even while knowing that someone would inevitably leak it) and, for that reason, gave this assurance to Libby’s counsel?

Either way, there seems to be little doubt that Fitzgerald’s express desire not to see Libby’s letter had the effect (intended or not) of leading Libby to conclude that it worth it to take the risk of sending testimonial signals to Miller in his letter to her.

(3) Libby is just misunderstood - It is possible -- not likely, but possible -- that Libby’s letter has simply been misunderstood and really was not an attempt to coach Miller’s testimony at all. Instead, this line of thinking would go, he simply had the misfortune of expressing himself ambiguously at exactly the wrong time with regard to exactly the wrong topic, and as a consequence, caused everyone (read: Fitzgerald) to think that he meant to say something that he really did not mean to say.

The most commonly cited passage in Libby’s letter in support of the claim that he tried to coach Miller’s testimony is this one:

“The public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me.”

Is it really that clear that this was an attempt to coach Miller’s testimony? After all, Libby is referring to public reports about what these reporters testified to. As a result, it’s certain that Miller, in preparing for her Grand Jury testimony, would have already been aware of these reports and did not need Libby to tell her about them (particularly since she had ample free time to peruse the news, having spent 85 days in prison).

Why, then, would Libby bother to include this passage at all? It could be that each time he talks about the Plame matter, he stresses his innocence. Criminal defendants and Grand Jury targets do that naturally. Being a defendant or a Grand Jury target is no fun, and it is difficult for such individuals to avoid screaming “I DID NOTHING WRONG!” whenever they talk about the matter. Seen in that light, the inclusion of this passage by Libby could be seen as nothing more than a protestation of his innocence: "It is clear I am innocent because everyone who testified said I did not disclose Plame’s identity!"

It may even be the case (contrary to the argument in point (2)) that Libby thought nobody would ever see his letter) that Libby, a veteran of Washington, knew that his letter, at some point, would find its way into the public domain. If a smart person in Washington (or anywhere) really wants to say something and keep it a secret, they don’t put it in writing. That’s just obvious. And if they put it in writing, they have to know that, even if it seems unlikely, there is a good chance that it will be publicly disclosed.

With the knowledge that his letter to Miller may very well be read by the world at some point, isn’t it natural that Libby would want to defend himself in this letter by summarizing the evidence that he believes exonerates him? Hence: “The public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me.”

Libby, after all, is a litigator, and litigators argue their case and marshal evidence supporting that case as second nature. Isn’t Libby just defending himself here by arguing on his own behalf that he did nothing wrong? And isn’t this desire to do so in a letter that would likely be public all the more understandable given the way in which he has already been essentially convicted of Plamegate crimes in the media?

It could very well be that what Libby did in his letter to Miller was “foolish” and “stupid,” but not criminal. A decent argument can be made that Libby did not tell Miller anything she did not already know, and that his summary of the known evidence in his favor was simply a litigator’s advocacy of his own innocence, rather than a Grand Jury target's attempt to dissuade a witness from telling the truth.

At the end of the day, though, Rule # 1 ought to have governed Libby’s conduct at all times. When you are the center of a serious federal Grand Jury investigation, and the federal Prosecutor overseeing that investigation expressly tells you not to coach a witness' testimony, it is best to be very certain that anything you say in a letter you subsequent write to that witness be free of all ambiguities and even remotely potential witness coaching. Whether through venality or just garden-variety stupidity, this Libby clearly failed to do.

Libby’s letter to Miller may be the final nail in Libby’s coffin. But that does not mean that Libby’s decision to send the letter was stupid, foolish or without rationale. More likely than not, the letter was a calculated gamble by Libby, a last-ditch effort to save his skin. The fact that it failed does not mean that it wasn’t worth trying.

Saturday, October 22, 2005

How to ensure you get indicted, by Lewis Libby

Does Lewis Libby want to be indicted? His now infamous and widely mocked "aspens" letter to an imprisoned Judith Miller renders that otherwise absurd question a reasonable one.

When you are at the center of a lengthy investigation conducted by a ravenous Grand Jury and an ambitious, aggressive federal Prosecutor, what is the one thing you want to be sure to do?

Co-op-er-ate -- or, more accurately and importantly, make sure the Federal Prosecutor believes you are cooperating.

Rove’s lawyer, Robert Luskin, understands this basic principle very clearly. Listen to him explain it to National Review’s Byron York:

During a conversation with Robert Luskin, Karl Rove's lawyer, last July, Luskin said, "Rule number one is cooperate with Fitzgerald, and there is no rule number two." It was a standard defense attorney line; the last thing one would want to do is to alienate Patrick Fitzgerald, the prosecutor who controls every aspect of the CIA leak investigation.

Got that? Let’s review Rule #1 one more time. As a target of this investigation, “the last thing one would want to do is to alienate Patrick Fitzgerald.”

With his “come-back-to-life-Judy” letter, Libby seems quite deliberately to have spit squarely in the face of that Rule -- and, as a consequence, squarely in the face of Fitzgerald.

Recall that Libby wrote his letter to Miller at Fitzgerald’s prodding. While imprisoned, Miller was using the excuse that she could not testify because Libby had failed to give her the waiver of confidentiality which she needed, while Libby insisted he had given it. Fitzgerald wanted Libby to give Miller whatever she needed so that she could no longer refuse to testify.

As a result, Fitzgerald wrote a September 12, 2005 letter to Libby’s counsel, Joseph Tate, pushing Libby to communicate with Miller in prison and encourage her to testify. In the letter, Fitzgerald expressly warned Libby, when doing so, not to suggest to Miller what her testimony should be. Here is Fitzgerald's polite but crystal clear warning:

Given the statement by counsel for Mr. Rove that he felt inhibited from communication between counsel, I wish to make certain that you understand that if Mr. Libby maintains that his waiver is valid and he wishes to communicate that fact either through you or directly to Ms. Miller or her counsel (without discussing the substance of what her testimony might be), I would not view such communication as obstruction.

Both Miller and, far more importantly, Fitzgerald, seem to believe that Libby, in his prison letter to Miller, did exactly what Fitzgerald warned him not to do -- i.e., he suggested to Miller what her testimony should be.

Listen to Miller recount a part of Fitzgerald's questioning in her My Four Hours Testifying in the Grand Jury Room” story in the Times:

[Fitzgerald] also asked whether I thought Mr. Libby had tried to shape my testimony through a letter he sent to me in jail last month. . . .

Mr. Fitzgerald asked me to read the final three paragraphs aloud to the grand jury. "The public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me," Mr. Libby wrote. The prosecutor asked my reaction to those words. I replied that this portion of the letter had surprised me because it might be perceived as an effort by Mr. Libby to suggest that I, too, would say we had not discussed Ms. Plame's identity. Yet my notes suggested that we had discussed her job.

The day on which Miller’s article appeared, her lawyer, Bob Bennett, went on television and made the same point even more strongly. He called Libby’s letter “stupid” because of how strongly someone -- such as, oh, say, Patrick Fitzgerald -- could view the letter as intended to coach Miller’s testimony.

Prosecutors are lawyers, and lawyers are human beings. Nobody likes being lied to or manipulated, and especially, nobody likes being flagrantly disrespected. Fitzgerald warned Libby not to suggest to Miller what her testimony should be, and Libby then went and did exactly that. Do you think that favorably inclined Fitzgerald towards him?

Worse (for Libby), when a prosecutor already thinks that someone may be dishonest or corrupt -- and surely, at the very least, Fitzgerald is entertaining that idea about Libby -- causing the prosecutor to conclude that you are trying to coerce and coach the testimony of other witnesses is pretty much the worst thing you can do (assuming you would like not to be indicted). After all, if you did nothing wrong, you would not need to coach the testimony of other witnesses, especially to give false testimony -- and you certainly would not risk doing so after the Prosecutor warned you not to.

If it was not already the case before this episode, it is hard now to see how the probability of a Libby indictment is anything less than 95%. If Fitzgerald was on the fence with regard to indicting Libby on any counts, Libby likely shoved Fitzgerald off that fence and onto the side of indictment with his little defiant, coaching note to Miller.

In the next post, I discuss the possible reasons -- other than feeding a penal death-wish -- as to why Libby may have included this testimonial coaching in his letter to Miller.


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