Watergate II : Libby indictment : excellent analysis

2005-10-29

Richard Moore

The article below, by Stirling Newberry, gives a very good
analysis of what the indictments mean.

    the fact is that a five-count indictment on felony charges
    rests on a theory of what took place that goes far beyond
    what Scooter Libby did or said. That the indictment is so
    carefully prepared, and carefully does not draw
    implications, nor does it include extraneous information,
    makes what it does include all the more interesting, and
    potentially damning.

The 'theory of what took place' is very interesting. It
includes the conclusion that there were discussions among
White House officials to pursue an illegal project in
order to achieve a political objective. Newberry says:

    It reveals that numerous other people in the executive
    branch, including Vice President Cheney, knew that he was
    lying to law enforcement officials and to the grand jury
    to protect himself.
        Which leads to another question: Why did they tolerate
    this, knowing, as they did, from before the investigation,
    that Libby knew Plame's identity, that he had obtained
    that information through official channels, that he had
    acted on that information in an official capacity, and
    that he had revealed that information to reporters? 

The indictments don't answer these questions, but the
clear implication is that a widespread criminal conspiracy
was afoot among high-level administration officials. My
conclusion, based on Newberry's analysis, is that the
indictment is intended to serve as a foundation for
further indictments. This analogy comes to mind: "This
group of people held up a bank, and for now we're
indicting the get-away driver." The clear implication is
that the bank robbers should be next in the dock.

And in fact, Fitzgerald assures us, in his press
conference, that his work, and therefore that of the
Justice department, is not over:
   ______________________________________
    http://www.truthout.org/docs_2005/102805A.shtml
        Washington - The CIA leak investigation is "not over,"
    special prosecutor Patrick Fitzgerald said Friday after
    announcing charges against I. Lewis "Scooter" Libby, Vice
    President Dick Cheney's chief of staff.
       Fitzgerald said he will be keeping the grand "jury open to
    consider other matters." But, he said, "substantial work"
    is done. 
    ______________________________________

Newberry himself, however, draws a different conclusion
from his own analysis, one that I find disappointing:

    Some questions cannot be answered by the Justice
    Department, but take the wide-ranging power of Congress,
    in its constitutionally-mandated duty, to oversee the
    executive branch. And it is up to the public whether a
    Congress of the same party as the President has been
    sufficiently attentive to that duty. This is a question
    that is not to be answered under the rules of criminal
    procedure, but through the ebb and flow of politics - a
    politics which Libby and others inside the executive
    branch acted to corrupt, and which is now turning upon
    them.

He offers no reason why the Justice Department cannot
pursue the remaining questions, now that the foundation
theory has been established. The proper way to deal with
criminals is to prosecute them for their crimes, with the
full sanction of law. That's what can be accomplished with
further indictments, by the Justice Department. Why does
Newberry want to shift the proceedings to a politicized
environment, where we can expect political horse-trading
rather than the pursuit of justice?

Over here in Ireland we have something called 'tribunals',
which are the equivalent of Congressional hearings.  In
every case what you have is a bunch of criminal officials
who should be prosecuted and jailed, but that prosecution is
superceded by a circus investigation. What this amounts to
is a vestige of the old class system: the aristocracy and
the peasants were subject to different justice systems.
Genteel treatment for genteel criminals: "We can't send
one of our own to the dungeons; let them off easy and 
give them another chance."

rkm 

--------------------------------------------------------
http://www.truthout.org/docs_2005/102805Q.shtml

Deconstructing the Indictment 
By Stirling Newberry 
t r u t h o u t | Perspective 

Friday 28 October 2005 

For the last two years, Federal Attorney Patrick
Fitzgerald has investigated a potential crime, namely the
revealing to the general public that Valerie Wilson nee
Plame worked for the CIA in counter-proliferation, and was
an undercover agent. To charge someone with a crime at the
Federal level requires an indictment - a summary of
allegations and facts which show that there is probable
reason to believe that a crime was committed, and that a
particular individual should be charged with that crime
and prosecuted. It is part of the safeguards of our
judicial system that prosecutors are not able to charge by
themselves, but have three forms of oversight. First, they
work for the public, directly or indirectly. Second, the
process is overseen by a judge, and approval is needed
along the way for warrants and subpoenas power. Most
importantly, they must convince a body of citizens, the
grand jury, that there is probable cause a crime has been
committed, and that a particular individual or group of
individuals should face criminal charges.

At 2:00 PM Eastern Standard Time today Fitzgerald all but
declared his investigatory phase over, and that his office
was entering into a new phase, where Lewis Libby, chief of
staff to Vice President Dick Cheney, has been charged with
a crime, and must be tried. It is tempting to speculate on
what this means, what the fallout will be, and where the
direction goes from here. But first, it is important to
capture the staggering statements made in the indictment,
and what they reveal. While partisans will attempt to spin
this in one direction or another, the fact is that a
five-count indictment on felony charges rests on a theory
of what took place that goes far beyond what Scooter Libby
did or said. That the indictment is so carefully prepared,
and carefully does not draw implications, nor does it
include extraneous information, makes what it does include
all the more interesting, and potentially damning.

But let us look with "the four corners of the indictment"
first. The timeline set forth by the indictment is this.
In the 2003 State of the Union address, George Bush
uttered the by now famous "Sixteen Words," claiming that
Saddam had attempted to get uranium illegally from Niger.
In May of 2003, that story began to unravel, as press
accounts came to the fore which questioned the Niger
Yellowcake story.

In June of 2003, the timeline grows dense. On or about the
11th and 12th of June, Scooter Libby was involved in a
flurry of activity trying to track down how it came to be
that Ambassador Wilson was sent to Niger on a fact-finding
trip, and why he was telling the press, at first on
background and later for attribution, that by the time of
the State of the Union address, the Niger story was
already known to be false by the administration. Or, in
simple terms, Wilson claimed that long before Bush uttered
the 16 words, it was known that there was no evidence for
them, and that they were, in sum, a lie.

Libby was told by Vice President Cheney, by an
Under-Secretary in the State Department, and by a source
inside the CIA, that Valerie Wilson, the wife of
Ambassador Wilson, worked for the CIA. He participated in
discussions of how to respond to Wilson's statements, and
pushed other officials for paperwork and information based
on that knowledge.

Libby's crimes began in the Seven Days in July, when the
executive branch scrambled to reply to Wilson's published
op-ed and television appearance. In that op-ed he claimed
to have been on a fact-finding trip to Niger, found
nothing to substantiate the allegations that Saddam had
tried to obtain yellowcake, and that in the normal course
of events, the executive branch should have been informed
of the results of his investigation. That is, he had
debunked the story, and the executive branch knew this
before the State of the Union. If true, it would imply
that Bush lied to Congress and the public.

During this time Libby not only widely spread the
information that Valerie Wilson worked for the CIA, and
the theory that she arranged the trip, but also told
different stories to different reporters. To most he
either did not mention Plame, or said that it was rumor he
had picked up from other reporters. This is a bald-faced
lie, since he both had the knowledge that Plame was an
operative of the CIA, and he knew he had the ability to
find out even if he had not known before. But to two
favored sources, Judith Miller and Matt Cooper, he told
the truth, namely, that he was sure of Plame's status as a
CIA operative. This is why Miller and Cooper were
essential.

When the FBI began their investigation into the burning of
Plame, Libby told a story, one that Fitzgerald called
"compelling" and which was believed for quite some time,
namely that he was passing on hearsay. This would have
been irresponsible, but not criminal. He repeated this
story to the grand jury in October of 2003. This action,
lying about what he did and what he knew, constitutes the
core of why Libby is charged with crimes. Not for burning
Plame, but for lying about having done so.

Libby was attempting to protect himself. The reason for
this is unknown, but he was named early as a probable
leaker, and would have been the logical person to
sacrifice if the wound of Plamegate needed to be
cauterized. He tried to run out the clock by telling a
story that would have required tremendous tenacity to
disprove. Unfortunately for Libby, Fitzgerald had the
tenacity to do this.

Simply put, to charge someone with a crime, the prosecutor
must prove what are called the "elements of the crime."
When you read a law, the definition of a crime contains a
list of things that must be true for the crime to be
committed. Whether it is breaking and entering, criminal
trespass or perjury, the state has to show beyond a
reasonable doubt that each and every part of the crime
occurred and that the party charged was responsible. Since
Libby could not say that he had not told people, he tried
to make it impossible for anyone to prove that he knew
Plame was CIA, and that her identity was a secret. His
story was that he had not known Plame was an agent from
classified sources. He further had to hope that the two
people who knew better in the press, Cooper and Miller,
would be willing to stonewall.

Libby's downfall began with a problem that engulfs many
criminals caught in the web of their own deceptions: he
had to start doing more than telling a story about what
might have happened, he had to start making up events that
others would know about. One point that opened the case
was Libby's claim that Tim Russert had told him that Plame
was CIA. Russert's recollection of the conversation was
completely different.

As the discrepancies began to pile up, Libby got caught.
With the notes of Miller and Cooper, which showed that
Libby told the truth about how he came by Valerie Plame's
identity, the last bricks were in place. Fitzgerald then
needed only to establish that Plame had taken reasonable
care to protect her identity, and that there was no
possibility that Libby had gotten the information about
Plame from unofficial sources. It is for this behavior,
namely lying to the FBI and to the grand jury, that Libby
is going to be prosecuted to the fullest extent of the
law. The indictment charges him with two counts of
perjury, two counts of false statements, and one count of
obstruction of justice.

This does not capture the full range and gravity of the
charges against him. An act of perjury is lying about a
material fact. Libby didn't merely lie once about how he
came by Plame's identity, but over and over again,
elaborating the lie with other lies, fabricating
conversations to protect the lie, and asking others to lie
to protect the lie. The indictment is filled with
statements that Libby made to the grand jury which the
prosecutor alleges are lies. This is not a technicality,
nor a single moment of weakness, but a sustained campaign
to present to law enforcement a fictitious story to avoid
criminal jeopardy.

But what this indictment implies is weightier still. It
states that there was official discussion of Plame's
identity by officials of the executive branch. It implies
that Wilson questioning the Niger story created a
political problem for them which they felt they had to
deal with, not by legal means, but by covert, and
potentially illegal means. If Wilson had been leaking,
then they could have simply had him arrested and charged
with leaking classified national security information. But
they knew that not only was Wilson telling the truth, but
that they had to deal with him without invoking the law.

The indictment does not charge Libby with burning Plame
because of a key unanswered question. One of the elements
of the crime of revealing a secret identity is the
unauthorized release of the information. The question
unanswered, as Fitzgerald repeated at his press
conference, is why Libby burned plame, and under whose
authority. Politically there is no good answer, whether
legal or illegal, the burning of Plame was clearly a
political act for political convenience, and not a matter
of national security. But for the purposes of the law,
Libby is only guilty if he was not supposed to reveal the
information. The indictment notes that Libby signed the
normal form to protect classified information. This means
that if he did not have permission to burn Plame, or the
permission was not legally given, he could be charged with
revealing classified information.

But we don't know that yet, and according to Fitzgerald,
Libby's obstruction of justice and perjury prevent us from
knowing. He was almost inviting a new investigation to
answer the real question of why Plame was burned. Libby
tried to run out the clock, but in the end, he did not
have enough blocking to do it.

This indictment leaves the field cluttered with amateur
spies. The list of casualties is long. Judith Miller and
Matt Cooper participated in a criminal attempt to obstruct
justice, probably knowingly. Cooper lied to his readers,
and Miller was prepared to lie should she write the story.
Not only Libby, but other officials of the executive
branch were involved in the effort to burn Plame and smear
Wilson. Libby attempted to blame others for burning Plame,
opening members of the press to the possibility of charges
and investigation. Rove remains under investigation. Ari
Fleischer lied in press briefings, and continued to
protect Libby in public even after it became clear that
his story was disintegrating.

And we still do not know why. Fitzgerald has answered key
questions, he has established that the story told by
right-wing spin sources is, and always was, a complete
fabrication meant to deflect criminal charges away from
the guilty. It establishes that Libby engaged in a
two-year-long criminal campaign to conceal evidence of his
actions, and blame others. It reveals that numerous other
people in the executive branch, including Vice President
Cheney, knew that he was lying to law enforcement
officials and to the grand jury to protect himself.

Which leads to another question: Why did they tolerate
this, knowing, as they did, from before the investigation,
that Libby knew Plame's identity, that he had obtained
that information through official channels, that he had
acted on that information in an official capacity, and
that he had revealed that information to reporters?

Already, Rep. Waxman has called for renewed hearings on
the matter in Congress. Already there have been statements
from Senator Edward Kennedy of Massachusetts on the
gravity of this indictment. However, the opposition party
in Congress has neither power to hold hearings officially,
nor to subpoena witnesses and material.

Some questions cannot be answered by the Justice
Department, but take the wide-ranging power of Congress,
in its constitutionally-mandated duty, to oversee the
executive branch. And it is up to the public whether a
Congress of the same party as the President has been
sufficiently attentive to that duty. This is a question
that is not to be answered under the rules of criminal
procedure, but through the ebb and flow of politics - a
politics which Libby and others inside the executive
branch acted to corrupt, and which is now turning upon
them.

---

Stirling Newberry is an internet business and strategy
consultant, with experience in international telecom,
consumer marketing, e-commerce and forensic database
analysis. He has acted as an advisor to Democratic
political campaigns and organizations and is the
co-founder, along with Christopher Lydon, Jay Rosen and
Matt Stoller, of BopNews , as well as the military affairs
editor of The Agonist .

-- 

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