09 Feb 2006

Libby was Authorized to Talk

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Murray Waas, at National Journal, is reporting that:

Vice President Dick Cheney’s former chief of staff, I. Lewis (Scooter) Libby, testified to a federal grand jury that he had been “authorized” by Cheney and other White House “superiors” in the summer of 2003 to disclose classified information to journalists to defend the Bush administration’s use of prewar intelligence in making the case to go to war with Iraq, according to attorneys familiar with the matter, and to court records…

Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration’s use of prewar intelligence in making the case for war.

Libby testified to the grand jury that he had been authorized to share parts of the NIE with journalists in the summer of 2003 as part of an effort to rebut charges then being made by former U.S. Ambassador Joseph Wilson that the Bush administration had misrepresented intelligence information to make a public case for war.

All this seems to go without saying.

L’Affaire Plame has been operating from the outset on the basis of a kind of bizarre hyper-legalism, in which senior officials of the Executive Branch of the government are being targeted for indictment, and prosecuted, on a strange theory that the principal functionaries of government, the ultimate users and proprietors of classified information, can be deemed to have injured or offended the government, i.e., themselves, by using classified information to inform the public.

But, of course, the Executive Branch is itself the actual owner of all US classified information, and the employer of every participant, so we are regarding the preposterous unfolding of a scenario in which subordinate members of the Executive (the CIA, the Department of Justice) are seeking to indict and/or convict their superiors (The Vice President’s Chief of Staff; and in the left’s happiest and wildest dreams, also the President’s Policy Chief of Staff, Karl Rove, and the Vice President himself).

Obviously the Executive Branch at its highest levels ought to be (absent a particular law) assumed to be entitled to use classified information in any manner it finds necessary or desirable in support of the policies of the Government, i.e., itself. At its most senior levels, the Executive branch can, in theory, classify or declassify at will.

So how can the Executive Branch be prosecuting the Executive Branch over its own classified information?

It is as if we find there were a dispute among the king’s servants in the royal castle over the proper arrangement of some table settings, and a coterie of disgruntled footmen had complained to the castle warden that the king’s chancellor’s seneschal was misusing the silver, and were trying to persuade him that the chancellor should be held responsible for this outrage as well, along with another principal crown minister, and all of them should be sacked and flung into the dungeon for their offense against the footmen.

The only possible rational basis for a possible crime would have to be the Intelligence Identities Act of 1982, which was enacted to protect genuinely covert intelligence officers, working overseas and consequently particularly vulnerable, from being endangered by having their identities disclosed by adversaries of the US Government. There has considerable public confusion concerning Mrs. Wilson’s employment status, but public information makes it clear enough that she has been working in Washington for more than the five years, stipulated in the Act.

In relation to the Intelligence Identities Protection Act, the special counsel refers to Plame as “a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years”. (8/27/04 Aff. at 28 n.15.)

Mr. Fitzgerald’s unspecific reference to Mrs. Wilson’s “covert overseas work” is very probably merely a desperate and highly disingenuous attempt to obfuscate the inapplicability of the statute serving as the basis for his entire investigation by so defining Mrs. Wilson’s employment as ipso facto covert, and treating any sort of trip abroad on Counterproliferation issues for consultation, or even conferencing, however brief, as sufficient to meet the terms of the statute.

If there is no violation of the 1982 Act, there was never a crime in the first place, and the entire affair represents a Kafka-esque spectacle of out-of-control partisan elements of government run wild, of government devouring its own tail.

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