This came in to the e-mail account today in response to an earlier post. The person is an attorney (that's been verified). The person asks to remain nameless. Attorney X notes a great interest in "the information" getting out than in credit, even offers that I could pass it off as my own. (Kind offer, but when I say "I don't know" -- as I did re: Vicky ToeJam's claims in a Wash Post op-ed and claims Richard W. Stevensom appears to have repeated in "At White House, a Day of Silence on Rove's Role in C.I.A. Leak" -- I mean "I don't know." No need to pretend otherwise on my part.)

If Attorney X decides to take credit via real name, we'll note the real name here. But the friend I called last night was very clear about not wanting to be named and so I can certainly understand Attorney X's desire to be unnamed. (Again, Attorney X's status as an attorney is verified.)


I have read your analysis of the New York Times article about Karl Rove.

I have read other articles and postings about this matter.

All trouble me, because they do not correctly describe the state of affairs.

Further, I think that the state of affairs can be simply and correctly stated.

Finally, I feel that doing so would contributing greatly to an understanding of what Mr. Fitzgerald is doing, and probably what Mr. Rove has done, and will be doing.

Take your analysis, for instance. It is very exacting and rigorous, it seems to me.

Very good, in other words. The problem from which it suffers is your ignorance. Not stupidity, ignorance. Just as there are many things I do not know about, there are some things you do not know about. Your analysis necessarily comes to a halt when you reach one of your points of ignorance. As you seem to recognize fully.

The good news is, the very few things about which you are ignorant in this case are very simple to understand, and they are things which I do understand.

I propose in this e-mail to set out those things, to source them to you solidly, and to offer my thoughts about what they mean. If you choose, please investigate offerings, consider them, and use them as you see fit.

First, the U. S. Code. You have linked to a University of Missouri Web site, I believe. I don't know about the authority, completeness, currency, and so forth of that Web site for such material. Probably the most authoritative source for such material, online, and maybe anywhere, is the official Government Printing Office Web site -http://www.gpoaccess.gov/uscode

Google "united states code" and you can confirm that.

Personally, I like the Cornell site -
http://www4.law.cornell.edu/uscode/

[. . .]

For your purposes, the GPO site is probably the best - you're right unless the official lawkeeper is wrong.

You're more than able to figure out how to use the site. Go over there, if you choose to pursue this, and look up 50 U. S. C. 421. Note several points.

1. In the first two subsections, at the very least, the law requires an element of intent. And the intentional act required is intentional disclosure. The act does not require knowledge on the part of the disclosing party that the person being identified is a covert agent. Just the intentional disclosure of information. The point of this intent requirement is simple. Suppose you know the identity of a covert agent, as permitted by law, and I, too, am permitted by law, to know it. You tell me, and someone overhears you, unbeknownst to us. Say someone taps our telephone conversation. You have disclosed the information to someone not entitled to have it, but not intentionally. You have not violated the law.

2. The information disclosed must identify a covert agent. Not necessarily by name. Or Social Security number. Or DNA. Any method of identification is sufficient. There is no restriction on the type of identification. Suppose you know the identity of a covert agent, as permitted by law, and I am an assassin sent to murder a foreign agent. But I do not know who it is. My government has paid you to tell me. We meet in a restaurant, where the foreign agent is eating, also. You nod your head toward her, and maybe say, "Her, in the blue dress, over there." You have violated the law.

The notion, as floated by Rove's lawyer, that the identification must be by name, is without support in the law. If the drafters of the law had wanted to limit the law in that way, they would have done so, and would have made it essentially useless in doing so.

3. The statute has a knowing element, in addition to the intent element. The thing which must be known is not the fact that the person identified is a covert agent, but that the information disclosed identifies the person. Again, the type of identification is not restricted.

4. The statute also requires that the discloser know that the United States is trying to keep the intelligence connection between the person and the United States non-public.

5. Those first two subsections have additional elements - for instance, that the discloser have authorized access to classified information.

Now, go to 50 U. S. C. 426. There's your definition of "covert agent," in subsection (4). Not to mention "classified information," in subsection

(1).As you can see, there are three definitions of a "covert agent," (A), (B), and (C).

(C) does not apply. Nor does (B) (ii). So we are left with (A) and (B) (i).

Note, first, the disjunctive, not conjunctive connectors. Satisfying either element makes one a "covert agent;" both elements need not be satisfied.

(B) (1) seems not to apply, because it requires current foreign residence. It is nonetheless instructive, because it establishes the contrast between residence and service, which is the standard in sub-subsection (A).

Now, let's look at subsection (A).The first requirement, in the opening paragraph, seems to be satisfied - Plame was a present officer or employee of an intelligence agency.

The second requirement, that her identity as such be classified information, cannot known to us for a certainty. I would be shocked, though, if some order or regulation or statute did not make her identity such. That is why Wilson threw such a fit when his wife's identity was betrayed - it was supposed to be a secret. You can bet that if he were wrong, and her identity was supposed to be public, Rove's defenders would have made that point long ago. They wouldn't rely on less good defenses when they had a rock solid one. That is why Toensing's questioning of Plame's secret status rings hollow - it isn't a matter of where Plame's desk was, it's a matter of whether there is the requisite order, statute, or regulation in existence. An "expert" on the law would know that. My conclusion has to be that she's blowing smoke for Rove on this.

The third requirement is service - as opposed to residence - outside the country in the last five years. What kind of service? Any kind. There is no restriction. Wilson's trip to Africa was service outside the country, for instance. Conceivably, if the CIA had sent Plame to Toronto on a plane to pick up papers and come back one day, she would have served outside the country. Did this happen? We can't be sure, but is hard to believe that a secret CIA agent working on WMD didn't take at least one trip outside the country for them in the five whole years, especially if just before that period, she had been stationed outside the country, and the way the whole WMD was being cranked up by the Administration in the preceding two or so years.

In the end, though, you make the ultimate point - Fitzgerald and the lawyers working in his office are no one's fools, and if they are pursuing this like they are, they must feel pretty good about the basic things, like foreign service and statutes, orders, and regulations. Those are easily easily established or disproven by documentation. That is true even if they are also pursuing perjury and obstruction of justice charges, which it appears they are.

Also, judging by the slim, and faulty, reeds the "experts" are grasping for, I have to believe that something real hot is under all that smoke.

[. . .]

My main purpose is certainly not identification, though, it is publication of accurate information.

I hope this helps.

It does help. And thank you for walking me through it. Again, if Attorney X should desire credit for this, it will be noted here. I have to wonder who, if anyone, Richard W. Stevenson verified Toejam's claims on the law with.

The e-mail address for this site is common_ills@yahoo.com.

[Note: This entry originally appeared at The Common Ills.]

It is too early to know whether that is where this is headed, but on Tuesday the Republican National Committee put in motion the political machine Mr. Rove has built up over the last four and a half years to rally to his defense. It offered detailed rebuttals to any suggestion that Mr. Rove had done anything wrong, and that there was an organized White House effort to leak Ms. Wilson's identity in retaliation for criticism of the Bush administration's Iraq policy by her husband, Joseph C. Wilson IV.
"He wasn't talking at all about her identity," said Ken Mehlman, the chairman of the committee and a protege of Mr. Rove's, accusing Democrats of playing an unseemly game in criticizing the chief strategist of Mr. Bush's victory last year.
Speaking of Mr. Rove's conversations on July 11, 2003, with Matthew Cooper, a Time magazine correspondent who wrote about the case, he added: "He was saying, this is a bum story, you shouldn't write this story. He didn't use her name because he didn't know her name."
[. . .]
But until this week, it was Mr. Wilson's word against the White House's insistence that Mr. Rove was not involved. That is what has changed. An e-mail message that Time magazine turned over to the prosecutor investigating the naming of Ms. Wilson asserts that Mr. Rove discussed Ms. Wilson's role, though apparently without naming her or suggesting she was a covert officer. If that version is correct, it is not clear that anything Mr. Rove said could be considered a crime.

Blah, blah, blah. The above is from David E. Sanger's "Rove Case May Test Bush's Loyalty to His Closest Aides" in this morning's New York Times. It's labeld "White House Memo." We avoid the "White House Letter" because it's a floating op-ed. I'm not sure what the "White House Memo" is supposed to be.

But here's what David E. Sanger isn't, a legal expert. The Times has now, for the second day in a row, weighed in on legalities and they've offered no indication that the reporters involved (Sanger today, Richard W. Stevenson yesterday) have sought a legal opinion on the law from anyone either than op-ed writers (one of which, ToeJam, has a personal friendship with Robert Novak which hardly makes her qualified to speak frankly).

Where's the legal opinion? The Times keeps debating whether a crime was committed. Where's the legal opinion? Would that end speculation? No. Because no one but Patrick Fitzgerald and his team know the case they're arguing. But it would give readers a better take on the issues involved.

We have a legal opinion that will be going up shortly. Attorney X appears to know the law. His points seem strong. If they aren't, the Times needs to get a legal opinion. This isn't a he-said/she-said issue. This is a law. They should be able to get an opinion on it. If Attorney X is correct, Ken Mehlman's personal opinions really don't matter much nor did what passed for "fact" in Stevenson's article yesterday.

Quit debating whether it was a crime or not based on what this pro-Rover says and this anti-Rover says and get a legal opinion to provide to the readers. This is nonsense that at this late date (over two years after Robert Novak's column ran) the Times still can't inform the readers of the basic legal issues involved in a manner that doesn't depend on this partisan's take or that partisan's take. This is bad journalism.

It's bad for Sanger, it's bad for Stevenson. But they're just two covering the issue this week.

What does the 1982 act say? Not what does ToeJam say it says. Give readers a legal reading on the act itself.

Were someone shot and killed, readers would have a concept of manslaughter or murder. There would be a framework while they were reading the article. As the Times has pointed out, apparently only one person has been prosecuted under the act. Readers don't have information.
It's past time for the paper to get a legal reading on the act itself and to provide that information to the readers in a clear manner.

The e-mail address for this site is common_ills@yahoo.com.

[Note: This entry originally appeared at The Common Ills.]

Nearly two years after stating that any administration official found to have been involved in leaking the name of an undercover C.I.A. officer would be fired, and assuring that Karl Rove and other senior aides to President Bush had nothing to do with the disclosure, the White House refused on Monday to answer any questions about new evidence of Mr. Rove's role in the matter.
With the White House silent, Democrats rushed in, demanding that the administration provide a full account of any involvement by Mr. Rove, one of the president's closest advisers, turning up the political heat in the case and leaving some Republicans worried about the possible effects on Mr. Bush's second-term agenda.
[. . .]
Under often hostile questioning, Mr. McClellan repeatedly declined to say whether he stood behind his previous statements that Mr. Rove had played no role in the matter, saying he could not comment while a criminal investigation was under way. He brushed aside questions about whether the president would follow through on his pledge, repeated just over a year ago, to fire anyone in his administration found to have played a role in disclosing the officer's identity. And he declined to say when Mr. Bush learned that Mr. Rove had mentioned the C.I.A. officer in his conversation with the Time reporter.
[. . .]
In September 2003, Mr. McClellan said flatly that Mr. Rove had not been involved in disclosing Ms. Plame's name. Asked about the issue on Sept. 29, 2003, Mr. McClellan said he had "spoken with Karl Rove," and that it was "simply not true" that Mr. Rove had a role in the disclosure of her identity. Two weeks earlier, he had called suggestions that Mr. Rove had been involved "totally ridiculous." On Oct. 10, 2003, after the Justice Department opened its investigation, Mr. McClellan told reporters that Mr. Rove, Mr. Abrams and Mr. Libby had nothing to do with the leak.


The above is from Richard W. Stevenson's "At White House, a Day of Silence on Rove's Role in C.I.A. Leak" in this morning's New York Times. Among the pluses of Stevenson's article is that it's front paged so Karl gets fingered on the front page. Among the more problematic areas of the article is this portion:

"We made it exceedingly difficult to violate," Victoria Toensing, who was chief counsel to the Senate intelligence committee when the law was enacted, said of the law.
[. . .]
"She had a desk job in Langley," said Ms. Toensing, who also signed the supporting brief in the appeals court, referring to the C.I.A.'s headquarters. "When you want someone in deep cover, they don't go back and forth to Langley."*

Toensing is identified in a very interesting manner. Who's Victoria Toejam? Failed TV pundit. Friend of Robert Novak. (Did he give her bad tips for punditing or was she just unable to overcome her own deficiencies?) Victoria Toejam felt the need to weigh in on this matter before with an op-ed in the Washington Post co-written with Bruce Sanford (whom also weighs heavily at the end of the Times' article).

No mention is made by Stevenson of the Washington Post op-ed entitled "The Plame Game: Was This a Crime?" (January 12, 2005) or of her friendship with Novak (proving that you can take an Elite Fluff Patrol squad member out of the fluff, but you can't take the fluff out of the member). Here's Media Matters responding to that op-ed with regards to Victoria Toejam ("Victoria Toensing failed to disclose friendship with "No Disclosure" Novak in Wash. Post op-ed"):

Multiple news outlets have noted that Toensing is apparently a personal friend of Novak -- a fact that neither she nor the Post saw fit to disclose.
Press sightings of social interactions between Toensing, her husband, Joseph E. diGenova, and Novak abound:
An October 1, 2004, article on Salon.com reported that Novak was a guest along with Toensing and diGenova at a September 21, 2004, party in Washington to celebrate the success of the book Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry (Regnery, 2004).
According to an October 17, 2001, "Reliable Source" column in The Washington Post, Novak was among "70 friends" hosted by diGenova to celebrate Toensing's 60th birthday at the Palm restaurant.
A February 27, 1998, profile of Toensing and diGenova in The Washington Post reported that "[t]he couple retreat on weekends to their Fenwick Island, Del., beach house, hanging with such pals as Robert Novak and Bill Regardie."
Novak has also defended or praised his friends Toensing and diGenova on at least three occasions in his nationally syndicated column:
"DiGenova, a conservative Republican, would introduce something new at the IRB [Teamsters union Internal Review Board]. He might recommend that it is time to end the monitoring that has cost the union more than $75 million. [Federal prosecutor Mary Jo] White did her best to obstruct the 1998 congressional investigation of the Teamsters conducted by diGenova and his law partner-wife, Victoria Toensing. Nor is diGenova an admirer of Mary Jo White's glacial pursuit of the pre-Hoffa conspiracy between the Teamsters, the AFL-CIO and the Democratic National Committee as the statute of limitations is about to block further prosecution." [8/1/2001]
"This is a cautionary tale of Washington today. Anybody who dares investigate the Clinton establishment can expect the worst. [Former independent counsel] Ken Starr has been transmogrified from a bookish appellate lawyer to Grand Inquisitor Torquemada. His deputies have seen their legal careers belittled and their religious beliefs derided. Congressional investigators Victoria Toensing and Joe diGenova have had their ethics challenged." [5/14/1998]
"On April 30, House Minority Whip Rep. David Bonior, D-Mich., accused Joe diGenova and Victoria Toensing, the Republican husband-and-wife lawyers running the House Workforce Committee investigation of the Teamsters, of 'an outrageous conflict of interest' because they had become part-time commentators for NBC (a deal they canceled Wednesday)." [5/8/1998]

Toejam and Sanford argued Plame wasn't deep cover in their op-ed. Today they again stress to the Times that an outed agent has to have been stationed out of the country in the last five years. Run back the clock. Plame doesn't qualify by public record. Does the law define a covert agent as someone who has been out of the country in the last five years?

I don't know. I don't see that in the excerpt available online of The Intelligence Identities Protection Act of 1982. That doesn't mean it isn't in the act. When Stevenson address it in one paragraph, he fails to make it clear whether he's noting the act (or a legal opinion on it) or if he's being fed by Toejam and Sanford. By not noting Toejam's past history (more later) with the press or her relationship with Novak, he leaves himself open to questions of whether he researched or jotted down unquestionally. (A skill that Elite Fluff Patrol squad leader Elisabeth Bumiller apparently taught to everyone under her command.) It may very well be in the law (which would appear to defeat Poppy's intent behind supporting such an act for years -- some of Poppy's public remarks are noted here.).

People can speculate on whether Plame left the country for any missions (possible) after moving to D.C. (first to an apartment with Wilson in 1997, mid-1997, then later to a home). In January 2000, Valerie Plame gives birth to twins and suffers from postpartum depression. That doesn't make it impossible that the CIA wouldn't have used her for an operation in the time after the birth or at some point before. If the five year rule, that Toejam and Sanford are trumpeting, is correct (if) then Plame would have had to have been "stationed" (which we'll define here as taking part in a "operation"* -- though Toejam and Sanford define it differently, as permanent residence in a foreign country) as late as July of 1998. (July 12, 2003 is the published leak. By the public record, prior to Novak's colum, the leak starts in early July.)

It seems unlikely that if this defintion of a covert operative is in the 1982 Act, Patrick Fitzgerald wouldn't know of it. (Though who knows?) Toejam likes to pass herself off as a "expert" on the Act. But if the "rule" is in the act and she's the "expert" on it that she present herself as, that still doesn't make her an "expert" on when the CIA last utilized Plame undercover. (Which could have occurred at any time prior to July 2003.) That's accepting the five year "rule" and accepting that Fitzgerald's going backwards from July of 2003.

But if we go to Hunter at Daily Kos (via BuzzFlash) we find him citing a Walter Pincus article on the matter:

On July 12, 2003, an administration official, who was talking to me confidentially about a matter involving alleged Iraqi nuclear activities, veered off the precise matter we were discussing and told me that the White House had not paid attention to former Ambassador Joseph Wilson's CIA-sponsored February 2002 trip to Niger because it was set up as a boondoggle by his wife, an analyst with the agency working on weapons of mass destruction.

Is Fitzgerald looking at this as a conspiracy that started long before Novak's July 12, 2003 column? If the White House is not "paying attention" in "February 2002" what are we looking at? If Fitzgerald is arguing that the plan to out Plame was hatched in February 2002 (when the trip went down) the five year "rule" is in play -- Plame was stationed overseas in February of 1997.

If the White House (or individuals in it) knew in 2002 that Wilson's trip couldn't damage them (regardless of results), were plans already in motion to out Plame?

The five year "rule" may or may not be fact. (Stevenson doesn't inform us why he's including it in the article -- quoted to him by Toejam & Sanford or independtly verified by Stevenson.) But if Fitzgerald is looking at as a conspiracy, Plame returns to Washington (as I interpret Wilson's The Politics of Truth pp. 239-242) in June of 1997. Prior to that, she is stationed overseas.

As Hunter points out, as early as February 2002 (according to Pincus' report) the White House was dismissive of the trip (not "paying attention") because of whom Wilson was married to.

There are blanked out portions (several pages) in Fitgerald's court papers arguing the need for Matthew Cooper and Judith Miller's testimony. This has been noted in various places. We focus on the Times so we'll note a Times' July 7, 2005 editorial "Judith Miller Goes to Jail"** which maintains "The inquiry has been conducted with such secrecy that it is hard to know exactly what Mr. Fitzgerald thinks Ms. Miller can tell him, or what argument he offered to convice the court that his need to hear her testimony outweighs the First Amendment." We'll also note Adam Liptak's front page story of the same day (entitled "Reporter Jailed After Refusing To Name Source"):

Mr. Fitzgerald, who has relied on secret evidence in persuading courts to order Ms. Miller jailed, said that the law now requires her to testify.

What's in the "secret evidence?"

With Toejam and Sanford again trumpeting this five year "rule," it's obviously going to be a talking point. Toejam and her husband diGenova are possibly good at talking points (false ones?). Jacob Weisberg's "Worse Than Drudge: What game is Joe diGenova playing?" (Slate, Feb. 28, 1998) addressed this issue:


One could legitimately describe either diGenova or Toensing as a "Washington lawyer knowledgeable about the investigation," newspapers' favorite leaker ID. There is no proof that either has served as a cutout for Starr. But if they haven't, why do they qualify as a "source" about anything? In fact, the unreliable gossip they sometimes pass on makes the notorious Matt Drudge look discreet.
One gets a glimpse of Joe and Vicky's peculiar role in the fiasco that occurred in late January, when the Dallas Morning News reported, then retracted, then semi-reasserted that a Secret Service witness to a Clinton-Lewinsky encounter was prepared to testify. To recap: On the evening of Monday, Jan. 26, the paper published a report on its Web site. It quoted a lawyer "familiar with the negotiations" as saying there was a Secret Service agent who had seen Clinton and Lewinsky in a "compromising situation" and that he had become a government witness. Hours later, the paper recanted: "the source for the story, a longtime Washington lawyer familiar with the case, later said the information provided for Tuesday's report was inaccurate." The paper further noted that, "The source is not affiliated with Mr. Starr's office." But the following day, the paper reissued a version of the story. An intermediary for a witness or witnesses who might or might not be a Secret Service agent or agents had told Starr's office about seeing Clinton and Lewinsky in what was now described as an "ambiguous situation." Inexplicably, the story quoted "former U.S. Attorney Joseph diGenova, who is not directly involved in the case," as saying that the intermediary had made contact for the witness or witnesses with Mr. Starr's office. "In essence, your story is correct," diGenova told the paper.
Was the original source also diGenova or Toensing? I think it must have been. Click here to find out why.
Whether diGenova was the source or not, we do know that diGenova spoke to the Dallas Morning News on the record, confirming that a witness of some sort did indirectly pass information to Starr's office. And we know that Toensing spoke off the record, contradicting the originally published version. Since diGenova says they weren't representing anyone involved, on what basis did they know? "This is a small Southern town," says diGenova. "People talk to a lot of people. Reporters talk to people. Lawyers talk. You hear things and you pass them on to reporters so that they might investigate. Sometimes people don't investigate the way they should." This sounds almost like an admission, and suggests that Starr's office may be indirectly using journalists to try to substantiate rumors it has heard. In any event, the fact that the Dallas Morning News considered diGenova a legitimate source would suggest that the paper's reporter thought he wasn't just relating third-hand gossip, but had real information from Starr's office.

So Toejam may have experience issuing talking points. And she (and Sanford) are trumpeting the five year "rule" again. If the "rule" does exist in the law, is Fitzgerald unaware of that "rule" or is he going for a plot to out Plame, should Wilson cause discomfort, hatched on or before February of 2002?

I don't know and I'm really not big on speculation. But I'm also not real big on the rejects from the Clinton character assassinations resurfacing as 'reliable' via an unquestioning press. Their false information damaged the country (my opinion). Toejam was part of that (I'm inclined to believe Jacob Weisberg) and she's now returning to the scene, so I think there's reason to speculate. I also think that if Stevenson is told there is a five year "rule" he needs to establish in his article whether that's true or not and what he's based that finding on. What would it have taken? I'd argue only one call to Floyd Abrams. Abrams certainly knows the act (as Miller's legal counsel). If he didn't, he could get someone to look into it and have an answer long before the story went to press. (Though I'm personally having a hard time picturing Abrams not knowing every aspect of the Act. As always, I could be wrong.) Which would lead to a sentence reading, "Floyd Abrams, counsel to Judith Miller, states that the five year rule . . ."

The five year "rule" may or may not exist. A larger point to be made is that it really doesn't matter in terms of Karl Rove needing to go. His participation, as reported, in this matter makes him unfit to serve in the White House. Regardless of whether a criminal law has been broken or not, he is now known to have passed on information that Plame was CIA (the latest argument on that is that he didn't give her "name" just whom she was married to -- which is pointing out in a similar manner that one identifies in a police lineup). That's not the way Americans expect their government to work.

And as Stevenson notes, the Bully Boy said anyone involved would be fired.

The need on the part of Toejam and Sanford to repeatedly interject the five year "rule" may speak to the fact that Rove will walk (if the "rule" exists) on criminal charges. That doesn't mitigate the fact that the White House has behaved in shameful manner. The Bully Boy was about as clear as he can be when pressed by reporters. He didn't say, "If there's a conviction." (If there's a conviction, it's assumed the person would be gone anyway since he or she would be behind bars.) From Stevenson's article:

Mr. McClellan and Mr. Bush have both made clear that leaking Ms. Plame's identity would be considered a firing offense by the White House. Mr. Bush was asked about that position most recently a little over a year ago, when he was asked whether he stood by his pledge to fire anyone found to have leaked the officer's name. "Yes," he replied, on June 10, 2004.

There's a reason for the repeated use of ToeJam and Sanford's talking point. They promoted it January 12, 2005 in the Washington Post so it's hard to believe Fitzgerald is unaware of the talking point. It may exist in the Act. If so, Fitzgerald may be going for something else (or else be a really bad prosecutor) based on additional information. That could (or could not) include something such as a conspiracy begun while the five year "rule" applied or he could have information on a mission or missions Plame took part in as an undercover operative after moving to D.C. in mid-1997.

Regardless of what Fitzgerald's going for, the fact remains that Bully Boy was clear (even for the Bully Boy) on this matter. Rove e-mailed Matthew Cooper saying Wilson's wife was CIA prior to Novak's column appearing. (His remarks after Novak's column appeared, to Chris Matthews, that Wilson's wife was fair game were also out of line since he shouldn't have been engaging in such conversations.) Rove is involved in the leak. The pledge was that anyone involved would be fired. Even with the talking point (true or false), there' shouldn't be any dancing room on this for the Bully Boy.

The e-mail address for this site is common_ills@yahoo.com.

[*"Stationed" according to one lawyer who has handles cases for CIA agents (former and current) should not mean living abroad if it is in the act. He states that "stationed" should mean "positioned" for a mission regardless of the agent's permananet base. Any other meaning would be "worthless" based on the fact that operatives are in and out of countries frequently and their cover "must be mobile and not locked to a certain area" for them to work effectively undercover. He is unfamiliar with the five year "rule" but notes that Plame being an undercover operative at some point and her cover not yet been blown -- whether or not Novak was told that it was doubtful Plame would be used again in an undercover mission, as Toejame and Sanford maintain in their Washington Post op-ed -- the fact that Plame had an existing cover and was still with the CIA meant that the cover might be used again for national security reasons. If the five year "rule" is in the act, it goes against the intent of the Act which was to ensure, according to him, that undercover operatives' identies were protected. "If Plame's cover was in place" prior to Novak's outing "it didn't have a use-by date. Until she was outed, her cover was a national security asset to the nation. Regardless of the manner in which the law was written, I have difficulty believing that it allows for the destruction of a national security asset to the country. An agent with an existing cover is one that can be reactivated at any time -- such as in a time of national crisis where assistance is needed."
**I don't comment on the editorials in the Times here. I've quoted from one above. And I'll say thanks to Zach who e-mailed Thursday afternoon urging me to read that editorial. I'll also say thanks to Dallas who spotted Stevenson's article online, copy and pasted and gave me heads up. I would have been scratching my head over this article without the heads up. I'll also thank the attorney, who asked not to be named, for his assistance in walking me through this. Disclosure, though it should be obvious from the time frame in which his walk through occurred, the attorney is a friend of mine --otherwise I wouldn't have woken him with a phone call for a walk through on the issue and that talking point offered by Toejam.]

[Note: This entry originally appeared at The Common Ills.]

So The New Yorker arrives today the one with Jane Mayer's "The Experiment." Where's the link for it, you may ask? There is none because it's not available online. (If it becomes available online, we'll note it in another entry.)

This is an eleven page article and it's worth reading. Check your libraries because chances are the next edition of The New Yorker is already on magazine racks.

I'll try to summarize the article but that's not an easy task.

Mayer's taken a trip to Guantanamo Bay. It was an orchestrated trip by the military. At one point, a prisoner starts speaking to her of how he's been treated and her military guide hustles her out of the area quickly and to the charges made by the prisoner offers a "joke" about how the prisoner can speak English pretty well.

Time and again, Mayer's told there's no problem, that it's isolated individuals when there are problems. But via other sources, she's able to make an argument that the incidents are not only not isolated, they're the result of research and planning.

SERE comes into the story. SERE is a military unit that pops up in the aftermath of WWII. It was supposed to gather information that would help American troops to withstand pressure (and torture) if they were captured. SERE stands for Survival, Evasion, Resistance and Escape. Originally created for the Air Force, post Vietnam, it grows to include the Navy and the Army.

At Guantamano, there are "bisquits." Bisquits is "military jargon" for Behavioral Science Consultation Teams. These behavioral scientists appear to be utilizing techniques developed to help American troops resist during capture in an inverse manner -- using techniques to break the imprisoned at Guantamano down.

This raises ethical issues (which Mayer deals with, this is a summary of her article). Apparently prisoners medical files (containing information gathered by doctors) are raided to help with brainstorming ideas. Is someone afraid of the dark? Well, let's use that.

While the bisquists (Behavioral Science Consultation Teams) have apparent free access to medical files, that's not the case for everyone. Dr. John S. Edmondson ("a Navy captain who oversees the facility's medical command") claims that, "I believe we've complied with the requests [for medical records] that have reached me." Rob Kirsh ("who represents six Guantanamo detaineeds") has a paper trail that proves otherwise. Even with waivers from his clients, his requests for their medical records has been denied in multiple letters "from the Justice Department." Regarding this denial, Mayer quotes Arthur Caplan ("a bioethicist at the University of Pennsylvania") who notes, "Prisoners, even terrorists, have the right to their medical records, according to federal laws, common laws, the American Medical Association, and court trials."

With various documents and various sources (including a graduate of SERE who had posted at Juan Cole's Informed Comment) "The Experiment" gathers together the "isolated incidents" and demonstrates a pattern (in my reading of the article).

Techniques and actions used on American soldiers to keep them from "cracking" (my term, not Mayer's) are apparently now being used to "crack" (see previous parenthetical) prisoners.
The SERE program has always been shrouded in the secrecy of national security. Which is not unlike the attempts to find out what the Bully Boy did or did not authorize (or Donald Rumsfeld for that matter).

Would someone crack to stop a woman from being raped? Well, hey, let's try that. That appears to be the motivation and why one prisoner was told if he talked the (fake) rape would stop. There's also the case of a man and a woman having sex in a computer room next to an interrogation room with the door open.

How does that get approved? "Give it up for your country?" I'm not quite sure and I'm trying very hard not to interject my own thoughts here and provide a summary of the article so I'll move on.

There have been people pointing out that the actions were unethical or illegal or immoral (or two or all three). One person who speaks to Mayer, former FBI official who was at Guantanamo, states that he and other FBI agents did not want to participate in these actions:

Some of these techniques, I don't want to see, or be part of. I took an oath to the Constitution to uphold the laws against enemies both inside the U.S. and out. The D.O.D. [Department of Defense] guy got really upset. He said he took the oath, too. I told him that we must have different interpretations.

Concerns are raised regarding "force drift." That's when "interrogators encountering resistance begin to lose the ability to restrain themselves." If you'll think of it in terms of parenting, you'll relate that to the "power struggle." There's also a "seductive" component of these techniques, as an attorney for several prisoners -- Marc Falkoff -- notes. Falkoff asserts that "a mass suicide attempt at Guantanamo, in August 2003, in which two dozens or so detainees tried to hang or strangle themselves, was provoked by Koran mistreatment . . ."

That's a SERE technique. Only on American soil, while "testing" American soldiers, they used a Bible. They might tear pages out of it or kick it around or some other method. But it was developed here with the Bible. (Again, I'm holding my tongue and just attempting to summarize.)

The question is posed (and I'd argue throughout the article) by at least one person in the article of what are we becoming? What does it say about us when we "do things that our enemies do, like using torture?"

We'll close out this summary by noting that doctors have participated as "bisquits" (though not all "bisquits" are doctors -- some are p.h.d.s) with the comments of Jonathan Moreno (bioethicist):

Guantanamo is going to haunt us for a long time. The Hippocratic oath is the oldest ethical code we have. We might abandon our morality about other professions. But the medical profession is sort of the last gasp. If we give that up, we've given up our core values.

Read the article (a great reason to visit your library).

For those wanting online resources, I'll suggest the following:

*"Q. & A.: In Gitmo" an interview (conducted by Amy Davidson) with Jane Mayer about "The Experiment." (The New Yorker -- noted here last Weds.)

*"The Gitmo Experiment: How Methods Developed by the U.S. Military For Withstanding Torture are Being Used Against Detainees at Guantanamo Bay" Part I of Amy Goodman's interview with Jane Mayer regarding the article "The Experiment." (Democracy Now! -- noted here Weds.)

*"Methods Developed by U.S. Military for Withstanding Torture Being Used Against Detainees at Guantanamo Bay" Part II of Amy Goodman's interview with Jane Mayer regarding the article "The Expermient." (Democracy Now! -- noted here today.)

The e-mail address for this site is common_ills@yahoo.com.

[Note: This entry originally appeared at The Common Ills.]

A big chill. That's what advocates of press freedom in the US fear following the jailing of journalist Judith Miller, who covers national security at the New York Times. She refused to name a source in a scandal about a Central Intelligence Agency (CIA) operative that reaches into the bowels of the White House.
The scandal, the talk of Washington for the past two years, is shrouded in official secrecy and complicated by high-level political smear tactics and by Miller's own history of relying on unnamed sources for major stories.
The leak of the undercover agent's name -- Valerie Plame -- though it may originate with the Bush administration's need to justify the Iraq war and is classified information, is unlikely to become another Watergate with a Deep Throat that topples a president. But the implications of Miller's imprisonment, part of a broader trend of legal pressures on US journalists, are huge.
On Wednesday, Miller, a veteran correspondent and Pulitzer Prize winner, was shackled at the ankles and wrists and bundled off to a jail cell in Virginia. She faces four months there, a sentence that the prosecutor has hinted he may try to get extended.
US journalists are already facing an unprecedented number of contempt of court charges over unnamed sources, said the Reporters' Committee for the Freedom of the Press in Washington.
At least nine currently face sanctions and more are in the offing, said Lucy Dalglish, executive director of the committee. The trend is expected to accelerate.
The above is from Ros Davidson's "Fears for press freedom as US jails journalist: Prosecution for failing to reveal CIA source reflects growing tensions" (Scotland's Sunday Herald) and Kara e-mailed to highlight this article last night. Which led me to wonder about some other reactions.

Via Watching America, here's Enrique del Val Blanco "Washington's Attack on Freedom of the Press" (El Universal):

All of this was done for the purpose of discovering what we already know - that the person who released the information [the name of Mrs. Plame] is none other than Carl Rove, chief White House adviser and great friend of George Bush.
This revelation has caused the sensation that all of this is being orchestrated by the Bush government to discredit the diplomat, who failed to faithfully follow the instructions of the hawks that, to the world’s misfortune, govern that country. [Wilson published an op-ed piece in the New York Times dismissing the Niger claims].
But independently of who was the source of the information and who benefits from it, we must face the lamentable fact and this attack on the sources of intelligence will create a very bad precedent, not only for the American press, but worldwide. We all know how often it is, that to get to the truth, reporters need confidential sources, and that this is the only way the public is ever informed of what is actually happening.
For a magazine with the prestige and reputation of Time to have buckled under pressure and to have hung out to dry one of its reporters does nothing but persuade us that the United States media is subjugated by the plans of the government, and that its supposed independence is a lie.


Here's Reporters Without Borders, "Prison for Judith Miller : a dark day for freedom of the press:"

It was with great sadness and concern that Reporters Without Borders learned on July 6, 2005, a federal judge ordered New York Times reporter Judith Miller to serve time in jail for contempt of court for refusing to testify to a grand jury investigating the leak of a CIA operative's name. She was taken into custody immediately. Judith Miller faces up to four months in jail, the length of time before the term of the federal grand jury in the case expires.
Matt Cooper avoided prison after agreeing to reveal his sources in front a the grand jury. He said his source gave him a personal confidentiality waiver, allowing him to discuss their conversation.
"It is a dark day for freedom of the press in the United States and around the world. This unprecedented sentence against a journalist who was merely exercising her professional rights is a serious violation of international law, a dangerous precedent, and the United States has sent a very bad signal to the rest of the world. As a member of the Organization of American States, the United States has a duty to comply with the texts adopted by the Inter-American Commission for Human Rights, whose Declaration of Principles on Freedom of Expression clearly stipulates that every journalist has "the right to keep his/her source of information, notes, personal and professional archives confidential" (Article 8)," Reporters Without Borders stated.

And via Watching America, "Jailing of American Journalist is Unjust" (editorial from The Australian):

Miller did not publish the name of the agent. At least one other journalist who did has co-operated with the investigators and is being left alone. But it is Miller who is in jail for refusing to talk. This is not only unreasonable but an assault on a fundamental principle. Information is the oxygen of freedom. If public servants cannot trust journalists not to betray them, they will stay silent, making it easier for governments to cover-up everything and anything they prefer citizens not knowing. This can happen here. Australia has even fewer legal protections for the community's right to know how they are being governed than apply in the U.S. While there will always be national security and public safety exceptions, journalists who do not protect their sources fail to meet their own obligations to the community.

If you've seen a reaction from outside the US on Judith Miller's jailing, send it in and we'll note it.

The e-mail address for this site is common_ills@yahoo.com.

[Note: This entry originally appeared at The Common Ills.]

Rob e-mails to note Greg Myre's "Israeli Barrier in Jerusalem Will Cut Off 55,000 Arabs" in this morning's New York Times.

Israel's separation barrier in Jerusalem will cut off 55,000 Palestinian residents from the rest of the city, Israeli officials acknowledged Sunday. Palestinians responded sharply, saying they will face daily complications in reaching jobs, schools and hospitals.
[. . .]
The Israeli announcement came a year and a day after the International Court of Justice at The Hague handed down an advisory ruling that said building the separation barrier inside the West Bank violated international law.
Israel rejected the court's ruling, saying the barrier was needed for security, and has pressed ahead with construction, though it has revised the path in some areas in response to Israeli court rulings that Palestinian needs must be taken into account.

As noted Sunday morning in The Third Estate Sunday Review editorial (posted here Sunday morning as well) and in a Sunday evening post, "British Memo Details a Plan to Cut Troops."
In the Times it's reported on by Alan Cowell and David S. Cloud this morning:

A confidential British military assessment examines the possibility of drastically cutting troop strength in Iraq by the end of next year, to 3,000 from about 8,500 now, in a memo leaked to the newspaper The Mail on Sunday. The memo also raises the possibility of a sharp drop in the number of troops the United States and other allies have in Iraq by the middle of 2006.

Thomas e-mails to note Eric Lipton and Andrew C. Revkin's "High-Tech Antiterror Tools: A Costly, Long-Range Goal:"

With the mass transit systems in Britain and the United States on high alert, the best available defense the governments can provide against a terrorist armed with a bomb is decidedly low-tech: vigilance with dogs, video cameras and security officers.
That limited arsenal has provoked calls for an accelerated campaign to develop high-tech tools like artificial noses that sniff out explosives or devices that can detect bombs through clothing.
"We need a crash program," said Senator Charles E. Schumer, a Democrat from New York. "Terrorists have chosen mass transit as their target of choice."
But installing such technologies would take years, cost billions of dollars and could prove impractical in dealing with millions of passengers every day, transit officials and security experts say. And even then, they might not deter an attack.

For those wondering, Billie does have a post on this topic that will hopefully go up this evening or tomorrow morning. She's decided to note it bullet-style the way Rob & Kara did.

The e-mail address for this site is common_ills@yahoo.com.

[Note: This entry originally appeared at The Common Ills.]

"A short time ago," Mr. Cooper said, "in somewhat dramatic fashion, I received an express personal release from my source."
But the facts appear more complicated than they seemed in court. Mr. Cooper, it turns out, never spoke to his confidential source that day, said Robert D. Luskin, a lawyer for the source, who is now known to be Karl Rove, the senior White House political adviser.
[. . .]
While Ms. Miller had consistently refused to testify, Mr. Cooper had already given testimony once in the investigation, in August 2004, describing conversations he had had with I. Lewis Libby, Vice President Dick Cheney's chief of staff.
[. . .]
Later, Mr. Waldman asked whether Time's disclosures and a blanket waiver form his source had signed were enough to allow him to testify. In an e-mail message on Tuesday night, Mr. Cooper said he believed the forms could have been coerced and thus worthless.

The above is from Adam Liptak's "For Time Reporter, Decision to Testify Came After Frenzied Last-Minute Calls" in this morning's New York Times. (Full credit for article reads "This article was reported by David Johnston, Jacques Steinberg and Adam Liptak and was written by Mr. Liptak.")

Yes, we're "on the Miller thing again" as one visitor e-mailed to complain regarding an entry Saturday. (And we've got a second post on the topic as well that will go up this morning as well.)

But again, let's note from the article above, a point we went over Wednesday because some people appear to be confused about this: "Ms. Miller had consistently refused to testify." Her source are sources may or may not be the same as Cooper's. Her refusal to testify has led to speculation that she has another source or sources. That may be, that may not be. But unless someone has insider information, it's speculation and it's not based on the public record or on the position that Miller has taken. Her position has been you do not name your source/s.

Last thing from the article:


The widely divergent outcomes of Mr. Cooper's case and Ms. Miller's case reflected an evolving split in their legal strategies. At first the two reporters shared a legal team, led by Floyd Abrams, a noted First Amendment lawyer.
But after a federal appeals court refused to block Mr. Fitzgerald's subpoenas, Time and Mr. Cooper replaced Mr. Abrams with a team led by Theodore B. Olson, a former United States solicitor general in the Bush administration who is now with Gibson Dunn & Crutcher.

The e-mail address for this site is common_ills@yahoo.com.

[Note: This entry originally appeared at The Common Ills.]

Isaiah's latest The World Today Just Nuts. Karl's in stripes and cuffed. Bully Boy asks, "Karl, why ain't the spin working this time? Karl?"

[Note: This entry originally appeared at The Common Ills.]