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Banned
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Originally Posted by Lebell
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I don't see that you have anything that will withstand an argument, Lebell...
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(From the last paragraph of Toensing's column, linked above....)
.........The special prosecutor and reporters should ask Chief U.S. District Judge Thomas Hogan, who is overseeing the grand jury, to conduct a hearing to require the CIA to identify all affirmative measures it was taking to shield Plame's identity. Before we even think about sending reporters to prison for doing their jobs, the court should determine that all the elements of a crime are present.
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A month after Toensing's column appeared in the Wapo, the DC Circuit appeals court issued it's ruling in the following case. Note that Judge Tatel was initially most reluctant to rule against Judith Miller, but Fitzgerald's evidence submissions (and "voluminous classified findings")must have convinced Judge Tatel to change his mind......
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http://www.usdoj.gov/usao/iln/osc/do...n_02_15_05.pdf
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2004 Decided February 15, 2005
Reissued April 4, 2005
No. 04-3138
IN RE: GRAND JURY SUBPOENA, JUDITH MILLER
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
From Judge Tatel (pages 70-72):
"An alleged covert agent, Plame evidently traveled overseas on clandestine missions beginning nearly two decades ago. See, e.g., Richard Leiby & Dana Priest, The Spy Next Door; Valerie Wilson, Ideal Mom, Was Also the Ideal Cover, Wash. Post, Oct. 8, 2003, at A1. Her exposure, therefore, not only may have jeopardized any covert activities of her own, but also may have endangered friends and associates from whom she might have gathered information in the past...
The leak of Plame’s apparent employment, moreover, had marginal news value. To be sure, insofar as Plame’s CIA relationship may have helped explain her husband’s selection for the Niger trip, that information could bear on her husband’s credibility and thus contribute to public debate over the president’s “sixteen words.” <b>Compared to the damage of undermining covert intelligence-gathering, however, this slight news value cannot, in my view, justify privileging the leaker’s identity...</b>
Just as due process poses no barrier to forcing an attorney to testify based on the court’s examination of evidence, unseen by the lawyer, that the client sought legal advice in pursuit of a crime, neither does it preclude compulsion of a reporter’s testimony based on a comparable review of evidence, likewise unseen by the reporter, that a source engaged in a harmful leak. In fact, appellants’ protests notwithstanding, ex parte review protects their interests, as it allows the government to present—and the court to demand—a far more extensive showing than would otherwise be possible given the need for grand jury secrecy discussed in the court’s opinion, see majority op. at 17-18. <b>That said, without benefit of the adversarial process, we must take care to ensure that the special counsel has met his burden of demonstrating that the information is both critical and unobtainable from any other source. Having carefully scrutinized his voluminous classified filings, I believe that he has.</b>
Judge Tatel (from page 81):
<b> "In sum, based on an exhaustive investigation, the special counsel has established the need for Miller’s and Cooper’s testimony. Thus, considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas. "</b>
Judge Tatel concluded (from pages 82-83):
"I conclude, as I began, with the tensions at work in this case. Here, two reporters and a news magazine, informants to the public, seek to keep a grand jury uninformed. Representing two equally fundamental principles—rule of law and free speech—the special counsel and the reporters both aim to facilitate fully informed and accurate decision-making by those they serve: the grand jury and the electorate. To this court falls the task of balancing the two sides’ concerns.
As James Madison explained, “[A] people who mean to be their own Governors must arm themselves with the power which knowledge gives.” See In re Lindsey, 148 F.3d 1100, 1109 (D.C. Cir. 1998) (quoting Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 The Writings of James Madison 103 (Gaillard Hunt ed., 1910)). Consistent with that maxim, “[a] free press is indispensable to the workings of our democratic society,” Associated Press v. United States, 326 U.S. 1, 28 (1945) (Frankfurter, J., concurring), and because confidential sources are essential to the workings of the press—a practical reality that virtually all states and the federal government now acknowledge—I believe that “reason and experience” compel recognition of a privilege for reporters’ sources. That said, because “[l]iberty can only be exercised in a system of law which safeguards order,” Cox v. Louisiana, 379 U.S. 559, 574 (1965), the privilege must give way to imperatives of law enforcement in exceptional cases.
<b>Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury’s need for the reporters’ evidence, I might have supported the motion to quash. Because identifying appellants’ sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court’s orders compelling their testimony. "</b>
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In fairness to Toensing, the following was reported six months after she persuaded the WaPo to print her BS opinion piece. We'll document her track record as a partisan media whore "hack" in a followup post.
I have detailed the following before, <a href="http://www.tfproject.org/tfp/showpost.php?p=1839331&postcount=15">here</a> on this forum. This is the political bomb shell case of your generation, folks. I'm disappointed that so much of what I've read here lately, has even been posted. Early on....when I sorted out where this was going....and this being a "poltical forum", I laid it out as best as I could. It's not too late to review my thread. I'd be interested to read opinions of what I've been wrong about......
There's been so much focus on format and on wording in thread "titles". This post and the one that follows will convince some of you that more curiousity about the material might have avoided Toensing's WaPo article being offered as substantative. It clearly isn't.
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http://www.washingtonpost.com/wp-dyn...602069_pf.html
Prosecutor In CIA Leak Case Casting A Wide Net
White House Effort To Discredit Critic Examined in Detail
By Walter Pincus and Jim VandeHei
Washington Post Staff Writers
Wednesday, July 27, 2005; A01
...........Harlow, the former CIA spokesman, said in an interview yesterday that he testified last year before a grand jury about conversations he had with Novak at least three days before the column was published. He said he warned Novak, in the strongest terms he was permitted to use without revealing classified information, that Wilson's wife had not authorized the mission and that if he did write about it, her name should not be revealed.
Harlow said that after Novak's call, he checked Plame's status and confirmed that she was an undercover operative. He said he called Novak back to repeat that the story Novak had related to him was wrong and that Plame's name should not be used. But he did not tell Novak directly that she was undercover because that was classified.
In a column published Oct. 1, 2003, Novak wrote that the CIA official he spoke to "asked me not to use her name, saying she probably never again will be given a foreign assignment but that exposure of her name might cause 'difficulties' if she travels abroad. He never suggested to me that Wilson's wife or anybody else would be endangered. If he had, I would not have used her name."
Harlow was also involved in the larger internal administration battle over who would be held responsible for Bush using the disputed charge about the Iraq-Niger connection as part of the war argument. Based on the questions they have been asked, people involved in the case believe that Fitzgerald looked into this bureaucratic fight because the effort to discredit Wilson was part of the larger campaign to distance Bush from the Niger controversy.............
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<h4>Note that, even after the above article was published, Toensing is reported to frequently provide her opinion to the press that "no law was broken". Toensing has persisted with her PR message during WARTIME.</h4>
There has been much repub "spin" about Fitzgerald's investigative "mandate".
Quote:
http://mediamatters.org/items/200510150001
...........With Plame leak investigation looking bad for Rove and others, old misinformation resurfaces
As the investigation into the unauthorized disclosure of Valerie Plame's status as a CIA operative again receives extensive media coverage, old misinformation about the investigation has flared up again.
Among the most common distortions is the claim -- advanced by Washington Post columnist Richard Cohen and <b>Victoria Toensing (a close friend of syndicated columnist Robert D. Novak),</b> among others -- that the investigation is only about -- or should only be about -- whether anyone violated the 1982 Intelligence Identities Protection Act, which makes it unlawful for someone to knowingly disclose the identity of an agent whose "intelligence relationship to the United States" is being actively concealed. But special prosecutor Patrick Fitzgerald has a much broader mandate, as Media Matters has noted:
Fitzgerald's official delegation as special prosecutor, which was reprinted in a 2004 Government Accountability Office <a href="http://www.gao.gov/decisions/appro/302582.pdf#page=2">(GAO) decision paper</a>, did not limit his prosecutorial authority to any particular statute. Rather, it granted him "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity." ..............
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In addition to reading the GAO decision paper linked in the preceding quote box, other illuminating pieces that describe Fitzgerald's mandate as akin to that of the Attorney General of the U.S. Unlike Special proscutor Ken Starr, Fitzgerald has authority to operate with autonomy. He does not need to get justice department authorization (permission) to serve warrants or to enlarge the scope of his investiagtion. As the Dec. 30, 2003 DOJ press conference where his appointment was announced, and the Feb. 2004 letter that is on display at Fitzgerald's new website, make abundantly clear, Toensing and other repub "spinners" are wrong when they attempt to narrow Fitzgerald's "original" mandate.....he had an open authoraization to take his investigation to anywhere that he deemed it might lead:
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http://www.usdoj.gov/usao/iln/osc/do...ry_06_2004.pdf
February 6, 2004
Dear Patrick:
At your request, I am writing to clarify that my December 30, 2003, delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue. Further, my conferral on you of the title of "Special Counsel" in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.
Sincerely,
/s/ James B. Comey James B. Comey Acting Attorney General
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Quote:
http://news.findlaw.com/hdocs/docs/d...doj-pconf.html
DEPARTMENT OF JUSTICE PRESS CONFERENCE
WASHINGTON, D.C.
APPOINTMENT OF SPECIAL PROSECUTOR TO OVERSEE INVESTIGATION INTO ALLEGED LEAK OF CIA AGENT IDENTITY AND RECUSAL OF ATTORNEY GENERAL ASHCROFT FROM THE INVESTIGATION
DEPUTY ATTORNEY GENERAL JAMES COMEY
ASSISTANT ATTORNEY GENERAL CHRISTOPHER RAY
DECEMBER 30, 2003
MR. COMEY: Good afternoon, folks..........
......I have today delegated to Mr. Fitzgerald all the approval authorities that will be necessary to ensure that he has the tools to conduct a completely independent investigation; that is, that he has the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me or anybody else at the Justice Department for approvals. Mr. Fitzgerald alone will decide how to staff this matter, how to continue the investigation and what prosecutive decisions to make. I expect that he will only consult with me or with Assistant Attorney General Ray, should he need additional resources or support.......
......Q: You mentioned that the -- you felt that Fitzgerald will have a broader -- actually a broader mandate, broader abilities than an outside counsel. Can you expand on that a little bit? In what respect will he have a --
MR. COMEY: Yes. An outside counsel has a -- the regulations prescribe a number of ways in which they're very similar to a U.S. attorney. For example, they have to follow all Department of Justice policies regarding approvals. So that means if they want to subpoena a member of the media, if they want to grant immunity, if they want to subpoena a lawyer -- all the things that we as U.S. attorneys have to get approval for, an outside counsel has to come back to the Department of Justice. An outside counsel also only gets the jurisdiction that is assigned to him and no other. The regulations provide that if he or she wants to expand that jurisdiction, they have to come back to the attorney general and get permission.
Fitzgerald has been told, as I said to you: Follow the facts; do the right thing. He can pursue it wherever he wants to pursue it.
An outside counsel, according to the regulations, has to alert the attorney general to any significant event in the case; file what's called an "urgent report." And what that means is just as U.S. attorneys have to do that, he would have to tell the attorney general before he brought charges against anybody, before maybe a significant media event, things like that. Fitzgerald does not have to do that; he does not have to come back to me for anything. I mean, he can if he wants to, but I've told him, our instructions are: You have this authority; I've delegated to you all the approval authority that I as attorney general have. You can exercise it as you see fit.
And a U.S. attorney or a normal outside counsel would have to go through the approval process to get permission to appeal something. Fitzgerald would not because of the broad grant of authority I've given him.
So, in short, I have essentially given him -- not essentially -- I have given him all the approval authorities that rest -- that are inherent in the attorney general; something that does not happen with an outside special counsel......
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Last edited by host; 10-27-2005 at 03:43 AM..
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