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Saturday, August 20, 2005

Traitorgate: A Violation of the Patriot Act?

When Republican spokesmodels (such as Bob Dole) dip their foot in the dark netherworld of defending Valerie Plame's outers, they inevitably focus on the letter of he law of the 1982 Identities Protection Act, and ignore not only any larger moral culpability but also any other statute that may have been violated in their eagerness to let Rove, Libby and others off the hook.

But in October of 2003, shortly after Robert Novak publicly exposed Valerie Plame's CIA identity and the case was referred to the Justice Department, Samuel Dash -- Georgetown law professor, former counsel to the Senate Watergate Committee and ethics advisor to Ken Starr's Whitewater investigation -- wrote an article in Newsday where he said the leak might well have been a violation of the Patriot Act.

A lot of people at the time thought Dash was being extreme, but much more is known about the actual nature of he leak today than was known then, so I thought it would be interesting to revisit his argument:
If, as now seems likely, top White House aides leaked the identity of an American undercover agent, they may have committed an act of domestic terrorism as defined by the dragnet language of the Patriot Act their boss wanted so much to help him catch terrorists.

Section 802 of the act defines, in part, domestic terrorism as "acts dangerous to human life that are a violation of the criminal laws of the United States or of any state" that "appear to be intended to intimidate or coerce a civilian population."

Clearly, disclosing the identity of a CIA undercover agent is an act dangerous to life - the lives of the agent and her contacts abroad whom terrorists groups can now trace - and a violation of the criminal laws of the United States.

And what about the intent of those White House officials in disclosing this classified information? Surely, this mean-spirited action on their part was for the purpose of intimidating the CIA agent's husband, former Ambassador Joseph C. Wilson IV, who had become a strong critic of the Bush administration's Iraq policies. And not just Wilson. By showing their willingness to make such a dangerous disclosure, the White House officials involved were sending a message to all critics of the administration to beware that they too can be destroyed if they persist. That apparent intention "to intimidate or coerce a civilian population" - in this case American citizens - also meets the Patriot Act definition of domestic terrorism.

We can anticipate the angry protests of the officials in the White House, who wear the American flag pins, over being labeled terrorists. They would be right, of course, to be shocked by such a charge. They neither are nor could they have perceived themselves to be terrorists. But just as shocked and angry must have been the thousands of Muslim aliens and some American citizens when they were detained under the Patriot Act as suspected terrorists. The Patriot Act distorts the criminal law, and its dragnet provisions threaten the liberty of too many innocent people.

Be that as it may, the conduct of the White House officials may still amount to domestic terrorism under the Patriot Act.
As someone who thinks much of the Patriot Act is bad law, any joy on my part at seeing it invoked would have to fall under the category of "grand irony." But I dropped a note to former prosecutor Reddhead (sorry to keep endlessly referring to her in that way, but "mother of a two-year-old and chronic Wallace & Grommit watcher" just doesn't seem to carry the same authority on this particular topic) to see what she thought about it.

Her response is long, but I'm going to reprint most of it for the benefit my fellow Plame-obsessors, because it is helpful to our ever-evolving understanding of what is going on here:
Thanks for forwarding the copy of the article. It is an excellent read -- making a number of points that I completely agree with regarding the dangers of the Patriot Act in the hands of people who misuse their power.  As a former prosecutor, I sympathize with the need for expanded investigatory tools when you are dealing with a foe as intelligent and crafty as that of Al Quaeda and all its splinter tentacle groups.  They have maximized the possibilities of technological communication -- and why not, many of them were educated in our finest schools and have learned from some of our brightest minds how our information networks are put together and how to get around them -- and, at times, it is all we can do to keep up with the next technological advance around the bend, and we need every tool at our disposal to be able to do so.  When fighting terrorists, time truly is of the essence, with minutes often being the difference between being able to apprehend a cell before an attack has been launched successfully.  That said, with the power to overreach comes the twinned responsibility of treating that power with a healthy measure of respect and fiduciary obligation toward the persons against whom these overreaching powers will be used.  Prosecutors and investigtors have an obligation to use these additional powers sparingly, if at all, and only in those instances where the facts warrant such a use and where there is no other means of achieving the investigative goals of the particular action.  We risk losing everything we are, everything we were meant to be as a "shining city on a hill" for human rights in the international community, everything that the terrorists seek to turn us into by their actions by moving from a free society into a police state.  I completely agree with Sam Dash's assessment that the Bush Administration has woefully misused and abused these powers, and that this threatens to undo the very foundations of law and citizen's rights upon which this nation was founded.  If we continue to turn a blind eye to this as a society, we risk losing what little credibility we have left with other nations and with ourselves.

I have mixed feelings about employing provisions of the Patriot Act for the purpose of prosecution in the Traitorgate investigation.  I do agree with Dash that the acts being investigate in Traitorgate were meant to be threats against a civilian -- that the very outing of Valerie Wilson was a shot across the bow of every potential critic of this Administration that dissent was not to be tolerated and that the families of the dissenters would be fair game as well, something that had heretofore been taboo in the world of undercover ops.  That this taboo would be broken by a high ranking Administration official was something I have never contemplated -- the level of mendacity required to out a NOC simply for personal political payback, without regard to the ripple effect of the consequences to all of the other NOCs working with Mrs. Wilson, the agents who were tasked with maintaining the cover of her workplace identity and that of all other agents using Brewster-Jennings as cover, and the lives of the countless assets these agents had cultivated on WMD and nuclear issues, the lives potentially lost because of information we not cannot gather, and all of this occurring at a time this nation is at war and under constant threat from Islamic extremists -- I would never have believed this particular plot if it had come in a work of fiction, let alone as a real life tale of political payback, even from the Bush White House and Karl Rove.  And yet, here we are.
Yet to use the Patriot Act as a means of taking down this scheme, it seems like something that should be used sparingly at best, even for a lot so craven that they would endanger national security and the lives of the Wilson's twin children (and any spouses, children, and families of any other exposed agents and assests in the Brewster-Jennings network, for that matter). Technically, I do believe that Dash is onto something in terms of this particular passage.  Whether it is a good idea for Fitzgerald to use it or not, though, is another thing, particularly as it could be seen as an overreach -- something that almost never sits well with a jury in a criminal trial.  Not knowing all of his evidence in hand, though, it truly is tough to say whether this would accurately apply.
The reason that Republicans have been confining all of their responses on Traitorgate to the Identities Protection Act is that they know that successful prosecution under that particular area of the law has proved to be quite difficult, solely because the "knowingly" language makes it a tough row to hoe for a prosecutor.  In court, you must prove each and every element of an offense beyond a reasonable doubt in order to secure a conviction.  Proving that someone has done something "knowingly" can be exceedingly difficult unless you have a defendant who does a lot of bragging before and after the fact or you are able to crack a couple of co-conspirators who will testify against your defendant of the plans to commit the criminal act, thus showing that the defendant had full knowledge of the act and its consequences prior to committing it.  Republicans know that this will be a tough sell to a jury for Fitzgerald, and so this is what they bring up ad naseum to show that, at least in their world of spin, no conviction will be secured.  What they do not say, and what the MSM truly needs to educate themselves about in a hurry, is that there are an enormous number of other provisions in criminal law which are much simpler for Fitzgerald to use.  Prosecutors often employ Occam's Razor when requesting indictments -- you may employ a kitchen sink approach and ask for every potentially provable charge, but that wastes the jury's time and yours, so what you do instead is select those charges which are dead on provable or which are very close to provable and, thus, you put maximum pressure on defendants to plead AND you gain credibility with the jury for not overreaching.  No one likes an abuser of power.  (Rove would do well to remember that before he goes to trial.)  Juries like it even less -- if you overreach, you are likely to get a lot of "not guilties" out of pique from the jury at having to sift through a lot of nonsense.  The dismissal, for instance, of some charges against Martha Stewart before the case went to the jury, was an exceptional moment for the prosecution precisely because it limited the case before the jury during deliberations and focused their attention solely on those matters which were more ripe for decision.  If I had to guess, I would say that Fitzgerald is weighing all of that.  He is a very experienced prosecutor -- he has done a large number of trials, many very complex ones, and he has the breadth of experience to evaluate what will and will not work in terms of his evidence precisely because he uses the grand jury as an investigative testing ground.  What we see come out of this grand jury in terms of indictments, I think, will be fairly solid and will stand on fairly substantial legal grounds.  I would not be surprised if what we see is obstruction/conspiracy/perjury as a triad in a lot of the matters before the jury if Fitzgerald has evidence that people were trying to cover their tracks or fudge to the FBI or the Grand Jury.  Liars may be tolerated on the White House payroll, but a good prosecutor doesn't tolerate them at all and will hammer a liar harder than anyone else.  And Fitz is a good prosecutor from all account that I have read. 

Beyond that, though, I think that John Dean had it absolutely right in his column of July 15th,, that a good testing ground for prosecution is Title 18, United States Code, Section 641.  For me, this is where Judy Miller comes into the picture and why the Federal court allowed her to be jailed.  Those eight redacted pages of the memorandum are a major teaser for those of us on the outside, but I would bet that Judy and whomever else was included on those eight pages point directly at a prosecution under this section.  I continue to believe that Bolton and Judy are intertwined in this investigation somehow, especially since he appears to have been a regular source for her to the neocon interpretation of WMD reports in the build-up to the Iraq conflict, and I would say this is especially true if Bolton had anything whatsoever to do with the drafting or transmittal of the State assessment memorandum on Wilson.  Whatever her role, the NY Times has dug itself into an indefensible hole -- their journalist is at best protecting a lying traitor who was using her as a tool for political payback on a story for which the paper got no credit since Judy never wrote it anyway.  At worst, Judy Miller was a shill who was used to transfer information from one Administration officulpability other in as a means to avoid criminal culpibility (which, btw, does NOT avoid it precisely because there is a scheme involved, if that can be proved), which means that she wasn't acting as a journalist at all but as an Administration tool -- which would put the Times in a sticky situation if that ever came out, wouldn't it?  Whatever the story, I find Judy Miller and the NY Times to be completely contemptuous of what it means to truly be a journalist -- there should be no instance where someone who is using you to perpetuate a lie or to commit treason is ever protected.  Period.  And yet, here we are.  If I were Fitzgerald, I would be yanking in every member of the NYTimes masthead who discussed this case with Judy Miller -- from the publisher on down -- and reminding them that their mission is not to secure journalistic sainthood but to actually report the truth.  In fact, I publicrtain he is probably doing just that no matter what pulic protestations we may have been hearing to the contrary from the editorial board.  Whatever the reason, indictments cannot come soon enough for me. 
Undercover officers -- be they local drug enforcement cops or CIA NOCs or something in between in terms of risk -- live their lives constantly looking over their shoulders.  They do this for the good of the general public, keeping the rest of us out of harm's way when they can.  They put their lives on the line, risking injury and death, in order to secure neighborhoods or entire countries, and most of the time people who don't know them or work with them never even know their names, their faces, or the risks that they take on our behalf.  That Karl Rove or Scooter Libby or whomever else wouldn't hold this risk in high regard just shows how low they have sunk in this Administration in terms of their ends justifies the means agendas -- and how little experience these people truly have with real danger and threat.  This isn't some video game or movie that you can start over when you reach the tough part -- in the real world, people are injured, or killed, when something like this happens.  A callous political calculation that political payback was more important than the safety and lives of every person in the Brewster-Jennings network, that getting even was more important than national security matters during a time of war that dealt with WMD issues and nuclear proliferation, that...well, I can't even begin to explain how moronic that is, let alone how treasonous.  I only hope that Fitzgerald has a big enough hammer to make them wish they had never, ever entertained this idea of revenge -- and I have a feeling that Fitzgerald is an intelligent and shrewd enough prosecutor to do this right, all the i's dotted and t's crossed and every charge backed up in triplicate.  I have rarely seen an act so deserving of the full treatment in terms of prosecution, and I wish Fitzgerald all the best.  Myself, I'm gonna stock up on popcorn before October. 
BTW, part of what Reddhead is referring to are emails we've exchanged regarding the possibility that John Bolton has not been questioned by Patrick Fitzgerald precisely because he is a target of the inquiry, and I have to give credit to emptywheel for putting that notion in my head. There is certainly a compelling argument to be made on that front.

And special thanks to Reddhead for taking the time to explain the finer points to those of us who pin so many hopes for the future on this case. Much appreciated.