Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Friday, October 28, 2005

Thoughts in wake of Fitzgerald Statement on Libby Indictment

Given the many blogspots in this blog in re Fitzgerald, it would be useful to share some thoughts on what we actually know.

* * *

Later, it will be interesting to compare the preliminary guesses with

  • A. what we finally find out in re impeachment or subsequent Congressional investigations, if any, in the to decision to go to war against Iraq; and

  • B. what lessons, if any, we might glean to improve the system of checks and balances prior to declaring war;

  • C. what original questions raised can be answered, or lead to additional issues;

  • D. how the indictments and subsequent please then bounce back to allegations of attorney misconduct before the Grand Jury; and

  • E. how the original forecasts squre with what both Fitgerald/Grand Jury and House Judiciary Committee subsequently find; then assess reasons for the disconnects, and apply those lessons to other situations.

  • F. how the lessons learned from this situation will be applied to other situations where the media is making statements about US government assessments, as they are doing in Syria and Iran.

    * * *

    Focus of investigation

    Fitzgerald said that, unlike what some might believe, the prosecutor doesn’t hope to start with an alleged crime and then find facts to support or reject that conclusion. Rather, they take the opposite approach of understanding the facts, and then finding out what happened.

    However, it appears the prosecutor’s approach is at odds with how the intelligence community and the investigators approach issues. Often times they’ll couch the incoming information in terms of a specific allegation; and then reject or accept the information not on the basis of whether it is a fact, but whether it is linked with a specific crime.

    Rather than take the prosecutor’s approach of letting the facts lead where they may, it appears some agents require that the incoming information be linked to a specific allegation.

    However, this puts the incoming witness in the position of acting as an adjudicator, when they may not have all the information.

    Please ask the training officials to emphasize this disconnect; and ask to what extent through DoJ OPR and DoJ IG the extent to which agents are directing witnesses and informants to couch information in terms of a specific allegation.

    It is disturbing to find out that the public is required to know the statutes better than the agents who receive the information; and that there are significant hurdles to get information into the databases or before the prosecutor. Whether that information once it is in the database is retrievable is clearly another matter.

    * * *

    Impact on intelligence

    Indeed, realizing that the Vice President’s chief of staff was involved in the leaking of a name to unauthorized personnel is troubling. Some have speculated what impact that this would have on those in the intelligence community.

    How does this affect people who may wonder whether they want to put their lives on the line?

    Bluntly, why should someone bother to put their life on the line when the risk of exposure isn’t from the enemy, but from one’s own government?

    Moreover, for any nation to collectively suggest that their way of life is worth fighting for, all the while their own personnel go out of their way to put their own agents at risk is absurd.

    For a nation to assert that its way of life is worth asserting, then the conduct of all in leadership positions must be consistent with those principles were are trying to assert; not going out of the way to undermine those like Wilson who dare to assert the rule of law and facts over lawlessness.

    Yes, this incident leaves a bitter taste in one’s mouth. Who are these people to talk about a great way of life, when their own citizens, in the name of seeing a political agenda, justify in their own minds conduct which is contrary to that way of life.

    There’s a lot of sensitive information that floats in and out of the White House. If they’re not willing to preserve it, then why should people risk their lives to get that information before them?

    Yes, behavior like this does burn bridges. We’re not in the business of being stuck in a particular career, nor beholden to a specific political machine that justifies this conduct, regardless the interests of the state, or whether that conduct cannot be proven to be a crime.

    We have two issues: What is the enemy capable of doing; and what are our own forces willing to do. It’s hard enough to attempt to do the right thing when the enemy is there, either known or unknown; but it’s a real kick in the teeth to find out your own side is willing to do the same thing as the enemy.

    A simple view is: Go find someone else that is stupid enough to fight both for principles not practiced, and then take it from all sides, even your own. ON top of that, even if you were to choose to stick with the system you run the chance of being treated as a public fool for simply asserting the rule of law.

    Sibel Edmonds, LtCol Schaeffer are but two examples of people doing their job, and then getting shafted by the system. Feel free to explain that to the new recruits you have at the next career day in Maryland.

    * * *

    Counter espionage

    The issue of where Fitzgerald’s support was located in DoJ was downplayed. However, Fitzgerald specifically thanked those in the counter intelligence division. This implies that the office wasn’t simply there, but there were active interactions with the Grand Jury and Fitzgerald.

    * * *

    Baseball analogy

    Fitzgerald talked about throwing dust up before the umpire’s eyes. If this analogy applies to Libby, then the issue is: OK, now we’ve got indictments that suggest that Libby was throwing stand before the umpire.

    The next step is to ask: What was Libby trying to do, why, and was there are larger pattern.

    Clearly, Libby made statements that he believed would be accepted. Despite the prospects of 30 years in jail for 5 felony counts, he believed what he was doing was acceptable.

    The next step is to ask what was the larger issue he was trying to advance, what agenda was being advanced, and who else knew about it.

    Why was he doing it?

    Did he know it was illegal?

    I do have a problem when the Grand Jury finds that Libby may have committed a crime on obstruction of justice; but then says nothing on intent in re disclosure.

    This means, because of secrecy, that Congress, the media, and other investigators would have to re=develop this information.

    Wonderful. More delays.

    Curious how its so easy to smear someone in the CIA, but then it takes forever to get public knowledge of what is to be done to kick someone.

    And DC wonders why people roll their eyes when they hear about the "big DC-solution" to something. "Oh, we can't talk about that, it might affect the election."

    Brilliant, that's why we have elections: To have accountability; not to "use the election" as the basis to do nothing.

    Yes, this does leave one with a bitter taste in the mouth: "This is the best that civilized people can do; and we wonder why people disagree with the US at the UN?" Get real. Major credibility problem.

    * * *

    Alleged perjury, but then no finding on intent

    There’s a disconnect in the case that Congress needs to understand: How could someone engage in a course of conduct that amounts to perjury; but then have no finding against them in terms of intent to achieve the result.

    This doesn’t mean that Libby did or didn’t intend to do something. Rather, there’s a disconnect on why someone would be indicted for a course of conduct amounting to obstruction, but then there be nothing in terms of intent to achieve some other objective or outcome. Libby must have done this for some reason; and that larger objective needs to be probed, regardless the non-statement by the Grand Jury on this larger issue.

    In my view, if someone is lying about what they did or didn’t say; then they are knowingly part of something and that action of lying to the Grand Jury shows they are knowledgeable of something, an interest, or perusing with some sort of intent to achieve an outcome.

    * * *

    Disconnect on DoD FOIA in re Able Danger and Cooperation with Grand Jury

    More broadly, it’s troubling that despite the ability to find witnesses in the Able Danger/LtCol Schaeffer case, that we have trouble getting the agencies to provide responses. However, Fitzgerald says that they were cooperative with the Grand Jury.

    Why is the Grand Jury given better assistance, but matters related to fact finding in re Able Danger get a yawn?

    Why are people like Michael Brown given assistance with a new job, but LtCol Schaeffer is left hanging in the wind, has lost his security clearance, and DIA and others wont talk about the pictures and maps hanging on the walls?

    * * *


    The unsettled issue is: Why did Libby do what he did; what was his purpose; and why would he lie. Regardless what the court does or doesn’t find, it’s reasonable to presume there’s been a course of conduct that’s been inconsistent and with the intent to delay the knowledge of something.

    These are issues which Congress and the public are going to have to decide whether they want to look into in terms of impeachment. We already know that, in light of the revelations about the Downing Street Memo, that more than fifty [50] percent of the public thinks that if Bush lied about WMD then he should be impeached.

    Whether Congressional inaction on that issue then translates into a vote against the RNC remains to be seen.

    Fundamentally, why would Libby throw sad if there was no problem or no issue; why would he commit acts that warrant an indictment with the expectation that he not get caught. We still don’t know what happened with the original case, and conduct with the leaking.

    The question Congress is going to have to decide is whether to pick up the pieces as they find them and probe; or whether the public and the media are going to do this on their own outside Congress and the Grand Jury process.

    * * *


    What we do know is that evidence that may or may not have been brought before the Grand Jury will not see the light of day.

    But the issue isn’t simply one of crimes, but what the voters need to know to make an informed decision.

    All the information that doesn’t get released in trial will never see the light of day, unless Congress chooses to pursue this.

    My view: Libby and Cheney were part of a larger effort to discredit those who opposed the decision to invade Iraq; and that they were part of an effort to provide false information to Congress.

    If this situation isn’t addressed, then we’re bound to have the same thing happen with both Syria and Iran.

    * * *


    The lesson of the day is that its OK to lie if you do it in politics, just don’t do it to the grand jury.

    In other words, if you as a private citizen have an interaction with a US federal, state, or local government official in a non official hearing, you can presume that they will lie if they believe it is in their interests: Feign stupidity about who they know, what they’re done, or whether they’re supposed to do or not do something.

    Law enforcement, court officials, and other elected officials now have another green light to lie to their constituents or those they serve. The grand jury can’t find the evidence of wrongdoing, so there’s little to believe the public is going to have the time to dig through it.

    The safest bet when dealing with Americans is to assume they’re lying. This introduces inefficiencies into contracts and the market. However, there are other options.