Rove's Backers Use 'CounterSpy Defense'

By Robert Parry
July 26, 2005

In defending White House political adviser Karl Rove, American conservatives have adopted an argument used by U.S. leftists three decades ago to rebut accusations that CounterSpy magazine's naming of CIA station chief Richard Welch in Greece contributed to his murder.

The argument – used then to defend CounterSpy and now to protect Rove for outing CIA officer Valerie Plame – was that the covers for the two CIA officers had previously been blown and that the CIA hadn’t done enough to maintain the secrecy.

Over the past two weeks, following revelations that Rove discussed Plame’s CIA role with journalists in 2003, right-wing commentators have asserted that no crime was committed because Plame’s CIA identity was “common knowledge” to some of her friends and because her cover had already been breached.

For instance, an editorial in the right-wing Washington Times asserted that Plame’s identity “was compromised twice before her name appeared” in Robert Novak’s column of July 14, 2003.

more at

http://www.consortiumnews.com/2005/072605.html

when he was interviewed five times. Yes they are just chasing their tales with no case.....NOT:sarcasm:

There were some bad things going on in Greece and in the wider Mediterranean area during the 1970s, and many of these were being carried out under the aegis of the CIA. Outing Richard Welch may have been an attempt to stop the political assassinations and other conduct of U.S. foreign policy by illegal means.

Plame was outed solely as political payback against someone who wasn't toeing the administration line on the justification for invading Iraq. A rationale that we now know was faked on a number of levels. Plame herself hadn't done anything wrong, and wasn't involved in any wrongdoing; her cover was blown simply as a way to get back at her husband.

And just who in the fuck is Rove to decide who is covert? Who has already been outed? So because Rove decided she is no longer a covert agent he can risk her life and the lives of anyone she has ever delt with in her CIA related activities in further peril?

Democrats can counter this shit so easily if we would exercise message control and discipline.

for invading Iraq.

they wouldn't know the truth if it bit 'em in the ass.

This stuff is in the hands of the legal system now, and it won't be spun any other way than what Fitzgerald says it is.
The American people actually STILL believe in the rule of law, even if the Repub leaders don't.

The train done left the station boys.....too late now !

"For instance, six months ago, Tony Blankley, editorial page editor of the Washington Times, suggested prosecuting New Yorker investigative reporter Seymour Hersh on espionage charges (carrying a possible death penalty) for disclosing secret U.S. military reconnaissance operations inside Iran.

In a Jan. 19, 2005, column entitled “Espionage by any other name,” Blankley argued that Hersh had given sensitive secrets to the enemy by describing U.S. preparations for war with Iran. Blankley cited the precedent of the government using the Espionage Act to convict Navy analyst Samuel Morison for selling photos of a Soviet ship to a Jane’s military publication in the mid-1980s.

(snip)

No similar argument could be made about an overriding need for the public to know the identity of Valerie Plame. Yet, the Washington Times – along with other conservative news outlets – decried the Hersh leak while defending the Rove-Novak leak.

There is also irony in the Washington Times making pronouncements about espionage when it has been kept afloat since 1982 with secret financing from Rev. Sun Myung Moon, who was unmasked in a 1978 congressional investigation as a covert agent of the South Korean government trying to penetrate U.S. media and politics.

To prove that a crime was committed, Fitzgerald must show that a government official revealed Plame's name or likeness while knowing that the administration was working to keep it concealed.

Attorneys for the Times and Time magazine argued that reporters have a First Amendment right to resist disclosing confidential sources.

In a separate brief before the Appelate Court, several dozen news organizations argued that journalists should not be questioned because there was "doubt that a crime has been committed" in the disclosure of Plame's name.

a brief authored by a right wing lawyer who threw in everything she could troll up from the right wing media as an amicus brief in the case of miller refusing to tell what she knew to the grand jury. (I read the Brief) linked below. Several media organizations paid the lawyers to file the brief. Their description runs about a dozen pages.

http://www.bakerlaw.com/files/tbl_s10News/FileUpload44/10159/Amici%20Brief%20032305%20(Final).PDF

http://washingtontimes.com/national/20040722-115439-4033r.htm

"officials said the disclosure that Mrs. Plame's cover was blown before the news column undermines the prosecution of the government official who might have revealed the name, officials said.

"The law says that to be covered by the act the intelligence community has to take steps to affirmatively protect someone's cover," one official said. "In this case, the CIA failed to do that.

"A second official, however, said the compromises before the news column were not publicized and thus should not affect the investigation of the Plame matter."


The trial record accompanying the appeals by Miller and Cooper carried information -- a sealed record -- that has not been made public. It is an affidavit that was submitted by Special Counsel Fitzpatrick to Judge Hogan when Miller, Cooper, and other reporters (who have since cooperated with the investigation) sought to first block the subpoenas calling for them to appear before the grand jury.

In a November 10, 2004 ruling, Judge Hogan addressed this information: "In his ex parte affidavit, Special Counsel outlines in great detail the developments in this case and the investigation as a whole," he explained. "The ex parte affidavit establishes that the government's focus has shifted as it has acquired additional information during the course of the investigation. Special Counsel now needs to pursue different avenues in order to complete its investigation."

Judge Hogan then found, based on Fitzpatrick's information, that "the subpoenas were not issued in an attempt to harass the , but rather stem from legitimate needs due to an unanticipated shift in the grand jury's investigation."
Judge Hogan concluded that because the "subpoenas bear directly on the grand jury investigation and are of a limited time and scope," Fitzpatrick was entitled to this information.

The D.C. Circuit Court of Appeals, relied on Branzburg, stressing that the leak at issue seems to have also been a crime:

"On the record before us,there is at least sufficient allegation to warrant grand jury inquiry that one or both journalists received information concerning the identity of a covert operative of the United States from government employees acting in violation of the law by making the disclosure."


The argument is being made that the Federal courts have not spoken on the claim that Plame was covert. However, in the amicus brief before Hogan and the Apppellate Court review of Judge Hogan’s decision, a claim was made that she was not covert at the time she was outed.

the amicus brief was written by that GOP intellectual whore Toensling.

In it it claims that Plame was not covert.

The Appellate Court, in reference to the claims outlined in the amicus brief, ruled

“We further conclude that other assignments of error raised by appellants are without merit. We therefore affirm the decision of the District Court."

Those “assignments of errors” included that Plame was not covert.


http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.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
Consolidated with
04-3139, 04-3140

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
SENTELLE, Circuit Judge: An investigative reporter for the
New York Times; the White House correspondent for the
weekly news magazine Time; and Time, Inc., the publisher of
Time, appeal from orders of the District Court for the District of
Columbia finding all three appellants in civil contempt for
refusing to give evidence in response to grand jury subpoenas
served by Special Counsel Patrick J. Fitzgerald. Appellants
assert that the information concealed by them, specifically the
identity of confidential sources, is protected by a reporter’s
privilege arising from the First Amendment, or failing that, by
federal common law privilege. The District Court held that
neither the First Amendment nor the federal common law
provides protection for journalists’ confidential sources in the
context of a grand jury investigation. For the reasons set forth
below, we agree with the District Court that there is no First
Amendment privilege protecting the evidence sought. We
further conclude that if any such common law privilege exists,
it is not absolute, and in this case has been overcome by the
filings of the Special Counsel with the District Court. We
further conclude that other assignments of error raised by
appellants are without merit. We therefore affirm the decision
of the District Court.

pages 6 - 7

"The appellants have proceeded with common counsel and
common briefing in a consolidated proceeding before this court.
They assert four theories for reversal.
Their first claim is that the First
Amendment affords journalists a constitutional right to
conceal their confidential sources even against the subpoenas of
grand juries. Secondly, they claim that reporters enjoy an
evidentiary privilege under the common law to conceal
confidential sources. Adjunct to this claim, while denying that
the privilege is less than absolute, they argue that if the privilege
is in fact qualified, the United States has not overcome the
privilege. Thirdly, appellants argue that their due process rights
were violated by the Special Counsel’s ex parte and in camera
submission of evidence to the court to establish that the United
States had overcome any qualified privilege. Finally, they argue
that the Special Counsel failed to comply with Department of
Justice guidelines for the issuance of subpoenas to journalists,
and that the failure to comply is an independent ground for
reversal of their contempt conviction. Finding no grounds for
relief under the First Amendment, due process clause, or
Department of Justice guidelines, and persuaded that any
common law privilege that exists would be overcome in this
case, we affirm the judgment of the District Court for the
reasons set out more fully below."

Pages 20-21

"Special Counsel’s compliance.
The guidelines in question are set forth in 28 C.F.R. § 50.10
and the United States Attorney’s Manual, § 9-2.161. Those
guidelines provide that subpoenas for testimony by news media
must be approved by the Attorney General, a requirement not
pertinent in the present case as the Special Counsel had received
delegation of all the Attorney General’s authority, and should
meet the following standards:

(a) “In criminal cases, there should be reasonable grounds
to believe, based on information obtained from
nonmedia sources, that a crime has occurred, and that
the information sought is essential to a successful
investigation–particularly with reference to
establishing guilt or innocence. The subpoena should
not be used to obtain peripheral, nonessential, or
speculative information.” 28 C.F.R. § 50.10(f)(1)."



page 10

"As can be seen from the account of the underlying facts in
Branzburg, there is no material factual distinction between the
petitions before the Supreme Court in Branzburg and the
appeals before us today. Each of the reporters in Branzburg
claimed to have received communications from sources in
confidence, just as the journalists before us claimed to have
done. At least one of the petitioners in Branzburg had witnessed
the commission of crimes. On the record before us, there is at
least sufficient allegation to warrant grand jury inquiry that one
or both journalists received information concerning the identity
of a covert operative of the United States from government
employees acting in violation of the law by making the
disclosure. Each petitioner in Branzburg and each journalist
before us claimed or claims the protection of a First Amendment
reporter’s privilege. The Supreme Court in no uncertain terms
rejected the existence of such a privilege. As we said at the
outset of this discussion, the Supreme Court has already decided
the First Amendment issue before us today.

In rejecting the claim of privilege, the Supreme Court made
its reasoning transparent and forceful. The High Court
recognized that “the grand jury’s authority to subpoena witnesses is
not only historic . . . but essential to its task.” 408
U.S. at 688 (citation omitted). The grand juries and the courts
operate under the “longstanding principle that ‘the public has a
right to every man’s evidence,’ except for those persons
protected by constitutional, common law, or statutory privilege.”
Id. (citations and internal punctuation omitted). The Court then
noted that “the only testimonial privilege for unofficial
witnesses that is rooted in the Federal Constitution is the Fifth
Amendment privilege against compelled self-incrimination.” Id.
at 689-90. The Court then expressly declined “to create another
by interpreting the First Amendment to grant newsmen a
testimonial privilege that other citizens do not enjoy.” Id. at
690. In language as relevant to the alleged illegal disclosure of
the identity of covert agents as it was to the alleged illegal
processing of hashish, the Court stated that it could not
“seriously entertain the notion that the First Amendment protects
a newsman’s agreement to conceal the criminal conduct of his
source, or evidence thereof, on the theory that it is better to write
about a crime than to do something about it.” Id. at 692.

Lest there be any mistake as to the breadth of the rejection
of the claimed First Amendment privilege, the High Court went
on to recognize that “there remain those situations where a
source is not engaged in criminal conduct but has information
suggesting illegal conduct by others.” Id. at 693. As to this
category of informants, the Court was equally adamant in
rejecting the claim of First Amendment privilege:

e cannot accept the argument that the public interest in
possible future news about crimes from undisclosed,
unverified sources must take precedence over the public
interest in pursuing and prosecuting those crimes reported
to the press by informants and in thus deterring the
commission of such crimes in the future.

The Branzburg Court further supported the rejection of this
claimed privilege by the commonsense observation that “it is
obvious that agreements to conceal information relevant to the
commission of crime have very little to recommend them from
the standpoint of public policy.” Id. at 696. While the Court
recognized the right of the press to abide by its agreements not
to publish information that it has, the Court stated unequivocally
that “the right to withhold news is not equivalent to a First
Amendment exemption from an ordinary duty of all other
citizens to furnish relevant information to a grand jury
performing an important public function.” Id. at 697.

We have pressed appellants for some distinction between
the facts before the Supreme Court in Branzburg and those
before us today. They have offered none, nor have we
independently found any. Unquestionably, the Supreme Court
decided in Branzburg that there is no First Amendment privilege
protecting journalists from appearing before a grand jury or
from testifying before a grand jury or otherwise providing
evidence to a grand jury regardless of any confidence promised
by the reporter to any source. The Highest Court has spoken and
never revisited the question. Without doubt, that is the end of
the matter."

THE SYLLOGISM IS WRITTEN THUSLY:

1. (A) IS NOT = TO (NOT A)

COVERT IS NOT = TO NOT COVERT

2. (X) IS = TO (A), OR = TO (NOT A), BUT CAN NOT, BY THE FIRST STATEMENT ABOVE, BE EQUAL TO BOTH.

HER STATUS WAS EQUAL TO COVERT OR EQUAL TO NOT COVERT.

3. THE COURT REJECTED (“AS WITHOUT MERIT”) THE CLAIM OF THE AMICUS BRIEF THAT PLAME’S STATUS (X) IS EQUAL TO (NOT A),

4. IPSO FACTO, PLAME’S STATUS (X) IS EQUAL TO (A), viz.., Plame was a covert agent

If the amicus brief claims that Plame was not covert, and the Court concludes that such a claim is without merit, what else is the court saying but that Plame was covert? It rejects the thesis that Plame was not covert. What remains, by analog logic can only be the affirmation of the antithesis, viz., the conclusion by the Court that she was covert.