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February 09, 2006

Comments

hilzoy,

"But it's a serious mistake to try to bully the law. The law has a tendency to bite back. And even if everyone else is too impressed by what a powerful DC player you are to do anything more than ask how high you want them to jump, or how much you want them to swallow, the law is rarely so obliging."

Last time I checked, the law was an abstract concept, applied by real life people, many of whom your statements would not apply to, and some of whom would actively support the Administration's right to do so (and I'm specifically thinking about Justice Alito).

I wish I shared your optimism, hilzoy.

Even if that is Libby's defense, and he establishes that Cheney in fact authorized his actions, so what? Nothing will happen to Cheney, Libby will be pardoned, and the usual apologists will be there with the latest set of rationalizations and defenses of the whole thing.

To the tune of Abracadabra by The Steve Miller Band: "Schadenfreude - I don't know how to avoid ya." Actually, never mind.

rilkefan: someone, somewhere, recently said:

"must... not... further... besmirch... beloved... language..."

Who could it be?

hilzoy, I resemble that remark.

Completely OT: I've recently taken to eating Key Lime yogurt, and somewhere, in the back of my mind, something has always bothered me about it -- though not the taste, which is great, or anything like that.

Just now, I suddenly realized what it is: it looks exactly like Oobleck...

p.s. I was alluding to the original quote, by the way...

Key Lime yogurt and Oobleck...

Only hilzoy.

(What was it Aristotle was supposed (by Ezra Pound) to have said? Oh yeah: The swift perception of relations is the hallmark of genius.)

Oobleck and Key Lime yogurt...

Only hilzoy.

Later in the article there is speculation that Libby is applying the Ollie North defense (especially since he's "quietly" hired North's lawyer) that he was acting on orders of superiors. While that's not a defense, he was acquitted on those counts by the jury, according to the article.

Actually, as much as I would like to see Cheney go down, I think in the end it's best if nothing happens Cheney since if he was replaced the new VP would have an advantage over the Dem candidate in '08.

opse theôn aleousi muloi/ aleousi de lepta

if I recall correctly. I think it's in Plutarch's treatise on the delays in divine retribution, which he wrote around 110 A.D. or so, but I think he's quoting Phocylides who was writing in maybe the 500's BC. Sextus quotes it, too, just says it's an old proverb.

My point being: the original quote says "the mills of *the gods* grind slowly but they grind exceeding small". Not justice.

Actually, the interesting legal wrinkle Libby and his attorneys plan to use in his defense is to demand discovery of classified information (which is irrelevant to perjury/obstruction charges, but what the hey) - and then, when the WH refuses to turn the classified info over to Fitzgerald to turn over to Libby's defense team, move for a mistrial. On the grounds that the prosecution is withholding exculpatory evidence.

Is there a legal term for that, when ostensibly opposite sides (the WH and Libby) are actually on the same side, and use the US Attorney's Office as a mutual patsy?

Is there a legal term for that, when ostensibly opposite sides (the WH and Libby) are actually on the same side, and use the US Attorney's Office as a mutual patsy?

Obstruction of justice.

We're all quite sure that if a member of the executive commits or subourns perjury during time of war it isn't a legitimate exercise of war powers?

Tad -- thanks. I was looking for the quote, and found all sorts of people using it without saying where it came from, but no actual source. Now I know why. Thanks.

"Just now, I suddenly realized what it is: it looks exactly like Oobleck..."

I can't tell from this and your link whether or not you are perfectly aware that people have been making oobleck for years, and just didn't find that worth mentioning, or whether you aren't aware, and think it's just a Geisel/Seuss thing.

I guess the former, but inquire so as to not assume.

Naturally, I focus on the important issue, here.

In another revelation that we were, somehow, separated at birth, I, too, like key lime yogurt (actually, however, I like almost every flavor of commercial yogurt; I am large, I contain multitudes, particularly when it is not non-fat yogurt).

CaseyL: "On the grounds that the prosecution is withholding exculpatory evidence."

But it wouldn't be the prosecution withholding evidence, in that scenario.

But it wouldn't be the prosecution withholding evidence, in that scenario.

Yes it would. Libby is being tried for a criminal offense; thus, the prosecution is the government; specifically the executive branch of the government (of which the DOJ is a part); the same executive branch that would refuse to disclose the classified documents. Remember, the White House is not actually charged with anything - only Mr. I. Lewis Libby.

Key Lime yogurt and Oobleck...

Only hilzoy.

With all respect and love to Hilzoy, we were having panels/workshops about Things To Do With Oobleck at sf cons back in the Seventies and since; ditto in apa (blog threads-on-paper, if you will) discussions starting then; yogurt certainly came into the discussions; it's always been a particularly popular tradition in Minneapolish-St. Paul fandom, or at least the Mn-Stf part.

Tad: "the mills of *the gods*"

No, it's "*the mills* of the gods".


Mrs. R thinks my ability to be amused by my own whimsy is a serious character flaw.

"Yes it would. Libby is being tried for a criminal offense; thus, the prosecution is the government;"

Fair enough.

Key limes are yellow. Only those that live north of Jewfish Creek think otherwise.

Gary: I didn't know Oobleck had a life outside Dr. Seuss books. Live and learn.

How much of this really matters since this is just heading toward pardon land anyway.

I am still jaded by how little Iran Contra hurt Republicans.

Superiors

Analysis and speculation from the Next Hurrah.

Anyone remember when we thought Rove was about to be indicted, and Fitz met with Rove, Rove gave Fitz some significant information, and the Firz met with the President's personal counsel?

At the time, and now again, I said that Rove told Fitzgerald that Rove would implicate Bush if indicted, and well, did Fitz have the cojones? Feelin lucky, Fitz? Appears Libby is attempting much the same strategy.

They were around during Nixon, and learned a lesson. Instead of protecting the President, they are directly implicating him, and using the potential chaos, constitutional crisis, and general hell on earth of a felonious President to intimidate and frighten the prosecutor.

There's nothing in Fitzgerald's history to suggest that fear of political consequences weighs with him.

However, there is fairly compelling evidence that he hates to lose a case (going back to his reaction to losing the Gambino case in '92). The bar of proof for indictment is lower than the bar for conviction; Fitzgerald seems to go for the higher bar from the start, from the time he crafts indictments. In other words, he will not indict unless he's convinced he can win a conviction.

That's why his indictment of Libby was so carefully, narrowly drawn. He didn't think he had sufficient evidence to convict on espionage charges; therefore, he didn't indict on espionage charges. (That's come in handy, now that Libby's lawyers are trying to use discovery to find out what evidence Fitzgerald has about espionage. Fitzgerald can, and is, refusing those discovery requests on the basis that they're irrelevant to the perjury and obstruction charges.)

If Rove had an 11th hour revelation that might undermine a conviction of whatever charges Fitzgerald was thinking of bringing against him, it's reasonable for Fitzgerald to wait, to test the new information, and see where it leads. Rove isn't going anywhere; if Fitzgerald can craft an acquittal-proof indictment, he'd rather take the time and effort to do so, rather than have some new info blow up in his face during trial, or leaving any lose ends the defense can exploit to convince the jury there's 'reasonable doubt.'

Fitzgerald worked for nearly a decade on terrorist cases. He feels pretty strongly about combatting terrorism. He's very well aware (and has said so) that our intelligence people are a vital line of defense against terrorism. He's very well aware (and has said so) that their job is hard enough, dangerous enough, and the least they should be able to expect is that their own government not betray them. I don't think he regards outing Plame as a trivial issue, and I don't think his overriding concern is avoiding political repurcussions in punishing the people who betrayed her.

One could fault Fitzgerald for taking too much time, for being too meticulous, for staying too strictly within "the four corners" of an indictment.

But I don't think one can fault him for fearing political consequences.

"Gary: I didn't know Oobleck had a life outside Dr. Seuss books."

Oh, yes.

"Live and learn."

Most every day, I do. Glad I mentioned it, then.

It's pretty weird stuff. I recommend making some at some point you have a bit of time, and playing with it, as described at many of the links I just pointed to; you don't even need to have a kid around! It's worth seeing and touching and playing with at least once, after reading a little about it.

And if you ever have a bored kid around, even better.

One could fault Fitzgerald for taking too much time, for being too meticulous, for staying too strictly within "the four corners" of an indictment.

But I don't think one can fault him for fearing political consequences.

At the least, if one is going to suggest such a hypothesis, putting forward some evidence in support of it might help such a case.

Bob:

Superiors

Analysis and speculation from the Next Hurrah.

Spent time reading the whole thing. Didn't learn anything I didn't know. Sorry.

"But I don't think one can fault him for fearing political consequences."

An 11 month delay because of Libby's "scheduling conflicts"? I no longer trust Fitzgerald. Everyone gets excited over trivialities, but Fitzgerald has done nothing that would actually serve the country or deter future criminality. An indictment of Rove in 2015 may impress the rest of you, but I expect I'll be dead.

The press is if anything worse about serving this administration and enforcing the talking points. Intelligence is still being manipulated and misused, and Goss continues to cleanse the CIA of disloyal elements. As I have said elsewhere, the law is pretty pointless without practical benefits. It is not to be worshipped for its own sake.

Ha. Ha. Ha.

I believe it was also Plutarch who said:

You never count your money
When you're sittin' at the table
There'll be time enough for countin'
When the dealing's done.

Let me first say that outing a CIA was wrong and condemnable, and I in no way defend what the administration did. I also wrote in early 2004 that Cheney had no business being VP for a second term.

With that out of the way, exactly which law are you talking about, Hil? Fitzgerald did not have sufficient evidence to indict Libby under the Espionage Act. Are you saying that Cheney is guilty? You then must prove that Cheney knew that Plame was covert.

Personally I would have refrained from even one "Ha", because the bottom line is that, given how it's gone for the last 31 months, a lot of energy is used up with damn little to show, especially when those energies could have been better spent on a positive Democratic agenda.

"a lot of energy is used up with damn little to show"

I obviously at least half-agree with Charles.
The left blogosphere has made a huge mistake with Fitzgerald, who at best will end up as even less than Walsh, with a couple pardoned national heroes but no report.

At worst Fitzgerald can end up discrediting the entire Plamegate blog industry. It doesn't matter if Fitz is wrong or too cautious, he has the megaphone and if he doesn't indict Rove, Rove is exonerated and guiltless, for now and for history.

I'll link to Gary: Trailblazing

The subject being data-mining to Congress. This paragraph jumped out at me:

"I find it deeply weird how many reporters, and bloggers, are inclined to make the presumption that an intelligence official would never lie to Congress. But ignorance of history will do that." [I don't think it is ignorance...Bob]

"Past officials convicted of lying either to Congressional investigators or Congress on intelligence matters, or of aiding and abetting in the obstruction of Congress, include Alan D. Fiers, Elliot Abrams, Clair George, Robert C. McFarlane, Richard V. Secord, and, hey, one "John Poindexter"!"
...
Okay, so why is it that the MSM and say Andrea Mitchell will give Poindexter and Negroponte the benefit of the doubt and the presumption of truthfulness? I have a really difficult time believing that Mitchell has is so ignorant of history.

Or I could link to this at Josh Marshall's:

MSNBC, Reid, Abramoff
...
Facts don't matter. They are found on the ground and just sit there, useless and pointless. They can be repeated, emphasized, put in neon. They don't work. The liberal fondness for facts is killing us, is both a sign and cause of victim status.

Perceptions matter much more than facts. Perceptions are created by responsible, concerned, dedicated advocates. People who care, people who fight, people who win. Not "framing" the facts, but creating the perceptions. Perceptions are effective reality.

Bush is a war hero and Kerry a war-crime coward. You can't counter perceptions with facts, but only with advocates creating new perceptions.

Those who can create and control perceptions gain and keep power. Andrea Mitchell can call Poindexter a liar til the cows come home and all she will accomplish is to damage her own credibility. She will damage her credibility by telling the truth. She can't create perceptions because she is not an advocate, but can only serve advocates. She will serve the advocates with the power to create perceptions.

I realize I could probably go to Marxists.org or worse sites and find my musings turned into an art and science. I no longer much care.

There are two points to the old saw about lawyers that starts with the arguing the facts and ends with pounding on the table. The first is about tactical preferences. The second is about the moral responsibility of winning.

Bob: "Perceptions matter much more than facts."

I totally agree and have been arguing the same for years. I get really disgusted with the phrase "Reality based community" because those based in so-called reality miss this vital point.

The very conservative wing of the Republican Party has been working for 30 plus years to create perceptions and we see the result.

The problem is that Democrats don't have, I believe, 30 plus years to try to chaneg perceptions.

During the Bush-Dukakis campaign, Bush keep talking about the "L" word. There was an implicit undrestanding that the word liberal had negative connotations.

I may not have been a big Dukakis fan, but I kept hoping that he would get up and say "Yes, I am a liberal and darn proud of it for these reasons..."

And then go on to outline what being a liberal means, not letting the opposition define it. Unfortunately, Democrats have let thhe opposition define, and then try to object,saying, "But, look at the facts..."

That doesn't work, and just comes out as whining.

That's why I think, as much as I like him, Obama really missed an opportunity with the McCain hassle.

Enough of a rant.

The term for "Deliberatly asking for confidential/classified information to force the government to say no so you can move for a mistrial" is "Graymail".

Libby's lawyer is telling Fitzgerald "Back off, or I'll ask for stuff that the White House will refuse to give, and you're lose -- neener, neener,neener."

Fitzgerald apparently anticipated this -- Libby is not charged with ANYTHING that requires the prosecutor to turn over those PDB's and other classified documents. He's charged with obstruction of justice and perjury -- not espionage.

Libby's "I was following orders about leaking classified information" defense is thus a non-starter, because -- as of yet -- Libby hasn't been charged with any crime pertaining to leaking classified information. He was charged with making false statements (and obstruction) to a prosecutor investigating those leaks.

Whether or not Fitzgerald EVERY prosecutes anyone for the leak -- or even whether the leak was criminal -- is immaterial. Libby lied and obstructed a fully legal investigation.

I suspect Fitzgerald's strategy is nail Libby to a wall and try to flip him. Facing several years in jail, and millions in legal fees (far more than he's raised to pay for it), Libby's got to be reevaluating his loyalty.

As for Oliver North -- I believe what protected him was a combination of pardons and Congress granting far too many people immunity from prosecution in their hearings.

Fitzgerald did not have sufficient evidence to indict Libby under the Espionage Act.

Morat's suggestion that the White House would have used graymail, or anything else, to get Libby off the hook makes sense to me. Does it make sense to you, Charles?

I think the White House would do anything it could to derail the Plame investigation. Do you believe Bush is eager to get the bottom of the matter and see those involved convicted? if so, what makes you believe that?

You complain about the length of the investigation. That's laughable. Bush could have conducted a one-week investigation, not that he needed to, and gotten the facts out.

Personally I would have refrained from even one "Ha", because the bottom line is that, given how it's gone for the last 31 months, a lot of energy is used up with damn little to show, especially when those energies could have been better spent on a positive Democratic agenda.

(emphasis mine).

Who's energies are we talking about here? Fitzgerald's the one spending most of the energy, and he couldn't care two hoots about the Democratic agenda. He seems to have this strange, non-partisan focus on seeing justice done.

The democrats are doing plenty of other stuff other than discussing Plame.

Charles: "...given how it's gone for the last 31 months, a lot of energy is used up with damn little to show, especially when those energies could have been better spent on a positive Democratic agenda."

I don't understand: what does a criminal prosecution have to do with a "Democratic agenda"?

As for what's "to show," several indictments have occurred. Since when does even a single criminal indictment need any other justification?

As for the length of time, get back to us ten years from now, after costing $20,000,000 and finding no wrongdoing. Perhaps you think establishing the guilt or innocence of somone of perjury is unimportant. Perhaps you think establishing the guilt or innocence of perjury by one of the most senior White House officials, a man, who held three titles, Chief of Staff to the Vice-President of the United States of America, Assistant to the President, and National Security Advisor to the Vice President, unimportant.

That would seem unlikely, since I thought you felt that perjury, say about covering up a blow job, was tremendously important, so tremendously important that a President should be impeached and removed from office over. Something about "it's not about the sex, it's about the lying," wasn't it?

Perhaps my memory is confused. Please do explain how all this works from your perspective, if you feel inclined.

I get a kick out of CB's crocodile tears about that "positive Democratic agenda."

Let's hear it for the "positive GOP agenda," shall we?:

Iraq's a nightmare.

The deficit's a nightmare.

The Rx Drug Benefit's a nightmare.

NOLA's a nightmare.

CDC budget: cut. Special education budget: cut. Tuition assistance: cut. Veterans programs: cut. Long-term child healthcare research budget: cut out entirely. GP and rural doctor assistance budget: cut out entirely. ("Tax cuts: The gift that keeps on taking - from everything and everyone except the top 5%")

Absolute presidential authority to suspend habeas corpus, imprison indefinitely without charges, spy on anyone, kill US citizens without charges or trial, and do whatever the hell else Bush feels like doing - without regard for Constitutional law or those pesky checks and balances.

And there's still three years to go!

Three more hurricane seasons!

Two more wars (Iran and Syria)!

1.5+ more trillion dollars in debt!

Corruption, cronyism, and incompetence!

"The GOP and the Bush Administration: Succeeding where the Axis, the Communists, and the terrorists failed!"

Now, that's a record to run on, by golly.

I recently asked you where you saw yourself in the political spectrum.

This post reveals where you reside. HA HA HA... sounds more vindictive than anything else. Who needs lawyers? Son of a Bitch Administration is guilty as hell... BURN 'EM.

Ironic that you condemn them for being bullies.

Cute, hil's got a stalker...

Cute, hil's got a stalker...

What are we, chopped liver?

Psst, bains:

you forgot to say 'bushitler'!!!1

Personally I would have refrained from even one "Ha", because the bottom line is that, given how it's gone for the last 31 months, a lot of energy is used up with damn little to show, especially when those energies could have been better spent on a positive Democratic agenda.

Funny how if you change "Democratic" to "Republican," the statement makes even more sense since there is nothing positive about the Republican agenda on this topic. Just more of the same from the Party of Ideas.

p.s. Charles, the Fitz investigation and Libby prosecution are not a "Democratic" agenda. It speaks volumes that you prefer to cast it in that light.
____________

On the larger topic of how the administration pretends that its warmaking policy can allegedly be justified by intelligence (hence the Libby leaks), and their mistakes somehow ascribed to "bad intelligence," I recommend this post and the Foreign Afffairs article it discusses, which is summarized in this WaPo article. Short story -- their decision making was never based on intel in the first place, and they were responsible for the politicization of the intel that resulted in a lot of bad intel.

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