The Nation

Will Scooter Libby Graymail the CIA?

Will Scooter Libby, a neocon who helped orchestrate the war in Iraq, end up graymailing the US government?

That seems to be one of the strategies being considered by the lawyers defending Dick Cheney's former chief of staff, who was indicted by special counsel Patrick Fitzgerald in the CIA leak case for lying to FBI investigators and grand jurors to cover up his (and possibly Cheney's) participation in the outing of CIA officer Valerie Wilson (née Plame).

Graymail is a defense gambit not available to most criminal suspects. But years ago defense attorneys representing clients connected to the national security establishment--say, a former CIA employee gone bad--figured out a way to squeeze the government in order to win the case: Claim you need access to loads of classified information in order to mount a defense--more than might truly be necessary. Of course, the government is going to put up a fight. It may release some information--but not everything a thorough defense attorney will say is needed. The goal is to get the government to say no to the informant. Then the defense attorney can attempt to convince the judge that without access to this material he or she cannot put up an adequate defense. If the lawyer succeeds, it's case dismissed. In such situations, the defendant is essentially saying, Prosecute me and I'll blow whatever government secrets I can. Isn't that the act of a patriot?

Judges tend to dislike graymailers and shoot them down whenever possible. Still, Libby seems close to making this sort of push. Last week, his attorneys asked for access to ten months' worth of the President's Daily Brief, the highly classified report the President receives each morning from the CIA. (The Bush White House is ferociously possessive about PDBs and has refused to hand them over to Congressional investigations.) Libby's lawyers say that Libby "was immersed throughout the relevant period in urgent and sensitive matters, some literally matters of life and death" and that because of his involvement in "the constant rush of more pressing matters, any errors he made in his FBI interviews or grand jury testimony" were unintentional slips. Libby, a lawyer himself, has to realize that (a) Fitzgerald does not have it within his power to provide the requested PDBs and (b) the overly secretive, presidential-prerogative-is-us White House in which Libby served will never cough up nearly a year of PDBs. But in a display of chutzpah, Libby's attorneys said that Fitzgerald should obtain copies of the PDB from the CIA and Cheney's office and then turn them over to Libby's lawyers.


Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on the Mother of All Downing Street Memos, the Super Bowl, and more.


Libby's defense team also requested information proving that Valerie Wilson was a classified CIA employee (asserting that the classified nature of her employment at the CIA has not yet been established), and they demanded any CIA damage assessment of the Plame leak. A damage assessment is not the sort of material the agency would supply without a titanic fight. A damage assessment would presumably cover operations and activities the CIA does not want damaged any further by additional disclosure.

These requests seem part of a try-everything defense. How effective will it be for Libby to argue, I didn't tell the truth because I was really busy with affairs of state? (Perhaps Libby is trying to blaze a legal trail for others.) After all, according to Fitzgerald's indictment of Libby, he did not merely get the facts wrong once or twice. It happened in the course of several different interviews--during which Libby consistently told the same (cover?) story: He did not know that Valerie Wilson worked at the CIA until reporters told him, and then he merely passed along this unconfirmed gossip to other reporters. Fitzgerald's indictment cites several instances in which Libby obtained or sought information on Valerie Wilson through official channels before he spoke to reporters about her. And the damage assessment issue is no slam-dunk for the defense. Can Libby's defense be that if there was not much damage, then it was okay for him to make false statements purposefully to the FBI and the grand jury?

But Libby may not stop at PDBs, the CIA damage assessment and information pertaining to Valerie Wilson. His lawyer said they might seek other classified records from the State Department, the National Security Council and the Office of the President. And last week, Ted Wells, one of Libby's attorneys, said that "thousands and thousands and thousands" of pages of evidence have been withheld by Fitzgerald. The special counsel disagreed. By the way, Fitzgerald recently sent a letter to Libby's defense team noting, "In an abundance of caution, we advise you that we have learned that not all e-mail of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system." Hmmmm. The White House has lost chunks of e-mail from Cheney's and Bush's offices for 2003, the year Bush invaded Iraq, the year of the CIA leak. Must just be an accident, right?

Meanwhile, on other fronts, Libby and the White House received good news and bad news. Libby and GOPers had reason to be pleased when Judge Reggie Walton set a trial date for next January--which would push the trial of Cheney's former chief of staff beyond the Congressional elections. Walton had originally wanted the trial--which could include the spectacle of Dick Cheney taking the stand--in September, but Libby's team asked to push it back, claiming one of his attorneys had a scheduling conflict. (Other good news for Libby and his legal warriors: A Libby defense fund, chaired by Mel Sembler, a former finance chairman of the Republican Party, has raised $2 million for Libby's legal bills. Members of the fund's steering committee include former GOP Senators Fred Thompson and Alan Simpson, former CIA director R. James Woolsey and former Middle East envoy Dennis Ross.)

The bad news for Libby and Republicans was the release of previously withheld court records that indicate the case against Libby may be stronger than Fitzgerald's indictment suggested. These records, referring to grand jury testimony, reveal more details of Libby's alleged lying to investigators and a grand jury. They also suggest that Cheney may play a significant role in the trial. In his grand jury testimony, Libby said that when news accounts of former Ambassador Joseph Wilson's trip to Niger first emerged, it was Cheney who told Libby "in an off sort of curiosity sort of fashion" that Wilson's wife worked at the CIA's Counterproliferation Division, which is part of the agency's clandestine service. Libby's use of this clumsy term--an off sort of curiosity sort of fashion--is intriguing. Is it credible that when Cheney was talking to his chief of staff about a fellow who was telling reporters he could prove the Bush Administration had misled the nation about the case for war in Iraq that Cheney would do so in an offhand manner?

These newly released records disclose that former Bush press secretary Ari Fleischer told Fitzgerald's grand jury that he had a lunch with Libby during which Libby told him that Wilson's wife did counterproliferation work at the CIA and that this information was "hush-hush." Fleischer described the lunch as "kind of weird." Usually, Libby "operated in a very closed-lip fashion," Fleischer said. But in this instance, it seems, he was trying to spread information that could be used against a White House critic.

The court records also show that Fitzgerald--despite what Libby's attorneys have claimed--have already demonstrated to the courts overseeing the case that Valerie Wilson was an undercover CIA officer. In a filing to the court, Fitzgerald reported that Valerie Wilson is "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years."

Libby is certainly not doing all he can to help Fitzgerald get to the bottom of the leak case, as Bush once ordered all White House aides to do. In fact, Libby is fighting back, as is his right, as hard as he can, and his friends are supportive--and perhaps grateful. After all, Libby is not rolling over on Cheney, Rove or anyone else. No wonder he was a welcomed guest at Cheney's Christmas party in December.

Boehner's Broken Promises

In his victory over Roy Blunt to replace Tom DeLay as House Majority Leader, John Boehner ran as the reformer. This weekend he hit the Sunday talk shows to explain just which reforms he had in mind.

Banning earmarks, as he promised to do during his campaign? "I don't know that it's appropriate to eliminate all of them," he told Tim Russert.

Banning privately-funded travel, as suggested by Speaker of the House Dennis Hastert? "I've got my doubts about that."

Curtailing contact between lawmakers and lobbyists? "I've got a very open relationship with lobbyists in town."

Empowering the dormant House Ethics Committee? "I think the Ethics Committee process really, in fact, is back up, it's working. They know what the rules are, they interpret the rules."

Returning money from Jack Abramoff-related Indian tribes? "No. Those tribes gave money to my political action committee. It had nothing to do with Jack Abramoff...Some of his under--underlings worked with some low-level employees in my office."

Regaining the trust of the American people? On Fox News Sunday: "Taking actions to ban this and ban that, when there's no appearance of a problem, there's no foundation of a problem, I think, in fact, does not serve the institution well."

But enough about reform this and reform that. On to the other pressing issues Fox host Chris Wallace quizzed Boehner about:


WALLACE: I do have to ask you the one question that a lot of people asked me this week. How do you keep that tan?



BOEHNER: I was born dark, but I do like to play a little golf, and it's myescape from all of the pressures of my job.


Reformers yell fore!

Texas Judge Denounces New Bankruptcy Law

I received this email from my colleague Doug Henwood last week:

A bankruptcy judge in Texas, by all accounts a sober and respected fellow, wrote the attached opinion, denouncing the new bankruptcy law. As he puts it: Congress wasn't interested in theopinions of any experts in the field, because it had its own agenda, "to make more money off the backs of consumers." He also says that to call the Act a "consumer protection" Act is the "grossest ofmisnomers," and declared that "no rational human being could make a cogent argument" in the law's favor. Wow. Check it out.

Arnie's Favorite Double Dipper

To some California conservatives, she's no less than Satan. To Governor Schwarzenegger, she's his Chief of Staff and his favorite Democrat. To some reformers, she's the embodiment of a double dippin' conflict of interest.

Susan Kennedy is also a former top aide to Arnold's predecessor Gray Davis, a former director of the state's National Abortion Rights Action League and she's a high-profile lesbian who invited scads of pols to her 1999 commitment ceremony.

Whatever one thinks of Schwarzenegger, putting Kennedy in charge of his staff and now sending her out in public as his most aggressive campaigner for re-election has thrown everyone off-kilter. As the San Francisco Chronicle reports, there will be a move at this month's state GOP convention by Republicans who despise Kennedy to withhold endorsement of Schwarzenegger. It's an unlikely bet but still sure to be messy.

On the other side of the spectrum, Kennedy draws fire from left-of-center reformers because of her brazen salary double dipping. She not only gets a state salary of more than $130,000 for her work as Chief of Staff, but will also be collecting an additional $75,000 from the Governor's re-election campaign funds. Schwarzenegger was elected in the 2003 recall on precisely the promise to do away with such funny-money political games. But this movie has taken a twist.

"What's amazing is that you've got a situation where Schwarzenegger has become worse than Gray Davis,'' said Doug Heller, who runs the ArnoldWatch Web site on behalf of the Foundation for Taxpayer and Consumer Rights. "It's almost like a Schwarzenegger movie where the hero kills the villain -- and takes over his personality.''

Hey, it's California politics. We're strange out here. Make sure to bookmark Bill Bradley's New West Notes to keep close track on All Things Arnold. And while you're at it, take a peek as well at my daily blog. The fight over the Governor's re-election is really heating up. And Bill and I will both be covering it.

Nipplegate's Legacy

Though it has only been two years since it made its live debut on national television, Janet Jackson's right nipple has already left an indelible mark on American society. Many thought that The Nipple's legacy would be limited to introducing the expression "wardrobe malfunction" to the English language, as well as the astonishing revelation that there exists a fashion accessory known as a "nipple shield." Thankfully, both inventions have failed to catch-on. Nonetheless, The Nipple's impact on culture and politics has been profound and deep.

First, ABC broadcast the entire Super Bowl tonight (pre-game, game, half-time show and post-game wrap-up) on a five-second tape delay. I'm not much of a football fan, but the idea seems to me a violation of the democratic ethos of sports and mass spectatorship. Now, the privileged few who are able to cough up the lowest ticket price of $600 will be living history, whereas the masses huddled over nachos in their living rooms will be merely watching history.

Second, in a nod to critics, Super Bowl planners booked the Rolling Stones for this year's half-time show. I am a huge Stones fan, and the apparent fact that Mick and Keith now constitute clean, family-fare is hugely disappointing.

Third, Nipplegate was exactly what social conservatives needed to ramp up the culture war on indecency. In its wake the Parents Television Council launched a campaign encouraging its constituents to flood the FCC with indecency complaints. The result: broadcasters were charged a record $7.9 million in fines in 2004 including $550,000 paid by CBS for Ms. Jackson's "nasty" exposure -- a mere flesh wound to corporate media, but perhaps a harbinger of things to come. The Christian Coalition vociferously lobbied Congress to pass legislation dramatically increasing indecency fines; the bill passed the House but has stalled in the Senate. Senator Ted Stevens of Alaska, head of the Commerce Committee, floated the idea of extending FCC jurisdiction to cable broadcasters. If he succeeds, you can kiss programs like "The Sopranos," "Sex in the City," "South Park" and "The Daily Show" goodbye. Finally, not content to harass the FCC from the outside, last year conservatives placed former Concerned Women of America board member and anti-porn activist Penny Nance in the FCC's Office of Strategic Planning and Policy Analysis as a special adviser.

Last week Bush nominated telecommunications lawyer and lobbyist Robert McDowell to the FCC. If confirmed by the Senate, McDowell would restore the 3-2 Republican majority and re-ignite attempts to gut media ownership regulations. It doesn't appear that Bush was thinking of Janet Jackson's right nipple and the family-values crowd when he made this choice, but if the Senate takes the confirmation hearings seriously, McDowell should have to answer tough questions on both censorship and media consolidation.

Detroit: Super Bowl City on the Brink

Must read article--by The Nation's very own sportswriter Dave Zirin--about the bacchanalia atmosphere of the Super Bowl set against the ravaged backdrop of America's most impoverished city, Detroit. Read Zirin before and after Sunday's Super Bowl. And instead of betting on the big game, give--as he suggests--to the Detroit Rescue Mission. (Give even if you bet.)

Sweet Victory: Washington State Says No To Discrimination

Co-written by Sam Graham-Felsen.

Cal Anderson, Washington's first openly gay state congressman, spent each of his eight years in the legislature fighting for a gay rights bill which, at the time, he knew had no chance of passing. When Anderson died of AIDS in 1995, Rep. Ed Murray, Anderson's former campaign manager, took up the cause and spent the next decade as the bill's lead sponsor.

Twenty-nine years after the first gay rights bill was introduced in Washington, the tireless efforts of Anderson, Murray, and thousands of activists culminated in the passage of HB 2661 last week. The bill--which protects gays and lesbians from discrimination in housing, employment, insurance, and lending--makes Washington the 17th state to add sexual orientation to anti-discrimination laws. (Maine, the subject of a recent Sweet Victory, also passed a similar law in November, becoming the final state in New England to ban anti-gay discrimination.)

"This victory is the product of decades of work by thousands of Washingtonians committed to equal treatment," said Fran Dunaway, executive director of Equal Rights Washington. "It really was a broad-based coalition of religious organizations, large and small businesses, civil rights groups, and concerned citizens pushing for change."

But an effort to overturn the bill is already underway. Conservative initiative sponsor Tim Eyman plans to collect a sufficient number of signatures to force a referendum at the ballots come fall. Dunaway says Equal Rights Washington and its allies are already mobilizing to protect the bill, and plan to "win again" in November. Click here to find out more about how you can assist the struggle for equality in Washington.

Sam Graham-Felsen, a freelance journalist and documentary filmmaker, contributes to The Nation's new blog, The Notion, and co-writes Sweet Victories with Katrina vanden Heuvel.

Stop the Gag on Global Warming--UPDATED

Nation readers don't need me to tell them how frantically the Bush Administration tries to avoid both transparency and accountability. On issue after issue, the Bushies have worked in secret to keep the public and Congress out of its policy-making loop and have dealt with bad news the same way every time: by trying to bury it.

Take the most recent example: the Administration is trying to gag NASA's top climate scientist--Dr. James Hansen--because he had the temerity to speak out publicly about the threats of global warming. Hansen made a speech last December 6 at an American Geophysical Union meeting in San Francisco calling for prompt action to reduce greenhouse gas emissions--a message that the Bush Administration does not want to hear despite the fact that 2005 was one of the hottest years on record, a finding that puts eight of the past 10 years at the top of the charts in terms of high temperatures. Since his SF speech, Hansen says that NASA's public affairs office has insisted on screening all material he presents to the public, and on one occasion an agency press officer even turned down a journalist's request for an interview with Hansen, which the doctor wanted to do.

NASA's political vetting might not be that uncommon, reports Nature.com, which writes that Steven Beckwith, a Johns Hopkins University astronomer and former head of the Space Telescope Science Institute in Baltimore, says NASA has been known to "forbid its staff from talking to the press"; this includes at least one agency scientist he knows of who spoke out on the politically sensitive subject of whether the Hubble Space Telescope's life should be extended.

The Republican Chair of the House Science committee, Sherwood Boehlert, clearly isn't happy with NASA. Boehlert has ordered his staff to look into the matter, and issued his own statement last week charging that "NASA is clearly doing something wrong, given the sense of intimidation felt by Dr. Hansen." As Hansen himself, no firebrand by the way, told the Washington Post, "In my more than three decades in government, I have never seen anything approaching the degree to which information flow from scientists to the public has been screened and controlled as it is now."

To highlight, and hopefully combat, this increasing government censorship, the group Environmental Action is asking concerned citizens to let NASA head Michael Griffin know that you expect him to ease up on the global warming gag and stop censoring federal scientists. The group is aiming to get 4,000 people to send letters. Click here to send a letter today and then urge your friends and family to also speak out against the censoring of federal researchers.

For background on this story read recent reporting by Andrew C. Revkin in the New York Times. Revkin is the reporter who substantiated Hansen's assertions with quotes from gutsy career officials at NASA who typically make every effort to stay out of the limelight.

The Times science writer and author also wrote last Saturday that "Other National Aeronautics and Space Administration scientists and public-affairs employees came forward this week to say that beyond Dr. Hansen's case, there were several other instances in which political appointees had sought to control the flow of scientific information from the agency. They called or e-mailed The Times and sent documents showing that news releases were delayed or altered to mesh with Bush administration policies." As Chris Mooney wrote in his blog, The Intersection, "Revkin has basically broken every major story about abuses of climate science, and climate scientists, by the Bush administration." So keep watching his work.

[BONUS LINK: For a sobering take on the stakes involved in the global warming debate, read my friend Juliet Eilperin's piece in last Sunday's Washington Post. Despite the Bush hacks who continue to dispute the reality of climate change, Eilperin writes that "Now that most scientists agree that human activity is causing the Earth to warm, the central debate has shifted to whether climate change is progressing so rapidly that, within decades, humans may be helpless to slow or reverse the trend."]

"The Long War"?

So, now, the Bush Administration has given an official name to the war on terrorism. "Long War." Who knows if this term will stick? Last August, Bush reached for his dictionary and decided that GWOT ("The Global War on Terror") should become the "Global Struggle against violent extremism." That term lasted all of two days. This "long war" sounds a like lot like endless war to me. And that got me thinking about the ramifications, the consequences for our freedoms and liberties. After all, there have been other periods in American history when illegal spying has been committed, habeas corpus has been suspended, innocent civilians have been imprisoned, torture condoned, unprecedented secrecy invoked in the name of national security, and when the President has broken the law. But have they ever all happened at the same time? I don't think so. And if they have, they've never come with the promise that this song will remain for the rest of our natural lives. And, most important, other chapters of excess and overreach in our history have been followed by a period of regret, and then reform. But if this administration claims that we are engaged in a war without end (aka "long war"), does that also mean the war on our fundamental rights and liberties knows no end? I say we combat the idea that this is a "long war," (aka: endless war), or even a war at all. Let's come up with a definition that is a true and accurate one for the times we are living in. I welcome submissions.