actually, we do also have laws here in the US that, if there were not corruption throughout DOJ and if Congress were not so pathetic, adresses those difference. Under our National Security Act it is a crime to covertly plant domestic propaganda. Period. Even when the President does it as an “insta-SECRET-declassification” If the law worked, Bush would be facing charges. But the law doesn’t work any better than the DOJ works. So he isn’t and no one who leaks and plants FOR THE BENEFIT OF THE EXECUTIVE BRANCH will be. DOJ protects the Executive Branch crimes with a fervor.

I still don’t see how the offence could have been demonstrated in the case we’ve been talking about without compelling Miller’s testimony. (And now I’m trying to remember how Fitzgerald knew to look there.)

Fitzy, why didn’t you indict Rove?
Fitzy, why didn’t you charge staffers with IIPA violations?

Once we hear the answers, we can move on…
We need a final reprt, too. I know, I know, the law says none will
be granted (bad fucking law)…

Mary, sometimes you just got to say what the fuck!

I have mixed and conflicting feelings about what you have said in relation to Plame; in some ways I agree, in some I don’t. Bottom line, in a decent justice system you have to have a baseline trust in the intentions of the prosecutor and the exercise of the powers and discretion of office. That the Department of Justice no longer has that baseline trust is now a feature and a fact, thanks to Cheney, Bush, Rove, Ashcroft, Gonzales and now Mukasey; not to mention the supporting torturing cast of god knows how many.

However, from everything I know, I have no problem whatsoever in giving Fitzgerald and his SC office this baseline trust and benefit of the doubt. For better or worse; to the parts you don’t like as well as to the parts you do. No, not everything was perfect (contrary to the strange belief of far to many, but Marcy is not one of the so blinded in my opinion), but on the whole he appeared to run his investigation properly, discreetly and with dignity, and with proper intentions. I have seen nothing to countermand that thought; and until we do, I think we have to accept the results for better or worse. As you know, i am pretty touchy about making bad law, when you do both trial and appellate work, you really get an idea how critical actions in one place are to what occurs in another. I have even had the pleasure of being crucified several years later with an appellate decision that I briefed, argued and won years before. (Irony sucks sometimes). If you trust Fitzgerald’s motives, and I do, you have to believe that what he was after was worth the potential bad precedent. I think he was after Cheney, and if he had gotten him, we wouldn’t be having this discussion. But we also have to live with it even though he didn’t. sometimes you eat the bear; sometimes the bear eats you; just the unfortunate way it is.

Now I will say one thing, and that is that this discussion is exactly why I think, and have repeatedly stated, that there is an easy case to be made that Fitzgerald should have gone ahead and also charged Rove, at a minimum, and maybe charged them with IIPA violations to boot. I felt this before the Libby jury rendered it’s verdict, and their statements only confirmed it to me. Were other cases as totally solid as what he tried Libby on; no, but they were good enough to fly with if he wanted to. I respect his decision not to do so; I also would have respected his decision win, lose or draw if he had.

This gets to:
31 -

the ONLY thing a shield law will protect is leakers. doncha know that serial leakers like rove and cheney and the like would be delighted to have their sinister workings protected!!?!?!?

How so? There is no shield law now and I haven’t noticed the serial leakers – Cheney and Rove (if they are, and IMO they likely are) – bearing any consequences. It isn’t a shield law that has protected them, it is the DOJ and President. Your own example makes it pretty clear that pro-Executive Branch leakers aren’t the ones who need a shield law. They are in good shape already.

now, granted, there are good leakers and bad leakers, just as there are good witches and bad witches. but the shield law is NOT the way to go on this one. the protections for whistleblowers who leak should remain in place and strengthened. THAT should take care of that end of the issue; no real need to exploit the reporter’s role in this sort of situation.

What’s your definition of good withc – good whistleblowing leaker v. bad whistleblowing leaker? Who makes that decision? DOJ? And the protections for whistleblowers never involve protections for leaking “national security” classified information (like the surveillance program, black sites, torture, etc.) and I can’t imagine any Congress that would even try to come up with laws to protect the leaking of classified information based on a DOJ determination of whethe or not it was a “good leak” or a “bad leak” Whistleblower protections are primarily for making reports to internal policing entities, like an IG’s office, and sometimes for going to the press with misfeasance information (HUD contractors have poker nights with strippers for HUD employees to decide who will get contracts – I made that up, but as an example) that may end up in the press via exhaustion of internal remedies with no response.

I’m not sure I want to see “whistleblower” protections for leaking truly national security information, but if you have every whistleblower decide, in their conscience, what info is “truly” national security or not, of if national security should nonetheless be overriden for other interests, you have a big problem; if you have DOJ decide, you have an equally big problem.

So should Libby be able to say, for example, that when he outed Plame he was only being a “whistleblower” on CIA nepotism? So it’s ok to override national security concerns and the IIPA to blow that dogwhistle?

i would have no problem whatsoever holding to a professional rule that i would not reveal any sources UNLESS i received evidence that the source was lying or using my position to advance an abuse of power.

Who decides that abuse of power? If you are a neocon journalist and think Congerss is abusing its power if it impeaches the president or exercises oversight – is that the definition? Or if you are a pro-Palestinian journalist and think US support of Israel is an abuse of power so that it is justified to reveal troop positions or weapon information or CIA agent identities to prevent that abuse, is that the definition? Is it an “abuse” if they leak you a true but unflattering story about someone, solely for political purposes?

And why do you think that, without a shield law, you would have a leg to stand on in the “I would not reveal a source UNLESS” part of not revealing? So are you saying that it would be ok to put you in jail, indefinitely, for years, with no charges other not revealing who your source is and what they told you, for something where you decided they were not lying and not trying to abuse power, but someone else wants the info (civil or criminal case)? If not, why not and how does anyone ever do anything about it?

the purpose of a free press is to EXPOSE ABUSES OF POWER.

instead of a shield law, we need laws that provide for showing reporters who resist revealing a source who might have engaged in criminal activity – under cover of the court with appropriate agreements and protections of that reporter AND the information in place – such evidence that might expose the source is lying or abusing power.

Again, the heart of the First Amendment is that people are going to have different opinions. I’m not sure what you mean by abusing power, but I think you mean to say that someone like Cheney is by definition abusing power by covertly leaking. But the same argument could be made by the DOJ with respect to anyone who has been entrusted with classified information and then leaks that information. If they leak – they are commiting a crime and someone can reasonably argue that they are abusing power by not following channels for that information to be released. And what about information that might not have been a crime to reveal (as Fitzgerald seemed to think Libby’s revelation to Miller was not a crime until he lied to the FBI about it). And what is the legal basis of taking a reporter to a judge and saying they should be forced to reveal information about their source to see if their source is “abusing power” and what is meant to be the remedy?

Part of the First Amendment, just as important as the part about exposing abuses of power, is the part that protects people’s different opinions as to what constitutes an abuse of power. Certainly, the neocons believe that the NYT abused its power by printing the wiretaps info, while others may think the NYT abused its power by sitting on the story. So a judge is supposed to determine which definition is correct and somehow fashion a punishment (or lack) for the reporters and their sources based on the court’s reaction to whether or not it was more abusive for the NYT to report or not report? And that judge would be — someone like Fuller? Like Bybee? Like Kavanaugh?

I’m not saying there is a perfect solution and I definitely believe in protecting whistleblowers much more than they are so far, but I think that but for a few very specific carveouts like IIPA, journalists need to be free to print and to use anonymous sources for what they print. People should question and discount, based on circumstances, the anonymous attributions and reporters who libel and slander should bear the consequence and their source should live under the cloud of whether or not the journalist will be willing to pay for the consequences of their source’s lies – because they can and will in a private setting.

In the public setting, misdirection about WMDs and the like will, after the precedent of the Bush DOJ, always be something that only gives rise to politically based prosecution to attack the administration’s critics using the full force of the DOJ to accomplish that end. So by taking away any shield protections, you very simply foster the use of the DOJ as a political tool. Once the decision was made within DOJ, institutionally, to become a political tool, then the precedents to support using the absence of a shield law to go after administration critics has been laid pretty carefully.

I won’t suffer any more or less through the absence of protection for someone like Jane Mayer, but the nation will IMO. YMMV, it’s not cut and dried, black and white. And if DOJ wasn’t an agent of torture and criminal cover up, I might take a different view.

I once supported shield laws, but Judith Miller and Dick Cheney clearly demonstrated how such laws could be used to get classified info that supports the government position out into the media while preventing any reasonable evaluation of that info.

I think you misunderstand what is going on. There was no shield law that protected Miller, so there is no argument that shield laws had anything to do with classified info that supports the government position getting out into the media. And here’s the thing about leaks supporting the government position – - with the thoroughly corrupt DOJ that we have, only reporters who are willing to be stenographers for the Executive Branch are protected. Reporters who are NOT willing to be Executive Branch stenographers, and their sources for illegal activities of the Executive Branch, are the only ones at risk from the lack of a shield law vis a vis criminal protection for themselves and their sources.

The downside, and there are always downsides – pro and con columns – is that a private individual injured by libelous statements may be limited to seeking recovery against the reporter and their paper, vs. the underlying source. That, in and of itself, is a strong incentive for reporters and papers to try to get things right on the individual front – like Hatfill’s situation.

Another downside is the situation you point out (where there is no direct claim of something like libel by a private party, but rather a series of misrepresentations to the nation) of the media publishing info where there is no reasonable way to evaluate that info. But keep in mind, that will be the case shield law or no on things like the WMD stories. There is no person who has standing to sue the NYT to try to find out the basis for their biolabs stories or the basis for their anonymous source stories of WMDs.

The only entity that could pursue those kinds of investigations would be a DOJ investigation of the leak of classified information, and if that information is leaked for the benefit of the Executive Branch, DOJ has shown that it won’t be investigating those leaks. If the leak, like on blacksite prisons and torture, is one that hurts the Executive Branch, not only will DOJ take action to track down and prosecute and punish the leakers, but they have shown that they will also specifically work to make misrepresentations and fibbing press confs to the public, fib to the courts, and expediate the destruction of evidence.

So the absence of a shield law (not that I like or advocate the one that is pending, bc it is too flawed) doesn’t hurt the government stenographers who helped create 1.5+ million Iraqi refugees, thousands and thousands of Iraqi and US dead and wounded, and thousands tortured and living in concentrated population camps with no recourse. They are fine and protected by the corrupt DOJ and will continue to be. The absence of a shield law does put Dana Priest at risk. And now, with the AIPAC case rulings on the Espionage act, the combined Miller precedent and AIPAC precedent open the door to her being subject to a criminal violation of the Espionage Act for merely being TOLD about Executive Branch classified crimes, even ones she never writes about.

So I’m not sure how this became a “you like to think solely through hindsight” on Plame, but I’d be interested in why you think that. I also said AT THE TIME that having the investigation in-housed was a horrible idea, no matter how good or honorable the investigator and I said AT THE TIME that the scope parameters were too narrow and that the manner of the appointment was not, as everyone else was saying, so plenary as to let Fitzgerald do or pursue anything he wanted.

But here is what I will also say about the Miller situation. The IIPA claim, vis a vis Libby (as opposed to Rove), was always light and primarily what I meant by the on the fly reference was if I had known that he was never going to stairstep to Rove – which is where the claim was more valid – and I did say that was hindsight and you can’t make decisions on hindsight. I also think that without the aggressive action re: Miller Fitzgerald would have never gotten to what I think was his biggest accomplishment in the whole case (and what is much more than a he said- she said scenario) – because of the pressure regarding Libby and Miller he worked in the revelations of the President’s NIE “leaks” that (and again, I’ve always said this, not just in hindsight) were not ‘insta-declassifications’ but were instead using classified information to plant covert domestic propaganda in violation of the National Security Act.

So although it was outside his scope of authority because of the in-housing and limited delegation, Miller’s testimony was in the end actually important to the revelation of another crime, at the highest level, and one that he couldn’t do anything about other than reveal its existence. For me, that’s always been – and I’ve always said it was – a staggering accomplishment.

You mention that we now “know” that Cheney ordered Libby to out Plame, and I think you can hypothesize that and make a case for it, but I don’t think you can make the bald statement that we “know” that to be the case, because there was never any evidence put on to that effect or findings on that. OTOH, the evidence of the Presidential direction to leak the NIE is something that Fitzgerald put in the record specifically in his motion and it has remained undisputed.

So I’m not saying that Fitzgerald was doing anything horrible, but I am saying that you do have to look down the road (as a matter of fact, one thing I very much agreed with him on was his caution in his investigation and later on the use of the Espionage act for retributive purposes in the Plame case, much as it would have been nice to nail the bad players there, and it bothers me to see so many of the considerations he mentioned lose out in the AIPAC case.

I know people get very touchy about any kind of criticism of anything Fitzgerald does or did and I think it’s great to have heroes, but I don’t have many and even the ones I have don’t always weigh competing concerns (and the world is about competing concerns and shades of gray more often than it is about black and white) the same way I would. As grand a job as I think Fitzgerald did with what he had, I was always critical of the way he was appointed, always critical of how Comey pushed through the in-house special prosecutor approach and his politicking of the Dems in Congress who were wanting to do something much more aggressive and independent. I made a lot of contrarian observations during the process, not just out of my love of hindsight

So, to leave behind the thing that I do see as the main accomplishment (leaving it behind because it was an ancillary revelation not within the scope of his authority to investigate and Congress never did anything with it) and which I don’t regret and will always appreciate, to get to the first part of your question, I don’t really agree that Abrams was pushing unprovoked into new and unchartered territory.

Every First Amendment argument anyone has ever made has, in essence, chartered new waters. Everytime somone stands up for protections of peoples or the press’s free speech rights, there is new ground laid. Personally, I don’t think journalists should have to out sources except in very precarious situations (and let’s face it – this does not mean, generally, that there is no recourse for someone injured because the can go after the journalists directly – the journalist doesn’t lose liability by protecting their source, if anything, they shoulder more liability in most situations when they protect their source because they are responsible for what they write).

Once Fitzgerald indicated that he was willing to take a statement(s) from Libby, then (as devil’s advocate for the propositions) start jailing journalists until they fessed up to some deviation in detail from someone who was a source, I don’t really see that there were many choices from the paper’s standpoint on how they were going to handle the journalist. I did, at the time, argue that if Fitzgerald really was going after a IIPA case, there was a vastly different setting (even if he ended up having to drop that IIPA case later) and I do believe that. It’s just that there is very little about Plame’s facts (as presented in court and pleadings) or prosecution that indicates there was ever much interest in IIPA, with Armitage not getting much of a second look and Rove dying on the vine.

Maybe Fitzgerald did have some good faith pursuit of IIPA charges and if so, those certainly put things on a different legal justification. But without being able to see the redactions and classified info, the surface of the Miller case lends itself very easily to being used for precedent where the only use is to take a person and build a person based prosecution, not a crimes based prosecution. I still believe that is a scarey precedent, although it was an almost inevitable one once the decisions were made to go after the press. The fact that some people less forthright and reliable than Fitzgerald will be able to bootstrap much less attractive uses onto his precedent is the scarey part – not that someone going after an IIPA violation in good faith fell short.

There is NO source for really bad, criminal government wrongdoing who is not going to lie to the FBI about whether or not they gave the information about govt crimes to a reporter. And now the precedent is that a reporter can go to jail, not based on what they printed even, and even if what they were told was not – in the revelation to them – even a crime (Fitzgerald never pled that Libby’s conversations with her about Plame were a crime) but solely to conjure up a discrepancy in the statements given to support an obstruction crime.

That really smacks of paving the way to allowing investigations of the person and not of the crime (let’s take your statement and then go and see if, by putting them in jail, we can get anyone to dispute anything you said to justify an obstruction claim). I know, Fitzgerald is the “good guy hero” who would never actually do that, because he is above and beyond ever giving in to an adverse impulse, but when you make the rules you make them for everyone. Including Biscupic, Garcia, Gonzales, etc.

Part of why I was assuaged at the time was that, IIRC, there were reports of an off the record conversation with Fitzgerald and perhaps someone like Abbe Lowell (??? I can’t really remember or trust my memory on this) where they were discussing the future use problems with Fitzgerald and he (again, IIRC) reassured them with something like a representation that he had an iron clad case. In any event, as with Fitzgerald’s decision not to pursue Espionage Act violations (DOJ found a better, sexier facts case for making RECEIPT of classified information a crime now), a prosecutor (and Judge) should make decisions knowing how the precedent will be used. Like the precedents set, for example, by Comey’s use of a state secrets affidavit in Maher Arar’s case.

Again, it wasn’t scarey that Fitzgerald may have tried for IIPA and fallen short, but it is scarey IMO that the attempt left a case like Miller’s behind as precedent, where the unredacted pleadings and evidence mostly indicate pursuit of a false statements crime. Because that will ALWAYS be at issue in any whistleblower case and also in almost any case where gov picks a person to target and then decides to see if they throw lots of things, if there will be anything left to stick.

And those things happen. Maybe not on St. Patrick’s day, but they do happen.

But as Bmaz pointed out, that so-called “evidence” leaves a lot to be desired, and at the very least they should have videoed them, but on its face I would discount that kind of evidence. I can’t stop the courts/gov from trying to use it, but I’d attack its use.

i seriously dowbt there are any antrax sniffing dogs .. i’m discounting that passage heavily ..

The case is on appeal in the D.C. Circuit.

Anthrax Ruling to Be Appealed

I received the anthrax vaccine as part of a study in 2002 or 2003 and didn’t have any side effects to it, but I didn’t have access to the final results because they were proprietary. NIH and several companies have been trying to study how much dilution could still have efficacy. Some selected docs and nurses in my state were offered the vaccine as part of some kind of preparedness program, but most of them refused because they were scared of side effects and I believe foolishly so. I’m glad I’ve had it. Shrub got it. I wonder why shrub has gotten it and almost all of the population in the US hasn’t.