Tuesday, February 21, 2006

Re: Matters Discussed In James Risen's New Book

----- Original Message -----


Sent: Friday, February 17, 2006 5:39 PM
Subject: Re: Matters Discussed In James Risen's New Book.


Dear Dean Lawrence R. Velvel,

Ad hoc ramblings in response to "Re: Matters Discussed In James Risen's New
Book."

"Only Thing We Have to Fear Is Fear Itself,"* we have heard this again and
again in our lifetime. In our lifetime we can only make a difference when we
get up off our chairs and take action. Perhaps it was Howard Zinn who said
that we ought to pretend that we have boils on our bottoms so that we will
take action. There is no way to come up with the plan that will solve our
problems for that would be the easy and simple solution and as H. L. Mencken
said, it is usually wrong. There is no one person either that will lead us
through the desert to the promise land. Collectively getting together to put
our shoulders to the wheel of our common destiny will get us a long way down
the right road.

Setting our goals and objectives to making your land and my land into a
place where we are united by a passion for making life better for one
another now and in the future is indeed a fresh start. From this start we
can leave a land where our children and our children's children can build on
this foundation. Liberty, equality and brotherhood/sisterhood can be gained
through constant collective action.

We must now go forth with a belief that we can come to our senses, if we
continue to try, and start fresh again and again until we get it right. Let
us continue to try to bring about peace and prosperity by collectively
joining the actions of groups like the AMERICAN FRIENDS' Wage Peace
Campaign, or the AMNESTY International's Act Now for Human Rights, or
Doctors Without Borders or Save Darfur or some STOP THE WAR group, or local
housing and food organizations, eldercare groups, early educations groups,
etc, etc. Turn your local public library into a resource for action. Turn
your home into a place where neighbors meet to take action. Be alive with
action. Let the television stations watch you. You are the interesting ones.
___________________

American competence and its decline can be largely traced to comfort and
self-indulgence. It is the comfort and self-indulgence of the American
establishment that has allowed the salt of the earth to toil away, whether
in the strawberry fields of California or in the pizza fed tech work places
in Silicon Valley, for more hours every year in order not to fall farther
behind.


Redundant workers eat their seed corn, as they believe there will be no
coming spring.

The American economy lives off the cash flow of Social Security payments
that the average American worker collectively sets aside in his patriotic
commitment to one another's benefit.

Everyday we come up against the good reason and the real reason to
rationalize each of our actions taken and not taken. It is my belief that
the good reason that Arthur Sulzberger and Bill Keller at the New York Times
act as they do is that they are afraid of the Bush Administration's
reprisals; it is my belief that the real reason is that they support the
goals and objectives of the Bush Administration's foreign policy.

Competence and intelligence is about our collective dialogue tested by
scientific method. Incompetence and ignorance is about the individual intent
on proving himself right through the use of magical thinking.

The "smart money", a known Wall Street term, is about money and not about
smart. The "smart money" is as often correct as a coin flipper hits heads on
the flip.

* http://historymatters.gmu.edu/d/5057/


Thanks for listening

Cordially,

L.



----- Original Message -----


Sent: Friday, February 17, 2006 3:40 PM
Subject: RE: Matters Discussed In James Risen's New Book.

More prosecuting and less talking...too many words...not enough progress....!


From: Dean Lawrence R. Velvel [mailto:velvel@mslaw.edu]
Sent: Friday, February 17, 2006 3:28 PM
To: Undisclosed-Recipient
Subject: Matters Discussed In James Risen's New Book.


February 17, 2006

Re: Matters Discussed In James Risen’s New Book.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

James Risen is one of The New York Times’ major writers on intelligence matters and related subjects. His new book on such topics is State of War[,] The Secret History Of The CIA And The Bush Administration (Free Press, 2006). There are those who think the impending publication of the book, in which Risen extensively discusses the NSA’s electronic surveillance of Americans, is what caused The Times, after sitting on the story for about a year, to finally disclose this surveillance in late 2005. The Times, some think, did not want to get scooped by a book written by one of its own reporters, and realized that, because of the impending publication, the story would no longer remain secret anyway.

The book discusses, and sometimes confirms, ideas and points of view that have been discussed in this blog over the past one and one-half years. (Those and other ideas and views discussed here are collected in a forthcoming book called Blogs From The Liberal Standpoint: 2004-2005. The book will be available from Amazon, among other outlets, or by contacting my office.) Risen also discusses many other ideas and facts of intense interest to this blogger (and other people too).

This posting shall briefly identify (1) various ideas and facts set forth by Risen that confirm or shed further light on matters discussed here, and (2) other points of particular interest to this writer. The comments on these points will be short, as indicated; to read the full extent of the very interesting things Risen has to say, read his book.

Before turning to things that Risen does say, however, let me first discuss two things he does not say, or that at least I was unable to find in his book. One relates to the question of precisely when in the fall of 2004 did The Times learn about the NSA spying on American civilians. This is a subject of no little importance because, as indicated, it is known that The Times sat on the story for about one year, but is not known whether this means it knew of the matter before the 2004 election yet did not print it until December 2005, or did not know of the story until after the November 2004 election. If The Times knew of the story before the 2004 election but did not print it, then it was complicit in the reelection of Bush and Cheney, since there is no telling what would have happened in the election had the story been disclosed beforehand: even an unattractive candidate like Kerry might have beaten Bush. If The Times knew of the story before the 2004 election yet did not print it, then, as has been said here before, Bush was elected the first time by the Supreme Court and, very possibly, the second time by The New York Times.

In a lengthy review of Risen’s book in The New York Review of Books, Thomas Powers, one of our leading writers on intelligence issues and personnel, has recently said that the NSA spying story was known and submitted in October, 2004: "An early version of the story was apparently submitted to The Times’ editors in October 2004, when it might have affected the outcome of the presidential election. But The Times, for reasons it has not clearly explained, withheld the story until mid-December" 2005. Powers does not say how he knows all this, how he found it out, or why he said it. One has to presume that someone like Powers knows it because of confidential sources, but at present it is impossible to say whether Powers is right or wrong (although in the absence of proof that he is wrong, I would be more than a bit reluctant to say a guy like Powers is in fact wrong). Strangely, although Powers is (perhaps universally?) regarded as an exceptionally competent and knowledgeable guy, the media does not seem to have picked up on his comment. I have seen no reference to it anywhere else. One inevitably thinks that this is because the media and the politicians have the memories and attention spans of ants -- or is this unkind to ants? Uncaring of first principles and antecedent events, concerned only with the latest headline, the media and the pols are ignoring the fact that The Times may have helped reelect Bush by complicity in killing the spying story for a year, and may have been strongarmed by Bush and Cheney to do so. (Bush and Cheney strongarm someone? Why they would never do that, would they?)

In his book, Risen, pretty strangely in the circumstances if you ask me, makes no mention of when he learned about the NSA’s spying on American civilians, although he extensively discusses the spying itself, which he had been one of two reporters to disclose in The Times. So we are still left not knowing when The Times learned of the matter, when an article was ready to go (other than that this was sometime in the fall of 2004), and whether Tom Powers is right in saying it was ready to go in October 2004, before the election. Frankly, the refusal of The Times to disclose and discuss this -- it has refused, you know -- and Risen’s failure to mention it in his book, leads one to think that Powers almost surely must be right, and that Bush very likely strongarmed The Times into a year of silence ultimately broken only because Risen was about to publish. Otherwise, why is The Times unwilling to talk about the matter? Unless The Times is trying to cover up its complicity in reelecting Bush after being complicit in his false WMD claims as a reason for going to war, why won’t it say when it learned about the NSA spying and when the article was ready to go?

There is a second matter not covered in Risen’s book, or at least that I did not see there, that relates to the foregoing but also is of independent interest. The Washington Post recently reported that in 2004 a Moroccan named Abdallah Tabarak was released from Guantanamo, with no explanation, after spending a few years there as a "high-value" prisoner. Supposedly, Tabarak was a bin Laden bodyguard who helped engineer bin Laden’s escape from Tora Bora in December 2001, sacrificing himself in the process. The story is that he "took bin Laden’s satellite phone, which the al Qaeda leader apparently assumed was being tracked by U.S. spy technology, and walked toward the Pakistani border," making phone calls from the satellite phone as he went, "as the al Qaeda leadership [bin Laden and others] fled in the opposite direction. The ruse worked, although Tabarak and others were captured" at the border by Pakistani authorities and handed over to the U.S. This is all, apparently, according to Moroccan court documents -- Tabarak was transferred (rendered?) to Morocco in August 2004 and was questioned (tortured?) there -- "details of which other foreign intelligence officials confirm." It should be said that Tabarak’s (Moroccan?) lawyer, one Abdelfallah Zahrach, while admitting Tabarak knew bin Laden and was caught near the Pakistani border, says Tabarak’s importance has been exaggerated, that he did not help bin Laden escape and Morocco has no evidence to the contrary, and that the U.S. would never have let Tabarak go back to Morocco if he had in fact been bin Laden’s bodyguard.

So one does not know for sure whether the Post’s story about Tabarak’s actions is true, although my personal hunch, for various reasons, is that it is true. Also, the context of and comments in the story (p. 6, National Weekly Edition, February 6-12) make it obvious that the Post itself thinks the story is true in spades. The importance here of its truth or falsity relates to The Times’ claim that it was concerned that disclosing the NSA spying story would tip off al Qaeda that its electronic communications were being monitored, a concern it managed to overcome when Risen’s book was about to be published. If the story is true, then bin Laden knew at least as early as December 2001 that al Qaeda’s electronic communications were being intercepted, the claim of al Qaeda being tipped off by disclosure of the NSA spying story to the American public is plainly false, and The Times’ putative concern about this is all the more likely to equally be garbage -- to be a Cheneyesque cover-up as it were. (Dead eye Dick, sure shot Dick, always gets his man if the guy forgets to quail or duck, but Dick thinks he can keep things secret, doesn’t he?).

Now, Risen does not talk about Tabarak in his book as far as I can determine, so no light is shed there in that particular way on the question of when and whether al Qaeda learned that its electronic communications were being intercepted. But Risen does shed extensive light on this in a different way. Risen plainly believes, he discusses at great length the reasons why he thinks, that the very highest Saudi officials and business figures were major supporters of al Qaeda, financially and in other ways (and, correlatively, why American officials have not wanted to investigate, and have religiously avoided investigating, these ties). (See Chapter 8, pp. 173-191, entitled "In Denial: Oil, Terrorism, and Saudi Arabia.") Risen also says this (p. 181):


CIA sources also say that the agency has had strong evidence that some of
the intelligence it has shared with Saudi security officials has ended up in the
hands of al Qaeda operatives. For example, the CIA has in the past given the
Saudis copies of NSA communications intercepts, which included conversations
among suspected al Qaeda operatives in Saudi Arabia. But after the CIA gave the
intercepts to the Saudis, the suspects quickly stopped using the communications
that the Americans had been monitoring, making it far more difficult to track
the terrorists.

Documents and computer files seized from al Qaeda operatives after 9/11
also revealed to the CIA ‘al Qaeda had the run of Saudi Arabia,’ as a CIA source
familiar with the intelligence put it.


Now, Risen doesn’t say when the CIA gave the Saudis NSA intercepts that "ended up in the hands of al Qaeda operatives," thus alerting them to the electronic eavesdropping on their communications, nor does he say when the Saudis gave the intercepts to al Qaeda. But one thing we can pretty much rest assured of. These things happened long before the fall of 2004. They may even have happened before 9/11. So al Qaeda surely knew it was being electronically intercepted long before -- years before -- Bush/Cheney said that disclosure of NSA’s spying program to the American public would disclose it to al Qaeda. This bushwa (bushchenwa?) was just a rerun of the secret war in Laos and Cambodia at the end of the 1960s and the beginning of the 1970s. That is to say, it was no secret to our enemies, only to our citizens.

And just as the Bush/Cheney claims were bushwa, so too (and regardless of the truth of the Tabarak story) it is nearly inconceivable that The Times did not know, long before December 2005, that al Qaeda was aware its electronic communications were being intercepted. Risen, after all, is The Times’ own reporter, and he knew about it no later than when he was writing his book, presumably some time in 2005 and maybe even a year or two before then. It is also nearly inconceivable (although I guess it could have happened), that if he knew of it in the fall of 2004, he didn’t tell The Times about it when The Times decided to sit on the story in 2004 -- at least in part, one gathers, because of ill founded concerns that it would be the initial tip-off to al Qaeda about the interceptions.

So, almost no matter how one looks at it, it is completely, or at minimum nearly, ineluctable that al Qaeda was aware of the electronic interceptions long before December 2005, almost certainly was aware of them long before November 2004, and maybe even before 9/11. The Bush/Cheney bushchenwa that al Qaeda was first tipped off by The Times’ disclosure of NSA spying in December 2005 is just that: bushchenwa. The Times’ claims of fears of providing such a tip off in 2004 stands little or no better. And that The Times simply got strongarmed by the government seems even more likely -- and only the more so because Arthur Sulzberger and Bill Keller refuse to talk about the matter (are frightened to talk about it?).

Let me turn now to points Risen made that are of particular interest to this blogger because they confirm points previously made here or for other reasons:

1. It has been said here many times that Bush is an incompetent and dumb person
who repeatedly failed in business and had to be bailed out by Daddy’s friends
and wannabe friends. It has also been said here that Condoleezza Rice is a
highly articulate person of little intelligence. Risen doesn’t put it that way
in discussions of Bush and Rice. Rather, about Bush, he says such things as "The
absence of effective management has been the defining characteristic of the Bush
Administration’s foreign policy," major policies "may have been made without
President Bush’s advance knowledge," and "In many cases, policies weren’t
debated at all." And he says about Rice that she "‘didn’t really manage
anything, and will go down as probably the worst national security adviser in
history’" (said "A former top CIA official"), "lacked sufficient power and
authority to get crucial things done," "was forced to play catch-up and to
accept professional indignities,"and "Some of her chagrined aides believe others
in her place would have resigned." (Pp. 3, 64.)

Q.E.D.


2. It is this writer’s oft stated position that Bush, Cheney and other high
officials knew of, approved of, and desired the torture of prisoners. Risen
thinks that, whatever words Bush did or did not use, whether there is a paper
trail leading to him or not, and even though people made certain, and even seem
to have reached a secret agreement, that Bush would not receive briefings or
memos so that plausible deniability or ignorance of torture on his part could be
maintained, still Bush made his wishes plain and known, that what interrogators
did was done because they felt that he wanted it done, and Bush clearly did want
harsh methods to be used if necessary: "several current and former CIA officials
say that after the September 11 attacks the President made it clear to agency
officials in many ways that it was time for the gloves to come off. The reported
comment [by Bush] about [denying] pain medication [to a top al Qaeda figure]
fits into that broader, get-tough message that the President and the White House
were sending to the CIA in the months after 9/11." (Pp. 22-28.)
3. Just as it
commissioned preposterous legal memos that sanctioned torture, memos so crazy
(as discussed here) that their authors were castigated by expert lawyers and the
Administration was forced to withdraw at least one of them after the memos
became public, so too the Administration commissioned legal memos to support the
NSA’s spying on civilians. Apparently, the latter memos, which are still secret,
use some of the same wacked-out arguments as the torture memo(s), and were
written by one or more of the same lawyers. (Pp. 45, 57.)
4. Rumsfeld created
new, secret "covert units" in the military that acted outside the "existing
[governmental] rules governing covert action, rules that required explicit
presidential authorization and congressional notification." (P. 70.) In one
case, "members of an operational support element team working in Latin America
killed a man outside a bar." (P. 71.)
5. Beyond question George Bush and
company intended from early-on to invade Iraq. This was the aim from before 9/11
and long before all the phony talk of WMDs. And, in November 2002, CIA station
chiefs from all over the Middle East were called to a secret meeting at the U.S.
embassy in London where they were told war was coming and to get with the
program despite any reservations they had, since war was just a few months away.
(This, of course, was at a time when Bush was lying to the American public by
telling it he had not made up his mind on war.) (Pp. 73-80.)
6. The CIA
persuaded at least 30 persons -- some unknown number of whom were American
citizens (naturalized or otherwise) -- with relatives in Iraq who worked on
scientific matters to visit their Iraqi relatives, at great risk, to ask a long
list of prepared questions about WMDs. At least some of the relatives had been
highly placed figures in Iraq’s nuclear programs. Every one of the 30-some
persons was told by their relatives that there were no longer any WMD programs.
All 30-some told this to the CIA. The CIA simply decided that all the Iraqis
were lying, and never told the State Department, the Pentagon or the White House
what they had said. In major part at least, the CIA acted this way because it
had become all too well aware that Bush and his henchmen wanted to hear nothing
inconsistent with, or in any way contrary to possible reasons for, their plans
to invade Iraq. (Pp. 87-110.)
7. In March 2003, before we invaded Iraq, the
Iraqi regime used a back channel to offer to let Americans into Iraq to look for
themselves to verify Iraq’s claim that it had no WMDs. The Americans refused.
(P. 123.)
8. Any CIA station chiefs or other officers in Iraq who wrote well
taken warnings of looming disaster there after our initial victory were
committing professional suicide. As well, they were ordered to revise their
supposedly too pessimistic reports. (Pp. 127-132, 145-147.) As always, this
Administration did not want to hear the bad news, however true it might be.
(Remember Eric Shinseki and Larry Lindsey?)
9. As discussed here many times,
but hardly ever mentioned in the media, Saddam’s regime "had planned for
guerrilla war before the U.S. invasion by setting up secret weapons caches and
stay-behind networks." Indeed, the planning for guerrilla war went so far that
"just before the war, Iraqi intelligence agencies had purchased large numbers of
garage door openers in Dubai, as crude but effective remote triggering devices
for roadside bombs." (Pp. 136-137.) Plainly, as has been said here previously,
guerrilla war was the surprise that Saddam said the Americans would get if they
invaded.
10. The CIA stations chief in Iraq in August 2003 wrote a grimly
pessimistic report that month, one day after the UN offices in Baghdad were
blown up. In it, he predicted that the capture of Saddam was unlikely to end the
insurgency. (Pp. 141-142.) He was right. Saddam was captured, but the insurgency
continued and got bigger. When Howard Dean later said after Saddam’s capture
that it would not end the insurgency, the same point made previously by the
station chief, Dean was crucified for saying it. Remember? But Dean too was
right. (Of course, the American media and pols, with their near exclusive focus
on only the latest headlines, and lack of attention to prior events and first
principles, never mention that Dean was right.)
11. Heroin is made from
opium. The Taliban had largely eliminated opium production in Afghanistan
(although the U.S. Drug Enforcement Administration later claimed the Taliban did
this only to raise the price of the large stockpiles of opium the Taliban had in
warehouses). In 2001, the year when we began military operations against
Afghanistan late in the year, opium production in Afghanistan was down to 74
metric tons. (P. 155.) Largely because the warlords who did most of our fighting
for us wanted opium grown so that they could make gazillions from it, opium
production soared after we threw out the Taliban. It rose to 1278 metric tons in
2002, then more than doubled in 2003 and nearly doubled again in 2004. (P. 155.)
By 2004, "Afghanistan was producing 87 percent of the world’s opium supply,"
which "generate[d] $7 billion worth of heroin." (P. 156.) (Nice record
George/Dick/Don.). We turned a blind eye, since our buddies, the warlords, were
doing it.
Afghanistan became, and apparently is today, what Risen calls a
"narco-state." (Pp. 151,155-166.)
12. Lacking enough of our own forces to
capture bin Laden, we basically relied on a local Afghan warlord, Hazrat Ali
(plus some of our Special Forces and CIA paramilitaries), to kill or capture him
in Tora Bora. But Hazrat Ali’s forces, the CIA believes, deliberately allowed
bin Laden to escape. "CIA officials are now convinced that Hazrat Ali’s forces
allowed Osama bin Laden and his key lieutenants to flee Tora Bora into Pakistan.
Said a CIA source, ‘We realized those guys just opened the door. It wasn’t a big
secret.’" (P. 168.)
13. A Pakistani province, South Waziristan, became al
Qaeda central, so to speak, by 2002. But the Pakistanis were intent on not
letting Americans cross the border from Afghanistan to pursue al Qaeda
personnel. They were intent on this to the point of "a series of tense
confrontations -- and even firefights" between Pakistanis and Americans. "Both
sides," however, "have largely covered up the incidents." (P. 169.)
We have
learned previously, although it is basically hushed up, of firefights with
Syrian forces along the Iraq/Syria border, but this is the first I’ve heard of
firefights with Pakistani forces.
14. The CIA hatched a wild plan to give the
Iranians the blueprints for an atomic weapon -- to give Iran such blue prints
mind you, the country that we are now scared to death is developing nuclear
bombs. The idea was that the blueprints would have some hidden mistakes or flaws
in them, so that, hopefully, the Iranians would be led down blind alleys and cul
de sacs.
There is, however, one slight problem with this notion.
Sophisticated experts -- which the Iranians apparently have -- are likely to
spot the mistakes and flaws in the blueprints. So they won’t go down the blind
alleys. But since much, apparently most, of the information in the blueprints is
accurate, they will learn much of assistance to them in building a bomb.
We
cannot be positive that the plan to get the blueprints into Iranian governmental
hands succeeded. But the evidence makes it likely that it did. There is no
telling how much assistance the prints may have given the Iranians in their
efforts to develop nuclear weapons and, correlatively, how much harm they may
have done us (and Israel). (Pp. 193-212.)
15. "In December 2002, President
Bush met with his senior advisers to review the status of the war on terror. One
participant in the cabinet-level meeting recalled that several senior officials,
including Tenet, Rice, and Wolfowitz, voiced concerns about the ability of al
Qaeda-style terrorists to recruit and gain support on a widespread basis in the
Islamic world. Did the United States have a strategy to counter the growth
potential of Islamic extremism? ‘The President dismissed them, saying that
victory in Iraq would take care of that. After he said that, people just sat
down,’ the participant recalled." (Pp. 170-171.)
Risen’s source says, as you
have just read, that "‘The President dismissed them, saying that victory in Iraq
would take care of’" the potential growth of Islamic extremists. Good God, has
there ever before been such a fool in office? Does one wonder that every private
business he ever operated was a failure that had to be bailed out by rich
political friends? And this fool is president of the United States? Oh
boy.

* * * * * *
As you can tell from this posting, when one reds Risen’s book, one reads many different stories, one reads of many separate events. Yet, at least to me, there is also an overriding, albeit likely unintentional, theme. It is a theme that bespeaks an idea this writer has held for many years now. It is an idea that many conservative Republicans have held for dozens or scores of years, and that Democrats have increasingly been coming to in more recent decades. It is an idea of which Bush and his henchmen are only the latest incarnation, even if they conceivably are the worst incarnation to date. It is the idea that government is incompetent at every level and in every way, including even the military in any war but a purely conventional one in which our power simply is too much for the opponent. Governmental incompetence is born in major part of dishonesty, because one cannot be competent in any walk of life when the information in one’s possession is false or wrong, which is one of the reasons I think rampant dishonesty is the fundamental problem of America. But the incompetence seems to exist even where dishonesty does not prevail.

For awhile now, some people have occasionally said something like the following to this blogger. "Well, you criticize and complain so much, what would you do to make things better?" Well, the time has come when it is no longer possible to continue forestalling any poor answer(s) that this writer may have (though other matters seem to have gotten in the way of setting them forth in the past few weeks). So, in the very near future, hopefully in the next posting, I shall do my best to give my own prescriptions, however inadequate or hopeless they may be, however naive or idealistic the sophisticated "smart money" may find them.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Friday, February 17, 2006

Re: Matters Discussed In James Risen’s New Book.

February 17, 2006

Re: Matters Discussed In James Risen’s New Book.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

James Risen is one of The New York Times’ major writers on intelligence matters and related subjects. His new book on such topics is State of War[,] The Secret History Of The CIA And The Bush Administration (Free Press, 2006). There are those who think the impending publication of the book, in which Risen extensively discusses the NSA’s electronic surveillance of Americans, is what caused The Times, after sitting on the story for about a year, to finally disclose this surveillance in late 2005. The Times, some think, did not want to get scooped by a book written by one of its own reporters, and realized that, because of the impending publication, the story would no longer remain secret anyway.

The book discusses, and sometimes confirms, ideas and points of view that have been discussed in this blog over the past one and one-half years. (Those and other ideas and views discussed here are collected in a forthcoming book called Blogs From The Liberal Standpoint: 2004-2005. The book will be available from Amazon, among other outlets, or by contacting my office.) Risen also discusses many other ideas and facts of intense interest to this blogger (and other people too).

This posting shall briefly identify (1) various ideas and facts set forth by Risen that confirm or shed further light on matters discussed here, and (2) other points of particular interest to this writer. The comments on these points will be short, as indicated; to read the full extent of the very interesting things Risen has to say, read his book.

Before turning to things that Risen does say, however, let me first discuss two things he does not say, or that at least I was unable to find in his book. One relates to the question of precisely when in the fall of 2004 did The Times learn about the NSA spying on American civilians. This is a subject of no little importance because, as indicated, it is known that The Times sat on the story for about one year, but is not known whether this means it knew of the matter before the 2004 election yet did not print it until December 2005, or did not know of the story until after the November 2004 election. If The Times knew of the story before the 2004 election but did not print it, then it was complicit in the reelection of Bush and Cheney, since there is no telling what would have happened in the election had the story been disclosed beforehand: even an unattractive candidate like Kerry might have beaten Bush. If The Times knew of the story before the 2004 election yet did not print it, then, as has been said here before, Bush was elected the first time by the Supreme Court and, very possibly, the second time by The New York Times.

In a lengthy review of Risen’s book in The New York Review of Books, Thomas Powers, one of our leading writers on intelligence issues and personnel, has recently said that the NSA spying story was known and submitted in October, 2004: "An early version of the story was apparently submitted to The Times’ editors in October 2004, when it might have affected the outcome of the presidential election. But The Times, for reasons it has not clearly explained, withheld the story until mid-December" 2005. Powers does not say how he knows all this, how he found it out, or why he said it. One has to presume that someone like Powers knows it because of confidential sources, but at present it is impossible to say whether Powers is right or wrong (although in the absence of proof that he is wrong, I would be more than a bit reluctant to say a guy like Powers is in fact wrong). Strangely, although Powers is (perhaps universally?) regarded as an exceptionally competent and knowledgeable guy, the media does not seem to have picked up on his comment. I have seen no reference to it anywhere else. One inevitably thinks that this is because the media and the politicians have the memories and attention spans of ants -- or is this unkind to ants? Uncaring of first principles and antecedent events, concerned only with the latest headline, the media and the pols are ignoring the fact that The Times may have helped reelect Bush by complicity in killing the spying story for a year, and may have been strongarmed by Bush and Cheney to do so. (Bush and Cheney strongarm someone? Why they would never do that, would they?)

In his book, Risen, pretty strangely in the circumstances if you ask me, makes no mention of when he learned about the NSA’s spying on American civilians, although he extensively discusses the spying itself, which he had been one of two reporters to disclose in The Times. So we are still left not knowing when The Times learned of the matter, when an article was ready to go (other than that this was sometime in the fall of 2004), and whether Tom Powers is right in saying it was ready to go in October 2004, before the election. Frankly, the refusal of The Times to disclose and discuss this -- it has refused, you know -- and Risen’s failure to mention it in his book, leads one to think that Powers almost surely must be right, and that Bush very likely strongarmed The Times into a year of silence ultimately broken only because Risen was about to publish. Otherwise, why is The Times unwilling to talk about the matter? Unless The Times is trying to cover up its complicity in reelecting Bush after being complicit in his false WMD claims as a reason for going to war, why won’t it say when it learned about the NSA spying and when the article was ready to go?

There is a second matter not covered in Risen’s book, or at least that I did not see there, that relates to the foregoing but also is of independent interest. The Washington Post recently reported that in 2004 a Moroccan named Abdallah Tabarak was released from Guantanamo, with no explanation, after spending a few years there as a "high-value" prisoner. Supposedly, Tabarak was a bin Laden bodyguard who helped engineer bin Laden’s escape from Tora Bora in December 2001, sacrificing himself in the process. The story is that he "took bin Laden’s satellite phone, which the al Qaeda leader apparently assumed was being tracked by U.S. spy technology, and walked toward the Pakistani border," making phone calls from the satellite phone as he went, "as the al Qaeda leadership [bin Laden and others] fled in the opposite direction. The ruse worked, although Tabarak and others were captured" at the border by Pakistani authorities and handed over to the U.S. This is all, apparently, according to Moroccan court documents -- Tabarak was transferred (rendered?) to Morocco in August 2004 and was questioned (tortured?) there -- "details of which other foreign intelligence officials confirm." It should be said that Tabarak’s (Moroccan?) lawyer, one Abdelfallah Zahrach, while admitting Tabarak knew bin Laden and was caught near the Pakistani border, says Tabarak’s importance has been exaggerated, that he did not help bin Laden escape and Morocco has no evidence to the contrary, and that the U.S. would never have let Tabarak go back to Morocco if he had in fact been bin Laden’s bodyguard.

So one does not know for sure whether the Post’s story about Tabarak’s actions is true, although my personal hunch, for various reasons, is that it is true. Also, the context of and comments in the story (p. 6, National Weekly Edition, February 6-12) make it obvious that the Post itself thinks the story is true in spades. The importance here of its truth or falsity relates to The Times’ claim that it was concerned that disclosing the NSA spying story would tip off al Qaeda that its electronic communications were being monitored, a concern it managed to overcome when Risen’s book was about to be published. If the story is true, then bin Laden knew at least as early as December 2001 that al Qaeda’s electronic communications were being intercepted, the claim of al Qaeda being tipped off by disclosure of the NSA spying story to the American public is plainly false, and The Times’ putative concern about this is all the more likely to equally be garbage -- to be a Cheneyesque cover-up as it were. (Dead eye Dick, sure shot Dick, always gets his man if the guy forgets to quail or duck, but Dick thinks he can keep things secret, doesn’t he?).

Now, Risen does not talk about Tabarak in his book as far as I can determine, so no light is shed there in that particular way on the question of when and whether al Qaeda learned that its electronic communications were being intercepted. But Risen does shed extensive light on this in a different way. Risen plainly believes, he discusses at great length the reasons why he thinks, that the very highest Saudi officials and business figures were major supporters of al Qaeda, financially and in other ways (and, correlatively, why American officials have not wanted to investigate, and have religiously avoided investigating, these ties). (See Chapter 8, pp. 173-191, entitled "In Denial: Oil, Terrorism, and Saudi Arabia.") Risen also says this (p. 181):




CIA sources also say that the agency has had strong evidence that some of
the intelligence it has shared with Saudi security officials has ended up in the
hands of al Qaeda operatives. For example, the CIA has in the past given the
Saudis copies of NSA communications intercepts, which included conversations
among suspected al Qaeda operatives in Saudi Arabia. But after the CIA gave the
intercepts to the Saudis, the suspects quickly stopped using the communications
that the Americans had been monitoring, making it far more difficult to track
the terrorists.

Documents and computer files seized from al Qaeda operatives after 9/11
also revealed to the CIA ‘al Qaeda had the run of Saudi Arabia,’ as a CIA source
familiar with the intelligence put it.


Now, Risen doesn’t say when the CIA gave the Saudis NSA intercepts that "ended up in the hands of al Qaeda operatives," thus alerting them to the electronic eavesdropping on their communications, nor does he say when the Saudis gave the intercepts to al Qaeda. But one thing we can pretty much rest assured of. These things happened long before the fall of 2004. They may even have happened before 9/11. So al Qaeda surely knew it was being electronically intercepted long before -- years before -- Bush/Cheney said that disclosure of NSA’s spying program to the American public would disclose it to al Qaeda. This bushwa (bushchenwa?) was just a rerun of the secret war in Laos and Cambodia at the end of the 1960s and the beginning of the 1970s. That is to say, it was no secret to our enemies, only to our citizens.

And just as the Bush/Cheney claims were bushwa, so too (and regardless of the truth of the Tabarak story) it is nearly inconceivable that The Times did not know, long before December 2005, that al Qaeda was aware its electronic communications were being intercepted. Risen, after all, is The Times’ own reporter, and he knew about it no later than when he was writing his book, presumably some time in 2005 and maybe even a year or two before then. It is also nearly inconceivable (although I guess it could have happened), that if he knew of it in the fall of 2004, he didn’t tell The Times about it when The Times decided to sit on the story in 2004 -- at least in part, one gathers, because of ill founded concerns that it would be the initial tip-off to al Qaeda about the interceptions.

So, almost no matter how one looks at it, it is completely, or at minimum nearly, ineluctable that al Qaeda was aware of the electronic interceptions long before December 2005, almost certainly was aware of them long before November 2004, and maybe even before 9/11. The Bush/Cheney bushchenwa that al Qaeda was first tipped off by The Times’ disclosure of NSA spying in December 2005 is just that: bushchenwa. The Times’ claims of fears of providing such a tip off in 2004 stands little or no better. And that The Times simply got strongarmed by the government seems even more likely -- and only the more so because Arthur Sulzberger and Bill Keller refuse to talk about the matter (are frightened to talk about it?).

Let me turn now to points Risen made that are of particular interest to this blogger because they confirm points previously made here or for other reasons:
1. It has been said here many times that Bush is an incompetent and dumb person
who repeatedly failed in business and had to be bailed out by Daddy’s friends
and wannabe friends. It has also been said here that Condoleezza Rice is a
highly articulate person of little intelligence. Risen doesn’t put it that way
in discussions of Bush and Rice. Rather, about Bush, he says such things as
"The absence of effective management has been the defining characteristic
of the Bush Administration’s foreign policy," major policies "may have been made
without President Bush’s advance knowledge," and "In many cases, policies
weren’t debated at all." And he says about Rice that she "‘didn’t really
manage anything, and will go down as probably the worst national security
adviser in history’" (said "A former top CIA official"), "lacked sufficient
power and authority to get crucial things done," "was forced to play
catch-up and to accept professional indignities,"and "Some of her chagrined
aides believe others in her place would
have resigned." (Pp. 3, 64.)
Q.E.D.

2. It is this writer’s oft stated position that Bush, Cheney and other high
officials knew of, approved of, and desired the torture of prisoners. Risen
thinks that, whatever words Bush did or did not use, whether there is a
paper trail leading to him or not, and even though people made certain, and
even seem to have reached a secret agreement, that Bush would not receive
briefings or memos so that plausible deniability or ignorance of torture on
his part could be maintained, still Bush made his wishes plain and known,
that what interrogators did was done because they felt that he wanted it
done, and Bush clearly did want harsh methods to be used if necessary:
"several current and former CIA officials say that after the September
11 attacks the President made it clear to agency officials in many ways that
it was time for the gloves to come off. The reported comment [by Bush] about
[denying] pain medication [to a top al Qaeda figure] fits into that
broader, get-tough message that the President and the White House were
sending to the CIA in the months after 9/11." (Pp. 22-28.)
3. Just as it commissioned preposterous legal memos that sanctioned
torture, memos so crazy (as discussed here) that their authors were castigated
by expert lawyers and the Administration was forced to withdraw at least one of
them after the memos became public, so too the Administration commissioned legal
memos to support the NSA’s spying on civilians. Apparently, the latter memos,
which are still secret, use some of the same wacked-out arguments as the torture
memo(s), and were written by one or more of the same lawyers. (Pp. 45,
57.)

4. Rumsfeld created new, secret "covert units" in the military that
acted outside the "existing [governmental] rules governing covert action, rules
that required explicit presidential authorization and congressional
notification." (P. 70.) In one case, "members of an operational support element
team working in Latin America killed a man outside a bar." (P. 71.)

5. Beyond question George Bush and company intended from early-on to
invade Iraq. This was the aim from before 9/11 and long before all the phony
talk of WMDs. And, in November 2002, CIA station chiefs from all over the Middle
East were called to a secret meeting at the U.S. embassy in London where they
were told war was coming and to get with the program despite any reservations
they had, since war was just a few months away. (This, of course, was at a time
when Bush was lying to the American public by telling it he had not made up his
mind on war.) (Pp. 73-80.)

6. The CIA persuaded at least 30 persons -- some unknown number of whom
were American citizens (naturalized or otherwise) -- with relatives in Iraq who
worked on scientific matters to visit their Iraqi relatives, at great risk, to
ask a long list of prepared questions about WMDs. At least some of the relatives
had been highly placed figures in Iraq’s nuclear programs. Every one of the
30-some persons was told by their relatives that there were no longer any WMD
programs. All 30-some told this to the CIA. The CIA simply decided that all the
Iraqis were lying, and never told the State Department, the Pentagon or the
White House what they had said. In major part at least, the CIA acted this way
because it had become all too well aware that Bush and his henchmen wanted to
hear nothing inconsistent with, or in any way contrary to possible reasons for,
their plans to invade Iraq. (Pp. 87-110.)

7. In March 2003, before we invaded Iraq, the Iraqi regime used a back
channel to offer to let Americans into Iraq to look for themselves to verify
Iraq’s claim that it had no WMDs. The Americans refused. (P. 123.)

8. Any CIA station chiefs or other officers in Iraq who wrote well
taken warnings of looming disaster there after our initial victory were
committing professional suicide. As well, they were ordered to revise their
supposedly too pessimistic reports. (Pp. 127-132, 145-147.) As always, this
Administration did not want to hear the bad news, however true it might be.
(Remember Eric Shinseki and Larry Lindsey?)

9. As discussed here many times, but hardly ever mentioned in the
media, Saddam’s regime "had planned for guerrilla war before the U.S. invasion
by setting up secret weapons caches and stay-behind networks." Indeed, the
planning for guerrilla war went so far that "just before the war, Iraqi
intelligence agencies had purchased large numbers of garage door openers in
Dubai, as crude but effective remote triggering devices for roadside bombs."
(Pp. 136-137.) Plainly, as has been said here previously, guerrilla war was the
surprise that Saddam said the Americans would get if they invaded.

10. The CIA stations chief in Iraq in August 2003 wrote a grimly
pessimistic report that month, one day after the UN offices in Baghdad were
blown up. In it, he predicted that the capture of Saddam was unlikely to end the
insurgency. (Pp. 141-142.) He was right. Saddam was captured, but the insurgency
continued and got bigger. When Howard Dean later said after Saddam’s capture
that it would not end the insurgency, the same point made previously by the
station chief, Dean was crucified for saying it. Remember? But Dean too was
right. (Of course, the American media and pols, with their near exclusive focus
on only the latest headlines, and lack of attention to prior events and first
principles, never mention that Dean was right.)

11. Heroin is made from opium. The Taliban had largely eliminated opium
production in Afghanistan (although the U.S. Drug Enforcement Administration
later claimed the Taliban did this only to raise the price of the large
stockpiles of opium the Taliban had in warehouses). In 2001, the year when we
began military operations against Afghanistan late in the year, opium production
in Afghanistan was down to 74 metric tons. (P. 155.) Largely because the
warlords who did most of our fighting for us wanted opium grown so that they
could make gazillions from it, opium production soared after we threw out the
Taliban. It rose to 1278 metric tons in 2002, then more than doubled in 2003 and
nearly doubled again in 2004. (P. 155.) By 2004, "Afghanistan was producing 87 percent of the world’s opium supply," which "generate[d] $7 billion worth of heroin." (P. 156.) (Nice record George/Dick/Don.). We turned a blind eye, since our buddies, the warlords, were doing it.

Afghanistan became, and apparently is today, what Risen calls a
"narco-state." (Pp. 151,155-166.)

12. Lacking enough of our own forces to capture bin Laden, we basically
relied on a local Afghan warlord, Hazrat Ali (plus some of our Special Forces
and CIA paramilitaries), to kill or capture him in Tora Bora. But Hazrat Ali’s
forces, the CIA believes, deliberately allowed bin Laden to escape. "CIA
officials are now convinced that Hazrat Ali’s forces allowed Osama bin Laden and
his key lieutenants to flee Tora Bora into Pakistan. Said a CIA source, ‘We
realized those guys just opened the door. It wasn’t a big secret.’" (P.
168.)

13. A Pakistani province, South Waziristan, became al Qaeda central, so
to speak, by 2002. But the Pakistanis were intent on not letting
Americans cross the border from Afghanistan to pursue al Qaeda personnel. They
were intent on this to the point of "a series of tense confrontations -- and
even firefights" between Pakistanis and Americans. "Both sides," however, "have
largely covered up the incidents." (P. 169.)

We have learned previously, although it is basically hushed up, of
firefights with Syrian forces along the Iraq/Syria border, but this is
the first I’ve heard of firefights with Pakistani forces.

14. The CIA hatched a wild plan to give the Iranians the blueprints for
an atomic weapon -- to give Iran such blue prints mind you, the country
that we are now scared to death is developing nuclear bombs. The idea was that
the blueprints would have some hidden mistakes or flaws in them, so that,
hopefully, the Iranians would be led down blind alleys and cul de sacs.

There is, however, one slight problem with this notion. Sophisticated
experts -- which the Iranians apparently have -- are likely to spot the mistakes
and flaws in the blueprints. So they won’t go down the blind alleys. But since
much, apparently most, of the information in the blueprints is accurate, they
will learn much of assistance to them in building a bomb.

We cannot be positive that the plan to get the blueprints into
Iranian governmental hands succeeded. But the evidence makes it likely that it
did. There is no telling how much assistance the prints may have given the
Iranians in their efforts to develop nuclear weapons and, correlatively, how
much harm they may have done us (and Israel). (Pp. 193-212.)

15. "In December 2002, President Bush met with his senior advisers to
review the status of the war on terror. One participant in the cabinet-level
meeting recalled that several senior officials, including Tenet, Rice, and
Wolfowitz, voiced concerns about the ability of al Qaeda-style terrorists to
recruit and gain support on a widespread basis in the Islamic world. Did the
United States have a strategy to counter the growth potential of Islamic
extremism? ‘The President dismissed them, saying that victory in Iraq would take
care of that. After he said that, people just sat down,’ the participant
recalled." (Pp. 170-171.)

Risen’s source says, as you have just read, that "‘The President
dismissed them, saying that victory in Iraq would take care of’" the potential
growth of Islamic extremists. Good God, has there ever before been such a fool
in office? Does one wonder that every private business he ever operated was a
failure that had to be bailed out by rich political friends? And this fool is
president of the United States? Oh boy.
* * * * * *

As you can tell from this posting, when one reds Risen’s book, one reads many different stories, one reads of many separate events. Yet, at least to me, there is also an overriding, albeit likely unintentional, theme. It is a theme that bespeaks an idea this writer has held for many years now. It is an idea that many conservative Republicans have held for dozens or scores of years, and that Democrats have increasingly been coming to in more recent decades. It is an idea of which Bush and his henchmen are only the latest incarnation, even if they conceivably are the worst incarnation to date. It is the idea that government is incompetent at every level and in every way, including even the military in any war but a purely conventional one in which our power simply is too much for the opponent. Governmental incompetence is born in major part of dishonesty, because one cannot be competent in any walk of life when the information in one’s possession is false or wrong, which is one of the reasons I think rampant dishonesty is the fundamental problem of America. But the incompetence seems to exist even where dishonesty does not prevail.

For awhile now, some people have occasionally said something like the following to this blogger. "Well, you criticize and complain so much, what would you do to make things better?" Well, the time has come when it is no longer possible to continue forestalling any poor answer(s) that this writer may have (though other matters seem to have gotten in the way of setting them forth in the past few weeks). So, in the very near future, hopefully in the next posting, I shall do my best to give my own prescriptions, however inadequate or hopeless they may be, however naive or idealistic the sophisticated "smart money" may find them.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Re: Selective Prosecution For Disclosure Of Information

----- Original Message -----

Sent: Wednesday, February 15, 2006 5:50 PM
Subject: Re: Selective Prosecution For Disclosure Of Information

As usual a Great article.

I should like to add that if everything is on the "up and up", there would be no reason for leak or prosecution (selective or otherwise!!).

Thank you.

Armande



-------------- Original message --------------

From: "Dean Lawrence R. Velvel"

February 15, 2006

Re: Selective Prosecution For Disclosure Of Information.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

It has recently been disclosed that Lewis Libby "testified to a grand jury that his ‘superiors,’ whom he did not name, had told him to leak classified information to reporters to justify the Iraq war." (N.Y.Times, February 13, 2006, p. A17.) The information did not, apparently, relate to the identity of Valerie Plame, but was concerned "with a different but related disclosure of classified information from a report about Iraq’s nuclear capability." The information was, apparently, "from a National Intelligence Estimate in June and July 2003" "about Iraq’s nuclear capability."

Libby’s testimony became public, it is said, because it was in a letter from prosecutor Pat Fitzgerald that was disclosed by Libby’s lawyers in a filing in his case. The information raises a question not yet mentioned in the media insofar as I know, the question of unlawful selective prosecution.

One is not speaking of selective prosecution of Libby, who is not being prosecuted for disclosing classified information but for lying to the grand jury. One is speaking, rather, of those persons whom Bush has ordered found, and whom he and his Administration henchmen have made clear will be prosecuted if found, who have disclosed things that Libby’s two "superiors," Bush and Cheney, did not want revealed -- like the secret NSA program of electronic surveillance of American citizens. Persons who have disclosed classified information that Bush and Cheney did not want disclosed will be criminally prosecuted. People who disclose classified information that Libby’s two "superiors" wanted disclosed for their own selfish political purposes, will not be prosecuted for the disclosures.

It is obvious that this kind of selective prosecution to advance selfish political objectives is the worst kind of abuse of the criminal law to advance the interests of the group in power. It is an abuse of the executive power in order to make the Executive hegemonous, a result greatly feared by the founders whose views Bush falsely professes to worship, is a major reason why the Alien and Sedition Acts and the prosecutions under them are remembered with horror, and are part of the Bush/Cheney drive to neuter opposition. People who risk their careers and well-being to reveal extremely serious, secret Executive abuses of power will be prosecuted and clapped in jail. People who reveal intelligence secrets that Bush and Cheney want revealed for selfish political purposes will not be. As Abraham Lincoln once said, better to live in Russia where they take their tyranny straight, without the filter of base hypocrisy.

One knows, of course, that leaking of classified (and other) information is a way of life in Washington, which may be one of the reasons that disclosure of it generally has not been prosecuted in the past. One also is aware of -- even if incredulous about -- claims that, by the very act of disclosing classified information or ordering or asking someone else to disclose it, the President, and conceivably even the Vice President, has thereby declassified it so that the disclosure is not a breach of the secrecy of classified information. This argument, of course, is utterly reprehensible, since it gives the President, and maybe even the Vice President (the real President?), the power to determine -- on the spot, for purely political purposes, and solely to harm political opponents -- what shall not be considered criminal even though, until that very moment, it was criminal. One wonders, would those who take this incredible position say the same if the revelations were of blueprints to build an H Bomb, maybe one that fits into a large suitcase? Or if the authorizing President were Bill Clinton? Why am I dubious?

And finally, as the H Bomb example shows, one is aware that there can be cases where disclosure of classified information simply cannot be allowed regardless of what is done in other cases, notwithstanding the leaking culture of Washington. Nothing in the NSA spying on civilians case rises to this level, however, as a month or two of discussion of the matter has shown.

The fact that leaking of classified (and other) information is a way of life in Washington, and the utter reprehensibility of the on-the-spot-declassification argument, are, in fact, further reasons why the selective prosecution of executive whistleblowers in the NSA spying matter should not be allowed, are further reasons for non-allowance, that is, in addition to the simple reprehensibility of selective prosecution. Federal courts should be willing to preclude this selective prosecution, and should therefore reject subpoenas sought to further it and should quash trials used to pursue it. The claim of selective prosecution should consequently be usable by news organizations to quash subpoenas by which the Administration is seeking the names of officials who blew the whistle on Bush’s secret NSA surveillance, and by such officials themselves to quash prosecutions if they are found out and prosecuted. The federal courts even have standards, supposedly, that are said to govern selective prosecution, e.g., it is said that there is selective prosecution when others who are similarly situated do not face prosecution and there is an impermissible motive to discriminate.

But, if my recollection is correct, the federal courts rarely apply their standards to quash criminal proceedings. Instead, they find reasons why the standards are not met. Given my views of the current, and increasing, virtual worthlessness of the federal courts -- which did not in fact do much to curb the Executive in the Guantanamo opinion even though Democrats falsely lauded its writer, O’Connor, as a stick with which to beat Alito, and which contain far too few judges like James Robertson, the federal judge who resigned from the FISA court because of the NSA spying operation -- I will not be surprised to eventually find the federal courts saying that the NSA whistleblowers are in a different position than those who are not prosecuted for disclosing classified information, because the latter were authorized to do it by the President or Vice President, or they leaked information that was not about surveillance, or whatever bushwa excuse comes in han dy as a reason for supposedly distinguishing between situations. Nor will I be surprised to eventually find the federal courts ultimately saying that Bush, Cheney and company supposedly did not have a motive to discriminate against the NSA whistleblowers by prosecuting them while leaving others alone, but rather had only the motive to punish and prevent leaks of information about electronic surveillance -- another bushwa excuse that will come in handy even though favored persons also disclose information on other surveillance of one type or another. No, far from being surprising, this kind of federal judicial bushwa excuse-mongering and cowardice in the face of a powerful Executive is unhappily to be expected these days.

But though the federal courts are weaksticks that will not do their duty, this does not lessen the importance of combating selective prosecution that is used by the Executive for purely political profit, that is used to silence political opponents while rewarding political supporters, that is used to increase Executive hegemony. As the abolitionists and the civil righters did in their own ways in their own days, newspapers and other media that receive subpoenas for information on who blew the whistle, and the whistleblowers themselves if and when discovered and subjected to grand juries or prosecutions, should fight these selective prosecutions in the media and in court: they should fight them in the pages of print media, on the air, and over the internet, as well as making claims in court, however unlikely the courts are to uphold them (just as they refused to uphold the claims of abolitionists). It is only by fighting evil that it can ultimately be defeated, after all. T hose who sit back and believe it will go away if they are silent are doomed to defeat, are doomed to live in 1930s Germany so to speak. All that is necessary for evil to triumph, it is rightly said, is for good men to do nothing.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.


----- Original Message -----

Sent: Wednesday, February 15, 2006 5:16 PM
Subject: Re: Selective Prosecution For Disclosure Of Information


Dear Dean Lawrence R. Velvel:

"All that is necessary for evil to triumph, it is rightly said, is for good men to do nothing."

What are government secrets?

What justification is there that "this government of the people, by the
people, and for the people" needs to have government secrets? Certainly we have heard innumerable rationalizations and the sophistry of learned men, but I have yet to hear a truly justifiable reason for government secrets.

It also seems laughable to me that our government of secrets seems to
believe that unannounced searches of our homes, reading our mail and
listening in on our personal conversations are not only reasonable but also necessary.

As Americans, it seems we have fallen in love with our image in the
reflecting water; now we pine away for our image as our body politic
dissipates.

Thank you for your vigilance.

Sincerely,

L.



-------------- Original message --------------

From: "Dean Lawrence R. Velvel"

February 15, 2006

Re: Selective Prosecution For Disclosure Of Information.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

It has recently been disclosed that Lewis Libby "testified to a grand jury that his ‘superiors,’ whom he did not name, had told him to leak classified information to reporters to justify the Iraq war." (N.Y.Times, February 13, 2006, p. A17.) The information did not, apparently, relate to the identity of Valerie Plame, but was concerned "with a different but related disclosure of classified information from a report about Iraq’s nuclear capability." The information was, apparently, "from a National Intelligence Estimate in June and July 2003" "about Iraq’s nuclear capability."

Libby’s testimony became public, it is said, because it was in a letter from prosecutor Pat Fitzgerald that was disclosed by Libby’s lawyers in a filing in his case. The information raises a question not yet mentioned in the media insofar as I know, the question of unlawful selective prosecution.

One is not speaking of selective prosecution of Libby, who is not being prosecuted for disclosing classified information but for lying to the grand jury. One is speaking, rather, of those persons whom Bush has ordered found, and whom he and his Administration henchmen have made clear will be prosecuted if found, who have disclosed things that Libby’s two "superiors," Bush and Cheney, did not want revealed -- like the secret NSA program of electronic surveillance of American citizens. Persons who have disclosed classified information that Bush and Cheney did not want disclosed will be criminally prosecuted. People who disclose classified information that Libby’s two "superiors" wanted disclosed for their own selfish political purposes, will not be prosecuted for the disclosures.

It is obvious that this kind of selective prosecution to advance selfish political objectives is the worst kind of abuse of the criminal law to advance the interests of the group in power. It is an abuse of the executive power in order to make the Executive hegemonous, a result greatly feared by the founders whose views Bush falsely professes to worship, is a major reason why the Alien and Sedition Acts and the prosecutions under them are remembered with horror, and are part of the Bush/Cheney drive to neuter opposition. People who risk their careers and well-being to reveal extremely serious, secret Executive abuses of power will be prosecuted and clapped in jail. People who reveal intelligence secrets that Bush and Cheney want revealed for selfish political purposes will not be. As Abraham Lincoln once said, better to live in Russia where they take their tyranny straight, without the filter of base hypocrisy.

One knows, of course, that leaking of classified (and other) information is a way of life in Washington, which may be one of the reasons that disclosure of it generally has not been prosecuted in the past. One also is aware of -- even if incredulous about -- claims that, by the very act of disclosing classified information or ordering or asking someone else to disclose it, the President, and conceivably even the Vice President, has thereby declassified it so that the disclosure is not a breach of the secrecy of classified information. This argument, of course, is utterly reprehensible, since it gives the President, and maybe even the Vice President (the real President?), the power to determine -- on the spot, for purely political purposes, and solely to harm political opponents -- what shall not be considered criminal even though, until that very moment, it was criminal. One wonders, would those who take this incredible position say the same if the revelations were of blueprints to build an H Bomb, maybe one that fits into a large suitcase? Or if the authorizing President were Bill Clinton? Why am I dubious?

And finally, as the H Bomb example shows, one is aware that there can be cases where disclosure of classified information simply cannot be allowed regardless of what is done in other cases, notwithstanding the leaking culture of Washington. Nothing in the NSA spying on civilians case rises to this level, however, as a month or two of discussion of the matter has shown.

The fact that leaking of classified (and other) information is a way of life in Washington, and the utter reprehensibility of the on-the-spot-declassification argument, are, in fact, further reasons why the selective prosecution of executive whistleblowers in the NSA spying matter should not be allowed, are further reasons for non-allowance, that is, in addition to the simple reprehensibility of selective prosecution. Federal courts should be willing to preclude this selective prosecution, and should therefore reject subpoenas sought to further it and should quash trials used to pursue it. The claim of selective prosecution should consequently be usable by news organizations to quash subpoenas by which the Administration is seeking the names of officials who blew the whistle on Bush’s secret NSA surveillance, and by such officials themselves to quash prosecutions if they are found out and prosecuted. The federal courts even have standards, supposedly, that are said to govern selective prosecution, e.g., it is said that there is selective prosecution when others who are similarly situated do not face prosecution and there is an impermissible motive to discriminate.

But, if my recollection is correct, the federal courts rarely apply their standards to quash criminal proceedings. Instead, they find reasons why the standards are not met. Given my views of the current, and increasing, virtual worthlessness of the federal courts -- which did not in fact do much to curb the Executive in the Guantanamo opinion even though Democrats falsely lauded its writer, O’Connor, as a stick with which to beat Alito, and which contain far too few judges like James Robertson, the federal judge who resigned from the FISA court because of the NSA spying operation -- I will not be surprised to eventually find the federal courts saying that the NSA whistleblowers are in a different position than those who are not prosecuted for disclosing classified information, because the latter were authorized to do it by the President or Vice President, or they leaked information that was not about surveillance, or whatever bushwa excuse comes in han dy as a reason for supposedly distinguishing between situations. Nor will I be surprised to eventually find the federal courts ultimately saying that Bush, Cheney and company supposedly did not have a motive to discriminate against the NSA whistleblowers by prosecuting them while leaving others alone, but rather had only the motive to punish and prevent leaks of information about electronic surveillance -- another bushwa excuse that will come in handy even though favored persons also disclose information on other surveillance of one type or another. No, far from being surprising, this kind of federal judicial bushwa excuse-mongering and cowardice in the face of a powerful Executive is unhappily to be expected these days.

But though the federal courts are weaksticks that will not do their duty, this does not lessen the importance of combating selective prosecution that is used by the Executive for purely political profit, that is used to silence political opponents while rewarding political supporters, that is used to increase Executive hegemony. As the abolitionists and the civil righters did in their own ways in their own days, newspapers and other media that receive subpoenas for information on who blew the whistle, and the whistleblowers themselves if and when discovered and subjected to grand juries or prosecutions, should fight these selective prosecutions in the media and in court: they should fight them in the pages of print media, on the air, and over the internet, as well as making claims in court, however unlikely the courts are to uphold them (just as they refused to uphold the claims of abolitionists). It is only by fighting evil that it can ultimately be defeated, after all. T hose who sit back and believe it will go away if they are silent are doomed to defeat, are doomed to live in 1930s Germany so to speak. All that is necessary for evil to triumph, it is rightly said, is for good men to do nothing.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Re: Selective Prosecution For Disclosure Of Information

----- Original Message -----

Sent: Wednesday, February 15, 2006 5:50 PM
Subject: Re: Selective Prosecution For Disclosure Of Information

As usual a Great article.

I should like to add that if everything is on the "up and up", there would be no reason for leak or prosecution (selective or otherwise!!).

Thank you.

Armande

-------------- Original message --------------

From: "Dean Lawrence R. Velvel"
February 15, 2006
Re: Selective Prosecution For Disclosure Of Information.
From: Dean Lawrence R. Velvel

VelvelOnNationalAffairs.com

Dear Colleagues:

It has recently been disclosed that Lewis Libby "testified to a grand jury that his ‘superiors,’ whom he did not name, had told him to leak classified information to reporters to justify the Iraq war." (N.Y.Times, February 13, 2006, p. A17.) The information did not, apparently, relate to the identity of Valerie Plame, but was concerned "with a different but related disclosure of classified information from a report about Iraq’s nuclear capability." The information was, apparently, "from a National Intelligence Estimate in June and July 2003" "about Iraq’s nuclear capability."

Libby’s testimony became public, it is said, because it was in a letter from prosecutor Pat Fitzgerald that was disclosed by Libby’s lawyers in a filing in his case. The information raises a question not yet mentioned in the media insofar as I know, the question of unlawful selective prosecution.

One is not speaking of selective prosecution of Libby, who is not being prosecuted for disclosing classified information but for lying to the grand jury. One is speaking, rather, of those persons whom Bush has ordered found, and whom he and his Administration henchmen have made clear will be prosecuted if found, who have disclosed things that Libby’s two "superiors," Bush and Cheney, did not want revealed -- like the secret NSA program of electronic surveillance of American citizens. Persons who have disclosed classified information that Bush and Cheney did not want disclosed will be criminally prosecuted. People who disclose classified information that Libby’s two "superiors" wanted disclosed for their own selfish political purposes, will not be prosecuted for the disclosures.

It is obvious that this kind of selective prosecution to advance selfish political objectives is the worst kind of abuse of the criminal law to advance the interests of the group in power. It is an abuse of the executive power in order to make the Executive hegemonous, a result greatly feared by the founders whose views Bush falsely professes to worship, is a major reason why the Alien and Sedition Acts and the prosecutions under them are remembered with horror, and are part of the Bush/Cheney drive to neuter opposition. People who risk their careers and well-being to reveal extremely serious, secret Executive abuses of power will be prosecuted and clapped in jail. People who reveal intelligence secrets that Bush and Cheney want revealed for selfish political purposes will not be. As Abraham Lincoln once said, better to live in Russia where they take their tyranny straight, without the filter of base hypocrisy.

One knows, of course, that leaking of classified (and other) information is a way of life in Washington, which may be one of the reasons that disclosure of it generally has not been prosecuted in the past. One also is aware of -- even if incredulous about -- claims that, by the very act of disclosing classified information or ordering or asking someone else to disclose it, the President, and conceivably even the Vice President, has thereby declassified it so that the disclosure is not a breach of the secrecy of classified information. This argument, of course, is utterly reprehensible, since it gives the President, and maybe even the Vice President (the real President?), the power to determine -- on the spot, for purely political purposes, and solely to harm political opponents -- what shall not be considered criminal even though, until that very moment, it was criminal. One wonders, would those who take this incredible position say the same if the revelations were of blueprints to build an H Bomb, maybe one that fits into a large suitcase? Or if the authorizing President were Bill Clinton? Why am I dubious?

And finally, as the H Bomb example shows, one is aware that there can be cases where disclosure of classified information simply cannot be allowed regardless of what is done in other cases, notwithstanding the leaking culture of Washington. Nothing in the NSA spying on civilians case rises to this level, however, as a month or two of discussion of the matter has shown.

The fact that leaking of classified (and other) information is a way of life in Washington, and the utter reprehensibility of the on-the-spot-declassification argument, are, in fact, further reasons why the selective prosecution of executive whistleblowers in the NSA spying matter should not be allowed, are further reasons for non-allowance, that is, in addition to the simple reprehensibility of selective prosecution. Federal courts should be willing to preclude this selective prosecution, and should therefore reject subpoenas sought to further it and should quash trials used to pursue it. The claim of selective prosecution should consequently be usable by news organizations to quash subpoenas by which the Administration is seeking the names of officials who blew the whistle on Bush’s secret NSA surveillance, and by such officials themselves to quash prosecutions if they are found out and prosecuted. The federal courts even have standards, supposedly, that are said to govern selective prosecution, e.g., it is said that there is selective prosecution when others who are similarly situated do not face prosecution and there is an impermissible motive to discriminate.

But, if my recollection is correct, the federal courts rarely apply their standards to quash criminal proceedings. Instead, they find reasons why the standards are not met. Given my views of the current, and increasing, virtual worthlessness of the federal courts -- which did not in fact do much to curb the Executive in the Guantanamo opinion even though Democrats falsely lauded its writer, O’Connor, as a stick with which to beat Alito, and which contain far too few judges like James Robertson, the federal judge who resigned from the FISA court because of the NSA spying operation -- I will not be surprised to eventually find the federal courts saying that the NSA whistleblowers are in a different position than those who are not prosecuted for disclosing classified information, because the latter were authorized to do it by the President or Vice President, or they leaked information that was not about surveillance, or whatever bushwa excuse comes in han dy as a reason for supposedly distinguishing between situations. Nor will I be surprised to eventually find the federal courts ultimately saying that Bush, Cheney and company supposedly did not have a motive to discriminate against the NSA whistleblowers by prosecuting them while leaving others alone, but rather had only the motive to punish and prevent leaks of information about electronic surveillance -- another bushwa excuse that will come in handy even though favored persons also disclose information on other surveillance of one type or another. No, far from being surprising, this kind of federal judicial bushwa excuse-mongering and cowardice in the face of a powerful Executive is unhappily to be expected these days.

But though the federal courts are weaksticks that will not do their duty, this does not lessen the importance of combating selective prosecution that is used by the Executive for purely political profit, that is used to silence political opponents while rewarding political supporters, that is used to increase Executive hegemony. As the abolitionists and the civil righters did in their own ways in their own days, newspapers and other media that receive subpoenas for information on who blew the whistle, and the whistleblowers themselves if and when discovered and subjected to grand juries or prosecutions, should fight these selective prosecutions in the media and in court: they should fight them in the pages of print media, on the air, and over the internet, as well as making claims in court, however unlikely the courts are to uphold them (just as they refused to uphold the claims of abolitionists). It is only by fighting evil that it can ultimately be defeated, after all. T hose who sit back and believe it will go away if they are silent are doomed to defeat, are doomed to live in 1930s Germany so to speak. All that is necessary for evil to triumph, it is rightly said, is for good men to do nothing.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

----- Original Message -----


Sent: Wednesday, February 15, 2006 5:16 PM
Subject: Re: Selective Prosecution For Disclosure Of Information

Re: Selective Prosecution For Disclosure Of Information.

Dear Dean Lawrence R. Velvel:

"All that is necessary for evil to triumph, it is rightly said, is for good
men to do nothing."

What are government secrets?

What justification is there that "this government of the people, by the
people, and for the people" needs to have government secrets? Certainly we
have heard innumerable rationalizations and the sophistry of learned men,
but I have yet to hear a truly justifiable reason for government secrets.

It also seems laughable to me that our government of secrets seems to
believe that unannounced searches of our homes, reading our mail and
listening in on our personal conversations are not only reasonable but also
necessary.

As Americans, it seems we have fallen in love with our image in the
reflecting water; now we pine away for our image as our body politic
dissipates.

Thank you for your vigilance.

Sincerely,

L.


-------------- Original message ----------------------


From: "Dean Lawrence R. Velvel" velvel@mslaw.edu

> February 15, 2006
>
> Re: Selective Prosecution For Disclosure Of Information.
>
> From: Dean Lawrence R. Velvel
>
> VelvelOnNationalAffairs.com
>
>
>
> Dear Colleagues:
>
> It has recently been disclosed that Lewis Libby "testified to a grand jury
> that
> his 'superiors,' whom he did not name, had told him to leak classified
> information to reporters to justify the Iraq war." (N.Y.Times, February
> 13,
> 2006, p. A17.) The information did not, apparently, relate to the identity
> of
> Valerie Plame, but was concerned "with a different but related disclosure
> of
> classified information from a report about Iraq's nuclear capability." The
> information was, apparently, "from a National Intelligence Estimate in
> June and
> July 2003" "about Iraq's nuclear capability."
>
> Libby's testimony became public, it is said, because it was in a letter
> from
> prosecutor Pat Fitzgerald that was disclosed by Libby's lawyers in a
> filing in
> his case. The information raises a question not yet mentioned in the media
> insofar as I know, the question of unlawful selective prosecution.
>
> One is not speaking of selective prosecution of Libby, who is not being
> prosecuted for disclosing classified information but for lying to the
> grand
> jury. One is speaking, rather, of those persons whom Bush has ordered
> found, and
> whom he and his Administration henchmen have made clear will be prosecuted
> if
> found, who have disclosed things that Libby's two "superiors," Bush and
> Cheney,
> did not want revealed -- like the secret NSA program of electronic
> surveillance
> of American citizens. Persons who have disclosed classified information
> that
> Bush and Cheney did not want disclosed will be criminally prosecuted.
> People who
> disclose classified information that Libby's two "superiors" wanted
> disclosed
> for their own selfish political purposes, will not be prosecuted for the
> disclosures.
>
> It is obvious that this kind of selective prosecution to advance selfish
> political objectives is the worst kind of abuse of the criminal law to
> advance
> the interests of the group in power. It is an abuse of the executive power
> in
> order to make the Executive hegemonous, a result greatly feared by the
> founders
> whose views Bush falsely professes to worship, is a major reason why the
> Alien
> and Sedition Acts and the prosecutions under them are remembered with
> horror,
> and are part of the Bush/Cheney drive to neuter opposition. People who
> risk
> their careers and well-being to reveal extremely serious, secret Executive
> abuses of power will be prosecuted and clapped in jail. People who reveal
> intelligence secrets that Bush and Cheney want revealed for selfish
> political
> purposes will not be. As Abraham Lincoln once said, better to live in
> Russia
> where they take their tyranny straight, without the filter of base
> hypocrisy.
>
> One knows, of course, that leaking of classified (and other) information
> is a
> way of life in Washington, which may be one of the reasons that disclosure
> of it
> generally has not been prosecuted in the past. One also is aware of --
> even if
> incredulous about -- claims that, by the very act of disclosing classified
> information or ordering or asking someone else to disclose it, the
> President,
> and conceivably even the Vice President, has thereby declassified it so
> that the
> disclosure is not a breach of the secrecy of classified information. This
> argument, of course, is utterly reprehensible, since it gives the
> President, and
> maybe even the Vice President (the real President?), the power to
> determine --
> on the spot, for purely political purposes, and solely to harm political
> opponents -- what shall not be considered criminal even though, until that
> very
> moment, it was criminal. One wonders, would those who take this incredible
> position say the same if the revelations were of blueprints to build an H
> Bomb,
> maybe one that fits into a large suitcase? Or if the authorizing President
> were
> Bill Clinton? Why am I dubious?
>
> And finally, as the H Bomb example shows, one is aware that there can be
> cases
> where disclosure of classified information simply cannot be allowed
> regardless
> of what is done in other cases, notwithstanding the leaking culture of
> Washington. Nothing in the NSA spying on civilians case rises to this
> level,
> however, as a month or two of discussion of the matter has shown.
>
> The fact that leaking of classified (and other) information is a way of
> life in
> Washington, and the utter reprehensibility of the
> on-the-spot-declassification
> argument, are, in fact, further reasons why the selective prosecution of
> executive whistleblowers in the NSA spying matter should not be allowed,
> are
> further reasons for non-allowance, that is, in addition to the simple
> reprehensibility of selective prosecution. Federal courts should be
> willing to
> preclude this selective prosecution, and should therefore reject subpoenas
> sought to further it and should quash trials used to pursue it. The claim
> of
> selective prosecution should consequently be usable by news organizations
> to
> quash subpoenas by which the Administration is seeking the names of
> officials
> who blew the whistle on Bush's secret NSA surveillance, and by such
> officials
> themselves to quash prosecutions if they are found out and prosecuted. The
> federal courts even have standards, supposedly, that are said to govern
> selective prosecution, e.g., it is said that there is selective
> prosecution when
> others who are similarly situated do not face prosecution and there is an
> impermissible motive to discriminate.
>
> But, if my recollection is correct, the federal courts rarely apply their
> standards to quash criminal proceedings. Instead, they find reasons why
> the
> standards are not met. Given my views of the current, and increasing,
> virtual
> worthlessness of the federal courts -- which did not in fact do much to
> curb the
> Executive in the Guantanamo opinion even though Democrats falsely lauded
> its
> writer, O'Connor, as a stick with which to beat Alito, and which contain
> far too
> few judges like James Robertson, the federal judge who resigned from the
> FISA
> court because of the NSA spying operation -- I will not be surprised to
> eventually find the federal courts saying that the NSA whistleblowers are
> in a
> different position than those who are not prosecuted for disclosing
> classified
> information, because the latter were authorized to do it by the President
> or
> Vice President, or they leaked information that was not about
> surveillance, or
> whatever bushwa excuse comes in handy as a reason for supposedly
> distinguishing
> between situations. Nor will I be surprised to eventually find the federal
> courts ultimately saying that Bush, Cheney and company supposedly did not
> have a
> motive to discriminate against the NSA whistleblowers by prosecuting them
> while
> leaving others alone, but rather had only the motive to punish and prevent
> leaks
> of information about electronic surveillance -- another bushwa excuse that
> will
> come in handy even though favored persons also disclose information on
> other
> surveillance of one type or another. No, far from being surprising, this
> kind of
> federal judicial bushwa excuse-mongering and cowardice in the face of a
> powerful
> Executive is unhappily to be expected these days.
>
> But though the federal courts are weaksticks that will not do their duty,
> this
> does not lessen the importance of combating selective prosecution that is
> used
> by the Executive for purely political profit, that is used to silence
> political
> opponents while rewarding political supporters, that is used to increase
> Executive hegemony. As the abolitionists and the civil righters did in
> their own
> ways in their own days, newspapers and other media that receive subpoenas
> for
> information on who blew the whistle, and the whistleblowers themselves if
> and
> when discovered and subjected to grand juries or prosecutions, should
> fight
> these selective prosecutions in the media and in court: they should fight
> them
> in the pages of print media, on the air, and over the internet, as well as
> making claims in court, however unlikely the courts are to uphold them
> (just as
> they refused to uphold the claims of abolitionists). It is only by
> fighting evil
> that it can ultimately be defeated, after all. Those who sit back and
> believe it
> will go away if they are silent are doomed to defeat, are doomed to live
> in
> 1930s Germany so to speak. All that is necessary for evil to triumph, it
> is
> rightly said, is for good men to do nothing.*
>
>*This posting represents the personal views of Lawrence R. Velvel. If
> you
> wish to respond to this email/blog, please email your response to me at
> velvel@mslaw.edu. Your response may be posted on the blog if you have no
> objection; please tell me if you do object.
>

Re: Selective Prosecution For Disclosure Of Information

----- Original Message -----

Sent: Wednesday, February 15, 2006 5:50 PM
Subject: Re: Selective Prosecution For Disclosure Of Information

As usual a Great article.

I should like to add that if everything is on the "up and up", there would be no reason for leak or prosecution (selective or otherwise!!).

Thank you.

Armande

-------------- Original message --------------

From: "Dean Lawrence R. Velvel"
February 15, 2006
Re: Selective Prosecution For Disclosure Of Information.
From: Dean Lawrence R. Velvel

VelvelOnNationalAffairs.com

Dear Colleagues:

It has recently been disclosed that Lewis Libby "testified to a grand jury that his ‘superiors,’ whom he did not name, had told him to leak classified information to reporters to justify the Iraq war." (N.Y.Times, February 13, 2006, p. A17.) The information did not, apparently, relate to the identity of Valerie Plame, but was concerned "with a different but related disclosure of classified information from a report about Iraq’s nuclear capability." The information was, apparently, "from a National Intelligence Estimate in June and July 2003" "about Iraq’s nuclear capability."

Libby’s testimony became public, it is said, because it was in a letter from prosecutor Pat Fitzgerald that was disclosed by Libby’s lawyers in a filing in his case. The information raises a question not yet mentioned in the media insofar as I know, the question of unlawful selective prosecution.

One is not speaking of selective prosecution of Libby, who is not being prosecuted for disclosing classified information but for lying to the grand jury. One is speaking, rather, of those persons whom Bush has ordered found, and whom he and his Administration henchmen have made clear will be prosecuted if found, who have disclosed things that Libby’s two "superiors," Bush and Cheney, did not want revealed -- like the secret NSA program of electronic surveillance of American citizens. Persons who have disclosed classified information that Bush and Cheney did not want disclosed will be criminally prosecuted. People who disclose classified information that Libby’s two "superiors" wanted disclosed for their own selfish political purposes, will not be prosecuted for the disclosures.

It is obvious that this kind of selective prosecution to advance selfish political objectives is the worst kind of abuse of the criminal law to advance the interests of the group in power. It is an abuse of the executive power in order to make the Executive hegemonous, a result greatly feared by the founders whose views Bush falsely professes to worship, is a major reason why the Alien and Sedition Acts and the prosecutions under them are remembered with horror, and are part of the Bush/Cheney drive to neuter opposition. People who risk their careers and well-being to reveal extremely serious, secret Executive abuses of power will be prosecuted and clapped in jail. People who reveal intelligence secrets that Bush and Cheney want revealed for selfish political purposes will not be. As Abraham Lincoln once said, better to live in Russia where they take their tyranny straight, without the filter of base hypocrisy.

One knows, of course, that leaking of classified (and other) information is a way of life in Washington, which may be one of the reasons that disclosure of it generally has not been prosecuted in the past. One also is aware of -- even if incredulous about -- claims that, by the very act of disclosing classified information or ordering or asking someone else to disclose it, the President, and conceivably even the Vice President, has thereby declassified it so that the disclosure is not a breach of the secrecy of classified information. This argument, of course, is utterly reprehensible, since it gives the President, and maybe even the Vice President (the real President?), the power to determine -- on the spot, for purely political purposes, and solely to harm political opponents -- what shall not be considered criminal even though, until that very moment, it was criminal. One wonders, would those who take this incredible position say the same if the revelations were of blueprints to build an H Bomb, maybe one that fits into a large suitcase? Or if the authorizing President were Bill Clinton? Why am I dubious?

And finally, as the H Bomb example shows, one is aware that there can be cases where disclosure of classified information simply cannot be allowed regardless of what is done in other cases, notwithstanding the leaking culture of Washington. Nothing in the NSA spying on civilians case rises to this level, however, as a month or two of discussion of the matter has shown.

The fact that leaking of classified (and other) information is a way of life in Washington, and the utter reprehensibility of the on-the-spot-declassification argument, are, in fact, further reasons why the selective prosecution of executive whistleblowers in the NSA spying matter should not be allowed, are further reasons for non-allowance, that is, in addition to the simple reprehensibility of selective prosecution. Federal courts should be willing to preclude this selective prosecution, and should therefore reject subpoenas sought to further it and should quash trials used to pursue it. The claim of selective prosecution should consequently be usable by news organizations to quash subpoenas by which the Administration is seeking the names of officials who blew the whistle on Bush’s secret NSA surveillance, and by such officials themselves to quash prosecutions if they are found out and prosecuted. The federal courts even have standards, supposedly, that are said to govern selective prosecution, e.g., it is said that there is selective prosecution when others who are similarly situated do not face prosecution and there is an impermissible motive to discriminate.

But, if my recollection is correct, the federal courts rarely apply their standards to quash criminal proceedings. Instead, they find reasons why the standards are not met. Given my views of the current, and increasing, virtual worthlessness of the federal courts -- which did not in fact do much to curb the Executive in the Guantanamo opinion even though Democrats falsely lauded its writer, O’Connor, as a stick with which to beat Alito, and which contain far too few judges like James Robertson, the federal judge who resigned from the FISA court because of the NSA spying operation -- I will not be surprised to eventually find the federal courts saying that the NSA whistleblowers are in a different position than those who are not prosecuted for disclosing classified information, because the latter were authorized to do it by the President or Vice President, or they leaked information that was not about surveillance, or whatever bushwa excuse comes in han dy as a reason for supposedly distinguishing between situations. Nor will I be surprised to eventually find the federal courts ultimately saying that Bush, Cheney and company supposedly did not have a motive to discriminate against the NSA whistleblowers by prosecuting them while leaving others alone, but rather had only the motive to punish and prevent leaks of information about electronic surveillance -- another bushwa excuse that will come in handy even though favored persons also disclose information on other surveillance of one type or another. No, far from being surprising, this kind of federal judicial bushwa excuse-mongering and cowardice in the face of a powerful Executive is unhappily to be expected these days.

But though the federal courts are weaksticks that will not do their duty, this does not lessen the importance of combating selective prosecution that is used by the Executive for purely political profit, that is used to silence political opponents while rewarding political supporters, that is used to increase Executive hegemony. As the abolitionists and the civil righters did in their own ways in their own days, newspapers and other media that receive subpoenas for information on who blew the whistle, and the whistleblowers themselves if and when discovered and subjected to grand juries or prosecutions, should fight these selective prosecutions in the media and in court: they should fight them in the pages of print media, on the air, and over the internet, as well as making claims in court, however unlikely the courts are to uphold them (just as they refused to uphold the claims of abolitionists). It is only by fighting evil that it can ultimately be defeated, after all. T hose who sit back and believe it will go away if they are silent are doomed to defeat, are doomed to live in 1930s Germany so to speak. All that is necessary for evil to triumph, it is rightly said, is for good men to do nothing.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

----- Original Message -----


Sent: Wednesday, February 15, 2006 5:16 PM
Subject: Re: Selective Prosecution For Disclosure Of Information

Re: Selective Prosecution For Disclosure Of Information.

Dear Dean Lawrence R. Velvel:

"All that is necessary for evil to triumph, it is rightly said, is for good
men to do nothing."

What are government secrets?

What justification is there that "this government of the people, by the
people, and for the people" needs to have government secrets? Certainly we
have heard innumerable rationalizations and the sophistry of learned men,
but I have yet to hear a truly justifiable reason for government secrets.

It also seems laughable to me that our government of secrets seems to
believe that unannounced searches of our homes, reading our mail and
listening in on our personal conversations are not only reasonable but also
necessary.

As Americans, it seems we have fallen in love with our image in the
reflecting water; now we pine away for our image as our body politic
dissipates.

Thank you for your vigilance.

Sincerely,

L.


-------------- Original message ----------------------


From: "Dean Lawrence R. Velvel" velvel@mslaw.edu

> February 15, 2006
>
> Re: Selective Prosecution For Disclosure Of Information.
>
> From: Dean Lawrence R. Velvel
>
> VelvelOnNationalAffairs.com
>
>
>
> Dear Colleagues:
>
> It has recently been disclosed that Lewis Libby "testified to a grand jury
> that
> his 'superiors,' whom he did not name, had told him to leak classified
> information to reporters to justify the Iraq war." (N.Y.Times, February
> 13,
> 2006, p. A17.) The information did not, apparently, relate to the identity
> of
> Valerie Plame, but was concerned "with a different but related disclosure
> of
> classified information from a report about Iraq's nuclear capability." The
> information was, apparently, "from a National Intelligence Estimate in
> June and
> July 2003" "about Iraq's nuclear capability."
>
> Libby's testimony became public, it is said, because it was in a letter
> from
> prosecutor Pat Fitzgerald that was disclosed by Libby's lawyers in a
> filing in
> his case. The information raises a question not yet mentioned in the media
> insofar as I know, the question of unlawful selective prosecution.
>
> One is not speaking of selective prosecution of Libby, who is not being
> prosecuted for disclosing classified information but for lying to the
> grand
> jury. One is speaking, rather, of those persons whom Bush has ordered
> found, and
> whom he and his Administration henchmen have made clear will be prosecuted
> if
> found, who have disclosed things that Libby's two "superiors," Bush and
> Cheney,
> did not want revealed -- like the secret NSA program of electronic
> surveillance
> of American citizens. Persons who have disclosed classified information
> that
> Bush and Cheney did not want disclosed will be criminally prosecuted.
> People who
> disclose classified information that Libby's two "superiors" wanted
> disclosed
> for their own selfish political purposes, will not be prosecuted for the
> disclosures.
>
> It is obvious that this kind of selective prosecution to advance selfish
> political objectives is the worst kind of abuse of the criminal law to
> advance
> the interests of the group in power. It is an abuse of the executive power
> in
> order to make the Executive hegemonous, a result greatly feared by the
> founders
> whose views Bush falsely professes to worship, is a major reason why the
> Alien
> and Sedition Acts and the prosecutions under them are remembered with
> horror,
> and are part of the Bush/Cheney drive to neuter opposition. People who
> risk
> their careers and well-being to reveal extremely serious, secret Executive
> abuses of power will be prosecuted and clapped in jail. People who reveal
> intelligence secrets that Bush and Cheney want revealed for selfish
> political
> purposes will not be. As Abraham Lincoln once said, better to live in
> Russia
> where they take their tyranny straight, without the filter of base
> hypocrisy.
>
> One knows, of course, that leaking of classified (and other) information
> is a
> way of life in Washington, which may be one of the reasons that disclosure
> of it
> generally has not been prosecuted in the past. One also is aware of --
> even if
> incredulous about -- claims that, by the very act of disclosing classified
> information or ordering or asking someone else to disclose it, the
> President,
> and conceivably even the Vice President, has thereby declassified it so
> that the
> disclosure is not a breach of the secrecy of classified information. This
> argument, of course, is utterly reprehensible, since it gives the
> President, and
> maybe even the Vice President (the real President?), the power to
> determine --
> on the spot, for purely political purposes, and solely to harm political
> opponents -- what shall not be considered criminal even though, until that
> very
> moment, it was criminal. One wonders, would those who take this incredible
> position say the same if the revelations were of blueprints to build an H
> Bomb,
> maybe one that fits into a large suitcase? Or if the authorizing President
> were
> Bill Clinton? Why am I dubious?
>
> And finally, as the H Bomb example shows, one is aware that there can be
> cases
> where disclosure of classified information simply cannot be allowed
> regardless
> of what is done in other cases, notwithstanding the leaking culture of
> Washington. Nothing in the NSA spying on civilians case rises to this
> level,
> however, as a month or two of discussion of the matter has shown.
>
> The fact that leaking of classified (and other) information is a way of
> life in
> Washington, and the utter reprehensibility of the
> on-the-spot-declassification
> argument, are, in fact, further reasons why the selective prosecution of
> executive whistleblowers in the NSA spying matter should not be allowed,
> are
> further reasons for non-allowance, that is, in addition to the simple
> reprehensibility of selective prosecution. Federal courts should be
> willing to
> preclude this selective prosecution, and should therefore reject subpoenas
> sought to further it and should quash trials used to pursue it. The claim
> of
> selective prosecution should consequently be usable by news organizations
> to
> quash subpoenas by which the Administration is seeking the names of
> officials
> who blew the whistle on Bush's secret NSA surveillance, and by such
> officials
> themselves to quash prosecutions if they are found out and prosecuted. The
> federal courts even have standards, supposedly, that are said to govern
> selective prosecution, e.g., it is said that there is selective
> prosecution when
> others who are similarly situated do not face prosecution and there is an
> impermissible motive to discriminate.
>
> But, if my recollection is correct, the federal courts rarely apply their
> standards to quash criminal proceedings. Instead, they find reasons why
> the
> standards are not met. Given my views of the current, and increasing,
> virtual
> worthlessness of the federal courts -- which did not in fact do much to
> curb the
> Executive in the Guantanamo opinion even though Democrats falsely lauded
> its
> writer, O'Connor, as a stick with which to beat Alito, and which contain
> far too
> few judges like James Robertson, the federal judge who resigned from the
> FISA
> court because of the NSA spying operation -- I will not be surprised to
> eventually find the federal courts saying that the NSA whistleblowers are
> in a
> different position than those who are not prosecuted for disclosing
> classified
> information, because the latter were authorized to do it by the President
> or
> Vice President, or they leaked information that was not about
> surveillance, or
> whatever bushwa excuse comes in handy as a reason for supposedly
> distinguishing
> between situations. Nor will I be surprised to eventually find the federal
> courts ultimately saying that Bush, Cheney and company supposedly did not
> have a
> motive to discriminate against the NSA whistleblowers by prosecuting them
> while
> leaving others alone, but rather had only the motive to punish and prevent
> leaks
> of information about electronic surveillance -- another bushwa excuse that
> will
> come in handy even though favored persons also disclose information on
> other
> surveillance of one type or another. No, far from being surprising, this
> kind of
> federal judicial bushwa excuse-mongering and cowardice in the face of a
> powerful
> Executive is unhappily to be expected these days.
>
> But though the federal courts are weaksticks that will not do their duty,
> this
> does not lessen the importance of combating selective prosecution that is
> used
> by the Executive for purely political profit, that is used to silence
> political
> opponents while rewarding political supporters, that is used to increase
> Executive hegemony. As the abolitionists and the civil righters did in
> their own
> ways in their own days, newspapers and other media that receive subpoenas
> for
> information on who blew the whistle, and the whistleblowers themselves if
> and
> when discovered and subjected to grand juries or prosecutions, should
> fight
> these selective prosecutions in the media and in court: they should fight
> them
> in the pages of print media, on the air, and over the internet, as well as
> making claims in court, however unlikely the courts are to uphold them
> (just as
> they refused to uphold the claims of abolitionists). It is only by
> fighting evil
> that it can ultimately be defeated, after all. Those who sit back and
> believe it
> will go away if they are silent are doomed to defeat, are doomed to live
> in
> 1930s Germany so to speak. All that is necessary for evil to triumph, it
> is
> rightly said, is for good men to do nothing.*
>
>*This posting represents the personal views of Lawrence R. Velvel. If
> you
> wish to respond to this email/blog, please email your response to me at
> velvel@mslaw.edu. Your response may be posted on the blog if you have no
> objection; please tell me if you do object.
>