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Libby Will Seek to Use Memory Expert at Trial

By Jeralyn, Section Lewis Libby Indictment
Posted on Wed Jul 19, 2006 at 09:11:21 PM EST
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Lewis "Scooter" Libby's lawyers have notified the Court and Patrick Fitzgerald that they intend to call a memory expert at Libby's trial. While it's long been known they intended to rely on a memory defense and that they have been consulting with a pre-eminent memory expert, they were mum on whether they would call an expert at trial.

In their July 17 filing (pdf), Libby's lawers said they have provided the expert's name and qualifications to Fitzgerald. They sought (and received) an extension until July 31 to outline the specific details of the expert's testimony and to file a motion requesting the admission of the expert's testimony at trial.

Libby has long maintained that memory lapses were the cause of any misstatements in his grand jury testimony and interviews with FBI agents. He says that he was too preoccupied with important national security matters to remember the details of his conversations with FBI investigators, the grand jury and reporters about Valerie Plame Wilson.

In March, Libby's team confirmed that it had retained Daniel L. Schachter of Harvard to consult with the case.

Harvard psychology professor Daniel L. Schacter tells NBC News he has been retained by Libby as a consultant. An official familiar with the Libby defense team confirms the news.

I suspect Team Libby will want Dr. Schacter to explain the concepts of memory distortion and transience to the jury. Here's a bit of a talk Dr. Schacter gave a few years ago:

....situations in which memory is present but wrong. It's not forgetting, but rather memory distortion, which we know is a fascinating and very important feature of our memories; that when we remember, we don't always remember accurately.

What I call misattribution occurs when we remember some aspect of a past event, but we attribute that memory to the incorrect source. Perhaps we think we really did something when we only imagined it. We know what that is, but we get the source wrong. We think we did it. In fact, we only imagined it.

Maybe we hear something from a friend, but we think we heard it on the radio last week. We misattribute our knowledge. This can have very important implications that we'll trace out in a few minutes, sometimes leading to a phenomenon (cut off here in that unfortunate Mac to PC translation) known as false recognition that I'll elaborate on.

So, when Libby testified he heard about Valerie Plame from Tim Russert, there was memory distortion and transience at work...he really heard it from someone else. And so on.

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    Libby Will Seek to Use Memory Expert at Trial | 50 comments (50 topical)
    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#1)
    by Talkleft Visitor on Wed Jul 19, 2006 at 09:02:41 PM EST
    Seems to me this defense is *too* good. Any time you get caught giving conflicting statements, you just claim "memory distortion". Get Out Of Jail Free. Presumably, cross examination will find out if there are patterns to "memory distortion" and whether Scooter's "lapses" followed these patterns.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#2)
    by Dadler on Wed Jul 19, 2006 at 09:24:55 PM EST
    I think the first question they should ask the memory expert is what he had for lunch two fridays ago. If he can't answer...he's no expert. Ahem.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#3)
    by jimakaPPJ on Wed Jul 19, 2006 at 09:25:07 PM EST
    Which is why you should do as all those did who were summoned to the various GJ's during the Clinton years and just say, "I don't remember," and then shut up.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#4)
    by squeaky on Wed Jul 19, 2006 at 09:30:00 PM EST
    I almost went into a trance reading the mesmer like rap from Dr. Schacter above. Seems like he could easily hypnotize the judge and jury. No doubt he could instill doubt that Simonides of Ceos' memory was shaky because of the war. Also, Harvard has good name recognition, if I remember correctly, or was that somewhere else. Hmmm...

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#5)
    by Talkleft Visitor on Wed Jul 19, 2006 at 10:34:27 PM EST
    The Alzheimer's Defense, forgot about that one...

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#6)
    by Repack Rider on Wed Jul 19, 2006 at 11:11:08 PM EST
    PPJ:
    Which is why you should do as all those did who were summoned to the various GJ's during the Clinton years and just say, "I don't remember," and then shut up.
    It's a little late for Scooter. His problem is that he remembered this event several different ways as each previous version became inoperable. But you didn't hold lying under oath against Clinton, so I'm sure you'll give Scooter a pass.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#7)
    by Talkleft Visitor on Thu Jul 20, 2006 at 04:39:48 AM EST
    Libby's defense, in short. "I'll never forget, what's his name?"

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#8)
    by Talkleft Visitor on Thu Jul 20, 2006 at 04:44:03 AM EST
    Didn't Bushbag's defense secretary, I forgot his name. Forget where it was that he was absolutely sure he knew exactly where thos WMD's were!

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#9)
    by Talkleft Visitor on Thu Jul 20, 2006 at 04:48:18 AM EST
    Didn't Bushbag forget to fire anyone who outed a Covert CIA operative. Didn't he forget wher he put Osama Bin what's his neme? I guess the entire Administration need's the help of a memory expert but i hear they continually forget where they put his phone number.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#10)
    by jimakaPPJ on Thu Jul 20, 2006 at 05:04:28 AM EST
    Repack - I never complained about him lying about his BJ. Perjury is something else. ED - Well, since no one has been convicted and/or charged, no he hasn't. Squeaky - Yeah... Wasn't his name Terry.... Berry ....?? Gee, I can't remember. Maybe Sherry??? No, that's what I had with lunch that day...

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#11)
    by Deconstructionist on Thu Jul 20, 2006 at 05:34:23 AM EST
    bush did not say he would fire anyone who was convicted of a crime in relation to the leak. He said he would fire anyone repsonsible for the leak. This illustrates the point I made elsewhere. Very poor tactical choices by the opponents of the Administration have allowed the Administration to appear as if it is being absolved so long as no legal sanctions are imposed. The leak itself and the reckless and thoughtless minds (which are also on charge of other far more important things) it shows making very unwise (at best) maneuvers for short-term partisan political reasons should be the focus. Instead everyone is keeping score of court cases.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#13)
    by Talkleft Visitor on Thu Jul 20, 2006 at 05:41:22 AM EST
    Jim, I believe--and my memory could be failing me--that Bush promised to fire anyone involved in the outing of Plame. Not to wait for a conviction. Stop moving the goal posts.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#14)
    by Talkleft Visitor on Thu Jul 20, 2006 at 05:42:30 AM EST
    Woops. You beat me to it Decon.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#15)
    by Talkleft Visitor on Thu Jul 20, 2006 at 06:09:35 AM EST
    Team Libby should have consulted with Professor Mack at Harvard, who studies the memories of people who believe that they were abducted by aliens... now there's a defense for Scooter, grey aliens made me do it!

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#16)
    by Che's Lounge on Thu Jul 20, 2006 at 06:57:32 AM EST
    Memory shmemory. Just read his f**king notes. You all remember NOTES, don't you?

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#17)
    by marty on Thu Jul 20, 2006 at 07:05:55 AM EST
    "Which is why you should..." I was going to quote ppj to answer, but why the hell even bother? He proves again and again that there is no level to which Bush ass-kissing will sink to excuse the frat boy and his cohorts.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#18)
    by Che's Lounge on Thu Jul 20, 2006 at 07:18:48 AM EST
    Decon stated, incorrectly: bush did not say he would fire anyone who was convicted of a crime in relation to the leak. He said he would fire anyone repsonsible for the leak. Oh Decon, here's a little memory jab for YOU: In the beginning the White House called the allegation that Rove disclosed classified information "totally ridiculous" and "simply not true," and stated that "if anyone in this administration was involved in it, they would no longer be in this administration. Your parsing of words is typical apologist BS. It's obvious from Dick Chainey's notes that Libby was not the only one, but one of several administration officals involved in the leak. Once again you have come here to criticize those who seek to right the terrible wrongs committed by The Emperor Chimp. Why don't you come down out of the cheap seats and get into the game? Your going to get a nosebleed shilling from way up there. But I will agree with one thing. What you do here is definitely Right. You don't ID the problem. You ARE the problem.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#19)
    by Deconstructionist on Thu Jul 20, 2006 at 07:24:13 AM EST
    Che: Learn to read. Then read what I wrote. Then ruminate as to how foolish you look when you attack me on the basis of the exact opposite of what I said.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#20)
    by Talkleft Visitor on Thu Jul 20, 2006 at 07:43:52 AM EST
    Cant't this guy be excluded from such testimony? Its potential for prejudicial impact far outweighs the relaibility of the science this guy is blabbering about.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#21)
    by Talkleft Visitor on Thu Jul 20, 2006 at 07:56:38 AM EST
    Memory experts are increasingly used at trials. They do fit the Daubert criteria. They can be essential in eyewitness identification cases. Here's a portion of a brief I wrote for Timothy McVeigh explaining what the criteria are and why the testimony should be admitted.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#22)
    by Deconstructionist on Thu Jul 20, 2006 at 07:58:00 AM EST
    This is just discovery at this point. the judge will ultimately have to decide whether to admit the testimony if the prosecution objects. Daubert makes clear the court's "gatekeeping" function that involves something different than the old Frye "generally accepted in the field" standard. Even post-Daubert, the standards for admission of expert testimony are fairly lenient. If such testimony is found to be "helpful" to the jury in deciding a relevant issue (no question LIBBY'S memory is relevant) then a qualified expert (someone who knows more than the average lay person by reason of education, experience, training, etc.) is permitted to testify if the "science" underlying his testimony meets the Daubert requirements-- (peer-reviewed,studies capable of replication etc.) AND the testimony is relevant. One question is whether testimony about the organic and psychological aspects of human memory in which the doc is an expert is relevant to the issues concerning Libby's memory specifically. In a somewhat related area, courts are split on the admission of memory/recall experts where a defendant is attempting to convince a jury that eyewitness testimony is unreliable. It's an interesting twist where the issue is the reliability of the defendant's memory. One thing that seems clear is that the expert would not be permitted to testify directly as to his belief concerning whether or not Libby's claims of deficient memory are true.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#23)
    by Talkleft Visitor on Thu Jul 20, 2006 at 07:59:45 AM EST
    I can picture it now Dr.Daniel L. Schacter on the stand and Fitz asking him two simple questions. 1) How is one's memory effected if they are being paid for their testimony? 2) Would I be able to produce an expert who totally disagrees with you and what would be the basis for their conclusions? Oh PPJ! I forgot to remind myself that you are the self appointed Comment Judge and critic around here. Hail to the Judge!

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#24)
    by Deconstructionist on Thu Jul 20, 2006 at 08:06:00 AM EST
    this isn't TV. He almost certainly would not be permitted to ask those questions "How is one's memory effected if they are being paid for their testimony?" That's argumentative, misstates the facts and is not an area in which the doctor would be considered an expert. "2) Would I be able to produce an expert who totally disagrees with you and what would be the basis for their conclusions?" Again argumentative, calls for speculation and this improper cross-examination. Of course, if Libby is allowed to offer such testimony the prosecution could offer its own exper who does disagree in rebuttal.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#25)
    by Talkleft Visitor on Thu Jul 20, 2006 at 08:12:02 AM EST
    Good comment Deconstructionist. Particularly about 1. Libby's lawyers needing to show "a fit" between the proferred testimony of the expert and the facts in Libby's case. 2. That the lawyers aren't calling the expert to give an opinion about whether Libby's memory got distorted which would not be admissible, only about the principles of memory distortion, so that the jurors could take the concept into account if they wish in determining whether Libby's memory was faulty.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#26)
    by Deconstructionist on Thu Jul 20, 2006 at 08:19:49 AM EST
    It's going to be a tough call as to whether using such testimony is a good idea. The tactical considerations are a lot different when you are using expert testimony to lay the basis for discrediting prosecution witness's ability to accurately and reliably recall events. I'd probably have to think i would very likely lose without it before taking the risk of it backfiring. The questons ED proposed are inadmissible but a good prosecutor could certainly make some points. I do think for instance, Fitzgeral probably would be allowed to ask: Doctor, isn't it true, that you are incapable of looking into a person's mind and determining whether or not he is telling the truth when he relates to you what he does or doesn't recall?" "And isn't your clinical work based on controlled experiments where you know what actually occurred when later asking the subjects what they recall?" "So, isn't it true that in your studies you know whether or not a subject's recall is accurate? "On the other hand, here you have no way of knowing what actually occurred, do you? "Therefore, you can't really testify as to anything specifically concerning Mr. Libby's memory of these events, can you?

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#27)
    by Talkleft Visitor on Thu Jul 20, 2006 at 09:13:30 AM EST
    Decon I like the made for TV version myself. I guess I watch to much Law and Order don't I. But I humble myself and defer to your more knowledgeable but boring cross examination! LOL

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#28)
    by desertswine on Thu Jul 20, 2006 at 10:03:13 AM EST
    "I have no memory. I don't remember that. I can't remember." My memory tells me that this is the old Reagan defense. Say, who wrote that? I can't remember.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#29)
    by jimakaPPJ on Thu Jul 20, 2006 at 10:15:05 AM EST
    c- law - The comments always assume that Plame was a covert agent and that outing her would be a crime. So far she has not been established as a covert agent, and no crime has been charged.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#30)
    by Deconstructionist on Thu Jul 20, 2006 at 10:24:05 AM EST
    My comments don't assume that. My comments are premised on my belief that regardless of her status what Cheney, Rove et al did was wrong (not necessarily a crime, but wrong). I think it is indisputable that indisputable that Bush set no condition of Plame being a covert agent within reach of the statute or any criminal culpability to trigger dismissal. (Of course, Bush can't just fire Cheney; he was elected. But, he can fire everyone else if they refuse to resign.)

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#31)
    by Talkleft Visitor on Thu Jul 20, 2006 at 10:33:19 AM EST
    Back in April I asked the following question and Squeaky graciously answered. From where I sit it still looks pertinent, particularly Squeakies last line. Still seems as feeble a defense today as it did then. Were it some toe rag stood before a judge with the same defense me wonders how far he would get.
    Posted by oscar wilde April 15, 2006 07:56 PM Tl, or anybody who could shed light on; given that Libby's defence team are a heavywieght outfit, why would they consider putting forward a defense based on "Not remembering" This strikes me as feeble in the least,and as regards to credibility, well it's just not, is it? Thanks Oscar. Posted by Squeaky April 15, 2006 08:44 PM OW- The 'memory defense' was used as a shot of perpetrating a grey mail scheme. Top Secret PDB's and other sensitive WH documents are asked for in discovery. The WH refuses to release them for national security reasons. The case gets dropped. Fitzgerald was careful to limit the charges hedging the need for that intrusive kind of discovery. The PDB's were ruled out by the judge as were a great deal of the other docs the defense wanted. the greymail scheme seems to have failed. At this point the memory defense is working against him.


    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#32)
    by jimakaPPJ on Thu Jul 20, 2006 at 01:12:18 PM EST
    Dec - Okay, all the Leties...;-) This was just politics by both sides.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#33)
    by Repack Rider on Thu Jul 20, 2006 at 01:25:36 PM EST
    The comments always assume that Plame was a covert agent and that outing her would be a crime.
    The CIA said she was. Who ya gonna believe on that? But as you know, in order to prevent Scooter from using graymail to avoid charges that he failed to protect classified information, Fitzgerald just pointed out that Scooter lied repeatedly under oath about the matter, which can be proven easily without resorting to classified material. Bottom line, it's an easier conviction, it cuts off an avenue of escape, and it puts a bad guy in jail.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#34)
    by Sailor on Thu Jul 20, 2006 at 01:43:59 PM EST
    The cia and doj both said it was a crime.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#35)
    by Deconstructionist on Thu Jul 20, 2006 at 01:51:42 PM EST
    Surely, you are not advocating a system where DOJ, or Lord help us all, the CIA, gets to decide what is and isn't a crime. That would seem to work against all the "deliver us from tyranny" stuff. Second, where did the CIA or DOJ ever issue such a finding? Again, very good arguments condemning the Administration can be made without making false assertions or implictly endorsing Executive Branch omnipotence (even if it divided against itself). Those good arguments get lost in all the noise, though, when really bad arguments based on false factual assertions dominate.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#36)
    by Sailor on Thu Jul 20, 2006 at 02:33:46 PM EST
    decon misunderestimates us again. The cia gets to determine her undercover status. the said in their opinion, and due to her covert status, they thought a crime had been committed. they then asked the doj to look into it. the doj started an investigation and had it hindered by scooter. a judge will determine scooter's guilt/not. the investigation is not over. Is decon repeating, like ppj, the big lie that she wasn't covert? sheesh!

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#37)
    by Talkleft Visitor on Thu Jul 20, 2006 at 02:55:49 PM EST
    So far she has not been established as a covert agent From TPM
    Go to page 5 of the indictment. Top of the page, item #9. On or about June 12, 2003, LIBBY was advised by the Vice President of the United States that Wilson's wife worked at the Central Intelligence Agency in the Counterproliferation Divison. LIBBY understood that the Vice President had learned this information from the CIA. This is a crucial piece of information. The Counterproliferation Division (CPD) is part of the CIA's Directorate of Operations, i.e., not the Directorate of Intelligence, the branch of the CIA where 'analysts' come from, but the DO, where the spies, the 'operatives', come from. Libby's a long time national security hand. He knows exactly what CPD is and where it is. So does Cheney. They both knew. It's right there in the indictment. Late Update: To be clear, there are of course support staff of various sorts in the DO. Not everyone is a field operative or a 'spy', certainly not in the colloquial sense of the term. But this is the essential difference between these two branches of the agency. These two guys had every reason to know what they were doing.
    If that's too elitist and complicated for some folks, just download a copy of the Fitzpatrick press conference and search for the word covert. No Rove points for you today, PPJ.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#38)
    by Deconstructionist on Thu Jul 20, 2006 at 02:56:53 PM EST
    Sailor: "decon misunderestimates us again." I'd suggest it is impossible to "misunderestimate" you. " The cia gets to determine her undercover status." No, it doesn't. It provides evidence as to her status fromm its official records and refers the case to DOJ if it believes that step is necessary. DOJ doesn't get to decide the status either; it merely determines whether it thinks such evidence warrants presentment to a grand jury. Based on that, a grand jury can decide whether probable cause exists that every element of the alleged crime exists. THEN, the determination is made by a finder of fact (a jury if the defendant insists) IN COURT. "the investigation is not over." You got one thing right. "Is decon repeating, like ppj, the big lie that she wasn't covert? sheesh!" The issue isn't merely "whether she was covert." The issue is whether she operated overseas as a covert agent within 5 years of the disclosure and whether that status had been otherwise disclosed prior to disclosure after Wilson's op-ed piece. If all that was established, the issue of whether Libby, rove, cheny or whoever knew her protected status and willfully disclosed it with the intent of unlawfully providing such information in breach of national security. Obviously, it is a very difficult statute to violate.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#39)
    by Deconstructionist on Thu Jul 20, 2006 at 03:00:35 PM EST
    Working at the CIs is a far cry from being an COVERT AGENT let alone one who has operated overseas in the past 5 years. Most CIA employees are not covert agents.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#40)
    by Deconstructionist on Thu Jul 20, 2006 at 03:21:35 PM EST
    Here are the relvant code sections: PROTECTION OF IDENTITIES OF CERTAIN UNITED STATES UNDERCOVER INTELLIGENCE OFFICERS, AGENTS, INFORMANTS, AND SOURCES SEC. 601. (a) Whoever, having or having had authorized ACCESS TO CLASSIFIED INFORMATION that identifies a covert agent, INTENTIONALLY DISCLOSES any information identifying such covert agent to any individual not authorized to receive classified information, KNOWING THAT THE INFORMATION DISCLOSED SO IDENTIFIES such covert agent AND that the United States is taking AFFIRMATIVE MEASURES TO CONCEAL such covert agent's intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than ten years, or both. (b) Whoever, AS A RESULT of having authorized access to classified information, learns the identity of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than five years, or both. (c) Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual's classified intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than three years, or both. (d) A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment. DEFENSES AND EXCEPTIONS SEC. 602. (a) It is a DEFENSE to a prosecution under section 601 that before the commission of the offense with which the defendant is charged, the United States had publicly ACKNOWLEDGED OR REVEALED the intelligence relationship to the United States of the individual the disclosure of whose intelligence relationship to the United States is the basis for the prosecution. (b)(1) Subject to paragraph (2), NO PERSON other than a person committing an offense under section 601 SHALL BE SUBJECT to prosecution under such section by virtue of section 2 [AIDING AND ABETTING] or 4 [MISPRISION OF FELONY] of title 18, United States Code, OR shall be subject to prosecution for CONSPIRACY to commit an offense under such section. (2) Paragraph (1) shall not apply (A) in the case of a person who acted in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, or (B) in the case of a person who has authorized access to classified information. (c) It shall not be an offense under section 601 to transmit information described in such section directly to either congressional intelligence committee. (d) It shall not be an offense under section 601 for an individual to disclose information that solely identifies himself as a covert agent. REPORT SEC. 603. (a) The President, after receiving information from the Director of Central Intelligence, shall submit to the congressional intelligence committees an annual report on measures to protect the identities of covert agents, and on any other matter relevant to the protection of the identities of covert agents. The date for the submittal of the report shall be the date provided in section 507. [DO you think Fitzgerald might have given a lot of weight to whether or not Plame appeared in the most recent report?] (b) The report described in subsection (a) shall be exempt from any requirement for publication or disclosure. EXTRATERRITORIAL JURISDICTION SEC. 604. There is jurisdiction over an offense under section 601 committed outside the United States if the individual committing the offense is a citizen of the United States or an alien lawfully admitted to the United States for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act). PROVIDING INFORMATION TO CONGRESS SEC. 605. Nothing in this title may be construed as authority to withhold information from the Congress or from a committee of either House of Congress. DEFINITIONS SEC. 606. For the purposes of this title: (1) The term "classified information" means information or material DESIGNATEDOR CLEARLY MARKED OR CLEARLY REPRESENTED, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as REQUIRING a specific degree of protection against unauthorized disclosure for reasons of NATIONAL SECURITY. (2) The term "authorized", when used with respect to access to classified information, means having authority, right, or permission pursuant to the provisions of a statute, Executive order, directive of the head of any department or agency engaged in foreign intelligence or counterintelligence activities, order of any United States court, or provisions of any Rule of the House of Representatives or resolution of the Senate which assigns responsibility within the respective House of Congress for the oversight of intelligence activities. (3) The term "disclose" means to communicate, provide, impart, transmit, transfer, convey, publish, or otherwise make available. (4) The term "covert agent" means-- (A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency-- (i) whose identity as such an officer, employee, or member is classified information, and (ii) who is SERVING OUTSIDE THE UNITED STATES OR HAS WITHIN THE LAST FIVE YEARS served outside the United States; or (B) a United States citizen whose intelligence relationship to the United States is classified information, and-- (i) who RESIDES AND ACTS OUTSIDE THE UNITED STATES as an agent of, or informant or source of operational assistance to, an intelligence agency, or (ii) who is AT THE TIME of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation; or (C) an individual, other than a United States citizen, whose past or present intelligence relationship to the United States is classified information and who is a present or former agent of, or a present or former informant or source of operational assistance to, an intelligence agency. (5) The term "intelligence agency" means the Central Intelligence Agency, a foreign intelligence component of the Department of Defense, or the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation. (6) The term "informant" means any individual who furnishes information to an intelligence agency in the course of a confidential relationship protecting the identity of such individual from public disclosure. (7) The terms "officer" and "employee" have the meanings given such terms by section 2104 and 2105, respectively, of title 5, United States Code. (8) The term "Armed Forces" means the Army, Navy, Air Force, Marine Corps, and Coast Guard. (9) The term "United States", when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands. (10) The term "pattern of activities" requires a series of acts with a common purpose or objective.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#41)
    by Sailor on Thu Jul 20, 2006 at 04:05:17 PM EST
    The CIA assigns covert status. The CIA determines covert status. The CIA said she was covert. The CIA asked the DoJ to investigate who leaked her covert status. The fact that she worked for a CIA front company, and didn't list the CIA as her employer, that her public job description was "energy industry analyst" when she was actually working on WMDs, the fact that family and friends didn't know of her CIA employment, the fact that novak labeled her as covert in his original column all point to the FACT that she was covert. See 'affirmative measures.' As far as 'not overseas in the last 5 years' goes, how do you know? She was an NOC assett for the cia. Of course most cia employees aren't covert ... rather a stupid strawman that no one ever claimed.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#42)
    by Repack Rider on Thu Jul 20, 2006 at 04:05:26 PM EST
    Most CIA employees are not covert agents.
    The nature of Valerie Plame's job was classified information because it was part of the Non Official Cover called Brewster-Jennings. Anyone who revealed her occupation also blew the cover on Brewster-Jennings, and alerted anyone who had done business with that company that they had been doing business with the CIA. Do you agree that maintaining the cover of the WMD control company was a good reason to classify her job, whether or not she qualified as "covert," and that anyone who revealed her name and by extension blew open a CIA cover that had operated for years to control the spread of WMD, should be imprisoned? Do you further agree that the CIA is in a better position to decide whether she was "covert" than you are? Since they made the claim, the ball is in your court to refute it.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#43)
    by Deconstructionist on Thu Jul 20, 2006 at 04:12:37 PM EST
    Just about the last people on Earth I want deciding such things are those in the CIA. Questions of competence aside, I can think of almost no greater peril to civil liberties than allowing the CIA to decide how intelligence disclosure laws should be enforced. I thought we were AGAINST a police state. WAAAAAAAAAAAAAAAY, too often people here consider nothing but immediate and transient partisan political considerations without pausing to THINK about far more important and enduring necessities of a free society. Just because doing something right this second will hurt Republicans right this second is NOT a good reason to allow it.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#44)
    by Deconstructionist on Thu Jul 20, 2006 at 04:18:45 PM EST
    "Do you agree that ..., whether or not she qualified as "covert," and that anyone who revealed her name and by extension blew open a CIA cover that had operated for years to control the spread of WMD, should be imprisoned?" I could not disagree more. A government that can imprison people who cannot be proven to have violated the law as it is written is a government with unchecked power to oppress. It is mind boggling the willingness of people to cede power to the government-- as long as the government picks on people they don't like. It's also frightening becayuse the existence of such thinking sets the groundwork for ignoring the rule of law andthe establishment of authoritarian government. I don't want authoritarianism whether it comes from the Left, Right or the middle. It's all bad.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#45)
    by Deconstructionist on Thu Jul 20, 2006 at 04:22:15 PM EST
    Sailor: the reference to p. 5 of the indictment was a reference to nothing more than that she worked at the CIA, but it was portrayed as establishing she was within purview of the stature, so AGAIN AS ALWAYS you are wrong.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#46)
    by Sailor on Thu Jul 20, 2006 at 04:40:07 PM EST
    repack-
    do you further agree that the CIA is in a better position to decide whether she was "covert" than you are? Since they made the claim, the ball is in your court to refute it.
    decon-
    I could not disagree more.
    Once again you deliberately misconstrue the point. The CIA does convey a 'covert' or especially 'NOC' status to their agents. When that was violated, they asked the DoJ to investigate. There never has been a claim that the CIA can convict and lockup the folks responsible. Stupid strawman.
    the reference to p. 5 of the indictment
    I didn't reference the indictment, I referenced the law.
    I don't want authoritarianism whether it comes from the Left, Right or the middle. It's all bad.
    Since you constantly carry water for bushco's violations of the law and the constitution I can only conclude that not only are you wrong, but deliberately wrong. bush claims he is above the law, and you have endorsed his actions at every point.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#47)
    by Deconstructionist on Thu Jul 20, 2006 at 04:51:08 PM EST
    Sailor: No, I have never endorsed a single action by Bush-- not once. There is a world of difference between pointing out how you totally lack the ability to think, appreciate the consequences of what YOU ENDORSE, or understand the things about which you spout off and endorsing Bush. That you are always wrong in no way makes Bush right and Bush being wrong in no way makes what you say right.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#48)
    by jimakaPPJ on Thu Jul 20, 2006 at 09:06:59 PM EST
    Deconstructionist wrote:
    I thought we were AGAINST a police state.
    No, they are against a Repub police state, as I hope you are starting to see. ;-) Dark Avenger - Wrong again.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#49)
    by Talkleft Visitor on Thu Jul 20, 2006 at 09:36:40 PM EST
    Dark Avenger - Wrong again. Thanks for admitting it this time, PPJ, you just omitted the "I'm" or "I am", but, hey, we know that you're only human and that you'll do better in the future :>)

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#50)
    by jimakaPPJ on Fri Jul 21, 2006 at 06:47:05 AM EST
    Dark Avenger.... You are wrong, again... As Dec write:
    the reference to p. 5 of the indictment was a reference to nothing more than that she worked at the CIA, but it was portrayed as establishing she was within purview of the stature, so AGAIN AS ALWAYS you are wrong
    BTW - Since you were the only person to reference page 5, Dec was answering your claim. Dec also wrote:
    The issue isn't merely "whether she was covert." The issue is whether she operated overseas as a covert agent within 5 years of the disclosure and whether that status had been otherwise disclosed prior to disclosure after Wilson's op-ed piece.
    He also wrote:
    (quoting sailor)" The cia gets to determine her undercover status." No, it doesn't. It provides evidence as to her status fromm its official records and refers the case to DOJ if it believes that step is necessary. DOJ doesn't get to decide the status either; it merely determines whether it thinks such evidence warrants presentment to a grand jury. Based on that, a grand jury can decide whether probable cause exists that every element of the alleged crime exists
    So the CIA submitted a claim that she was covert. The SP investigated and presented the iformation to the GJ. The GJ did not indict Libby for exposing a covert agent. Plain enough. She wasn't covert. That you continue to claim that she was is meaningless and merely demonstrates that you have extreme difficultly thinking logically. Simpler. If a bank claimed that you had robbed them, and if the police/cj system investigated you and if the information was presented to a grand jury and if the grand jury did not indict you, you would not e bank robber. No matter what anyone wanted to believe, or how badly they wanted you be one.

    Re: Libby Will Seek to Use Memory Expert at Trial (none / 0) (#51)
    by Talkleft Visitor on Fri Jul 21, 2006 at 07:06:41 AM EST
    The GJ did not indict Libby for exposing a covert agent. True enough, but that would be because he doesn't have enough evidence to do so, not because she wasn't covert. That you continue to claim that she was is meaningless and merely demonstrates that you have extreme difficultly thinking logically. No, you have extreme difficulty in concluding that Plames' status was covert, given that she worked in the DO, as it says in the Libby indictment, and given what Fitzpatrick said in his press conference about her. If someone wants to see an example of illogical thinking in action, I suggest they can start here. if the grand jury did not indict you, you would not e bank robber No, it would mean that they didn't have enough evidence to indict me, it wouldn't mean that I didn't rob the bank. You would do well to also check the part of the Fitzpatrick press conference where he uses a baseball analogy to explain his case. You're getting shriller and dumber by the day, PPJ, not that there's anything wrong with that :)

    Libby Will Seek to Use Memory Expert at Trial | 50 comments (50 topical)