Ticomaya wrote:kuvasz wrote:Ticomaya wrote:Well, Larry Johnson doesn't help explain whether she is a "covert agent" under Sec. 426, does he? He says she was "undercover," which doesn't tell us anything about whether she was a "covert agent" at the time of the disclosure. In short, he adds nothing to the analysis.
You need to stick a fork in the ass of your fetish about Plame's status and turn it over, it's done. The Federal Judiciary has already decided in two separate rulings that it considers her status to have been covert under the appropriate statutes at the time Novak outed her.
Really? Can you show me the quote from the ruling where they make that finding?
Ah, use the word "finding?" A juicy word to obfusticate the issue. A "finding" here is not relevant to the discussion. What is relevant is that in numerous passages the Court asserts the likelihood that a crime has been committed. To arrive at that position is to accept beforehand that Plame was covert.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.pdf
Quote:United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2004 Decided February 15, 2005
Reissued April 4, 2005
No. 04-3138
IN RE: GRAND JURY SUBPOENA, JUDITH MILLER
Consolidated with
04-3139, 04-3140
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
SENTELLE, Circuit Judge: An investigative reporter for the
New York Times; the White House correspondent for the
weekly news magazine Time; and Time, Inc., the publisher of
Time, appeal from orders of the District Court for the District of
Columbia finding all three appellants in civil contempt for
refusing to give evidence in response to grand jury subpoenas
served by Special Counsel Patrick J. Fitzgerald. Appellants
assert that the information concealed by them, specifically the
identity of confidential sources, is protected by a reporter's
privilege arising from the First Amendment, or failing that, by
federal common law privilege. The District Court held that
neither the First Amendment nor the federal common law
provides protection for journalists' confidential sources in the
context of a grand jury investigation. For the reasons set forth
below, we agree with the District Court that there is no First
Amendment privilege protecting the evidence sought. We
further conclude that if any such common law privilege exists,
it is not absolute, and in this case has been overcome by the
filings of the Special Counsel with the District Court. We
further conclude that other assignments of error raised by
appellants are without merit. We therefore affirm the decision
of the District Court.
pages 6 - 7
Quote:The appellants have proceeded with common counsel and
common briefing in a consolidated proceeding before this court.
They assert four theories for reversal.
Their first claim is that the First
Amendment affords journalists a constitutional right to
conceal their confidential sources even against the subpoenas of
grand juries. Secondly, they claim that reporters enjoy an
evidentiary privilege under the common law to conceal
confidential sources. Adjunct to this claim, while denying that
the privilege is less than absolute, they argue that if the privilege
is in fact qualified, the United States has not overcome the
privilege. Thirdly, appellants argue that their due process rights
were violated by the Special Counsel's ex parte and in camera
submission of evidence to the court to establish that the United
States had overcome any qualified privilege. Finally, they argue
that the Special Counsel failed to comply with Department of
Justice guidelines for the issuance of subpoenas to journalists,
and that the failure to comply is an independent ground for
reversal of their contempt conviction. Finding no grounds for
relief under the First Amendment, due process clause, or
Department of Justice guidelines, and persuaded that any
common law privilege that exists would be overcome in this
case, we affirm the judgment of the District Court for the
reasons set out more fully below.
Pages 20-21
Quote:Special Counsel's compliance.
The guidelines in question are set forth in 28 C.F.R. § 50.10
and the United States Attorney's Manual, § 9-2.161. Those
guidelines provide that subpoenas for testimony by news media
must be approved by the Attorney General, a requirement not
pertinent in the present case as the Special Counsel had received
delegation of all the Attorney General's authority, and should
meet the following standards:
(a) "In criminal cases, there should be reasonable grounds
to believe, based on information obtained from
nonmedia sources, that a crime has occurred, and that
the information sought is essential to a successful
investigation-particularly with reference to
establishing guilt or innocence. The subpoena should
not be used to obtain peripheral, nonessential, or
speculative information." 28 C.F.R. § 50.10(f)(1).
page 10
Quote:As can be seen from the account of the underlying facts in
Branzburg, there is no material factual distinction between the
petitions before the Supreme Court in Branzburg and the
appeals before us today. Each of the reporters in Branzburg
claimed to have received communications from sources in
confidence, just as the journalists before us claimed to have
done. At least one of the petitioners in Branzburg had witnessed
the commission of crimes. On the record before us, there is at
least sufficient allegation to warrant grand jury inquiry that one
or both journalists received information concerning the identity
of a covert operative of the United States from government
employees acting in violation of the law by making the
disclosure.In language as relevant to the alleged illegal disclosure of
the identity of covert agents[/u] as it was to the alleged illegal
processing of hashish, the Court stated that it could not
"seriously entertain the notion that the First Amendment protects
a newsman's agreement to conceal the criminal conduct of his
source, or evidence thereof, on the theory that it is better to write
about a crime than to do something about it." Id. at 692.
Lest there be any mistake as to the breadth of the rejection
of the claimed First Amendment privilege, the High Court went
on to recognize that "there remain those situations where a
source is not engaged in criminal conduct but has information
suggesting illegal conduct by others." Id. at 693. As to this
category of informants, the Court was equally adamant in
rejecting the claim of First Amendment privilege:
[W]e cannot accept the argument that the public interest in
possible future news about crimes from undisclosed,
unverified sources must take precedence over the public
interest in pursuing and prosecuting those crimes reported
to the press by informants and in thus deterring the
commission of such crimes in the future.
The Branzburg Court further supported the rejection of this
claimed privilege by the commonsense observation that "it is
obvious that agreements to conceal information relevant to the
commission of crime[/u] have very little to recommend them from
the standpoint of public policy." Id. at 696. While the Court
recognized the right of the press to abide by its agreements not
to publish information that it has, the Court stated unequivocally
that "the right to withhold news is not equivalent to a First
Amendment exemption from an ordinary duty of all other
citizens to furnish relevant information to a grand jury
performing an important public function." Id. at 697.
We have pressed appellants for some distinction between
the facts before the Supreme Court in Branzburg and those
before us today. They have offered none, nor have we
independently found any. Unquestionably, the Supreme Court
decided in Branzburg that there is no First Amendment privilege
protecting journalists from appearing before a grand jury or
from testifying before a grand jury or otherwise providing
evidence to a grand jury regardless of any confidence promised
by the reporter to any source. The Highest Court has spoken and
never revisited the question. Without doubt, that is the end of
the matter.
Ticomaya wrote:kuvasz wrote:It is not yours, mine, Larry Johnson's, or even Special Counsel Fitzgerald's decision in this matter, the courts have decided Plame was covert based upon what Fitzgerald's open and ex parte presentations provided to Judge Hogan and the appeals committee.
See above.
See above
Ticomaya wrote:kuvasz wrote:Crimminy, when you threw down the Appellate Court ruling as your supporting evidence you didn't even take the time to read it thoroughly and learn about Fitzgerald's ex parte presentation to Judge Hogan. But it was described in each Appellate Court ruling as providing basic information for presumption that criminal activity had occurred, and was mentioned as an important feature of the appeal in the amicus brief by Toensiling.
Here you reveal, yet again, the limits of your understanding -- and show your propensity to jump to make a factual assumption. You also forget that I read the ruling before you did.
You might well have read
portions of it before I did but I doubt you read the entire document as I did, for if you had you would have seen that the courts rejected the amicus brief's claim that Plame was not a covert agent.
The evidence for this is contained in the document of which portions you posted, and I posted the actual pertainent passages earlier
Quote:Finding no grounds for
relief under the First Amendment, due process clause, or
Department of Justice guidelines, and persuaded that any
common law privilege that exists would be overcome in this
case, we affirm the judgment of the District Court for the
reasons set out more fully below.
Ticomaya wrote:When I did, I certainly read about the ex parte, in camera presentation. Why do you feel that means the Appellate Court found her to be a "covert agent"? Are you that comfortable making logical leaps of faith that you can make that claim, unsubstantiated by the facts except as you assume them to be?
I will leave the obtuse mouthings of faith to your likes, I use logic here. The Court would not have cited
Branzburg on the legitimacy of a Grand Jury to issue subpoenas in investigations of criminal activity if it did not accept that Plame was considered a covert agent when Novak outed her.
Citing
Branzburg demands the a priori fact that the judges accept the likeihood that a crime was committed. They arrived at that position only if they were convinced of it by Fitzgerald's presentations before them that Plame was a covert agent at the time she was outed.
Ticomaya wrote:I should take this opportunity to remind you that you also assign meaning to the Supreme Court's refusal to grant certiorari to the Judith Miller case as having meaning it certainly did not have. You appear to be demonstrating a pattern.
Of course I assign meaning to the Supreme Court's rejection of certiorari or any appeal to the high court.
Any ruling by an Appellate Court that is not taken up and retried before the Supreme Court is considered valid law in that jurisdicton, as are the Court's reasoning and assertions made in arriving at the ruling at the Appellate level.
It let stand what the Appellate Court affirms under
Branzburg, viz.,
in the pursuit of the truth in a criminal investigation a Grand Jury has a legitimate right to issue subpoenas that must be obeyed.
Ticomaya wrote:kuvasz wrote:The court rejected the argument that Plame was not covert. Go back and read the pertinent passages on this, not just the ones you posted.
They refer to her as "allegedly covert." Again, it would be helpful if you would cite to the relevant specific passages you feel are supportive of your position.
I assume here I am going to have to post the actual words of the Hogan decision or the Appellate review to negate the "allegedly covert" phrase?
They say the following in reference to the matter of the legitimacy of the Grand Jury's subpoena authority.
Quote: At least one of the petitioners in Branzburg had witnessed
the commission of crimes. On the record before us, there is at
least sufficient allegation to warrant grand jury inquiry that one
or both journalists received information concerning the identity
of a covert operative of the United States from government
employees acting in violation of the law by making the
disclosure.
The Court's use of "allegation" refers to the commission of a crime. It is not questioning Plame's covert status.
Ticomaya wrote:kuvasz wrote:I can appreciate that in the course of one's obligations as an attorney one may be required to argue a premise that one knows runs counter to the facts in order to provide the best legal advice possible to win a case, but that level of double-think is not one ought to have on display as a badge of honor outside a courtroom.
In this case it is you who appears to be arguing facts not in evidence. It is you, not I, who would be called up to the bench and censored.
Arguing facts? Hardly so, I am stating them and you are in denial of them. The Appellate Court has established the facts, and the fact pertinent to this discussion is that the court accepted Fitzgerald's argument that Plame was a covert agent.
Ticomaya wrote:kuvasz wrote:Those of us, let's say more classically trained to be objective consider facts more important than winning an argument and find such double-think just repugnant bull$hit.
lol. I find you to be anything but objective, and your argument in this regard is a "classic" case in point. You seem to like to play fast and loose with the facts.
It is clear that you reject that the Federal Judiciary has already spoken on Plame's covert status. It is also clear that you did not do your homework before you posted passages of the Appellate Review board's decision, expecting no one else to actually read in detail the Appellate Court's reasoning for invoking
Branzburg in their decisions. Sloppy, sloppy .
You bring new meaning to the term
"fast and loose" by ignoring the fact that the Judge Hoan and Appellate Court rejected the claim that the Grand Jury's subpoena power was illegitimate, based upon an accusation that it was likely no crime occurred. It upheld that the reasoning for the Grand Jury to issue subpoenas was based upon legitimate concern that a law had been broken. For this to occur the Courts accepted the argument of Fitzgerald that Plame was a covert agent.
You must have been related to that legendary lawyer who was defending a guy who was accused of biting off the ear of another man in bar room fight, and when he cross examined a witness for the prosecution asked him if he had seen the defendant biting off the ear of the victim. When the witness admitted that "no," that actually he had not seen the defendant bit the victim's ear, the defending attorney set about to cajole the witness for saying that his client bit off the victim's ear. To which the wtiness said, "Well sir, I might not have seen the defendent bite of the victim's ear, but I sure as hell saw him spit it out of his mouth."
<Now look who's "parsing">
