Carol Platt Liebau: One More Time for the Record

Wednesday, October 26, 2005

One More Time for the Record

OK, let's try to get this straight.

IF Karl Rove lied to the grand jury and IF he obstructed justice, that's wrong and he should be punished. No one's arguing about that. But so far, there is no evidence to that effect. When there is, I'll consider it.

But one of the comments below asks, "Since when is criminal activity based on violation of the intent of the law instead of the law itself?" And that represents a basic misunderstanding of the law at issue here.

Sure, there are laws -- like speed limit laws -- that are almost a matter of strict liability; you break 'em, whatever the reason, and you're hosed. That's the first category. But most laws require what they call, in law school lingo, "mens rea" -- that is, a wrongful intent. If you commit a certain act, you may well be guilty of something, but depending on the intent of the perpetrator, the crime's gravity and the intensity of a punishment varies greatly -- it's the difference between, for example, first degree murder and negligent homicide (or manslaughter). That's the second category.

Then there's a third category -- some laws actually require a certain specific intent for the act at issue to be punishable at all. Such is the Intelligence Identities Protection Act of 1982 -- the law that Rove and Libby supposedly broke by allegedly "outing" Valerie Plame.

As noted in a brief filed by a number of media companies arguing that no crime had been committed (a link to it is here), in order for anyone to violate the Act, all these elements must be met:

The United States is taking affirmative measures to conceal a covert intelligence agent's relationship with the United States;

The covert agent whose identity was disclosed is an employee of an intelligence agency;

The covert agent whose identity was disclosed has a relationshiop with such agency that is classified;

At the time of the disclosure, the covert agent whose identity was disclosed was serving outside the Unitd States or had done so within five years of the disclosure;

The person disclosing the identity of that covert agent must be authorized, directly or indirectly, to have access to classified information that identifies the covert agent;

The person disclosing the identity KNOWS that the government is taking affirmative measures to conceal the relationship;

The person disclosing the identity KNOWS that the information so identifies the covert agent;

The disclosure is intentional; and

The identity is disclosed to a person not having authorization to receive such information.


Given these requirements, clearly, two different people could disclose the same name -- and one could be guilty and one innocent, depending on who knew what, when, and about whom.

That's how IDB can correctly, in my judgment, note that this law (which was drafted in the wake of Phillip Agee deliberately disclosing the identities of CIA station chiefs abroad, resulting in their assassinations) was never intended to criminalize the kinds of conversations Rove and Libby conducted with reporters, where "a desk jockey wife of an op/ed writer for The Times was mentioned but not identified." People argue all the time -- often correctly -- that laws drafted for one purpose are being misused when they'r eapplied to another situation. A prime example would be the Reno Justice Department applying RICO, a racketeering act drafted to prevent Mafia activities, to abortion clinic protestors.

And no, even all that won't (and shouldn't) exonerate Rove and Libby if they lied to the grand jury or otherwise conspired to obstruct justice in the aftermath. But the left has been working overtime to accuse people of "lying" -- completely ignoring the fact that a lie requires (here's that word again) an intent to deceive. When Clinton said, "I did not have sex with that woman," he lied. He knew he had been getting blow jobs in the Oval Office. When Bush told us that Iraq had weapons of mass destruction, he may have been mistaken (as, then, Clinton and other Democrats were, who said the same thing) -- but so far, there's no evidence that he knew there were, in fact, no weapons and deliberately chose to say something different.

It's an important distinction. If you know Bush is President, but you tell everyone that the President is Reagan, you're lying. If you go into a coma in 1984, and you awaken tomorrow -- and then, upon being asked, you tell someone that Ronald Reagan is President -- you're mistaken. Not a liar.

It's an important distinction.

4 Comments:

Blogger Mr. Twister said...

IF Karl Rove lied to the grand jury and IF he obstructed justice, that's wrong and he should be punished. No one's arguing about that.

That's a bit (like 180 degrees) different then what you posted just one entry before. You quoted IBD, But Karl Rove did not lie under oath. Karl Rove did not obstruct justice. and then you concluded personally, "They've got a point."

Those are not the same thing at all.

3:20 PM  
Blogger Mr. Twister said...

...a desk jockey wife of an op/ed writer for The Times was mentioned but not identified.

Carol, how is telling a reporter from Time magazine (Karl Rove) or the NY Times (Scooter Libby) that Joe Wilson's wife is a CIA agent, not identifying Valerie Plame?

You might want to give up now; you are only digging yourself deeper.

3:26 PM  
Blogger Mr. Twister said...

When Clinton said, "I did not have sex with that woman," he lied.

And when George Bush claimed he wanted to get to the bottom of the Plame leak, when he already knew Karl Rove was the leaker; George Bush lied.

And when Dick Cheney went on Meet the Press and disclaimed any knowledge of Joe Wilson after actually being fully briefed about Joe Wilson and his wife by George Tenet; Dick Cheney lied.

I'm not sure what any of these examples have to do with perjury and obstruction of justice, but there you go.

4:03 PM  
Blogger Draino said...

Carol, your command of the law is impressive. However, you continually underestimate the sophistication of your readers.

Joe Wilson, the diplomat you so condescendingly refer to as "that NYT op-ed columnist. Was THE authority on whether or not Iraq purchased uranium from Niger. NO ONE ELSE has produced anyone of equal authority to rebut his claims. He bravely came forward to point out A BLATANT LIE not just whispered here or there, not just fed to the media but explicitly announced BY THE PRESIDENT IN HIS STATE OF THE UNION ADDRESS.

No matter how you slice it this administration lied. They were not "mistaken" about WMD's. THEY LIED, THEY LIED, THEY LIED.

And even if they didn't (which they did) You don't take a country to war and then say "oops I made a mistake" "oops we killed your sons and daughters for a wittle accident." That is utter bull-dung!!

So if Fearless Leader "made a witty bitty mistake, well then Carol you should provide us with a lecture about criminal negligence because AT BEST that is what George W. Bush is guilty of.

6:33 PM  

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