News Intelligence Analysis
TREASONGATE: US COURT OF APPEALS:
"Special Counsel's Showing Decides
The Case"
by Citizen
Spook
While Joe Wilson, who still hasn't mentioned the hovering ominous
specter of 18 USC 794, is in damage control mode ... and Judith
Miller continues to whine about being put in jail for protecting
criminals and crimes, I thought it would make good reading to
summarize the incendiary 83 page opinion issued by The US Court
of Appeals (D.C. Circuit), IN
RE: GRAND JURY SUBPOENA, JUDITH MILLER so you can have some
judicial perspective from the three judge appellate tribunal
as to the seriousness of the crimes Fitzgerald is pursuing.
This Court of Appeals decision will be interesting to readers
of this blog since it not only damns the crimes of the Bush administration,
but it also backs up the issue of Fitzgerald's
plenary authority as acting Attorney General for the Tgate
prosecution, and cites United
States v. Williams to witness authority for the argument
that the federal grand jury acts as an independent branch of
the US Government.
The decision also tackles the question of whether bloggers
are entitled to the same freedom of the press protections as
all other journalists.
The Court of Appeals circuit judges had to perform a preliminary
adjudication of the facts and the law in Treasongate to determine
if the press (Miller and Cooper in this case) were entitled to
a special privilege to protect their leak sources. And in doing
so the Judges put incredible anti-Bush administration statements
on the record which have not been reported in the main stream
media. These are crushing blows to the Bush administration.
Both the Court of Appeals, and the District Court below it,
after reviewing eight and a half pages of classified and redacted
proofs presented by Special Counsel Fitzgerald's office, held
that the evidence was so serious that they could not in good
conscience allow the press to protect the criminals and crimes
that had been committed.
The decision of the Court of Appeals in this matter gives
me hope that there will be serious prosecutions coming down upon
the Treasongate "perpetraitors".
Despite the main stream media mantra that Fitzgerald has damaged
freedom of the press, it's obvious from reading the full opinion
that this three judge appellate tribunal, spearheaded by Judge
Tatel, did, in fact, clarify this previously muddy issue of source
protection. Tatel's concurring opinion found that, despite controlling
US Supreme Court precedent, Branzburg
v. Hayes, mandating that the press does not have a special
privilege to protect sources under the 1st Amendment, such a
privilege does exist in the common law. Judge Tatel sought to
create a test to balance the seriousness of the crimes committed
against the needs of the press to protect their sources.
Tatel attempted to make new law by crafting a logical test
to balance these issues, then applied the test to the Tgate fact
pattern, only to find that the Special Counsel had proved that
the "gravity of the suspected crime" was far more important
than the news value of the leaked information.
The other two Judges were so moved by Fitzgerald's showing
of proof that they determined no test needed to be crafted since
Special Counsel's evidence was strong enough to defeat any test
they might possibly craft. In the interest of Judicial restraint
the majority opinion does not mention the test created by Tatel.
I first became aware of this Appellate Court decision when
I read Lawrence
O'Donnel's analysis of it in the July 7, 2005, Huffington
Post, wherein he makes reference to the "eight redacted
pages". Let me explain what those eight redacted pages (actually
eight and a half redacted pages) mean, and what they don't mean.
From the middle of page 72 (using the PDF file page count)
through page 80, the court's opinion contains blank pages which
represent the redacted, classified proofs tendered by Special
Counsel to the court. The middle of page 72 through the top of
page 76 is the blank space that refers to evidence pertaining
to Judith Miller's sources. And from Page 76 through page 80
is the blank space which refers to Cooper's sources. These eight
and a half redacted pages are what the Court of Appeals examined
to determine whether Cooper and Miller would be allowed to protect
their sources. The classified findings contained in those pages
convinced all three Judges sitting on this tribunal that Fitzgerald
is pursuing very serious crimes.
What the eight and a half redacted pages do not represent
is the enitrety of Special Counsel's case. This is a very important
point to focus on. O'Donnel's report has been misunderstood by
some who think that the "eight redacted pages" make
up Fitzgerald's entire case. The Appellate Court's decision does
not say that. In fact, the Court's decision clearly delineates
on page 76, the cut off where Special Counsel's showing as to
Miller ends and Cooper begins.
These eight and a half redacted pages convinced the seasoned
jurists sitting on the bench, not just in The Court of Appeals,
but in the lower District Court as well, that the gravity of
the crimes committed far outweighed the needs of the press to
leak such information. We can only imagine what Fitzgerald gave
them. So try to imagine the scope of evidence he must have that
is not specifically related to Miller or Cooper. Until I actually
read the 83 page opinion for myself, I had assumed that the eight
redacted pages represented the lion's share of Fitzgerald's case.
But after reading the Court of Appeals opinion carefully, I believe
the eight and a half redacted pages are just the tip of the iceberg.
So let's now take a close look at what they said and why they
said it.
Circuit Judge Sentelle wrote the opinion of the court, and
also wrote a concurring opinion, as did Circuit Judges Henderson
and Tatel. [Please note, for the ease of internet viewing, that
all of my citations will refer to page numbers in the official
".gov" PDF file ].
The analysis section begins on page 7. There were four possible
grounds the court considered as to whether the reporters were
entitled to the privilege of protecting their sources from the
Special Counsel's probe:
A. 1st Amendment Claim
B. A Common Law Privilege
C. Due Process
D. DOJ administrative guidelines
All three of the circuit judges concurred that there was no
special exemption for the press as to A, C and D above. They
major difference they had pertained to the Common Law privilege.
But in the end, they all agreed that even if there is a common
law exemption available to the press, in this case Special Counsel's
showing clearly outweighed any such privilege.
Let's take a look at what the court had to say about all of
the possible exemptions (all bold face and italics are emphasis
added by CS):
A. 1st Amendment Claim
The Appellate Court stated on page 7-8:
"In his opinion below, the Chief District Judge held
that “a reporter called to testify before a grand jury regarding
confidential information enjoys no First Amendment protection.”
In Re Special Counsel Investigation, 332 F. Supp. 2d 26, 31 (D.D.C.
2004). Appellants argue that “this proposition of law is
flatly contrary to the great weight of authority in this and
other circuits.” Appellants are wrong. The governing authority
in this case, as the District Court correctly held, comes not
from this or any other circuit, but the Supreme Court of the
United States. In Branzburg v. Hayes, 408 U.S. 665 (1972),
the highest Court considered and rejected the same claim of First
Amendment privilege on facts materially indistinguishable from
those at bar. "
The court further stated on page 10-12:
"In rejecting the claim of privilege, the Supreme Court
made its reasoning transparent and forceful. The High Court recognized
that “the grand jury’s authority to subpoena 11 witnesses
is not only historic . . . but essential to its task.” 408
U.S. at 688 (citation omitted).
"The grand juries and the courts operate under the “longstanding
principle that ‘the public has a right to every man’s
evidence,’ except for those persons protected by constitutional,
common law, or statutory privilege.” Id. (citations and
internal punctuation omitted). The Court then noted that “the
only testimonial privilege for unofficial witnesses that is rooted
in the Federal Constitution is the Fifth Amendment privilege
against compelled self-incrimination.” Id. at 689-90. The
Court then expressly declined “to create another by interpreting
the First Amendment to grant newsmen a testimonial privilege
that other citizens do not enjoy.” Id. at 690. In language
as relevant to the alleged illegal disclosure of the identity
of covert agents 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....
"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 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."
All of the Judges concurred that there was no 1st Amendment
exemption for the press.
B. The Common Law Privilege
Now pay very close attention to the wording of the Court's
unanimous opinion here (pages 16-17):
"The Court is not of one mind on the existence of a common
law privilege. Judge Sentelle would hold that there is no such
common law privilege for reasons set forth in a separate opinion.
Judge Tatel would hold that there is such a common law privilege.
Judge Henderson believes that we need not, and therefore should
not, reach that question. However, all believe that if there
is any such privilege, it is not absolute and may be overcome
by an appropriate showing. All further believe, for the reasons
set forth in the separate opinion of Judge Tatel, that if such
a privilege applies here, it has been overcome. Therefore, the
common law privilege, even if one exists, does not warrant reversal.
This statement represents the full opinion of the court, but
each of the judges wrote a concurring opinion as well. After
we take a brief look at the other two failed exemption grounds,
we will examine each of their statements further on the common
law issue. "
C. Due Process
Not only did the Court of Appeals find that this argument
was without merit, the court took notice of the independent power
the federal grand jury holds in our government.
From page 17:
"While appellants insist that their privilege is absolute,
they assert a secondary line of argument that if their privilege
is conditional, then their due process rights have been violated
by the refusal of the Special Counsel and the District Court
to provide them access to the Special Counsel’s secret evidentiary
submissions in support of the enforcement of the subpoenas. This
argument is without merit."
Regarding the power and independent authority of the federal
grand jury, the Court of Appeals had this to say on page 17:
"As the Supreme Court has reminded us on occasion, “the
grand jury is an institution separate from the courts.”
United States v. Williams, 504 U.S. 36, 47 (1992). The function
of that separate institution is to “serv[e] as a kind of
buffer or referee between the government and the people.”
Id. "
D. Department of Justice Guidelines
Not only did the Appellate Court find that this argument was
without merit, it also recognized that Fitzgerald has all of
the plenary authority of the Attorney General in his case. From
page 20:
"In their final argument for reversal of the District
Court’s contempt finding, appellants contend that the Special
Counsel did not comply with the Department of Justice guidelines
for issuing subpoenas to news media and that such failure provides
an independent basis for reversal. The District Court expressed
its doubt that the DOJ guidelines were enforceable, but found
that even if they were, Special Counsel had fully complied with
the guidelines. Because we conclude that the guidelines create
no enforceable right, we need not reach the question of the 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... " (Emphasis
added.)
Somebody give that man a cigar. It's been judicially confirmed,
Fitzgerald has all of the power of the Attorney General for the
purposes of prosecuting Treasongate crimes.
Out of the four issues presented to the court, it was the
common law privilege that most concerned the circuit judges.
All three of the circuit judges offered different opinions on
whether such an exemption exists, but they all agreed that, even
if such an exemption does exist, the exemption is only "qualified"
and not "absolute". They also agreed that the Special
Counsel's showing of proof was strong enough to outweigh any
test they might create. What's most interesting is the language
each judge used to describe the weight given by them to Special
Counsel's proofs.
Judge Sentelle did not recognize the existence of a common
law privilege.
JUDGE SENTELLE (from page 24):
"SENTELLE, Circuit Judge, concurring: As noted in the
opinion of the court, I write separately to express my differing
basis for affirming the District Court on the common law privilege
issue...[A]ny such privilege enjoyed by the reporters has
been overcome by the showing of the United States...
" (Emphasis added.)
Judge Henderson agreed and elaborated (from page 34):
"Because my colleagues and I agree that any federal
common-law reporter’s privilege that may exist is not absolute
and that the Special Counsel’s evidence defeats whatever
privilege we may fashion, we need not, and therefore should not,
decide anything more today than that the Special Counsel’s
evidentiary proffer overcomes any hurdle, however high, a federal
common-law reporter’s privilege may erect." (Emphasis
added)
From page 35, footnote 2:
"Is the Special Counsel’s evidentiary proffer sufficient
to overcome any qualified privilege that may exist? Because we
agree that the answer is “yes,” there is no need for
us to go any further. "
And then the blockbuster quote:
"While I am convinced that we need not, and therefore
should not, go further than to conclude, as did the district
court, see Appendix 35-36, 275, that the Special Counsel’s
showing decides the case... " (Emphasis added.)
That's a big quote there. It's so big, I don't even know what
it means. And I think the Judge may have intended to be as coy
as the quote suggests. And if I'm right about that, hang on
to your hat, America, this is going to be quote a thrill ride.
Judge Tatel found that a common law privilege for the press
does exist, and he tried valiantly to make the case. But in the
end, Tatel decided that Special Counsel's showing was strong
enough to overcome any test that might exist in the law: (from
page 43):
TATEL, Circuit Judge, concurring in the judgment: This case
involves a clash between two truth-seeking institutions: the
grand jury and the press. On the one hand, the grand jury, a
body “deeply rooted in Anglo-American history” and
guaranteed by the Fifth Amendment, see United States v.Calandra,
414 U.S. 338, 342-43 (1974), holds “broad powers” to
collect evidence through judicially enforceable subpoenas. See
United States v. Sells Eng’g, Inc., 463 U.S. 418, 423-24
(1983). “Without thorough and effective investigation, the
grand jury would be unable either to ferret out crimes deserving
of prosecution, or to screen out charges not warranting prosecution.”
Id. at 424. On the other hand, the press, shielded by the First
Amendment, “has been a mighty catalyst in awakening public
interest in governmental affairs, exposing corruption among public
officers and employees and generally informing the citizenry
of public events and occurrences.” Estes v. Texas, 381 U.S.
532, 539 (1965). Using language we have quoted with approval,
see Carey v. Hume, 492 F.2d 631, 634-35 (D.C. Cir. 1974), the
Second Circuit aptly described this conflict between press freedom
and the rule of law: “Freedom of the press, hard-won over
the centuries by men of courage, is basic to a free society.
But basic too are courts of justice, armed with the power to
discover truth. The concept that it is the duty of a witness
to testify in a court of law has roots fully as deep in our history
as does the guarantee of a free press.” Garland v. Torre,
259 F.2d 545, 548 (2d Cir. 1958). Because I agree that
the balance in this case, which involves the alleged exposure
of a covert agent, favors compelling the reporters’ testimony,
I join the judgment of the court. (Emphasis added.)
Tatel went on to fashion a balancing test, one that recognized
a special common law exemption that would protect the press from
revealing sources under certain circumstances. From page 69:
"In short, the question in this case is whether Miller’s
and Cooper’s sources released information more harmful than
newsworthy." (Emphasis added.)
Then Tatel applied the test to the facts (page 70):
"Applying this standard to the facts of this case, and
considering first only the public record, I have no doubt that
the leak at issue was a serious matter. Authorized “to investigate
and prosecute violations of any federal criminal laws related
to the underlying alleged unauthorized disclosure, as well as
federal crimes committed in the course of, and with intent to
interfere with, [his] investigation, such as perjury, obstruction
of justice, destruction of evidence, and intimidation of witnesses,”see
Letter from James B. Comey, Acting Attorney General, to Patrick
J. Fitzgerald, United States Attorney, Northern District of Illinois
(Feb. 6, 2004), the special counsel is attempting to discover
the origins of press reports describing Valerie Plame as a CIA
operative monitoring weapons of mass destruction. See majority
op. at 3-5. "
Before returning to Tatel's opinion, it's interesting to note
that Tatel, along with the other two circuit judges, do not limit
their discussion to the Intelligence Identities Protection Act.
Tatel appears to be concerned with "violations of any federal
criminal laws related to the underlying alleged unauthorized
disclosure." If the Court of Appeals is not limiting its
discussion to the IIPA, why the hell is Joe Wilson and the main
strema media limiting their discussion to the IIPA?
More from Judge Tatel (pages 70-72):
"An alleged covert agent, Plame evidently traveled overseas
on clandestine missions beginning nearly two decades ago. See,
e.g., Richard Leiby & Dana Priest, The Spy Next Door; Valerie
Wilson, Ideal Mom, Was Also the Ideal Cover, Wash. Post, Oct.
8, 2003, at A1. Her exposure, therefore, not only may have jeopardized
any covert activities of her own, but also may have endangered
friends and associates from whom she might have gathered information
in the past...
The leak of Plame’s apparent employment, moreover,
had marginal news value. To be sure, insofar as Plame’s
CIA relationship may have helped explain her husband’s selection
for the Niger trip, that information could bear on her husband’s
credibility and thus contribute to public debate over the president’s
“sixteen words.” Compared to the damage of undermining
covert intelligence-gathering, however, this slight news value
cannot, in my view, justify privileging the leaker’s identity...
Just as due process poses no barrier to forcing an attorney
to testify based on the court’s examination of evidence,
unseen by the lawyer, that the client sought legal advice in
pursuit of a crime, neither does it preclude compulsion of a
reporter’s testimony based on a comparable review of evidence,
likewise unseen by the reporter, that a source engaged in a harmful
leak. In fact, appellants’ protests notwithstanding, ex
parte review protects their interests, as it allows the government
to present—and the court to demand—a far more extensive
showing than would otherwise be possible given the need for grand
jury secrecy discussed in the court’s opinion, see majority
op. at 17-18. That said, without benefit of the adversarial
process, we must take care to ensure that the special counsel
has met his burden of demonstrating that the information is both
critical and unobtainable from any other source. Having carefully
scrutinized his voluminous classified filings, I believe that
he has.
Voluminous classified findings? Hey now.
Judge Tatel (from page 81):
"In sum, based on an exhaustive investigation, the special
counsel has established the need for Miller’s and Cooper’s
testimony. Thus, considering the gravity of the suspected crime
and the low value of the leaked information, no privilege bars
the subpoenas. "
Judge Tatel concluded (from pages 82-83):
"I conclude, as I began, with the tensions at work in
this case. Here, two reporters and a news magazine, informants
to the public, seek to keep a grand jury uninformed. Representing
two equally fundamental principles—rule of law and free
speech—the special counsel and the reporters both aim to
facilitate fully informed and accurate decision-making by those
they serve: the grand jury and the electorate. To this court
falls the task of balancing the two sides’ concerns.
As James Madison explained, “[A] people who mean to be
their own Governors must arm themselves with the power which
knowledge gives.” See In re Lindsey, 148 F.3d 1100, 1109
(D.C. Cir. 1998) (quoting Letter from James Madison to W.T. Barry
(Aug. 4, 1822), in 9 The Writings of James Madison 103 (Gaillard
Hunt ed., 1910)). Consistent with that maxim, “[a] free
press is indispensable to the workings of our democratic society,”
Associated Press v. United States, 326 U.S. 1, 28 (1945) (Frankfurter,
J., concurring), and because confidential sources are essential
to the workings of the press—a practical reality that virtually
all states and the federal government now acknowledge—I
believe that “reason and experience” compel recognition
of a privilege for reporters’ sources. That said, because
“[l]iberty can only be exercised in a system of law which
safeguards order,” Cox v. Louisiana, 379 U.S. 559, 574 (1965),
the privilege must give way to imperatives of law enforcement
in exceptional cases.
Were the leak at issue in this case less harmful to
national security or more vital to public debate, or
had the special counsel failed to demonstrate the grand jury’s
need for the reporters’ evidence, I might have supported
the motion to quash. Because identifying appellants’ sources
instead appears essential to remedying a serious breach of public
trust, I join in affirming the district court’s orders compelling
their testimony. " (Emphasis added)
Where is the main stream media in reporting this decision?
It's fairly frightening, America. The free press is long gone
down the road to perdition. The main stream media, by its calculated
decision to ignore the very damning language of this court, and
its unwillingness to cover 18 USC 794, has proven itself to be
nothing more than the Government's bureau of propaganda.
As long as the press sticks to the script, "Wilson was
smeared, but the IIPA was not violated", the press is allowed
to hammer away, as yesterday's regurgitated LA Times recap makes
witness to (a report which added nothing new to the matter and
was only issued as cover for the blogosphere truth bombs being
exploded all over this case). Deviations from that script do
not seem to be allowed.
We must, if we are to have any chance of sustaining this republic,
demand that the press deliver the whole story all of the time.
There's only one way that will happen. A complete boycott of
main stream media sources, print, internet and TV.
I don't know how to go about making that happen.
I agree with James Madison and Judge Tatel, “A people
who mean to be their own Governors must arm themselves with the
power which knowledge gives."
I am no fan of either the GOP or the Democratic Party. I see
them as different sides of the same team. I do not trust them
at all. They have proven themselves to be fighting for the same
cause, the overthrow of this republic into the hands of a corporate
hierarchy and a coming Police state.
It would take the average citizen a long time to sift through
everything I've written on the Treasongate crimes. Adding anything
else to this analysis would only serve to confuse more than clarify.
If the readership of CS thinks this information is important,
do something with it. I don't think I can add anymore to the
debate.
I don't know when I'll add to this blog again.
The rabbit hole is so deep and wide, I'm not sure what our
chances of escape are. I don't know if the press will ever be
there for the people again.
Thank you for the kind letters of support. I have not been
able to respond everybody, but I do read them all. I enjoy hearing
from you, it makes the work worthwhile.
Until we meet again...
By Citizen Spook
[email protected]
POST SCRIPT:
Bloggers will be interested in the following comments by Judge
Sentelle (from page 29-30):
"The Supreme Court went on to observe that “freedom
of the press is a ‘fundamental personal right . . . not
confined to newspapers and periodicals. It necessarily embraces
pamphlets and leaflets . . . . The press in its historic connotation
comprehends every sort of publication which affords a vehicle
of information and opinion.’” Id. (quoting Lovell v.
Griffin, 304 U.S. 444, 450, 452 (1938)). Are we then to create
a privilege that protects only those reporters employed by Time
Magazine, the New York Times, and other media giants, or do we
extend that
protection as well to the owner of a desktop printer producing
a weekly newsletter to inform his neighbors, lodge brothers,
co-religionists, or co-conspirators? Perhaps more to the point
today, does the privilege also protect the proprietor of a web
log: the stereotypical “blogger” sitting in his pajamas
at his personal computer posting on the World Wide Web his best
product to inform whoever happens to browse his way? If not,
why not? How could one draw a distinction consistent with the
court’s vision of a broadly granted personal right? If so,
then would it not be possible for a government official wishing
to engage in the sort of unlawful leaking under investigation
in the present controversy to call a trusted friend or a political
ally, advise him to set up a web log (which I understand takes
about three minutes) and then leak to him under a promise of
confidentiality the information which the law forbids the official
to disclose?... "
From pages 32-33:
"If the court extends the privilege only to a defined
group of reporters, are we in danger of creating a “licensed”
or “established” press? If we do so, have we run afoul
of the breadth of the freedom of the press, that “fundamental
personal right” for which the Court in Branzburg expressed
its concern? 408 U.S. at 704. "
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