Where Left Is Right / The Old Site

(You can learn the rest of the story of Benedict Arnold's vindication by taking a gander at Ruben Bolling's entire cartoon.)

A couple of days ago, The Dissident Voice posted a tightly reasoned argument (an "element by element legal analysis") that Karl Rove (and perhaps other leakers) don't have much of a leg to stand on in the ongoing Plamegate affair. It's well worth a read.

The gist of the argument is that not only Rove, but others -- possibly even the reporters involved -- could easily and justifiably be prosecuted:

In the last few weeks, the media and others have been questioning whether Karl Rove and others have committed a crime under the Intelligence Identities Protection Act [IIPA], sometimes referred to as the “outing” statute. Many reporters and Republican partisan pundits claim that legal experts seem to agree that the IIPA has not been violated. The IIPA’s detractors claim that a case cannot be made for its violation because the proof required of the individual elements of the IIPA present a very high bar for the prosecution. Even Democratic partisans seem to concede that it is likely the IIPA has not been violated. This writer wonders why so many people seem to have summarily concluded the IIPA does not apply to what is (many would say finally) becoming a national scandal.

Despite the national implications of the IIPA at this moment, there so far has been no diligent or thorough analysis by any legal scholar of the elements of this crime or of the application of the known facts to the elements of this crime. Most analyses to date have been cursory and faulty. When the elements of this federal crime are properly analyzed, the IIPA will likely become a very serious hammer for the prosecution. Rove and others and their lawyers better beware.

The author, David G. Mills, "has been a licensed attorney for 27 years. He is licensed in Texas and Tennessee and currently practices in Memphis, Tennessee." He tackles four questions, answering each in the affirmative:

1. Does Valerie Plame meet the requirements of a covert agent?
2. Did Rove and/or others intentionally disclose Plame’s identity?
3. Did Rove and/or others identify Plame "knowing" that she was covert and that the US was attempting to keep her intelligence relationship secret?
4. Did Rove and others have authorized access to the confidential identity of Plame?

To my mind, the most interesting part of Mills's piece takes place in his discussion of question #3. This discussion centers around one of the requirements the IIPA lays out for establishing the, well, prosecutability of a possible crime: "The 'leaker' must also identify the agent 'knowing' that the agent was covert and that the US was trying to keep the agent's intelligence relationship to the United States secret." Mills points out that the term "knowing" can be parsed several ways, but he also points to judicial precedent for a definition:

Usually, knowledge means actual knowledge, but not always. Sometimes one can be "willfully blind" as to what one is required to "know". When that happens, the courts hold that being "willfully blind" is the equivalent of actual knowledge.

His precedent is a case known as US v. Ladish Malting Co., decided in 1998, which (en route to the actual decision itself) set up a guideline for determining whether "not knowing" something can be used as a defense when a Federal crime has been committed. The best part of the excerpt which Mills quotes is the last: "Behaving like an ostrich supports an inference of actual knowledge."

Mills says:

The court gives the jury an "ostrich instruction" in a case where the evidence suggests that the defendant has been sticking his head in the sand and has acted in a manner that suggests he is "willfully blind" to something he has the obligation to know...
[...]
[An article which Mills cites, about the "ostrich instruction"] is from a newsletter of the National Association of Public Defenders. It is a technical primer to federal criminal defense attorneys on how best to argue to the Court that an ostrich instruction should not be submitted to the jury. It is interesting to note that the writer of the article concludes that overcoming the ostrich instruction is an "uphill battle" and that such instructions are likely not to be reversible. Moreover, it appears that giving a clear instruction to the jury that they are not to decide the case on negligence grounds (lessening the burden of proof) but instead on "willful blindness" makes the likelihood of reversible error even more remote.

The wingnuts (and DINOs) have swarmed out of the woodwork waving banners proclaiming, "Yes, all right, Rove may have said something but that scarcely constitutes a crime, does it?" I guess the thinking goes something like this: Because Rove (to say nothing of his boss) is in a position of authority, we need to give him the benefit of the doubt; to actively work to excuse his abuse(s) of authority; and to assert that, given his authority, he really must not be all that bad, right?

Let's turn to Shakespeare:

...Brutus is an honourable man;
So are [Caesar's other assassins] all, all honourable men--
[...]
But Brutus says [Caesar] was ambitious;
And Brutus is an honourable man.
[...]
Yet Brutus says [Caesar] was ambitious;
And Brutus is an honourable man.
[...]
Yet Brutus says Caesar was ambitious;
And, sure, he is an honourable man.
I speak not to disprove what Brutus spoke,
But here I am to speak what I do know.

A favorite rightwing cause is the deplorable state of contemporary culture, including literature and drama. Don't you just love the way the classics can be turned against them? Have they themselves ever actually read this subversive stuff? Do they recognize the irony in all these declarations of Brutus's honor? Are they truly so benighted -- so head-in-the-sand -- that they do not recognize themselves in the evil villains of Shakespeare, Dickens, Austen, Twain, and (what the hell, might as well go for the brass ring) King James Version of the Bible? Don't these people have any capacity at all for self-knowledge, let alone self-reflection?