Wednesday, July 13, 2005

War, babies and legal analysis

What's the cost of war? That's the question I wanted to open with this evening. For a moment, let's ask about it from another view. If you're are Iraqi and you're getting all this "liberation" the Bully Boy brings, what is the cost of war?

From Democracy Now!:

Report: 128,000 Iraqis Have Died Since U.S. Invasion
A new study from an Iraqi humanitarian organization is estimating that 128,000 Iraqis have been killed since the U.S. invaded in March 2003. The group -- Iraqiyun -- estimates that 55 percent of those killed have been women and children aged twelve and under. Meanwhile the Geneva-based Graduate Institute of International Studies has also attempted to estimate the number of Iraqis killed. The organization recently estimated that 39,000 Iraqis have been killed as a direct result of combat or armed violence since the war began.


So yesterday I was going to blog again but I get out of the shower and Ma says "your girlfriend called." My girlfriend? We started seeing each other last week but I didn't know we were already a "we" and figured maybe Ma was upgrading the relationship. But looks like we are a "we."

And that brings us to the e-mail question for today which comes from Rudy because she's got questions regarding her boyfriend. Rudy wonders if she should have a baby. She's not pregnant currently. She's not married. She hasn't discussed having a baby with the guy she's involved with. So why is she wondering this?

Her boyfriend just signed up. Out of high school and having trouble in the Bully Boy economy, he's ripe for the picking. So before he heads to basic, Rudy's wondering if she should get pregnant because "he might die over there."

I'm not really sure of a nice way to put this so I'll just lay out. He's made no proposal. You haven't discussed this with him. But you're going through early planning stages right now?
I'm sorry, Rudy, but I think you're wrong.

Let's say that something awful happens to him over there or that he doesn't come back. When are you planning to tell him about the baby? You say you think it would be a nice surprise and you'd wait until you were "four or five months pregnant" to tell him. You think it would cheer him up.

There are a lot of nice surprises. Going off your birth control to get pregnant without telling your partner doesn't usually top the list.

You write that if he dies you'd like to have a piece of him. He ain't a rock.

And I'm not sure what kind of life you're seeing for a child if he did die?

If the child is supposed to be a piece of him, does that mean the child's going to have to live up to your image of him? And if you want the child in case something happens to your boyfriend, aren't you saying that if he dies it would be nice to have a child by him to have a piece of him?
So it would be nice for you but what about the kid who never knows a daddy?

You wanted my advice and here it is. You either talk to him about what you're thinking about or you stay on your birth control.

Maybe he'll want a kid? Maybe the thought of a child is something he thinks he can focus on when things get rough over there? You say you've been dating for 18 months so this might be something you have in common.

But to attempt to get pregnant without telling him and to let him think that you are still using birth control is wrong. This is a decision that you should talk to him about.

What if you go through with your plan, get pregnant and write him in four months to tell him? What if he hits the roof? What if that's so much pressure on him on top of what's already going on that he can't handle it?

I get that you're going to miss him. And it's true that a lot of women will end up pregnant. But they're, hopefully, not pretending to be using birth control when they're really not.

I asked my oldest sister about this because I think it's an awful idea and I wanted to get a woman's opinion to make sure it wasn't just something I was missing cause I'm a guy.

She said the plan is insane.

If you're wanting a child that's fine. But if the guy you want to be the father thinks you're still on birth control and you're not, you need to let him know what you're wanting.

He might think it's great. He might want it too. But you need to tell him because there are so many things that could go wrong.

I also think that at 17, you're too young to get pregnant by choice. You say you'll be 18 when a kid would be born. I'm not sure what's so magical about 18 and I was 18 just last year.

But turning 18 isn't going to bring you a job. You don't blow out the candles and see a job standing before you. Baby's require a lot of time and they need doctors and diapers and feeding and a bunch of other stuff that doesn't come cheap.

There are guys over there that can't get their passes home that they have earned. And Rumsfeld's saying we might be over there 12 years. So you need to ask yourself why it's okay for you to make these plans and not tell your boyfriend?

You also need to think about how your mother will react. You say she'll gripe but when the baby's born, she'll be fine. You mention that your older sister moved back home and goes to school part time and works part time and that your mother always helps out with your sister's baby. I'm not sure how fine she's going to be with this. Especially when she's the one that got you to start taking birth control pills because your sister ended up pregnant.

She might see it as you ignored her. She might think you had the perfect lesson in your own family but refused to see it.

You should also talk to your sister because if you think she's happy all the time, I think you're missing something. Being a parent doesn't seem happy all the time to me. And if she's a single parent, I'm sure the demands on her are even greater.

I'm sure she loves her child. But I'm also pretty sure that if you had a sister-to-sister talk with her about what you're planning, she would say, "Don't do it."

That's three people that you haven't talked to: your boyfriend, your mother and your sister.
Seems to me like if you thought one or more of them would agree with your plan, you would have already spoken to them instead of asking me.

Now, yesterday I wanted to note this incredible post by C.I. I'll provide a link here and note that the important questions were asked this morning as well. C.I.'s point is why can't the New York Times tell us what the law says? Forget if it was broken or not which the grand jury will decide, why can't the paper tell us what the law actually says and means?

While the press can't give you that information, Attorney X tries to give some

Legal analysis by visiting attorney

This came in to the e-mail account today in response to an earlier post. The person is an attorney (that's been verified). The person asks to remain nameless. Attorney X notes a great interest in "the information" getting out than in credit, even offers that I could pass it off as my own. (Kind offer, but when I say "I don't know" -- as I did re: Vicky ToeJam's claims in a Wash Post op-ed and claims Richard W. Stevensom appears to have repeated in "At White House, a Day of Silence on Rove's Role in C.I.A. Leak" -- I mean "I don't know." No need to pretend otherwise on my part.)

If Attorney X decides to take credit via real name, we'll note the real name here. But the friend I called last night was very clear about not wanting to be named and so I can certainly understand Attorney X's desire to be unnamed. (Again, Attorney X's status as an attorney is verified.)

I have read
your analysis of the New York Times article about Karl Rove.

I have read other articles and postings about this matter.

All trouble me, because they do not correctly describe the state of affairs.

Further, I think that the state of affairs can be simply and correctly stated.

Finally, I feel that doing so would contributing greatly to an understanding of what Mr. Fitzgerald is doing, and probably what Mr. Rove has done, and will be doing.

Take your analysis, for instance. It is very exacting and rigorous, it seems to me.

Very good, in other words. The problem from which it suffers is your ignorance. Not stupidity, ignorance. Just as there are many things I do not know about, there are some things you do not know about. Your analysis necessarily comes to a halt when you reach one of your points of ignorance. As you seem to recognize fully.

The good news is, the very few things about which you are ignorant in this case are very simple to understand, and they are things which I do understand.

I propose in this e-mail to set out those things, to source them to you solidly, and to offer my thoughts about what they mean. If you choose, please investigate offerings, consider them, and use them as you see fit.
First, the U. S. Code. You have linked to a University of Missouri Web site, I believe. I don't know about the authority, completeness, currency, and so forth of that Web site for such material. Probably the most authoritative source for such material, online, and maybe anywhere, is the official Government Printing Office Web site -

Google "united states code" and you can confirm that.

Personally, I like the Cornell site -

[. . .]

For your purposes, the GPO site is probably the best - you're right unless the official lawkeeper is wrong.
You're more than able to figure out how to use the site. Go over there, if you choose to pursue this, and look up 50 U. S. C. 421. Note several points.

1. In the first two subsections, at the very least, the law requires an element of intent. And the intentional act required is intentional disclosure. The act does not require knowledge on the part of the disclosing party that the person being identified is a covert agent. Just the intentional disclosure of information. The point of this intent requirement is simple. Suppose you know the identity of a covert agent, as permitted by law, and I, too, am permitted by law, to know it. You tell me, and someone overhears you, unbeknownst to us. Say someone taps our telephone conversation. You have disclosed the information to someone not entitled to have it, but not intentionally. You have not violated the law.

2. The information disclosed must identify a covert agent. Not necessarily by name. Or Social Security number. Or DNA. Any method of identification is sufficient. There is no restriction on the type of identification. Suppose you know the identity of a covert agent, as permitted by law, and I am an assassin sent to murder a foreign agent. But I do not know who it is. My government has paid you to tell me. We meet in a restaurant, where the foreign agent is eating, also. You nod your head toward her, and maybe say, "Her, in the blue dress, over there." You have violated the law.

The notion, as floated by Rove's lawyer, that the identification must be by name, is without support in the law. If the drafters of the law had wanted to limit the law in that way, they would have done so, and would have made it essentially useless in doing so.

3. The statute has a knowing element, in addition to the intent element. The thing which must be known is not the fact that the person identified is a covert agent, but that the information disclosed identifies the person. Again, the type of identification is not restricted.

4. The statute also requires that the discloser know that the United States is trying to keep the intelligence connection between the person and the United States non-public.

5. Those first two subsections have additional elements - for instance, that the discloser have authorized access to classified information.

Now, go to 50 U. S. C. 426. There's your definition of "covert agent," in subsection (4). Not to mention "classified information," in subsection

(1).As you can see, there are three definitions of a "covert agent," (A), (B), and (C).

(C) does not apply. Nor does (B) (ii). So we are left with (A) and (B) (i).
Note, first, the disjunctive, not conjunctive connectors. Satisfying either element makes one a "covert agent;" both elements need not be satisfied.

(B) (1) seems not to apply, because it requires current foreign residence. It is nonetheless instructive, because it establishes the contrast between residence and service, which is the standard in sub-subsection (A).

Now, let's look at subsection (A).The first requirement, in the opening paragraph, seems to be satisfied - Plame was a present officer or employee of an intelligence agency.

The second requirement, that her identity as such be classified information, cannot known to us for a certainty. I would be shocked, though, if some order or regulation or statute did not make her identity such. That is why Wilson threw such a fit when his wife's identity was betrayed - it was supposed to be a secret. You can bet that if he were wrong, and her identity was supposed to be public, Rove's defenders would have made that point long ago. They wouldn't rely on less good defenses when they had a rock solid one. That is why Toensing's questioning of Plame's secret status rings hollow - it isn't a matter of where Plame's desk was, it's a matter of whether there is the requisite order, statute, or regulation in existence. An "expert" on the law would know that. My conclusion has to be that she's blowing smoke for Rove on this.

The third requirement is service - as opposed to residence - outside the country in the last five years. What kind of service? Any kind. There is no restriction. Wilson's trip to Africa was service outside the country, for instance. Conceivably, if the CIA had sent Plame to Toronto on a plane to pick up papers and come back one day, she would have served outside the country. Did this happen? We can't be sure, but is hard to believe that a secret CIA agent working on WMD didn't take at least one trip outside the country for them in the five whole years, especially if just before that period, she had been stationed outside the country, and the way the whole WMD was being cranked up by the Administration in the preceding two or so years.

In the end, though, you make the ultimate point - Fitzgerald and the lawyers working in his office are no one's fools, and if they are pursuing this like they are, they must feel pretty good about the basic things, like foreign service and statutes, orders, and regulations. Those are easily easily established or disproven by documentation. That is true even if they are also pursuing perjury and obstruction of justice charges, which it appears they are.

Also, judging by the slim, and faulty, reeds the "experts" are grasping for, I have to believe that something real hot is under all that smoke.

[. . .]

My main purpose is certainly not identification, though, it is publication of accurate information.

I hope this helps.

It does help. And thank you for walking me through it. Again, if Attorney X should desire credit for this, it will be noted here. I have to wonder who, if anyone, Richard W. Stevenson verified Toejam's claims on the law with.