X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the “blogosphere,” the world of online “Web logs,” anyone with a connection to the Internet can create a blog and post their uncensored thoughts on any conceivable topic or discipline. A large corner of this vast electronic embodiment of the marketplace of ideas is staked out by legal and political blogs, where former and practicing attorneys, law professors, students and laymen with an interest in law or politics sound off on a wide range of current events and issues. Blogs are at the forefront of several ongoing legal scandals, providing interested readers with updates on breaking news, speculative attempts to connect dots and in-depth consideration of legal questions and their larger ramifications. This column will highlight the recent work of two blogs on the Valerie Plame leak case and the N.S.A. domestic spying controversy, respectively. One blog, firedoglake, has been a resource for background, analysis and commentary on both the still-unexplained leak of Valerie Plame’s status as a CIA operative and the directly-related I. Lewis “Scooter” Libby obstruction of justice and perjury case. Recently, “Reddhedd,” a self-described former prosecutor who posts pseudonymously to firedoglake, and co-blogger Jane Hamsher, have been posting inside-baseball discourse on a Libby defense team discovery tactic that U.S. Attorney Patrick Fitzgerald has characterized as “greymail.” In a sentence, greymail is a derogative term used to describe defense discovery requests for classified documents and information — allegedly for the purpose of forcing dismissals of cases where the government refuses to reveal its secrets. The tactic was used with some degree of success in the Oliver North trial. As the court filings reflect, Libby’s attorneys are seeking several types of highly sensitive materials, which may offer a glimpse into defense strategy. First, they seek information concerning the roles that other administration officials and unindicted persons played in the leak. This is significant because Libby is charged with obstructing the investigation into that very leak, and compromising this information could allow these persons to know exactly where they and their stories stand. Second, Libby’s team is seeking more than 275 highly classified President’s Daily Briefs and Libby’s classified notes, which are allegedly relevant to proving that Libby was so busy with more important matters that any misstatements he may have made were excusable rather than felonious Finally, they seek documents referencing Plame’s classified employment status and the actual damage caused by the disclosure of her position in the CIA, i.e. documents that may be relevant to a lack of motive to lie. In a post titled “Fish or Cut Bait” (Feb. 17), Reddhedd hits the highlights of the Fitzgerald’s brief and links to another blogger who is providing online access to it and their own commentary. (See justoneminute). Reddhedd argues that the government’s position is “[e]ssentially … one big ‘put up or shut up’ from Fitz to Team Libby.” One example is that on pages 28 and 29 of the brief, “Fitz argues that Libby would not be entitled to information regarding Valerie Wilson’s covert employment status unless he could show that he (Libby) had been privy to such documentary proof at the time that his alleged crimes were occurring.” This is remarkable because “it requires that Libby either let it go (because he did not see such documentation, and thus admit that it has no relevance whatsoever to his state of mind at the time of indictment) or that Libby fesses up to knowing that she was covert (which would open a whole new level of speculation, now wouldn’t it?) or that both sides will just keep on whistling past this issue altogether.” As she concludes: “Never play poker with Fitz. That’s all I’m saying.” In “Of Greymail, CIPA, Scooter and Fitz” (Feb. 18), Reddhedd summarizes the positions of the parties — with prosecutorial sympathy — and neatly digests some of the ethical and practical considerations in use of the greymail defense, directing readers to background articles on the applicable procedural statute for handling such discovery requests, the Classified Intelligence Procedures Act (CIPA). While acknowledging defense counsel’s ethical obligation to “defend their client with everything they can muster,” she believes Fitzgerald “makes a persuasive argument that Libby is on a fishing expedition for information on how the ongoing investigation is going — but he’s asking for material that would only be relevant if and when he is indicted for IIPA or Espionage Act charges.” Following up on Reddhedd’s work, co-blogger Jane Hamsher argues in “More Cheney Fallout” (Feb. 18) that Libby’s attorneys have “different agendas.” To Hamsher, the greymail tactic indicates that at least one part of the defense team is interested in shifting some of the heat from Libby to Cheney. As one of her readers speculates, one implication of “full-bore grey mail,” is that it could “force the inspection, if not the production, of documents and leads which the prosecutor might not yet have,” and it could “turn attention to other/bigger fish.” (Each of the three posts discussed above may be found at firedoglake). Changing gears, numerous bloggers with legal backgrounds are challenging the Bush Administration’s secretive, allegedly illegal, N.S.A. domestic spying program, and are directly refuting the various justifications offered by Attorney General Alberto Gonzalez and other officials and apologists. One, Glenn Greenwald, a First Amendment litigator formerly of Wachtell Lipton Rosen & Katz who blogs at “Unqualified Offerings,” has been providing continuing commentary on why the program is illegal and an unconstitutional encroachment on both the rights of Americans under the Fourth Amendment and the powers of the legislative and judicial branches under articles I and III. Readers can quickly catch up on the competing legal and constitutional arguments at one of Greenwald’s recent posts “N.S.A. Legal Arguments” (Feb. 19), at glenngreenwald. In that entry, he comprehensively compiles links to his and others’ previous work on the subject since the program’s existence was revealed a year after being leaked to The New York Times. The “N.S.A. Legal Arguments” post serves as an index to the various justifications and excuses — and responses to each — that have been offered for the program. These include arguments based on the Foreign Intelligence Surveillance Act (FISA) statute, the Authorization for the Use of Military Force (AUMF), the Fourth Amendment, threats to national security, and the president’s alleged inherent authorities under Article II of the Constitution. One of Greenwald’s supporting links sends readers to another blog, Balkinization, which is home to several law professors’ musings. Balkinization is currently hosting a legal brief stressing the program’s illegality, which was sent to 12 high-ranking members of Congress and signed by 14 law professors and former government lawyers. (See balkin). These scholars conclude that “the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance,” and accordingly, “appears on its face to violate existing law.” In support, they offer two main arguments: that Congress did not implicitly authorize the program, but instead, expressly prohibited it; and that construing FISA to prohibit warrantless domestic wiretapping does not raise any serious constitutional question, whereas construing AUMF to authorize such wiretapping raises serious Fourth Amendment problems. Although the legal arguments against the powers now claimed by the administration are compelling, and the theoretical underpinning of such objections date back to the Federalist Papers of Madison, Hamilton and Jay, the outcome of the wiretapping scandal is not likely to be dependent on either. Despite the Judiciary Committee’s high-profile questioning of Attorney General Gonzalez, several members of that committee and the Intelligence Committee chaired by Sen. Pat Roberts, R-Kan., appear willing to provide post hoc legal support for the spying program rather than investigating the executive’s efforts to evade congressional oversight and judicial review. As Greenwald argues in “A Long Hard Slog,” however the congressional investigations unfold, “what will ultimately determine whether the Bush administration is held accountable for its law-breaking are two components that neither Dick Cheney nor Pat Roberts can shut down — the investigative work of the press and the opinion of the public.” (See glenngreenwald). This observation drives home yet another purpose of many blogs: citizen activism in investigating and driving stories forward and pushing the press and the public to take greater notice and investigate on their own. Of course, as with speech in any forum, a blog is no more reliable than the reasoning and research of the person who writes it, and even the best are colored by the opinions and motivations of their authors. These are not reasons to reject an entire medium, however. The Web provides access to the voices of millions, and as the sheer numbers suggest, you are likely to find many offering legal commentary with the research, personal or professional background, tone or politics that interest you. This newer, bigger marketplace of ideas is an informative, entertaining and totally individualized resource that need not to be feared, but it should be approached with caution. Luke E. Debevec is an associate with Anderson Kill & Olick in Philadelphia, where his practice is concentrated on insurance recovery exclusively on behalf of policy holders.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.