What If No One Is Lying? And Is It a Crime?

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Maybe the CIA wasn’t lying then, and Nancy Pelosi isn’t now. This has been my own theory of the case in this contretemps. But I’ve never been in one of these top-secret briefings. Former Congressman Martin Frost has, and gives us a little flavor of how they work:

I was not in the room when Pelosi was briefed. However, as Democratic Caucus chairman, I did preside (along with Republican Conference Chairman J.C. Watts) over a joint meeting of the Democratic Caucus and the Republican Conference shortly after the Sept. 11, 2001, attacks, during which the CIA briefed us in a closed session.
The deputy director of the CIA gave a long, rambling account of the events leading up to the Sept. 11 attacks. At the completion of his remarks, I exercised the prerogative of the chair and asked the first question.

I can recall almost the exact words that I used 7½ years ago. I asked, “Mr. Director, I listened very carefully to what you said. Do I understand correctly that the CIA tracked three of the terrorists [who conducted the Sept. 11 attacks] into the United States and turned them over to the FBI, and then the FBI lost track of them?” His reply to my direct question was a simple, “Yes.”

This information was subsequently made public, so I am not now disclosing something that isn’t in the public domain.

My point is that the CIA (and other government agencies and departments) sometimes talk in “official speak,” which is not entirely clear to members of Congress participating in a briefing. Unless members of Congress are listening very closely, and unless they ask follow-up questions, they don’t always get a clear picture of what’s going on. If asked a specific, direct question, government officials will give a specific, direct answer, as the deputy director did to my question that day.

It is certainly possible that the folks at the CIA, on Sept. 4, 2002, thought they had given Pelosi a full picture of what was actually happening, and it is also possible that Pelosi did not wade through the bureaucratic language and ask a specific follow-up question.

Meanwhile, the Republicans keep hammering away at the idea that Pelosi is accusing the CIA of committing a crime. “Lying to congress is a crime. Purposely misleading congress is a crime,” John Boehner has told us over and over again.

But is it? Would the Justice Department really prosecute a CIA official in a circumstance like this? I’ve asked a few smart people, and they say … probably not. “It’s a long distance from a casual misstatements or misleading statements to a crime,” says attorney Stanley Brand, a veteran of these kinds of cases. “Intent is a very important element.” A former high-ranking Justice Department official, who spoke on the condition he not be named, said that while this kind of misstatement could be construed as a violation of 18 USC 1001, “prosecutions of this sort are very, very, very, very rare, and would require proof of ‘knowing’ and ‘willing’ falsehood.”

UPDATE: Meanwhile, Congressman Dave Obey informs the CIA that its record-keeping isn’t perfect.

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