Another Plame Post

This is maybe the fourth post I’ve done on the Plame thing. In the first I pointed out that being less than candid about something like this was stupid on the part of the White House.

In the second, I made basically the same point.In the third one, I expressed puzzlement at Ambassador Wilson’s claim that his report debunked the claim that Iraq had sought (rather than acquired) uranium ore in Niger, given that the Senate report on the subject reported him as having said that they did.

In this one, I’ll express befuddlement at former-spook Larry Johnson(who admittedly has said and done some darn odd things)’s claim that the Washington Post was flatly lying when it challenged Special Prosecutor Fitzpatrick’s prosecution on the basis that no crime actually was committed.

The basis for this befuddlement, to my legal-document reading, law-writing, but-not-lawyer eyes looks like this:

The subject code – Title 5026 of the US Code – says:

(4) The term “covert agent” means:
(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency;
(i) whose identity as such an officer, employee, or member is classified information, and
(ii) who is serving outside the United States or has within the last five years served outside the United States; or
(B) a United States citizen whose intelligence relationship to the United States is classified information, and;
(i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, or
(ii) who is at the time of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation; or
(C) an individual, other than a United States citizen, whose past or present intelligence relationship to the United States is classified information and who is a present or former agent of, or a present or former informant or source of operational assistance to, an intelligence agency.

OK, Valerie Plame clearly fits into (A), which means that for her to be a covert agent – as defined in law – she had to meet two tests – that her “identity as such an officer, employee, or member [was] classified information” AND (note the logical AND required) that she “is serving outside the United States or has within the last five years served outside the United States” at the time of her disclosure.

No one has disputed (i),and no one has asserted (ii) – and unless both are true, under the definition of the specific code, she’s not a ‘covert agent’ – and so no crime was committed.

Now Johnson finesses this nicely, by leaping from

She offers up two special gems:

– Valerie Plame was not covert.
– Ambassador Joseph Wilson (Valerie’s husband) misled the public about how he was sent to Niger, about the thrust of his March 2003 oral report of that trip, and about his wife’s CIA status.

immediately to

Valerie Plame was undercover until the day she was identified in Robert Novak’s column. I entered on duty with Valerie in September of 1985. Every single member of our class–which was comprised of Case Officers, Analysts, Scientists, and Admin folks–were undercover. I was an analyst and Valerie was a case officer.

Note the distinction between the two words – ‘covert’ (which is a defined term under the law) and ‘undercover’ (which may mean similar things, but isn’t the same thing). So either Johnson is finessing neatly, or he’s clueless (which I doubt).

So sharp-minded folks out there – what exactly am I missing?

63 thoughts on “Another Plame Post”

  1. The Wilson-Plames are politically corrupt bureaucrats engaged in a power struggle within the executive branch. They represent CIA elements opposed to Bush Policy in The Oil Basin.

    Facts have nothing to do with it.

    To people like this elected officials and their appointees including the DCI come and go while the entrenched apparatchiks are the REAL repository of the Nation.

    This general statement includes the House and the Senate as well along with the voters.

    Exposing their link to the CIA was intended to counter their initiative to overturn elected authority, right or wrong.

    Pelosi may think these people are her allies because she is right and it is convenient but this sort will find her no more legitimate than her predecessors.

    Scooter is the criminal? Wake Up!

  2. As someone who’s worked in the intelligence community, I don’t get it either. First of all, the CIA has an “undercover” culture that virtually all of them adhere to. Undercover in this sense is distinct from covert and only means that one shouldn’t advertise where they work and are encouraged to lie about where they work. Almost everyone at the CIA does this.

    Covert is completely different, as you suggest.

    What I never really understood about the whole Plame affair is why anyone would think “outing” her would somehow punish Wilson or that “outing” her is some kind of huge punishment at all. Where did this whole theory come from? If the media exposure made her unable to carry out her duties as a case officer, then she could move to another position. It’s not like her job was ever in jeopardy. At worst, agents she was running could be compromised (assuming she was running agents) – but how is that “getting back at” Wilson? It hurts the CIA but does jack and squat to Wilson.

    There are so many more effective and discreet ways to go after someone than exposing their wife’s place of employment. The notion that, out of all choice available, “expose Valerie Plame” came out on top at some White House “get Joe Wilson” meeting seems utterly ridiculous to me.

  3. Well, JOM is busy so it appears the legislation Congress has presented regarding the five year law is not important. It’s an extension to 10 or 15 years.

    The other legislation ending, retroactively, the Selective Service and creating a Department of Peace has some faults. There is no ban for life on the intelligence activities, like in Peace Corps, five year law(other mirror like the banning of Congressmen from serving on committees when subpeoned under the Intelligence and informants five year law).

    The democrats for the Department of Peace could have put a life time intelligence ban on employees if they were serious. They aren’t, and the current legislation; with the increase in the Intelligence and informant legislation, makes the democrats look more like ‘George Bush’s out of control domestic spying.’ The Department of Peace will be used for intelligence work, just like any other Congressional Agency, with the exception of Peace Corps and their five year ban on intelligence activities by federal employees(PCVs).

  4. My question has to do with the claim–and Cheney’s marginalia question–that Plame sent Wilson on a “junket” to Niger. Has Cheney ever been to–or heard of Niger? A junket? It’s the 2nd poorest nation in the world. It’s a land-locked, beachless, resortless, alcohol-free, disease-ridden, burning-hot wasteland of a place where there’s nothing to do but count the number of flies buzzing around the open sores of donkeys in the street. A junket? Why would someone’s wife send him to Niger unless she needed him out of town for some illicit purpose of her own.

    As far as whether outing her sas a crime..I thought that was resolved last year by the special prosecutor. Why are we talking about that aspect of it now? It’s like talking about who won the 2000 election. Did OJ do it?

    A more important question to ask is whether or not Bush knew who leaked the info when he called for a special prosecutor and claimed ignorance of the source.

  5. A.L. isn’t missing anything. Also, if Fitzgerald thought she was covert, he would have presented evidence at the trial. It would have supported the materiality of the alleged lie, it would have undercut the innocent forgetfulness defense, it would have prevented the jurors from concluding the opposite, and it would have aggravated the penalty if found guilty.

    On the truth of CIA’s covert culture, another ex-spook has explained:

    bq. _Truth be told, however, the agency doesn’t care much at all about cover. Inside the CIA, serious case officers have often looked with horror and mirth upon the pathetic operational camouflage that is usually given to both “inside” officers (operatives who carry official, usually diplomatic, cover) and nonofficial-cover officers (the “NOC” cadre), who most often masquerade as businessmen. Yet Langley tenaciously guards the cover myth–that camouflage for case officers is of paramount importance to its operations and the health of its operatives._

    bq. _Know the truth about cover–that it is the Achilles’ heel of the clandestine service–and you will begin to appreciate how deeply dysfunctional the operations directorate has been for years. Only a profoundly unserious Counter-Proliferation Division would have sent Mr. Wilson on an eight-day walkabout in Niger to uncover the truth about uranium sales to Saddam Hussein and then allowed him to give an oral report._

    “MARC GERECHT”:http://www.opinionjournal.com/extra/?id=110007522

  6. My understanding of the leaked damage is that while plame was not ‘undercover’, her exposure also led to the dismantling of her company, which was a CIA front working in several other places in the world. So, wether her personal identity exposure was less important than other agents (or other operations) who may be linked to this company.

    Keep in mind, if this information was linked to primarily attack the CIA this would not be suprising. It has been coming to light that the CIA has been very critical of that the white house, which they claim started with their conclusions being undercut by George Tenet, the pentagon and the white house.

  7. mark, this is why one might call Wilson’s trip a “junket”:

    bq. _He spent most of his time at the hotel — a fourth-floor suite at the Gawaeye, one report said. He was very open about his mission and its object, and began to take meetings near the pool. “I spent the next eight days drinking sweet mint tea and meeting with dozens of people,” Wilson wrote in the New York Times last July, “current government officials, former government officials, people associated with the country’s uranium business. It did not take long to conclude that it was highly doubtful that any such transaction had ever taken place.” It is unclear with whom Wilson met. No Nigerien officials have admitted to attending those meetings. El Hadj Habibou Allele, who runs COMINAK, the major uranium-mining concern, stated he was never contacted. For their part, the staff at the Gawaeye thought Wilson was a nice guy, and they nicknamed him “Bill Clinton” after his former employer._

    The substantive problem with this is that Wilson was sent to determine whether something had happened that no sane official would ever admit. The CIA had no assets in Niger. They went to State to see if they had any resources and it was in this meeting that Plame suggested her husband go. The notes of the meeting suggest that nobody thought that such a mission would prove or disprove anything, but that it was better than doing nothing. That is the real scandal.

  8. PD,

    How is that a scandal? A claim was made, Cheney asked them to look into it, they’re caught between a request from the VP and their own disbelief. They do semi-due dilligence to cover their ass, see if there might be any need to follow up. A first step. Big deal. I don’t see the scandal. No one is claiming Joe Wilson was the best person for the Cia to have sent. No one is claiming he did a good job. It’s not like there was an Iraq-Niger connection that he missed. None of that has any bearing on anything.

    Who was that quote from, by the way?

    The scandal is that after the CIA told Bush to remove the Niger-Iraq claim from one speech, he snuck it back into another by citing a British report so that he wasn’t technically lying. The scandal is that having leaked Plame’s name to the press, legally or otherwise, they then denied having done so. One lie to cover up a previous lie. & then Libby lied to maintain the coverup of the lie. Just a series of lies. If it weren’t for these lies, there’d be absolutely nothing here.

  9. This is the scandal: “U.S. intelligence does not have assets available to identify nuclear material transfers from a poor, corrupt state.” That Joe Wilson would be the go-to guy in this situation says a lot worse about U.S. intelligence than it does about Joe Wilson.

    Here’s the link from #10: “James Robbins”:http://www.nationalreview.com/robbins/robbins200310010838.asp

    And Wilson reported that the former Prime Minister of Niger had met with Iraqi officials interested in expanding trade for what he understood to be uranium yellow cake, but no sale was undertaken. Bush’s assertion that Iraq had attempted to purchase yellow cake was supported by Wilson’s own report.

    But since we have no intelligence assets available for Niger, we will just have to continue to take the words of heads of state from poor, corrupt countries that neither they, nor their citizens, have been tempted to sell to any of our enemies.

  10. PD,

    Appreciate the link. So now we’re passing around 4-yr old opinion columns from the National Rewiew to obfuscate the central issue.

    It’s the lies that bother me. Not the CIA’s failure to discover something that wasn’t there.

    Wilson did what he was asked to do. We have no idea what else the CIA did or did not do 5 years ago. It does’t much matter what media “thinks.” What we do know is that the CIA removed the reference to the Iraq-Niger from one of Bush’s speeches because it was believed to be unfounded. Bush put it back into a speech a few weeks later. We know that Tenent took the blame for that “mistake.” I don’t buy it.

    We know that for whatever reason Rove & Libby, the latter under orders from Cheney, leaked Plame’s names to the press and then denied having done so.

    We know–or Fitzgerald believes–that Libby lied to a grand jury about his knowledge of these leaks.

    I would say that the end result of this entire sorry affair is that the credibility of Bush, Tenent, Cheney, Rove & Libby has been seriously undermined.

    We don’t know to what extent Wilson was the go-to guy. As far as we know, he was part of a larger effort. We know that Tenent came to the conclusion that the Iraq-Niger connection was unsubstantiated. To what extent that relied on or ignored Tenant’s report is unknown to us. We also know that the entire Iraq nuclear program since the first gulf war existed only in the minds of Iraqi & US gov’ts. I don’t see much scandal inside the CIA. The data are insuffienct to reach any conclusion. It’s a lot of speculation on our uniformed part. It’s fun. But it’s just gossip.

  11. mark, you asked why Cheney would have referred to the trip as junket. (#6) For you to claim that I am obscuring the issue with a four-year-old article that contradicts your unsupported assertion is the height of disingenuousness.

  12. _We have no idea what else the CIA did or did not do 5 years ago._

    From the “Senate Intelligence Report”:http://www.globalsecurity.org/intell/library/congress/2004_rpt/iraq-wmd-intell_chapter2-b.htm

    bq. _Other meeting participants argued that the trip would do little to clarify the story on the alleged uranium deal because the Nigeriens would be unlikely to admit to a uranium sales agreement with Iraq, even if one had been negotiated. An e-mail from a WFNPAC analyst to CPD following the meeting noted “it appears that the results from this source will be suspect at best, and not believable under most scenarios.” CPD concluded that *with no other options, sending the former ambassador to Niger was worth a try.*_

  13. PD, perhaps we have different definitions of “junket.” To my mind, it implies a pleasure trip. Having been to Niger, it’s hard for me to imagine that anyone would consider a trip there as a junket.

    My understanding was that your citing the 4-yr-old article was in support of your belief that there was some scandal at the cia that was more important to delve into than the scandal I see inside the white house. I did not see it as an attempt to rebut my belief that a trip to Niger cannot be a junket, any more than a trip to hell and back could be a junket. (sipping mint tea poolside at a hotel in a Sahal country is merely a tolerable, not a pleasant, activity).

    In the whole of the Plame Affair, which I think is incredibly overblown, to me any attempt to find culprits and scandals outside the whitehouse is obfuscation. You may think my opinion in this matter is wrong, but I can assure it is quite ingenuous.

    I don’t expect the cia to be perfect. I expect mistakes to be made. I find outright lying unnacceptable and avoidable. to me, of the two issues, one is of far greater concern to me than the other.

  14. So many possibilities:

    1) Larry Johnson and the VIPers had an agenda. (Cut Bush/Cheney off at the knees to put Dems in power for their own reward.)

    2) Joe Wilson had an agenda. (Ego — Joe was importantt. Politics — Joe was a Kerry Adviser. Business — Joe may have had a connection with the French Cogema controlling uranium in Niger or other business connections.)

    3) Valerie had an agenda. (To pump Joe up to make him employable again. Or to get him out of town.)

    4) The CIA had an agenda (i.e. to see that nothing was discovered in Niger to disrupt the CIA sniffing A.Q. Kahn connections.)

    5) More than one of the above.

    The only ones who didn’t seem to have an agenda were Cheney and Libby.

  15. No one here has addressed the central question:

    What possible motivation could the white house have for purposely leaking Plame’s employment? The left insists it was to harm Wilson, but as has already been explained, leaking her employment does nothing to harm Wilson or Plame but _might_ have instead harmed the CIA. The leak, to me, sounds more like an inadvertent mistake than some sort of grand scheme.

  16. Um, am I missing somthing?

    Fitzgerald’s prosecution of Libby, isn’t AT ALL about whether or not Plame’s identity leak is a crime. He looked into it, decided not to go there. And mainly, the reason why he decided not to go there, is because Libby was lying.

    And THAT is what this prosecution is about. That Libby committed perjury.

    So A.L., if you want to ask why the case was INITIALLY REFERRED TO the Justice Department, and thus Fitzgerald, you can ask that. Though clearly, in that case, the CIA ITSELF deemed Plame’s status as covert, and thus referred the case to the Justice department, who then referred it to Fitzgerald.

    Now, if you want to argue that the CIA, misclassified their own person, when referring the Plame leak to Justice, that’s one thing. But that is on thin ground, as I’m sure the CIA knows THEIR OWN CLASSIFICATIONS!!

    Man, the willful ignorance on this thread is amazing.

    To restate:

    a. Libby is being tried for perjury, ie. lying on the stand.
    b. The case WOULD NOT HAVE BEEN referred to the Justice department if the CIA did not classify Valerie Plame as covert.
    c. The case WOULD NOT HAVE BEEN ACCEPTED BY THE JUSTICE DEPARTMENT if the justice department had not verified that Plame was covert.

    There isn’t much more to the story. Talking about Jo Wilson and Niger, and role Valerie Plame had in sending Wilson to Niger, whil interesting on its own, isn’t pertinent to the case.

  17. Um, am I missing somthing?

    Yup. Big time.

    Fitzgerald’s prosecution of Libby, isn’t AT ALL about whether or not Plame’s identity leak is a crime. He looked into it, decided not to go there. And mainly, the reason why he decided not to go there, is because Libby was lying.

    Nope. The main reason he didn’t go there is that he knew the CIA’s referral had nothing to do with protecting Plame’s identity – which was known to have been compromised years prior – and everything to do with the CIA’s covert war on the Bush administration.

  18. Andy: _No one here has addressed the central question:_

    I’ll play. The Plame info was leaked as part of bureacratic infighting between the CIA and State with the anti-war Richard Armitage the first and primary leaker. This was because Wilson did not come back as expected with inconclusive information, he came back with new information from the former Nigerien Prime Minister who said an Iraqi delegation had visited Niger to discuss uranium sales. This was another lead that could be used by the CIA to undercut the State’s interpretation of the intelligence. State either needed to follow-up on the lead, for which they had few resources or discredit Wilson. They took the easy path.

    The funny part of Larry Johnson’s piece is where he explains how Libby, Armitage, Rove, and Fleischer collectively leaked the information as if they were all one big happy family. Reality-based community, indeed.

  19. HR: _Um, am I missing somthing?_

    Yes.

    _Fitzgerald’s prosecution of Libby, isn’t AT ALL about whether or not Plame’s identity leak is a crime. He looked into it, decided not to go there. And mainly, the reason why he decided not to go there, is because Libby was lying._

    Plame’s covert status is not dependent upon whether or not Libby lied. It has nothing to do with whether Libby lied.

  20. PD, if I may, I think that what HR was getting at is the theory that Fitzgerald was unable to determine whether or not a crime had been committed BECAUSE Libby was lying. This theory was outlined by Fitzgerald himself in his intitial announcement at the conclusion of the grand jury. It was the “sand in the umpire’s face” analogy. Given what we now know, I don’t see how this could be true, but it is what Fitzgerald said at the time.

    But whether or not laws were broken, Bush did order the investigation, so at some point someone must have believed that a violation of the law may have occurred and the question remains: when Bush denied knowledge of the leak, was he being honest? Did he actually not know that Rove was one of Novak’s sources? Is that possible? Did Cheney not know that Libby had also leaked her name to reporters? Is that possible? Am I the only one who cares? Why to would Libby lie about leaking her name to reporters, if he believed he committed no crime. Unless, of course, you buy his I was too busy defense.

  21. Can anyone explain precisely how Fitzgerald couldn’t determine whether or not Plame was a covert agent because of the purported sandstorm Libby created?

    And for extra credit, explain why Libby, Armitage, Rove, and Fleischer appear to have revealed her status and none of them is being indicted for it?

    Could the easier answer be that she is not covert? I’ve given four legal reasons for the special prosecutor to disclose her status. (#7)

  22. hypocrisyrules: if you want to ask why the case was INITIALLY REFERRED TO the Justice Department, and thus Fitzgerald, you can ask that.

    Hyp, the referral has, for whatever reason, never been released. Do all you can to get it released. It might tell us something interesting.

  23. The section of the US Code in question in not 5026, it is Title 50, Section 426. While this may be a typo, it also may mean that Armed Liberal is copying mistaken information from some other Alternate Reality website. (What does it signify that I am the first commenter to bother Googling for the law in question?) For example, A.L. has also missed that according to Newsweek, Fitzgerald determined that Plame had worked overseas within the five year limit. Even if this is not correct, it’s a long way from A.L.’s assertion that “no one” was claiming such.

    Now, turning to A.L.’s original question and P.D. Shaw’s comments, everyone here is looking at the wrong section of the code. Here is an excerpt from section 421, with emphasis added by me.

    (b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information
    Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both.

    I’m not very impressed with this law for Freedom of Speech reasons—I opposed it when the whole thing was created to persecute Philip Agee and his like—and I don’t remember anyone on the right showing any hesitation whatsoever, but at least it does set a fairly high bar for the intention of the actor. I would suggest that perjury on Scooter’s part might make it difficult to establish the intention parts of the crime.

    And be careful, there might be last minute testimony that Libby was fellated in his office, and we all know that’s an exception to the doctrine that perjury prosecutions should be reserved for cases with an underlying crime.

  24. Andrew, that’s interesting. The Newsweek articles is the first that I’ve seen suggesting that Plame met the 5yr standard – it also suggested that Libby wasn’t charged with divulging because there’s a standard of knowingness (something else I hadn’t seen). I’ll go look at the parent law – but note that my cite is the definition of covert as applied in the section that you cite. No alternate reality required.

    I find that in looking up laws, most of the meat comes in looking at the definition of the terms…

    A.L.

  25. Let’s look at AJL’s Newsweek story:

    bq. _*Newly released court papers* could put holes in the defense of Dick Cheney’s former chief of staff, I. Lewis (Scooter) Libby, in the Valerie Plame leak case. Lawyers for Libby, and White House allies, have repeatedly questioned whether Plame, the wife of White House critic Joe Wilson, really had covert status when she was outed to the media in July 2003. But special prosecutor Patrick Fitzgerald *found that Plame had indeed done “covert work overseas” on counterproliferation matters in the past five years, and the CIA “was making specific efforts to conceal” her identity,* according to newly released portions of a judge’s opinion._

    Here is the relevant portion of Fitzgerald’s filing which is the basis of the Newsweek story and the judge’s opinion:

    bq. _*If* Libby knowingly disclosed information about Plame’s status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 [the Espionage Act] *if* the information is considered “information respecting the national defense.” In order to establish a violation of Title 50, United States Code, Section 421 [the Intelligence Identities Protection Act], it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson’s wife was engaged in covert work._

    “Byron York”:http://www.nationalreview.com/york/york200602060919.asp

    Newsweek doesn’t have evidence, it interpreted a space before the last sentence of Fitzgerald’s hypothetical.

  26. PD,
    The hypothetical element concerning the status of Plame’s work in the Fitzgerald quote you offer refers to possible violation of the Espionage Act only.

    In the sentence refering to possible violation of the Intellegence Identies Protection Act, Fiztgerald seems to accept as fact that Plame had the necessary status, but that the issue was whether or not Libby knew of it.

    This is the first time that I am learning that her actual status is irrelevant. It would seem that if Libby believed she had appropriate status, he would have broken the law, whether or not his belief was correct.

    It seem, too, I was wrong in my earlier assertion that Fitzgerald concluded no law was broken. It seems he only concluded that he couldn’t prove that a law was broken because he could not prove intent. This is news to me.

  27. mark, you may want to believe that “Fitzgerald seems to accept as fact that Plame had the necessary status.” But he didn’t say that. You are reading into what he did not say. And Fitzgerald might be the first one to object because he has said from day one that her covert status is not an issue and in doing so denied Libby the right to see the evidence the prosecution had gathered on that subject. If Fitzgerald was making a legal argument that implied that she was covert without giving defense that opportunity there is a chance for a mistrial.

    I don’t think so, though. There are three things that can be put into that space:

    1. Fitzgerald determined that she was covert, but was unable to determine whether or not Libby knew it because of the sandstorm.

    2. Fitzgerald determined that she was not covert, but didn’t want to give the defense anything to work with as to the immateriality of the lies.

    3. Fitzgerald was unable to determine one way or the other whether she was covert. There could be a number of reasons for this: (1) she was previously outed by Ames or someone else, (2) there was already widely disseminated information about V.P. known to the public, (3) the CIA doesn’t differentiate in its treatment of covert and non-covert operatives, but uses its own system of classification, and/or (4) she resided in the U.S. over the last five years but took occasional oversees trips on behalf of the government that may or may not constitute oversees service. These issues might have raised a number of factual/legal questions that Fitzgerald was unwilling to confront once he determined that Libby wouldn’t have known. (_why wouldn’t he have known? Easy, because Fitzgerald couldn’t figure out whether he was covert under this screwy law and set of circumstances_)

    I lean toward 3. It has the benefit of explaining why Armitage, Rove, and Fleischer were not indicted for violating the Act. It also explains why the CIA referral for an investigation didn’t refer to her as covert (the CIA wasn’t sure, they just knew her status was classified).

  28. Byron York’s claim that Fitzgerald’s affidavit doesn’t imply that Plame was a covert agent within the meaning of the IIPA makes sense only if you believe either (A) that it is a crime knowingly to release the identity of an alleged covert agent while holding a false belief that this person is covered; or, in the alternative, (B) you could argue that Fitzgerald decided to threaten an IIPA charge without the foggiest idea of whether it could be refuted in five minutes with a showing that Plame was not covered by Section 426. Otherwise, there would be no way that Fitzgerald could, or would, bring charges under IIPA at all. And it’s clear from that excerpt (most of the surrounding part of the affidavit is still redacted, BTW) that a charge under IIPA was still under consideration.

    I suggest that the alternative theory that Fitzgerald believed at that time he could at least argue in court that Plame was a covert agent, but not (without the additional evidence he was seeking with the affidavit) that Libby knew this fact, is the best explanation. He can, and I believe has, also argue that if it is possible that Section 426 or the Espionage Act covers Plame, then Libby would have a motive to perjure himself.

  29. I see P.D. Shaw and I have posted at the same time. Let me add that I believe that his point 3.(4) is well-taken and important. I also believe his 3.(3) is correct, but less important, because the conditions of the IIPA could be evaluated independent of notations on the CIA Payroll. Perhaps in return he will acknowledge that

    1. Perjury is a crime even if a court might have held that occasional overseas trips do not mean overseas work in the context of Section 426;
    2. It is not unusual for a prosecutor to prefer a charge where the law is clear to a charge where the application of the law (insofar as it requires a determination of “overseas”) is controvertible; and
    3. The mere possibility of a prosecution under IIPA would be a motive to lie to the grand jury.
  30. PD,

    I don’t particularly care one way or the other, so it isn’t a matter of what I “want to believe.” Indeed, I was (& am) quite happy to continue believing that Fitzgerald had concluded no law was broken whether because of Libby’s knowledge, Plame’s status, or both.

    It was your quote from Fitzgerald that has made me think otherwise. It reads:

    “In order to establish a violation of Title 50, United States Code, Section 421 [the Intelligence Identities Protection Act], it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years.”

    Now, I admit there is some ambiguity because of the possibility that Libby’s belief could be wrong. And while it is certainly not an excercise in crystal-clear writing, I think the meaning is more likely than not to be that Fitzgerald thinks that “Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 15 years.”

    The next sentence in your quote — “To date, we have no direct evidence that Libby knew or believed that Wilson’s wife was engaged in covert work.” –seems to confirm that Fitzgerald thinks she was engaged in covert work.

    I make nor made any claim about my own knowledge of the law or of Plame’s legal or technical status, classified, covert, either, neither. I can and did only offer my opinion of what Fitzgeral meant in the quote you offered. That’s all. No need to get all huffy about it.

    Now, here’s the really odd thing, PD. You offer this: “Fitzgerald determined that she was covert, but was unable to determine whether or not Libby knew it because of the sandstorm.” as one of 3 possible explanations, although not the one you “lean” toward. How is that different from what I am claiming? Seriously, I’d like to know. That is exactly what I read from Fitzgerald’s quote.

  31. _Now, here’s the really odd thing, PD. You offer this: “Fitzgerald determined that she was covert, but was unable to determine whether or not Libby knew it because of the sandstorm.” as one of 3 possible explanations, although not the one you “lean” toward. How is that different from what I am claiming?_

    It is what you are claiming, but it doesn’t make sense. How precisely could Libby create a sandstorm about whether Plame’s status was classified, whether she had been overseeas in the last five years or whether the CIA had been taking affirmative measures to protect her. Those are all issues that the CIA would have the evidence on, not Libby. The only thing that Libby could obscure is his personal knowledge, and Fitzgerald has conceded that he has determined that Libby didn’t know.

    BTW/ I notice how Libby’s attorney is pretty much arguing in his closing that she wasn’t covert:

    bq. One more thing I want to say, remember I put up public officials. We don’t contend that those people did anything was wrong. They didn’t know she was covert, any more than Libby did. You heard the tape, did he sound like somebody who was leaking a covert agent’s identity. We do not contend that those people did anything wrong.

    bq. Let me deal with motive. What govt says is that Libby thought he could be prosecuted for a crime in exposing identity of covert agent. But you know he didn’t do that. I put into evidence the statute of the law that punishes the people who disclose agent’s identity. That only punishes you if CIA takign active measures to protect identity of agent.

    “Firedoglake freeflowing transcript”:http://www.firedoglake.com/2007/02/20/libby-live-jeffress-defense-summation-two/

    (I predict Libby will object and the judge will instrust the jury once again not to consider whether Plam was covert and once again the jury will be left with the assumption that she was not covert.)

  32. PD,

    “…but it doesn’t make sense. How precisely could Libby create a sandstorm about whether Plame’s status was classified..”

    But that isn’t what I’m claiming. I am claiming that Fitzgerald has claimed that Libby’s alleged lies constitute the sandstorm that prevents
    Fitzgerald from make a determination about Libby’s knowledge, NOT about Plame’s status.

    You wrote it yourself: “There are three things that can be put into that space:

    1. Fitzgerald determined that she was covert, but was unable to determine whether or not Libby knew it because of the sandstorm.”

    According to Fitzgerald, a crucial component of crime is that the perpetrator know or believe that Plame was covert. That’s the part Fitzgerald has said he cannot prove. The implication of this is clear: Fitzgerald believes she was covert. If she wasn’t covert…IN FITZGERALD’s EYES…Libby’s knowledge would be a moot point….unless he contemplated the possibility that Libby incorrectly believed Plame was covert. While this last is possible, it seems unlikely.

  33. Nothing like a little legal wrangling to fuel a good pissing contest. Vaguely reminiscent of the O.J. trial. He was of course found ‘not guilty’ in his criminal proceedings, and unless you’re a former wife or girlfriend that’s probably meaningful. If anyone believes they can penetrate the ‘national security’ curtain and get to the truth on this kind of stuff they need counseling. From where I stand, the whole affair doesn’t pass the smell test.

  34. according to Newsweek, Fitzgerald determined that Plame had worked overseas within the five year limit?

    In The Politics of Truth, former ambassador Joseph Wilson writes that he and his future wife both returned from overseas assignments in June 1997. Neither spouse, a reading of the book indicates, was again stationed overseas. They appear to have remained in Washington, D.C., where they married and became parents of twins
    This meant that Plame would have been stationed in the U.S. for six years before Bob Novak published his column citing her two years ago today.

    The law against unmasking the identities of U.S. spies says a “covert agent” must have been on an overseas assignment “within the last five years.” The assignment also must be long-term, not a short trip or temporary post.

  35. The assignment also must be long-term, not a short trip or temporary post.

    I don’t think this is at all obvious. Would you enlighten us as to the authorities you’ve used for this construction of “served”?

  36. I notice Tom Maguire has a piece up today about the original issue:

    bq. _This is not complicated – a CIA officer could have classified status without being “covert” under the statute, simply by having failed to meet the service abroad requirement. As to whether Ms. Plame met that requirement (and just what that requirement might be), no evidence has been introduced at this trial to resolve it. However, the gist of the dispute is simple – Joe Wilson’s proponents, such as Larry Johnson, insist that “service abroad” can be as simple as flying overseas on official CIA business; Ms. Toensing argues that “service abroad” requires a specific overseas posting._

    “MinuteMan”:http://justoneminute.typepad.com/main/2007/02/in_which_we_ush.html

  37. The bottom line remains that Fitzgerald knew who disclosed Valerie Plame’s identity as Wilson’s wife shortly into the investigation – Armitage – knew it was not a chargable disclosure and yet continued his investigation for years beyond that in the very kind of political scalp hunting that discredited independant counsels and special counsels long ago. All of the hyperventilating of Bush administration critics has been revealed by the trial to be baseless, and the only group to really come out of the trial with a black eye besides Fitzgerald has been numerous reporters who have been caught with their collective pants down. Not to mention that Tim Russert has been caught submitting a false affidavit to the court.

  38. For goodness sakes, this supposed covert agent drove to work at Langely every day. It didnt take James Angleton to uncover the connection. And for the record if Plames status was so serious and potentionally dangerous, posing on the cover of Vanity Faire in dark sunglasses probably isnt the most circumspect way to protect the last shreds of your cover. Nor allowing your idiot husband to hit every newshow in town with his vague relationship with the truth.

  39. _The assignment also must be long-term, not a short trip or temporary post._

    Two of the attorneys that helped draft the law have made this argument: “Victoria Toensing and Bruce W. Sanford”:http://www.washingtonpost.com/ac2/wp-dyn/A2305-2005Jan11?language=printer

    bq. _Her status as undercover must be classified, and she must have been assigned to duty outside the United States currently or in the past five years. This requirement does not mean jetting to Berlin or Taipei for a week’s work. It means permanent assignment in a foreign country. Since Plame had been living in Washington for some time when the July 2003 column was published, and was working at a desk job in Langley (a no-no for a person with a need for cover), there is a serious legal question as to whether she qualifies as “covert.”_

    Toensing come across as quite partisan in her attacks on David Corn, but Sanford is a First Amendment rights advocate that represented Clinton.

  40. Mark Buehner: I fail to see why having Plame as an open CIA employee in 2003 blows the cover of her covert work for a (fake) different employer in 1993. I just simply don’t see the connection. (As for blowing “the rest of her cover”, that’s just silly: by then she was known in remote Siberian hamlets. You don’t think foreign countries read Bob Novak??)

    P.D. Shaw: It might be worth mentioning that Mr. Sanford is general counsel to a journalists’ trade association, the Society of Professional Journalists, and as such had a vested interest in the dismissal of charges against Libby, and of Plamegate in general, because of the contempt citations and subpoenas against Cooper, Libby, Russert, et. al. The SPJ’s dog in this hunt can be identified by their giving an award to Judith Miller, Chalabi’s embed/martyr with the New York Times.

  41. _”Mark Buehner: I fail to see why having Plame as an open CIA employee in 2003 blows the cover of her covert work for a (fake) different employer in 1993. I just simply don’t see the connection.”_

    You dont? Really?

    So your average counter-intellegence analyst would note that Plame worked for the CIA openly in 2003 as an expert on non-conventional weapons, but would think nothing interesting of the fact that she had gotten there directly from previously work as an ‘energy analyst’ and jr consular officer abroad? With a mailing address at a US embassy you could find on the internet? Come on Mark, again it doesnt take a superspook to put 2 and 2 together on this. If this is typical of our field craft we have a _far_ more serious problem on our hands.

    _”(As for blowing “the rest of her cover”, that’s just silly: by then she was known in remote Siberian hamlets. You don’t think foreign countries read Bob Novak??)”_

    If it was SOOO critical, i would think even the off chance that one of Novaks longwinded articles might slip past a few intelligence agencies would be more important than the photo op.

    After all if foriegn analysts are clueless enough not to figure out a woman working on nuclear weapons proliferation at Langely might just have been doing something for the CIA abroad the week before she took the job…

  42. “Larry Johnson continues his explanation”:http://www.tpmcafe.com/blog/coffeehouse/2007/feb/21/was_she_covert

    Still, I need to be enlightened on what exactly is being argued here.

    Truth #1: Libby is not being prosecuted for leaking any identity:

    _Scooter Libby is not on trial for violating the Intelligence Identities Protection Act. He faces a jury because he lied about his role in giving out Valerie’s name and obstructed the investigation into the leak. Can you leak the name of an overt employee? No because the person’s relationship with the CIA is not protected._

    Truth #2: Valerie Plame was categorized as a covert agent. This is based on the following –

    a. She was never an “overt” employee.

    _There are two types of people who work at CIA. First are the “overt” employees. These are folks who can declare on their resume or any credit application that they are a CIA employee. Their status is not classified and their relationship with the CIA is openly acknowledged. Valerie Plame was never an “overt” employee. At no time during her entire time at the CIA did she identify herself as a CIA employee. Although she appeared in Who’s Who as the wife of Ambassador Wilson there is no reference whatsoever to her having a job at the CIA. Zippo!_

    b. As a type of covert agent, she also was doing work as a NOC – Non Official Cover. As such, she had international “business” trips, where:

    _Although she was based in Washington, DC, Valerie traveled overseas and conducted espionage activities. She served outside the United States during the period 1998-2002 and was a covered person under the IIPA._

    c. The CIA referred the case. The CIA WOULD NOT have referred the case if she was not covert. That is OBVIOUS:

    _If Valerie had been an overt employee or a covert employee who had been sitting quietly at a desk, never venturing overseas, the CIA would not have sent the Department of Justice a letter on 30 July 2003 stating:_

    _the CIA reported to the Criminal Division of DoJ a possible violation of criminal law concerning the unauthorized disclosure of classified information._

    _The CIA knew that Valerie was a covert agent. But they did not know if the Novak leak was an intentional disclosure. That was for the FBI to determine._

    d. The Justice department would not have ACCEPTED the referral. Remember, Porter Goss took over the CIA – an uber Republican hack. At any time, he could have revoked the referral to the Justice department.

    If you REALLY BELIEVE that there is a conspiracy between – agency heads at the CIA, the Republican run Justice Department, and the Republican hack Porter Goss – AGAINST the Bush administration, simply to push this one referral –

    you are simply living in fantasyland.

    Got it? Armed Liberal, do you understand?

    This isn’t brain science. It’s pretty clear, and people here have to use their common sense, over their ideology.

    GET OVER IT. Stop pretending ignorance. Stop muddying the waters. Stop repeating lies and untruths, just to further your partisan points. Enough B.S.

  43. _The CIA referred the case. The CIA WOULD NOT have referred the case if she was not covert. That is OBVIOUS:_

    Obviously wrong. The prosecution has refused to provide Libby with the referral for his defense. But the CIA explained its referral to Congress in “this letter (pdf),”:http://talkingpointsmemo.com/docs/plame.cia.letter.pdf The CIA reported a “possible violation of criminal law concerning the unauthorized disclosure of *classified* information.” Johnson believes this means she was covert, which once again conflates “covert” with “classified.” Was he in the disinformation wing of CIA?

    Using the logic employed by Newsweek, the CIA must have decided she was not covert when it merely stated that her status was classified.

    OTOH, the leaking of classified information might have violated other laws without Plame being covert. So the CIA’s referral may have been also to seek DOJ guidance as to what those laws might be as they apply to classified information.

  44. PD Shaw,

    Really? Then why in the hell did the justice department not boot it back? The justice department gets referrals all the time. They chose to follow up on it. Why did Porter Goss not kill the referral?

    You really think everybody is in on the conspiracy?

    Gods man, that’s a hell of a conspiracy.

    And really, what does this have to do with Libby’s ACTUAL TRIAL, at this point? When he is charged with perjury?

    Answer me that?

  45. You keep obscuring/muddying the waters – but IF Libby is guilty of perjury – and the odds have it that he is?

    What was Libby trying to cover up?

    What’s your take, PD? Make the assumption that Libby WAS lying.

  46. Also it is worth reading the NY Times summary of closing arguments.

    “Here it is”:http://www.nytimes.com/2007/02/21/washington/21libby.html?_r=1&adxnnl=1&oref=slogin&ref=washington&adxnnlx=1172091491-MoOfItlWCcJodVd/5wVhxg

    _In their closing statements, the prosecutors presented a detailed and businesslike summing up of their case that Mr. Libby willfully lied to both a grand jury and F.B.I. agents investigating the leak in the summer of 2003 of the identity of a C.I.A. operative, Valerie Wilson._

    Again, PD, your assumption above means that:

    a. The referral from CIA is fake
    b. The BUSH Justice department knowingly accepted a fake referral
    c. Joe Wilson/Valerie Plame et al, are liars, as is Bob Johnson (of course, you take that for granted I’m sure)
    d. Porter Goss didn’t correct the fake referral, when he took over the CIA.
    e. The whole prosecution team is lying, in the case they make.

    That is one hell of a conspiracy there, my friend. You are far deep into tinfoil hat territory.

  47. HR, I will say this one more time, slowly for you, OK?

    The leaking of classified information is a potential crime under laws other than the Intelligence Identities Protection Act, such as the Espionage Act of 1917. The CIA could have referred her to counsel for that reason, all along believing she was not covert.

    That’s not my preferred explanation (see #34), but it makes more sense than the assertion that the CIA believed she was covert when they made the referral, but just refused to say so.

    Most of what you say though is simply venom, premised on your view that Goss is an evil s.o.b. Sorry that’s just personal theatrics, not argument.

  48. Oops, I posted before reading HR’s next comment:

    _Again, PD, your assumption above means that . . .. The referral from CIA is fake_

    I’m not bothering responding to you anymore.

  49. Of course you choose not to respond. Reality interferes with that tinfoil hat, doesn’t it?

    But hey, I’ll take you at your word.

    #34

    You posit as to what Fitgerald is thinking – BUT here is his argument plain as day from the NY Times article:

    _In his closing argument, Patrick J. Fitzgerald, the chief prosecutor, said that disclosure of Ms. Wilson’s identity was used by the White House to discredit her husband’s assertions that the Bush administration had distorted intelligence to justify invading Iraq. He said the disclosure of her name cast a cloud over the Bush White House in general and over Mr. Cheney in particular._

    Plain as day.

    Also – you keep linking the CURRENT CASE of perjury, with the justice investigation.

    What does that have to do with Libby lying?

    Again – Libby lying.

    If you aren’t willing to deal with the ACTUAL case that is on trial, why are you even talking?

    So you tell me – why is Libby lying?

    At any rate, it’s instructive to read the NY Times article – makes very clear what Fitzgerald thinks. All of your speculation in #34 is simply an obscuring tactic.

  50. It doesn’t take a tinfoil hat to realize that the CIA would prefer a more expansive reading of the statute than its plain language supports – and made the referral accordingly.

    It just takes a bit of common sense.

  51. Noise is no substitute for reason. And frequently it draws attention to the thinness of one’s arguments. The bluster attempts to hold self-knowledge at arms length, but it does not work.

  52. If clear knowledge of status and proof of intent are necessary to prosecute under the statute then it becomes a very hard case to prove because it very quickly can devolve into a he said/she said scenario. No documentation has been found, or presented at least, which addresses Libby’s knowledge of her status or his intent.
    It becomes even harder when potential witness are lying.
    The prosecutor found Libby was lying so he brought charges. Plame’s status is irrelevant to the charge of perjury and obstruction.

  53. hypocristrules seems to me to be the only one here who is thinking clearly.

    The issues are clear; 1. Libby is accused of perjury and he his being tried for this. 2. The release of Valerie Plame’s name to the press may have been a crime. The CIA itself was obviously concerned and – knowing the details and facts far better than anyone here – believed that a potentially prosecutable crime had occurred under the statutes discussed above. That prosecution of this potential crime is not necessarily being pursued is most likely due to what carsick (above) points out; intent is hard to prove. It was, in part, the subject of intent that Libby obscured with his lying.

    It is disconcerting that so many here can attempt to split hairs over Plame’s status, etc in defense of Bush, Cheney, Libby, et al.

    I mean, after all, in a post 9/11 world the administration attacks someone who works on, of all things, WMD containment issues??????!!!!!!????

    Is this dignified behavior? Is this even remotely responsible or adult behavior?

    Even if it wasn’t an attack per se (e.g. Libby just affably wagging his tongue with reporters); Is this even remotely responsible or adult behavior?

    Again, the person whose name is being bandied about is someone who works on WMD topics, has worked under cover (and covertly for you hair splitters out there). Wouldn’t you like maybe think about checking Plame’s status before bringing up with reporters?

    Why are you bringing up the name with reporters at all? What else might you discuss with reporters?

    Bring dignity back to the W.H ………feh

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