Summa-Assuma

by von

I'VE DISSENTED FROM Hilzoy's post (and the Newsweek colum) declaring that Plame has been found to be a "covert agent" under the law:  Perhaps she was, but a Court gets to decide that -- not the executive branch (here represented by Patrick Fitzgerald and the General Counsel of the CIA).  Moreover, we haven't yet seen the defense filing.

But this debate over whether Plame meets the peculiar definition of "covert agent" within 50 USC 426(4) is well beside the point.  Plame could be perfectly covert in the ordinary sense of the term, and therefore valuable to the US, without meeting Section 426(4)'s standard.  Indeed, the evidence thus far suggests that she was covert under the dictionary definition -- even if some knew about her status as a CIA agent, it certainly was "secret or hidden; not openly practiced".  It's also clear that outing Plame was not helpful from a national security standpoint regardless of whether the law was violated -- although how "not helpful" it was will remain, quite properly, classified.

So it takes a special kind of blindness to take the absence of evidence on this matter as evidence of absence, as displayed by Glenn Reynolds' insta-comment:  "I'd just like to see this kind of outrage generated on behalf of leaks that actually hurt the war effort."*

In fact, we'll never know what, where, or how it hurt.  Just as we don't know whether revelations regarding enhanced interrogation techniques, Abu Ghraib, the NSA eavesdropping program, and the rest ultimately help or hurt the war effort.  Indeed, a needless and ineffective policy aggressively pursued is a outrageous waste, and policies that strike close to our national values demeans what we are fighting for.  (See Hilzoy's post here, for instance, which I endorse.)  Better for the press to play the bad music so the tune can be changed; sometimes at least. 

*Again, less "insta" and more "reflecta" please.

UPDATE:  In which our readership loses it.  Here is Gary Farber's comment, which is picked up by others:

Von, unless you can quote the words Hilzoy used with which she allegedly "declar[ed]" that Plame has been "found to be a 'covert agent' under the law," you might want to consider how well you can support that claim, and whether you might wish to consider stepping back from it.

This is absolute nonsense. The premise for Hilzoy's post was a filing by Patrick Fitzerald that Plame met the legal definition of being a covert agent. To see this, all you must do is: 

Read her first sentence.

-And-

Click through the supporting link. 

What is the support for her assertion that "Well, Knock Me Over With A Feather!  Valerie Plame Wilson was a covert agent all along"?  A legal filing by Patrick Fitzgerald asserting that Ms. Plame met the legal definition of "covert agent" provided in the relevant statute.  So, I will thank Mr. Farber for his concern but respectfully decline his invitation to go down the path of primrose stupidity.

Now.  If you actually read Hilzoy's piece, you see in that in the second paragraph she states that the law doesn't necessarily matter here.  (A thought that would be quite out of place, of course, if her first paragraph hadn't been about the law.)  I directly echo that sentiment -- Hilzoy's sentiment -- in my post above.

That is, Hilzoy and I are in nearly complete agreement regarding Plame.  I dissent only from her assertion -- and, yes, it was her assertion, by both direct statement and adoption -- that Plame met the definition of covert agent under the law.  I make a point of my dissent because I sense a double standard being applied by lefty bloggers:  An allegation by a member of the executive branch (Fitzgerald) is accepted uncritically as fact because it serves a particular political agenda. 

It shouldn't be so.  Or the system will, inevitably, break down.  See, e.g., Duke, Group of 88.

By the way, I'm certain that it's not intentional on Hilzoy's part, but that doesn't make it any less worthy of pointing out.

UPDATE 2: Incidentally, the folks who will most benefit from such healthy skepticism will not ordinarily be crusty old (or privileged young) white dudes, but folks who are decidedly less advantaged.  But if you apply your skepticism selectively, you cede the moral high ground.

Comments

[KCinDC]

"Ing" to you too.

[KCinDC]

To be less obscure, there seems to have been some sort of editing or input accident that left the text "ing" below the fold.

[Gary Farber]

"I'VE DISSENTED FROM Hilzoy's post (and the Newsweek colum) declaring that Plame has been found to be a 'covert agent' under the law"

Von, unless you can quote the words Hilzoy used with which she allegedly "declar[ed]" that Plame has been "found to be a 'covert agent' under the law," you might want to consider how well you can support that claim, and whether you might wish to consider stepping back from it.

[Gary Farber]

"But this debate over whether Plame meets the peculiar definition of "covert agent" within 50 USC 426(4) is well beside the point."

Could you link to the blog, or blog comments, where people have been arguing about that, please?

[Morat20]

Von, you seem to be seriously nitpicking here. Why?

What's the point? She was covert. She says so. The CIA says so. No one has [i]disputed the fact in a legal setting[/i], so why are you so bound on whether it's been found true by a court? [i]Why does it matter[/i]?

What possible use is that distinction to this conversation, or the one in which you dissented?

Because it seems to be that the only real reason to make that distinction -- assuming you are not so highly pedantic and nitpicking that you probably should be medicated for it -- is because certain people do not want to engage in reality, and are clutching tightly to themselves whatever scraps of cover they can find.

What confuses me is why you seem to be one of them. I can understand Maguire, or Toensing (however it's spelled), or any of the myriad people who have tightly tied themselves to the belief that she wasn't covert and who, stupidly, still take some measure of comfort in the belief that while [i]everyone with full access to the facts[/i] thinks she's covert, that because a judge somewhere hasn't made a finding of fact on that, that they still could be right.

In the meantime, I guess we need to inform the CIA to find a new term for it's covert employees. Since it appears none of them have been determined to be 'covert' in a court of law, their covert status is stuck in some sort of Schrodinger indeterminacy and they should darn well NOT call themselves that, lest the poor stupid public become confused and come to the idiotic conclusion that the CIA has anything to do with that determination.

In fact, I think we should set up a new court -- a sort of FISA -- whose only job is to certify each year whether an agent is covert. I think it's the only way the CIA can know if it can properly refer to it's covert employees as 'covert'.

Although, ironically, I suspect any court in the land would accept the CIA statement -- with supporting docs -- that a given person was covert as proof positive, as well as their documentation that she'd been out of the country in the last five years. But that rubberstamp seems horribly vital, since merely submitting that documentation doesn't appear to be valid unless a court rules on it.

[spartikus]

Gary's point, per usual, is solid. This central point of this post seems to be based on a mistaken premise. Otherwise, I agree.

To add: The degree to which Plame's outing was "not helpful" may be forever unknowable, but I'm fairly certain the collateral outing of Brewster Jennings was a disaster.

Compounding the damage, the front company, Brewster-Jennings & Associates, the name of which has been reported previously, apparently also was used by other CIA officers whose work now could be at risk, according to Vince Cannistraro, former CIA chief of counterterrorism operations and analysis. Now, Plame's career as a covert operations officer in the CIA's Directorate of Operations is over. Those she dealt with -- on business or not -- may be in danger. The directorate is conducting an extensive damage assessment. And Plame's exposure may make it harder for American spies to persuade foreigners to share important secrets with them, U.S. intelligence officials said.

[Nell]

von: revelations regarding enhanced interrogation techniques??

You mean torture, I think; if so, please say so. Using those weasel words weakens the point I understand you to be making and puts you in the same camp with those who want to employ torture or make it a debatable issue.

If your position is that the use of torture is a policy that "strikes close to our values and demeans what we're fighting for", then call it torture.

[Steve]

The CIA supposedly conducts a comprehensive assessment of the harm which results from any outing of a covert operative.

The contents of this assessment are, obviously, highly classified. I can think of two people who claim to know the contents of this document: Larry Johnson, who says that very serious harm resulted from the outing, and Bob Woodward, who says that nothing really came of it. Of course, the outing itself was pretty frickin' irresponsible even if there turned out to be no harm, no foul.

Oh, and in Fitzgerald's closing argument at the Libby trial he seemed to imply that there were serious consequences, although it's not clear if he was just making that up (in which case he kinda crossed a line) or if he was alluding to facts which are true but classified (in which case the defense was a tad disingenuous in their objection).

Anyway, this is a remarkably silly post, which causes me to wonder why we didn't for a judicial finding that Saddam had WMD before invading Iraq, blah blah blah. In the real world, we're all entitled to view the available evidence and draw conclusions from it, subject to the caveat that we might be wrong.

If you want the state to punish someone for violating the IIPA, then yes, proof of a violation must be established beyond a reasonable doubt in the court of law, and so forth. If you simply want to state your belief as to whether an element or elements of the statute have been satisfied, there is no such requirement.

[LizardBreath]

To be fair to Von, the bulk of the post is about what a lousy, damaging thing it was to out her regardless of the legal issues. To be fair to everyone picking on the post, if you open with a nitpick, people are going to focus on the nitpick, not the rest of the post.

[KCinDC]

I wonder whether the "no big deal" report that Woodward supposedly saw took into account the damage to morale and recruiting efforts for covert operatives caused by the knowledge that the administration might casually out them at any time for political purposes.

[Anderson]

von: revelations regarding enhanced interrogation techniques??

Remember, it sounds better in the original German.

[Sebastian Dangerfield]

Jebus, Von, you're being exceptionally, stubbornly pin-headed here. First, the statement "Valerie Plame was covert" (Hilzoy's word's approximately) is a statement of empirical fact, not a legal conclusion, that intelligent people can answer based on the available evidence -- all of which points one way, incidentally.
Second, the proposition "Valerie Plame met the definition of a covert agent under the IIPA," although a legal conclusion, also is an empirical statement that people (especailly those of us with legal training and experience) can answer with a high degree of confidence, again based on the available evidence. The fact that a court has not had occasion to make a finding of fact to this effect does not alter the basic reality that we are entitled to make judgments on such questions as whether certain evidence meets a certain legal standard without the aid of a court. If all you're saying is that a person could not be convicted for violating the IIPA unless a court finds that the person whose cover was blown was covert within the contemplation of the statute, then you're really not saying much of anything.
Third, the proposition to which you take issue in your post -- "Plame has been found to be a 'covert agent' under the law" -- is an asinine passive-voice construction of your own making. And, because it is phrased in the passive voice it is, amusingly, demonstrably true. The CIA has found that Plame was covert within the meaning of the IIPA, as evidenced by, among other things, the declassified employment history attached to the Government's sentencing memorandum as well as the testimony of CIA Director Hayden before Congress. And the Special Counsel also "found [Plame] to be a covert agent under the law" as evidenced by his filing. Does this mean that someone goes to jail for blowing Plame's cover? Of course not. But it does mean that "Plame has been found to be a 'covert agent' under the law." See what happens when you try to split hairs in an effort to be terribly, terribly clever but in so doing clumsily employ sloppy, passive-voice English?
Fourth: I repeat myself somewhat here, but let me recap. What you appear to be trying to say through your clumsily worded statement is that it is not true to say that a court has found that Plame was a covert agent within the intendment of the IIPA. If that is indeed what you are trying to say, then I answer "DUH! Why are you wasting everybody's time here." It is not true to say that. But nobody is saying that. What people are saying is that the available evidence seems to quite conclusively resovle the question whether Plame was covert within the meaning of the IIPA -- which is an entirely defensible statement, seeing as the CIA, who should know, has so stated. And nobody has a lick of evidence to the contrary, although that did not prevent a phalanx of blowhards from pretending that they did. This is not a terribly complicated question of application of law to fact. The IIPA has a pretty straightforward set of criteria (the U.S. is taking affirmative measures to conceal the person's intelligence relationship and the person has had a foreign posting in the past five years) and we have some pretty straightforward evidence (albeit lacking in detail). There are lots of exquisitely difficult issues of the application of law to fact. This doesn't happen to be one of them.
All you are saying is that unless a jury convicts somebody for violating the IIPA (an event that has not happened in the history of the statute), then there has been no judicial finding that a particular person was covert within the meaning of the IIPA. In other words, you are stating what is basically a tautology. If you are were my lawyer and expending a lot of time making such an argument, I would definitely want a reduction fo my bill.

[rilkefan]

Sebastian Dangerfield, you're probably on the way past the civility requirements of the posting rules.

[Anderson]

S.D. could have confined himself to the last paragraph of his comment & done quite well, though.

[vida]

Can you imagine the response if the Clinton administration outed a CIA agent for political advantage, and then tried to justify it by arguing about the definition of what covert is? The level of hypocrisy in the right wing outlets on this one is ... is ... is ... standard.

[Sebastian Dangerfield]

Apologies. I do run off the mouth a bit. I'll get this blog-brevity thing down one day, promise.

[Jay C]

Also, Sebastian, you might want to throttle back a bit on the "pin-headed" stuff: von deserves better.
Although, to be honest, this post probably isn't the best example of von's work: as LizardBreath points out (@ 6:21) - when a short post leads off with a pointed nitpick, it tends to overshadow the rest (which doesn't bring the point -von's negative reaction to Plame's outing - across very well).

[hilzoy]

SD: fwiw, von is not a pinhead.

[novakant]

well, my turn to be nitpicky and point out that SD said von was not a pinhead per se but "exceptionally, stubbornly pin-headed here", implying that he's not usually pinheaded, but rather driven by this issue to pinheaded behaviour - see, actually it's a compliment ;)

[cleek]

Sebastian Dangerfield, you're probably on the way past the civility requirements of the posting rules.

really?

i thought it fit in just fine. floridly insulting the intelligence of other commenters with a dismissive backhanded harrumph is pretty much SOP, here.

[Pooh]

I agree with LB, though he opens with a quibble about hil's post, von's point is eminently sensible: regardless of the underlying legality, it was a stupid thing to do on both a tactical and strategic level (even ignoring that fact that it was in service of a strategic error of nth degree greater proportions, to whit, the Iraq War.)

[Randinho]

But if you apply your skepticism selectively, you cede the moral high ground.

I'll bear that in mind the next time I disagree with you that something clearly subject to opinion is, in your words, beyond dispute.

[hilzoy]

von: I guess we'll just have to agree to disagree on this one. I think that whether something in fact meets a statutory definition is something that can often be ascertained without a court ruling. (If it couldn't, it's hard to see what court rulings would be about.) Moreover, as I read the Newsweek article, it's saying that this was disclosed in a filing by Fitzgerald, but not that it was authored by him. I had supposed that he had at least consulted with the CIA on this, and that he had represented their views accurately.

If you buy that, then as far as I can tell, Valerie Plame met the definition of a "covert agent" under the statute. Her identity as a CIA employee was classified at the time of the leaks; and she had served outside the US within the past five years. Those are matters of fact, which Fitzgerald either lied about or conveyed accurately.

I am skeptical in a lot of cases. Lots of times when I don't write about something, it's because I don't have time, or it doesn't strike me the right way, or I can't think of anything useful to say about it. In the Duke case, however, I didn't write about it because when I had read up on it, I didn't think it was at all clear what had happened, and I was not going to opine on the subject without much better evidence, since taking either side would have meant saying something really bad about someone on the basis of what I took to be plainly inadequate evidence.

In this case, Fitzgerald isn't an unknown figure; he's someone who strikes me as having been pretty close to exemplary throughout. And he's not talking about things that are outside his competence: the elements of being a covert agent are factual, and he has access to those facts. It is of course possible to question the truth of the filing, just as it's possible (for me) to question the very existence of Scooter Libby, whom I have never met. I just don't think it would be particularly reasonable. I also don't think it shows a lack of due skepticism, unless your standards are a lot closer to Descartes' than mine are.

[dr ngo]

Von: Here is Gary Farber's comment, which is picked up by others:

Von, unless you can quote the words Hilzoy used with which she allegedly "declar[ed]" that Plame has been "found to be a 'covert agent' under the law," you might want to consider how well you can support that claim, and whether you might wish to consider stepping back from it.

This is absolute nonsense. The premise for Hilzoy's post was a filing by Patrick Fitzerald that Plame met the legal definition of being a covert agent. To see this, all you must do is:

Read her first sentence.

-And-

Click through the supporting link.

What is the support for her assertion that "Well, Knock Me Over With A Feather! Valerie Plame Wilson was a covert agent all along"? A legal filing by Patrick Fitzgerald asserting that Ms. Plame met the legal definition of "covert agent" provided in the relevant statute. So, I will thank Mr. Farber for his concern but respectfully decline his invitation to go down the path of primrose stupidity.

Let me get this straight. According to you, anyone who cites a document from a legal case is, ipso facto, making a claim about the law??????

No need to follow Gary down the primrose path to stupidity, Von. You're there already.

(Along with others, by the way, who throw in gratuitous references to the so-called "Gang of 88" based solely on the obsessions of Dr. Johnson, who has a definite Bee In His Bonnet on the topic.)

[Steve]

Give me a break on update 2. Having seen the actual evidence on which Fitzgerald premises his claim, having made a judgment as to the believability of that evidence, and having made a judgment as to the credibility of Fitzgerald himself, we now must acknowledge that if we form the opinion that Fitzgerald is right on this legal issue, we cede the moral high ground to question the government's conclusion as to the guilt of any criminal defendant, ever?

Like I said, give me a break. This is about as offensive an argument as claiming that if you opposed the war in Iraq, you don't care about the Iraqi people, and it's about as well-grounded.

[liberal japonicus]

the system will, inevitably, break down.

Hmmm. I thought that the system breaks down when we cede the definition making power to a small elite who then decide which usage is correct. There's a free market argument buried here, but I let those so interested dig it up.

[Anarch]

cleek: i thought it fit in just fine. floridly insulting the intelligence of other commenters with a dismissive backhanded harrumph is pretty much SOP, here.

That's pretty much what I'd expect from someone of your caliber.

[Anarch]

von: Ok, I'm seriously confused here. Consider the following analogous situation; you're clearly going to disagree that this is analogous, but I'm curious as to where you think the analogy breaks down.

Hypo: I work for a large company. The fact that they cut my checks is not in dispute, but there is some dispute over whether I was a Competition Researcher, information about which both I and the company are reluctant to disclose. Eventually, after some lengthy legal proceedings have finished, internal documents are produced that confirm that I was, indeed, a Competition Researcher. My status was never ascertained at trial (or during any findings), only in the documents.

Under this scenario, I can see literally no way in which one could conclude that I wasn't a Competition Researcher on the grounds that a court had not found me such. It strikes me that this situation is completely analogous to Valerie Plame's employment by the CIA; whether or not a court finds her to be a covert agent is utterly immaterial if the CIA itself thought her to be a covert agent. It seems almost definitional to me, so much so that I can't figure out what point you're trying to make here. If it's that a court didn't explicitly declare her to be a covert agent, well, who cares? That point isn't in dispute; it's also not, AFAICT, remotely relevant.

[And your triumphalism about "I'm right and it's not even close" in the previous thread? Seriously uncool, especially when you're being obscure.]

[Jesurgislac]

Incidentally, the folks who will most benefit from such healthy skepticism will not ordinarily be crusty old (or privileged young) white dudes, but folks who are decidedly less advantaged. But if you apply your skepticism selectively, you cede the moral high ground.

Who, exactly, are "the folks" who you think will most benefit by establishing that a person's employer is not to be considered a credible witness about their employment?

[Jesurgislac]

...though everything Von says would make sense if, instead of arguing that Valerie Plame's status had to be established by a court, not by her employer, he was arguing that whether or not it was a crime to leak her status had to be established by a court, not by her employer.

Is that what you were trying to say, Von?

[ajay]

So, I will thank Mr. Farber for his concern but respectfully decline his invitation to go down the path of primrose stupidity.

So, it's OK to insult people on ObWi now? What happened to the posting rules? Or do they only apply to commenters?

[aimai]

Must. Post. This. Link. to

"Dear Whoever The Hell Comes Up With These Things"

<http://www.dailykos.com/story/2005/10/10/213022/60>

[cleek]

That's pretty much what I'd expect from someone of your caliber.

harrrrrrumph!

[aimai]

I'm sorry, the link dissappeared:

its entitled "Dear Whoever The Hell Comes Up With These Things"

However, despite that fact that its really, really, brutally funny its not precisely on point. What is on point is that the *only* thing the Toensing/right wing perspective had going for it was Toensing's insistence that because she had something to do with the statute she was entitled to interpret it *and also* that she insisted that Ms. Plame had *not travelled outside the country* during the covered period as a covert CIA agent. The papers offered by Fitzgerald simply *put that argument to rest* since the CIA state's that she *did* travel outside the US under various names and that she (and presumably they) were attempting to keep her identity secret.

The rest of the blather is just that, blather. As others have stated rather eloquently the function of the "was she or wasn't she" covert is simply to distract us all from the fact that her identity as a CIA agent was exposed for partisan political purposes, with reckless disregard for her life and the lives of those she had worked with or might work with in the future. The far right commenters are very, very, clear on this point--anyone who crosses the president and vice president *deserves what happens to them.* They may argue as a matter of convenience that nothing that bad happened to her (or us) because she wasn't covert at the time of the exposure (and that, in fact, is Toensing's argument--its one of timing) but at base they are arguing that it was a form of les majeste for Wilson to write that op ed and that anyone who is served a lettre de cachet and imprisoned or injured in the white house's attempt to suppress such les majeste *deserves it.*

That's the argument from authority and for authority that Mr. Summa Assuma actually likes here. His arguments about Fitzgerald and why we should distrust his legal filings on this matter are absurd and even insulting given what we know about the bad faith of literally all the actors and apologists on the Libby side.

http://www.dailykos.com/story/2005/10/10/213022/60

[von]

Dr. Ngo, read the damn post.

Jes, of course that's the point.

[Jesurgislac]

Von: Jes, of course that's the point.

Then I suggest that you update your post acknowledging that you made a mis-statement and that you realise you have no cause to challenge Hilzoy.

[john miller]

von, Having read hilzoy's post three times, and the linked article three times, I do not see where there is any assertation that Plame's covert status is considered legally defined.

What is being described is a declassified document from the CIA. Fitzgerald is making no claim as to the legality of the status. It is merely an attachment to a brief. Nowhere does it state that Fitzgerald has made any declarations based upon the document, merely that he included it.

Was she covert? Well, apparently the only thing that will satisfy some people is if a court, somewhere somehow declares that to be the case. However, by all common sense declarations, she is was considered covert at the time of the outing.

Now, to be fair, the rest of your post is commendatory. But rather than people nitpicking on you, it is really a case of your nitpicking on something that was never declared or implied.

[clip]

with your 8:34 admission to Jes, I think the whole house of cards just folded.

de minimis, dude.

[hilzoy]

I don't have a problem with using 'covert' to mean 'covert in the sense defined by statute.' But I don't see why this means that a court has to decide if it applies or not, since the statute states factual conditions that either applied or didn't. Similarly, if I snuck into von's house in the dead of night and made off with his TV without his consent, I would be fine with the claim that I had committed a "theft", even a "burglary", in the sense defined by statute, even if I were never prosecuted for that crime.

[Anderson]

What is on point is that the *only* thing the Toensing/right wing perspective had going for it was Toensing's insistence that because she had something to do with the statute she was entitled to interpret it

I was thinking about this in the shower today, pathetically enough, and what utter b.s. it is.

I wrote a few decisions for a state appellate court that were handed down verbatim as I wrote them. That's b/c I was a clerk to one of the judges.

And guess what? My opinion about what one of those decisions means, is worth exactly as much as the next lawyer's.

What Ms. Toensing thought "her" statute meant, plus $4, will get you a latte at Starbucks.

[Katherine]

I am similarly perfectly comfortable stating that waterboarding & other 'enhanced interrogation' techniques meet the definition of torture, even though under the current DOJ we know damn well that no court will ever get a chance to say so.

[aimai]

Wow, Von's 8:34 response to jesurgislac really puts the original post in perspective. Its really and truly a class A example of "keep throwing shit in the air" until it miraculously turns into sunshine. If anything could more perfectly encapsulate the bush apologists approach to politics, law and culture it would be this: just keep blathering until people stop paying attention and hope that the blatant illegalities and immoralities of the ruling party get lost in the confusion.

aimai

[hilzoy]

aimai: the posting rules forbid profanity (think workplace filters) and also incivility. Your post is actually a pretty good example of why it's hard sometimes to draw the line between saying that someone's argument is lousy and saying that that person is stupid, but nonetheless.

[clip]

yeah, aimai, i hear you, but i think it's not that so much as
when all you have is a lawyering hammer, everything looks like a legal nail.

[Donald Johnson]

Possibly von's claim is that "Valerie Plame was covert so outing her was a crime" is more difficult to establish, even on an informal level, than "Taking a TV from someone's house without their permission is theft." So he thinks if we want to be sure about that we'd have to have heard from defense counsel arguing their case before we'd have all the facts we'd need to have a well-informed opinion. It's like wanting to know what OJ's defense team would say before feeling confident that OJ was the murderer. I doubt this myself--I don't know what the defense could possibly say that would change our minds, but as someone who was always a little uneasy with lining up with the CIA (even if in this case they were the good guys) I can sympathize with his point a little.

I think von meant to nitpick on a point he thinks important, and offended everyone else because it sounds like he's lining up ever so slightly with the far right talking point on something really trivial, though in fact he really isn't in sympathy with them, as the rest of the post makes clear and as we all understand. But things got really heated anyway.

My suggestion--jump in a time machine and start this thread over, but just let hilzoy handle the anti-von side of the argument.

Now I'm off to invent a time machine. Will get back to you yesterday.

[clip]

dj:
"it sounds like he's lining up ever so slightly with the far right talking point on something really trivial, though in fact he really isn't in sympathy with them"

yeah, he could have avoided that misimpression more handily if he had left out the scolding lectures about how us lefty bloggers are either foolish for swallowing whatever the Executive Branch tells us is true, or viciously inconsistent for swallowing it in this case and not in others.

whereas, in fact, i don't think anyone was basing anything on a reliance on the Executive Branch. i myself relied on Fitzgerald's own record of credibility and always underplaying his hand, plus the fact that he filed documentary evidence from the CIA, who are in a position to know.

It's like I want to know whether my cousin is named "Calvin" after the theologian or the cartoon-figure. So I ask my saintly bespectacled uncle, the curate, who has never told a lie in his life. He tells me that he named him after the theologian.

And then von comes in and says "oh, so you mean you're going to take the word of *everyone* who wears glasses? You're *always* going to show deference to people with bad eyesight when factual questions are at stake? Or just now, because you like the answers? You lefty bloggers!"

no, actually, the spectacles were not the grounds of my confidence in the answer. that feature of the witness was irrelevant to my assessment of the testimony. it was the record of reliability, and the being in a position to know.

ditto

[LizardBreath]

I also think the reaction to Von got heated because of the record of Fox News and their ilk since the scandal broke three years ago, claiming that Plame's status wasn't a close call -- that she was nothing like covert, and that taking action on the basis that it was a plausible assumption that she was covert under the statute was self-evidently insane and wrongful. While this filing isn't a court ruling that Plame was covert under the IIPA, it does establish that the facts are such that legal proceedings assuming that she was covert under the IIPA were perfectly reasonable; while it is conceivable that a court might have found a reason to rule that she was not covered, given these facts it looks a lot more likely that she was covered than that she wasn't.

This filing, then, is a solid refutation of three years worth of baseless, fact-free rhetoric claiming that the whole scandal was a trumped-up tempest in a teapot; under the facts as they were known to the relevant actors all along, and are known to us now, pursuing the investigation actively was a very reasonable thing for Fitzgerald to have done.

I think the heated reaction to von comes from his having missed the point of Hilzoy's post -- not that Fitzgerald's filing is legally determinative of Plame's status, but that it establishes all the nonsense we've been listening to for the last three years about how she wasn't really covert as nonsense.

[john miller]

I think the heated reaction to von was based upon his making an assertion that was not based in fact. And unfortunately, that assertion claimed most of the attention from an otherwise prraiseworthy post.

In terms of space, the non-fact based assertion was well less than the rest of the post. Too bad it was at the beginning which to some degree dictated the type of response.

[cleek]

it doesn't help that he keeps adding insulting little updates to his already-insulting post.

[LizardBreath]

Oh good heavens, I hadn't noticed the updates.

Von, that's idiotic. You're accusing Hilzoy of finding the CIA credible on the facts pertaining to Plame's employment purely because it suits her political goals, when the CIA is the only authoritative source of information about Plame's employment. What better source of information do you expect Hilzoy to rely on? Taking an official statement by an Executive Branch agency about facts within its knowledge and area of professional responsibility as accurate in the absence of any reliable contradictory information (and if you talk about defense filings, do please point out what facts, rather than legal arguments, you imagine they might contain that would contradict the CIA's statement) is not sliding down the slippery slope to dictatorship, or whatever you're darkly warning us all against. On the point that the legal argument isn't settled until a court settles it, sure, but that doesn't mean that an outside lawyer, like you or I, or an intelligent and sophisticated non-lawyer like Hilzoy, can't look at the facts and the law and make an educated and well supported statement about the legal argument.

[Davebo]

I'VE DISSENTED FROM Hilzoy's post (and the Newsweek colum) declaring that Plame has been found to be a "covert agent" under the law: Perhaps she was, but a Court gets to decide that -- not the executive branch (here represented by Patrick Fitzgerald and the General Counsel of the CIA).

I'm sorry Von, and to others if this has already been pointed out.

The Executive branch had nothing to do with Fitzgerald's claim. Because under 28 CFR Sec. 600.1 he was in almost every way removed from the Executive branch and the DOJ.

That's sort of the whole point of the statute.

TITLE 28--JUDICIAL ADMINISTRATION CHAPTER VI--OFFICES OF INDEPENDENT COUNSEL, DEPARTMENT OF JUSTICE PART 600--GENERAL POWERS OF SPECIAL COUNSEL--Table of Contents Sec. 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is
recused, the Acting Attorney General, will appoint a Special Counsel
when he or she determines that criminal investigation of a person or
matter is warranted and--

(a) That investigation or prosecution of that person or matter by a
United States Attorney's Office or litigating Division of the Department
of Justice would present a conflict of interest for the Department or
other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest
to appoint an outside Special Counsel to assume responsibility for the
matter.

Essentially the most annoying part of his claim is debunked in the first paragraph of the post.

[aimai]

Hilzoy and others,
I apologize for using profanity (the s*&t word) in a post. I don't apologize for calling von's post out for what it is, a bizarre and really very common form of right wing apologetics/attacks which combines nit picking, hostility, and factual inaccuracy. That is not, apparently, a minority view on von's post so I don't think my posts, however, intemperate, were that far off from obiwings normal debating style. Nevertheless, I apologize to the other posters for my harsh language.

aimai

[KCinDC]

Aimai, that's all well and good, except that Von is not a Bush apologist -- which makes his stubborn adherence to this line of argument all the more puzzling.

[Carleton Wu]

What is the support for her assertion that "Well, Knock Me Over With A Feather! Valerie Plame Wilson was a covert agent all along"? A legal filing by Patrick Fitzgerald asserting that Ms. Plame met the legal definition of "covert agent" provided in the relevant statute.

Im with Dr.Ngo- just because someone uses legal documents (which use a legal definition) as evidence of something doesn't mean that the conclusion itself it necessarily legal in nature.

Let me try a paraphrase of hilzoy's initial point: some people have claimed that Wilson wasn't covert. Well, if she was covert enough that the CIA thinks that she was (as evidenced in a court document), that's covert enough to conclude that outing her could've caused damage to national security. This is the case regardless of any court finding about her status in the future.

If you argued that the legal definition of 'covert' and the common understanding of the word diverged enough that relying on one to demonstrate the other wasn't reliable- that'd make sense to me. But lacking that divergence it doesn't make sense to insist that conclusions based on legal documents are necessarily *legal* conclusions.

So, are you saying that there is such a divergence, or just saying in principle that legal definitions ought to be presumed to map badly to common understanding unless otherwise demonstrated? Or is it something else?

[john miller]

KCinDC, obviously when you read the rest of the post von is not a Bush apologist. I think von is just a stickler for proper usage of the term "legal". If, in fact, either hilzoy, or even Fitzgeerald had declared that Plame was covert under the legal definition, then he would have a point. His stubbornness is due to the fact that he believes they did, when in fact neither did.

[aimai]

I absolutely will apologize to von because, to my mind, calling someone a bush apologist is pretty much the worst thing you can call him or her. On the other hand, I'm not sure that writing an angry and insulting post to Hilzoy and to all other posters who disagree with von on what apprently (even to von) is a minor and possibly really badly thought out point of order is that much better. Pulling back from my feelings as a political partisan and yellow dog democrat let me assume my hat as a former professor and a sometime student of argument and legal reasoning and say that von's argument as it stands, and with all its amendations and extra points, is really pretty dopey. In other words, its not just because his original post tends to fit into the bush apologist mode that I object to it--its also part of a super legalistic mode of argument that I associate more with teenagers and with first year law students than with mature legal minds. I don' t know von and I wont be at all surprised to find that those who do correct me and let me know that he/she is, in fact, an elderly law professor, former judge, or teenage whiz kid. All of those are perfectly consonant with the kind of blind allegiance to missing the forest for the trees which I see in the original post and its enraged additions.

aimai

[Gary Farber]

"His stubbornness is due to the fact that he believes they did, when in fact neither did."

Von's argument is that even though Hilzoy never used any actual words to declare "that Plame has been found to be a 'covert agent' under the law," she made that "declaration" wordlessly, by the act of linking to an article which, as part of its discussion, contained quotes and facts that happen to come from a legal brief.

Let's hear that again: if one simply links to a news article in a major popular news magazine, and that popular news article quotes a non-legal point (the CIA statements about Plame) in a legal brief, then, abracadabra, alakazam, any separate commentary making use of the quoted non-legal facts is a "declaration" of a "finding in law."

This is such patent nonsense that it isn't worth arguing with.

Von, you misread Hilzoy's point, you misread the point of the comment thread in the other thread prior to your arrival, you made your initial denunciation of people coming to a legal conclusion that in fact no one had discussed, and now you're just stubbornly sticking to your argument, because goldarn it, you put heat and effort into it, and got all annoyed, and it's a pain in the ass to back away from that once so invested.

There hasn't been a debate here about "over whether Plame meets the peculiar definition of 'covert agent' within 50 USC 426(4) is well beside the point."

Stamping your foot and insisting that there so has isn't going to get you anywhere. Not anywhere you want to be, at least.

On the other hand, if Hilzoy doesn't disagree with your claim, that I doubt I should. Hilzoy, do you agree that you "declar[ed] that Plame has been found to be a 'covert agent' under the law," or do you disagree, and were you instead discussing the ramifications of the CIA affirming as a matter of fact that they regard Valerie Plame as having been a covert officers?

[Gary Farber]

"I don' t know von and I wont be at all surprised to find that those who do correct me and let me know that he/she is, in fact, an elderly law professor, former judge, or teenage whiz kid."

I've never met Von, but I'm not giving away any secrets if I say that he's mentioned various times on the blog that he's a thirtyish married male lawyer in a fair-sized Midwestern city, who has been known to be a corporate defendent's lawyer in various suits. Did I get anything wrong, Von?

[Pooh]

Do I violate the posting rules by saying that this whole thread is rather inane and pedantic?

[clip]

well, no, pooh, you don't violate the posting rules by saying that.

but you do hurt the thread's feelings.

threads don't like being called inane and pedantic, you know. i think you should apologize to the thread.

[dmbeaster]

Von has fallen into the rhetrical hole that serves no purpose other than to minimize the wrong here. And that is true even though he adds the comment that something very wrong was done here with regard to Plame.

The game is to deny the use of the word "covert" in connection with Plame's status, even though there is no logical justification for that distinction. As pointed out by others above, the only meaningful caveat is that there has not also been a judicial determination of "covert." So what.

The Bush crowd has minimalized the heinous conduct here with this game of "not really covert." Von is still a sucker for that rhetorical crime. Her covert status is for all appearances a fact with no counter evidence.

To make an analogy that helps bring this out, the Bushies love to say "enhanced interrogation techniques" instead of torture -- as if using different rhetoric changes the reality that water boarding, stress positions, etc are forms of torture. The same is true as to Plame and covert -- you don't lessen the rhetorical crime by acknowledging that something bad was done, but we just can't say "covert" in relation to Plame.

And it is indefensible. Sad to see von cling to this phony line.

[hilzoy]

Gary: Let's break it down. I said that Valerie Plame was a covert agent all along. There are a bunch of points at which I might disagree with von's take on what I said:

(a) There's the distinction between using "covert agent" as defined by the statute, and using it as a term of ordinary language. I have no problem using it as defined by the statute, any more than I would mind using 'murder' to refer only to those killings that meet the legal definition of murder.

(b) There's the part about 'has been found to be'. This is not what I said, and insofar as it implies someone who made a finding that she was a covert agent, where finding has anything resembling its legal sense, I disavow it.

I cede (a) willingly because I think it is not true that only courts get to decide whether legal terms apply. Only courts get to make legal rulings, convict people of guilt, assess penalties, and so forth. But (according to me) I, hilzoy, private citizen, can claim that even though OJ Simpson was acquitted, he murdered his wife, using 'murder' in its legal sense.

That is: I take the claim that OJ murdered Nicole to be a statement of fact: he killed her, and he met certain (factual) conditions set out in the law. That is true or false independent of what a court finds. I mean, I take the questions whether I killed someone by some act of mine, whether I acted with the intention of killing someone, and whether I acted with premeditation to be true independent of what a court finds. If those are the elements of murder, then I murdered that person. If OJ Simpson met those conditions vis a vis Nicole, then he murdered her. And that is so whether or not he is convicted.

[LizardBreath]

To further tie that into what Von said, it is possible (and in fact it is what I understand you to have done here; it's certainly what I did), to use your own judgment as to the legal import of the text of the law, and how the law applies to the facts, rather than accepting a prosecutor's version at face value. Von's warning that it is wrong to unquestioningly accept a prosacutor's version of the facts and the law just because it's politically convenient is therefore inapplicable, because no one did that. You, I think, and I, I know, accepted the CIA's version of the facts of Plame's employment, because the CIA is the only reliable source for those facts, and used my own judgment for how the definition of 'covert' in the IIPA applied to those facts.

[Ugh]

And that is so whether or not he is convicted.

And hence we find people "not guilty" rather than "innocent."

[Gary Farber]

Thanks muchly, Hilzoy. I was feeling a bit out on a limb, given that the entire point rests on Von's misinterpretation of both what you asserted, and what was then subsequently discussed in the "Well, Knock Me Over With A Feather!" thread.

I can well understand that the legal question has been upper-most in Von's mind, and that since it's been much discussed, and much discussed elsewhere in the past week, that he came to your post with those legal issues the only topic on his mind, and so it was not unreasonable that a hasty reading could overlook the fact that this discussion wasn't about legal issues at all, but about the underlying facts, and rights and wrongs.

I can understand that perfectly well. And I can understand the lack of interest in backtracking and reconsidering, as well.

But I like to think that Von can do better.

One wins more respect by admitting a trivial error (which is all his misreading was, of course -- we've all done that sort of thing at times, after all), then by resenting or fearing losing face, and clinging to a foolish position of maintaining that I Was Right All Along, Damnit!

After all, who cares if Von make a minor misreading of a blog post? It's only his insistence that, darn it, he didn't!, that causes anyone to point out that, yeah, he did, and made some (trivial, save to the actual argument) false claims on top of that.

And, yes, it's a boring argument about a trivial point; no one would care to respond, save that Von went and wrote an angry post about it (to which he appended some views about the Plame scandal, leaving no one interested in talking about said appendage, given the absurdity of the point he gave primacy to), and commenting on posts is what folks do in blog threads.

[jrudkis]

But since Plame had been outed years before, it is a moot point anyway:

First Outing of Valerie Plame

AP:

Despite Ambassador Joe Wilson's proclamations to the contrary, the Washington Post editorial by Robert Novak in June, 2003, was not the first public disclosure of his wife's role in undercover operations.While allegations of Wilson's own loose lips in the Foxnews green room to two retired military officers has also made headlines, AP has learned that Ms. Plame played a key role in the first outing of both herself and the "cover" corporation that she worked for.

Ms. Plame wrote a screen play that was turned into a movie in the early 1980's under the psuedonym "Emmit Fitzhume." The movie included disclosure of CIA insertion operations, selection of operatives, and the name of an until then CIA run agency called the "Ace Tomato Corporation." However, the credits to the movie include her name as the "CIA technical advisor," and her actual role was played by Donna Dixon, a role that used her name.

While Ms. Plame had her lead character use her pseudonym for the screenplay, her part in the operation used the cover of a Red Cross Nurse working in the mountains of Pakistan along the Afghanistan border. Red Cross officials launched an investigation and broke ties with the CIA after the movie to prevent the appearance of impartiality. Plame also drew criticism from the CIA for releasing information about common sexual practices of agents on assignment.

Ms. Plame has said that the screenplay was vetted by the CIA prior to her submission to Warner Brothers films.

The movie, which was titled Spies like Us, nearly ended the presidency of Ronald Reagan in 1985 due to the disclosure of rogue military officers trying to launch a nuclear war with the Soviet Union. Additionally, the CIA was forced to changed the name of the under cover corporation to the "Acme Tomato Corporation."

Special Prosecutor Fitzgerald has indicated that he was aware of this disclosure, and it was the primary reason that he did not indict any current officials for violations of the Undercover Agent Act.

Neither Chevy Chase nor Dan Akroyd, the producers and lead actors in the film would comment, citing "national security."

[LizardBreath]

Pardon? Donna Dixon's role in the movie is Karen Boyer.

It was funny, but I do kind of hate straightfaced misinformation in the middle of a substantive conversation.

[jrudkis]

You mean it is not true? Can't even trust AP anymore I guess...

I was just trying to lighten it up a little.

[Gary Farber]

It's a spoof of some kind, although it reads to me as having the form of something that might be funny, and is intended to be funny, but which seems to be entirely lacking anything funny -- but that's a subjective opinion. More relevant is that Google doesn't seem to show any trace of it existing anywhere else.

Is that an original attempt at humor, jrudkis? If so, apologies that it didn't make me laugh at all.

But, then, Spies Like Us was pretty unfunny in the first place.

[clip]

jrudkis--
you want to give a cite for that article, other than "AP"?

how could one hunt up the original source, if desired?

I just googled "emmit fitzhume", "ace", and "acme", for instance, and found no links back to this article.

so wherever the original of this article lives, it does not seem to be googleable.

help?

[Gary Farber]

"I was just trying to lighten it up a little."

Ah. Well, I appreciate the effort and intent.

[Anarch]

I like to consider it performance-art deadpan :)

[clip]

oh dear. i have been convicted of humorlessness.

i wonder why, after three years of reading various implausible and dishonest attempts to deny that her cover was blown, i would have mistaken this for anything but scintillating wit.

[von]

Similarly, if I snuck into von's house in the dead of night and made off with his TV without his consent, I would be fine with the claim that I had committed a "theft", even a "burglary", in the sense defined by statute, even if I were never prosecuted for that crime.

Based solely on a prosecutor's filing? Or a policeman's notes? I hope you wouldn't.

I have seen several -- perhaps more than a dozen -- briefs that read at first glance as slam-dunk winners. They have facts and evidence and arguments just like Fitzgerald's does. And then you see the opposition brief, and it becomes crystal clear that, that what at first glance looked like a slam dunk really isn't.

None of this is to say that that Fitzgerald's arguments aren't wholly correct here. But it's naive to say that a fact has been established because it's in a prosecutor's filing. Worse: It's wrong, and clearly so.

[Sebastian Dangerfield]

A boring argument indeed (spoken as one who participated), but trivial I'm not so sure. What Von seems to be saying now is that we gullible lefties are uncritically taking the Executive Branch's assertion that Plame was a covert agent as gospel truth merely because it suits our political agenda and that that way lies tryanny and many associated badnesses. No, no, sez Von, someone is not covert until a court says she's covert. To which I say: Bollocks! Bollocks on many levels!
I hate to belabor this, but the principle point is that we citizens are most certainly entitled -- and indeed should -- make judgments about whether certain facts add up to a criminal offense without courts telling us. That's the whole idea behind having a penal code that puts people on notice ahead of time of what's legal and what's not legal. And without the ability to independently assess the legal consequences that flow from a particular collection of facts, we lawyers could not presume to give our clients legal advice (and charge them for it, too). I think my career might have been very short-lived if, upon meeting with a client and investigating the facts, I said, "you know, maybe what you did is a crime, but I really can't say for sure unless a court says so. So why don't we just try the case and find out."
Relying on the unclassified summary of Plame's employment -- which gives us a history from 2002 through to her retirement -- to make a judgment as to whether Plame met the definition of a "covert agent" in the IIPA is not submission to tyranny. It's just using one's noodle.
One of the amusing ironies here is that Von's really quite outlandish theory -- that no-one can make a sound legal conclusion other than a court of law -- itself shows a slavish devotion to authority.

[von]

Thanks muchly, Hilzoy. I was feeling a bit out on a limb, given that the entire point rests on Von's misinterpretation of both what you asserted, and what was then subsequently discussed in the "Well, Knock Me Over With A Feather!" thread.

Gary, I keep reading Hilzoy's original post, as well as her additional statements in this thread, and I still have no idea why you're claiming that I misinterpreted it. Here's how she explained it in her comment on this thread:

I don't have a problem with using 'covert' to mean 'covert in the sense defined by statute.' But I don't see why this means that a court has to decide if it applies or not, since the statute states factual conditions that either applied or didn't. Similarly, if I snuck into von's house in the dead of night and made off with his TV without his consent, I would be fine with the claim that I had committed a "theft", even a "burglary", in the sense defined by statute, even if I were never prosecuted for that crime.

Hilzoy may be "be fine with the claim that I had committed a 'theft', even a 'burglary', in the sense defined by statute," but no news organization would. Every single one of them would use the phrase "alleged theft" or "alleged burglar", because they know that whether someone has commited a crime (or met the elements of a statute) is a legal determination -- and it's made solely by a Court. (Indeed, it's theoretically libel to state that someone committed a crime when there has been no court finding to that effect, even if the underlying facts are true.)

You, I think, and I, I know, accepted the CIA's version of the facts of Plame's employment, because the CIA is the only reliable source for those facts, and used my own judgment for how the definition of 'covert' in the IIPA applied to those facts.

Lizardbreath: The CIA is the arbiter of truth? The CIA has no self-interest in extending the reach of the IIPA to the maximum extent? The CIA determines what the law is?

[Sebastian Dangerfield]

Von: It isn't just an argument from Fitzgerald. It's a piece of evidence: a summary of Plame's CIA employment -- with the relevant details -- from the CIA itself, which is uniquely in a position to speak about Plame's CIA employment. This is just in addition to the circumstantial evidence, including but not limited to the fact that the CIA considered the leak serious enough to warrant a referral to the Justice Department, that Hayden testified to Congress (contra the interests of the Administration) that "Wilson was covert", etc.

[von]

One of the amusing ironies here is that Von's really quite outlandish theory -- that no-one can make a sound legal conclusion other than a court of law -- itself shows a slavish devotion to authority.

SD, that's not my position, is it? I stated that it was a mistake to rely on a Court filing by a prosecutor to establish that someone is -- or is not -- covert within the meaning of the IIPA. That's what Hilzoy's post did: It essentially said, "case closed, because Fitzgerald and the CIA say so."

I didn't say a don't try to apply law to fact. I didn't say, don't reach legal conclusions. I certainly didn't propose the "really quite outlandish theory" that you set down. I simply said, don't take the word of the executive (here, Fitzgerald) as gospel truth.

Really, I think that a lot of folks here are getting blinded by who I am -- a putative right-wing commentator -- and failing to read what I'm saying.

[jrudkis]

I didn't really mean for anyone to take it seriously. I thought for sure when the CIA changed the name from "Ace Tomato" to "Acme tomato," it would be clearly a farce. Plus Chevy Chase and Dan Akroyd citing "national security.."

But I can see the point that with this issue, it may be hard to tell.

I'll try to make sure it is clear and funny if I get the bug again.

[clip]

von, i'm watching you self-destruct here, and wishing you wouldn't.
just cut your losses, go for a good long bike ride, and enjoy the rain.

[Sebastian Dangerfield]

If I state the following facts (Von entered Hilzoy's house at night without her permission and, also without her permission, removed her TV set, took it home with him, and used it as his own), and those facts are true, then I do not even theoretically commit libel by saying "Von burglarized Hilzoy's house."
And no the CIA is not the "arbiter of truth". Put your straw man away. Nobody is saying anything close to that. But the CIA is pretty good authoirty for the employment history of a CIA employee.

[john miller]

And, again, Fitzgerald made no claim on Plame's covertness as it applies to the statute.

[von]

Clip, I thank you for your concern.

SD:

(1) I realize that a summary from the CIA -- which, again, has an institutional and rational bias to extend the reach of the IIPA as far as possible -- has convinced you. I still think it's profoundly silly to decide the matter without even seeing the opposition brief.

(2) If you say that someone is guilty of burglary when they haven't been convicted of it, you have stated an untruth regardless of whether the facts would support a burglary conviction.

[von]

And, again, Fitzgerald made no claim on Plame's covertness as it applies to the statute.

Miller, of course Fitzgerald made exactly that claim -- that's one of his bases for arguing that Libby's sentence should be significant.

[jdkbrown]

Von,

I don't see how, given your position, you could fail to accept Ed Meese's argument that reversals of conviction on appeal only help the guilty, since everybody appealing a conviction is guilty (having been found so by a court).

I trust that you *do* want to disown his reasoning...

[Carleton Wu]

None of this is to say that that Fitzgerald's arguments aren't wholly correct here. But it's naive to say that a fact has been established because it's in a prosecutor's filing. Worse: It's wrong, and clearly so.

I know it's been said before, but the important face here is that that the CIA made the determination that Wilson was undercover. That this fact was revealed via a prosecutor's filing is completely beside the point.
This seems pretty clear from hilzoy's post (which only mentions the filing as the method of disclosure, not as resolving the issue itself).

So, a fact has been established- the CIA's viewpoint on Wilson's status.

[von]

I don't see how, given your position, you could fail to accept Ed Meese's argument that reversals of conviction on appeal only help the guilty, since everybody appealing a conviction is guilty (having been found so by a court).

Ed Meese's statement is literally true, JDKBrown: If you are found guilty in a final judgement at the trial level, you are (for all intents and purposes) guilty regardless of truth, law, or justice. You are treated as guilty unless and until an appellate court reverses or the trial court reconsiders.

[Carleton Wu]

If you say that someone is guilty of burglary when they haven't been convicted of it, you have stated an untruth regardless of whether the facts would support a burglary conviction.

Perhaps this is true if the words are interpreted in technical jargon, but I would strongly dispute this if we're talking about non-lawyerese English. (ie guilty = Responsible for or chargeable with a reprehensible act; deserving of blame; culpable).

You cannot reasonably claim that the technical legal term trumps the common one, or that laypeople should adhere to it.

[Sebastian Dangerfield]

Me: Von's really quite outlandish theory [is] that no-one can make a sound legal conclusion other than a court of law

Von: that's not my position, is it?

Von previously: I'VE DISSENTED FROM Hilzoy's post (and the Newsweek colum) declaring that Plame has been found to be a "covert agent" under the law: Perhaps she was, but a Court gets to decide that

Hilzoy may be "be fine with the claim that I had committed a 'theft', even a 'burglary', in the sense defined by statute," but no news organization would. Every single one of them would use the phrase "alleged theft" or "alleged burglar", because they know that whether someone has commited a crime (or met the elements of a statute) is a legal determination -- and it's made solely by a Court.

You are indeed saying that, in the absence of a court finding, it is irresponsible to say that Plame was a covert agent and base that statement on the CIA employment history that Fitzgerald submitted with his sentencing memo. And you even go so far as to say that it's "theoretically libel" to do so.

For the record, I do not think that you are a right-wing anything (and I know what it's like to be accused of being a troll or shill for merely stating a viewpoint that is not in lock-step with a particular groupthink). I just think that you opened your post, quite unecessarily, with an absurd and poorly thought-through "gotcha" point. The problems with that point were legion and have been documented ad nauseum -- misrepresenting what Hilzoy said, ambiguous passive-voice construction where rigor is called for, questionable embedded premises. It's the kind of thing that can really screw up, say, an oral argument in court. I see it frequently: lawyer opens with attempt at being very clever, buys a whole lot of trouble, gets his or her good points lost in a deconstruction of the as-it-turns-out not very clever point.

[Steve]

But it's naive to say that a fact has been established because it's in a prosecutor's filing. Worse: It's wrong, and clearly so.

How is it that after all this time and all these comments, you're still maintaining that the only evidence is Fitzgerald's own assertion, when Fitzgerald included the source document in his filing so we could see for ourselves?

If Patrick Fitzgerald files a document claiming that hilzoy stole von's TV, maybe we shouldn't take his word for it.

If Patrick Fitzgerald files a document claiming that hilzoy stole von's TV, attaching as an exhibit security camera footage which shows hilzoy making off with von's TV, I'm sorry, but we're perfectly entitled to conclude that that's what happened. The fact that the camera footage is part of a prosecutor's filing doesn't change what it is.

If von's point is that the defense might have a response that would change our minds, that's a fair point. I don't think anyone is saying that their conclusion is fixed and immutable regardless of what new information we might get. But I think the error lies in assuming that there is a binary choice - either "this issue has been conclusively established" or "this issue is unresolved." Clearly, we all have lots and lots of beliefs that are subject to revision based on new information, but which we're pretty convinced of in the meantime.

Maybe hilzoy will come forward with proof that that wasn't her on the film stealing von's TV, or that she was simply moving it to another room, or somesuch. But unless and until that occurs, we're entitled to go by what we saw on the tape. We're not simply taking the word of Alberto Gonzales at a press conference that Jose Padilla is a dirty bomber; we've seen actual evidence, that we deem pretty compelling, and we're not required to pretend that it remains a 50/50 issue until the other side responds.

[von]

Carleton Wu:

I know it's been said before, but the important face here is that that the CIA made the determination that Wilson was undercover. That this fact was revealed via a prosecutor's filing is completely beside the point.

In some ways, this statement is even more disturbing than simply taking Fitzgerald's word for itpresumes that (1) the CIA decides whether Plame was covert as a legal matter (it doesn't); (2) the CIA is a neutral arbiter of the facts (it isn't, indeed, it has an understandable and clear institutional bias to help Fitzgerald show that Plame was legally covert*); and (3) a declassified CIA summary is complete in all material respects.

*It's in the CIA's interest to show that as many agents as possible are covert, thereby discouraging others from leaking info. This is perfectly understandable and may even be for the good, but it is foolish to read the CIA's declassified summary without realizing its agenda.

[Katherine]

"theoretically libel to state that someone committed a crime when there has been no court finding to that effect, even if the underlying facts are true.)"

No, it really isn't. Whether someone committed a crime is a separate question from whether they have been convicted of a crime. We sometimes use the phrase "X is guilty of crime Y" to say that X has been convicted of crime Y, but it's equally common to use the phrase to say "X actually committed crime Y."

Newspapers tend to be extremely cautious & make liberal use of "allegedly"--sometimes for good reason, sometimes out of the same cowardice that leads them to uncritically use the phrase "enhanced interrogation" or "tough interrogation"--but there's a whole lot of daylight between what a newspaper does to avoid any possibility of being sued & actual, legal, libel.

Ironically, your view of the law is the one that gives entirely too much power to executive officials. It allows prosecutors to magically disappear crimes by choosing not to prosecute them.

As far as I can tell, Valerie Plame was a covert agent, though she was never adjudicated one. OJ Simpson was acquitted, but he murdered his wife. Members of the Bush administration violated FISA.

Does your rule apply internationally too? Is it inaccurate and libelous to say that Augusto Pincohet is responsible for thousands of Chileans' torture and disappearance, since he hasn't been convicted of those crimes? How about Slobodan Milosevic, who died before his tribunal finished its work?

[von]

SD, my point becomes clear if you merely provide the complete quote, rather than cutting me off in mid-sentence. Here is how you quote my position:

Von previously: I'VE DISSENTED FROM Hilzoy's post (and the Newsweek colum) declaring that Plame has been found to be a "covert agent" under the law: Perhaps she was, but a Court gets to decide that

Here is what I actually said [note the sentence that you cut off above]:

I'VE DISSENTED FROM Hilzoy's post (and the Newsweek colum) declaring that Plame has been found to be a "covert agent" under the law: Perhaps she was, but a Court gets to decide that -- not the executive branch (here represented by Patrick Fitzgerald and the General Counsel of the CIA). Moreover, we haven't yet seen the defense filing.

As for this:

You are indeed saying that, in the absence of a court finding, it is irresponsible to say that Plame was a covert agent and base that statement on the CIA employment history that Fitzgerald submitted with his sentencing memo. And you even go so far as to say that it's "theoretically libel" to do so.

No, I said that Hilzoy's hypothetical (above) about a burglary was "theoretically libel". I presume you concede that point, because you're trying to change the subject (and misleadingly so) rather than offer a further response.

The problems with that point were legion and have been documented ad nauseum -- misrepresenting what Hilzoy said, ambiguous passive-voice construction where rigor is called for, questionable embedded premises.

To which I respond, huh?

It's the kind of thing that can really screw up, say, an oral argument in court. I see it frequently: lawyer opens with attempt at being very clever, buys a whole lot of trouble, gets his or her good points lost in a deconstruction of the as-it-turns-out not very clever point.

An insight that you might consider applying to yourself.

[Sebastian Dangerfield]

Odear odear odear, von, you are digging yourself into a deeper hole, most unnecessarily:
1) I realize that a summary from the CIA -- which, again, has an institutional and rational bias to extend the reach of the IIPA as far as possible -- has convinced you. I still think it's profoundly silly to decide the matter without even seeing the opposition brief.

No, that is profoundly silly. The CIA may well have a bias toward a broad reading of the statute (I don't think that's a given, but I'll assume it for the dake of argument). The problem is that the CIA's rundown of Plame's employment history is not a reading of the statute; it is a statement as to certain facts. Unless you are trying to say that the CIA is lying about the facts of Plame's employment history so as to fit the statutory definition (and who knows, you might say that given your penchant for rearrangement of the goal posts), the supposed "institutional and rational bias" toward a broad reading of the statute is entirely beside the point.

(2) If you say that someone is guilty of burglary when they haven't been convicted of it, you have stated an untruth regardless of whether the facts would support a burglary conviction.

Wrong again. This is really quite flabbergasting. In your world, I can state all the facts that support a conclusion but cannot state the conclusion that follows from the facts. So I can truthfully recount facts that all add up to the conclusion that you committed burglarly, but I can't say you committed burglary unless you were convicted. Indeed, you say, I would be committing libel! Oh my! (Oh, but, hey, can you say that if a court hasn't found me liable for libel?) That is ridiculous, and I would certainly urge you to look into libel law more closely if you ever decide to branch out in that direction. I would state an untruth only if I said that the person was convited of burglary when he was not.

[von]

Katherine, if I say that Bob has been convicted of murder when he hasn't been, I haven't stated an untruth? Does not a theoretical claim for libel lie? (Note that I never said a good claim or a winning one; a theoretical one.) Because that's the hypothetical at hand.

[Gary Farber]

"But it's naive to say that a fact has been established because it's in a prosecutor's filing."

Von: We're. Not. Doing. That.

We're saying that the CIA affirming that Plame was a covert officer is evidence that the CIA believes that Plame was a covert officer, and we've been discussing the implications of that fact.

You're the one who keeps going on about the prosecutor's filing, and the law, and legal findings.

A fair number of people seem to feel that the CIA is competent to speak to the issue of how they regard their personnel. YMMV.

This is not a legal determination. It is not a legal issue. I don't know why you keep insisting that people are talking about legal issues when they aren't, and they deny doing so; I find the spectacle of you insisting that you know better than they do what their point is to be rather odd.

Specifically, Hilzoy denies that she made the claims you attribute to her. Her words do not support the claim you attributed to her. Various people here have attested that they understood Hilzoy to be saying what she said, not what you rewrote her and claimed she really meant, or said.

Are you really going to continue to insist that you are more correct about what Hilzoy said than she is?

Just to cover it one last time: you assert that Hilzoy declared "that Plame has been found to be a 'covert agent' under the law."

But Hilzoy did not claim that Plame had been "found... under the law."

Hilzoy did not make any claim about a finding -- she made a claim about what the CIA said (which happened to be quoted in a legal brief, which is irrelevant).

Hilzoy did not make any claim about something being "found" under the law. She made a claim of fact, based on the information provided by the CIA. The legal context of that is irrelevant.

This is the point you completely misunderstood, and that you still seem to have not yet have seen. All the convoluted reasoning in the world won't change this.

"Lizardbreath: The CIA is the arbiter of truth?"

They're the arbiter of what their views of who a CIA covert agent is.

Similarly, the foremost expert in the world as to what Von's views are is Von. That doesn't make you an "arbiter of truth" in all things, but it means that it's not unreasonable to, assuming there's no reason to think you may be being dishonest for some reason, regard you as being a fairly definitive arbiter on the topic of "what does Von think of that?"

"The CIA has no self-interest in extending the reach of the IIPA to the maximum extent?"

That's a valid point for discussion, if we were discussing the IIPA. But we're not.

[Dantheman]

"if I say that Bob has been convicted of murder when he hasn't been, I haven't stated an untruth? Does not a theoretical claim for libel lie? (Note that I never said a good claim or a winning one; a theoretical one.) Because that's the hypothetical at hand."

Umm, no. The issue at hand is a statement whether Bob has committed a murder, not been convicted of one. Can you honestly not see this, von?

[Steve]

In some ways, this statement is even more disturbing than simply taking Fitzgerald's word for itpresumes that (1) the CIA decides whether Plame was covert as a legal matter (it doesn't); (2) the CIA is a neutral arbiter of the facts (it isn't, indeed, it has an understandable and clear institutional bias to help Fitzgerald show that Plame was legally covert*); and (3) a declassified CIA summary is complete in all material respects.

Let's quit pretending that the legal definition of "covert" is some arcane matter.

What are the legal requirements for a CIA employee to be "covert" under the IIPA?

1) her identity as an employee must be classified information; and

2) she must have served outside the United States at some point during the last five years.

That's it. Period.

Of course the CIA has an incentive to argue that Plame is covert. But there are no gray areas here. The only two possibilities are that Plame was covert, or that the CIA document in Fitzgerald's filing totally makes stuff up.

The latter is theoretically possible, of course, but it's normal human behavior to discount such possibilities unless someone makes a convincing case to that effect. Otherwise, if we must always reserve judgment because of the possibility that every document just might be a complete work of fiction, it's hard for us to ever conclude anything about anything.

[Katherine]

"Katherine, if I say that Bob has been convicted of murder when he hasn't been, I haven't stated an untruth"

Of course you have. What you said above, though, was: "Indeed, it's theoretically libel to state that someone committed a crime when there has been no court finding to that effect, even if the underlying facts are true"

"Convicted of" just isn't synonymous with "committed". How many brutal dictators were never convicted of anything?

[KCinDC]

It wasn't Hilzoy on the security camera. It was Sideshow Bob!