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May 30, 2007

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The relevant question for sentencing Libby is whether she was covert during the period that Libby was trying to obstruct justice.

Pardon? How does that make sense? Libby was attempting to obstruct justice in relation to the events that led up to her being outed. There was no investigation for him to obstruct until the initial crime (if her outing was such) was committed, and after that point her identity was public. How would Libby's legal position have changed if immediately after Novak's column, the CIA had publicly stated "Ms Plame was covert until the column was published, but is no longer so" and the rest of the investigation, including Libby's misconduct, had proceded as it did in the real world?

"I wasn't trying to be gracious."

Success!

"Hilzoy's comment that Plame was, indeed, covert was promoted and based on a legal filing by Fitzgerald."

No, it was based on a CIA document.

"It was reasonable to assume that she was placing stock in Fitzgerald's legal conclusion, rather than simply the facts"

No, it wasn't; it was a pure hallucination, not reached reasonably or otherwise by almost anyone else. It certainly wasn't so compelling that after many people pointed out the misreading, and after Hilzoy repeatedly addressed your misreading, you should have been so gripped by the unbearable power of the almost infinite reasonableness of the misreading, as to render you incapable of considering whether or not anyone might actually be correct in noting that you've been consistently misreading, including tens of comments after tens of comments after tens of comments, and endless explications of the precise nature and specifics of your misreading.

But, sure, perhaps you're right, and we're all wrong, and Hilzoy took an entirely unreasonable interpretation of what she wrote, and yours was actually the most reasonable, and, indeed, the only logical reading, given how illogical any other reading was, including Hilzoy's.

Without doubt it seemed reasonable to you, of course, since tautologically all our own misreadings initially do.

We all misread things, at times. Goodness knows I do.

It's your subsequent responses to people suggesting you might reconsider that I regretfully think you could have done better on. But you stand by it all, and thus mileages vary.

"...(which she then used to reach a nonlegal conclusion identical to the legal one). She says, however, that she didn't intend to comment on the legal issue, and I believe here. Case closed; but it doesn't make my read of what she said wrong."

With such a convincing close, I'm content to let you have the last word, and to have people come to their own conclusions, based upon your reasoning.

Von: That's because it's been admitted.

Wait, Von. You refuse to accept as evidence direct testimony that contradicts your cherished belief that Plame wasn't really covert. Yet you provide indirect testimony from a known perjurer, and you say that's proof enough? Come off it. Cite Harlow's direct testimony, not Libby's self-serving spin on what Harlow said.

The relevant question for sentencing Libby is whether she was covert during the period that Libby was trying to obstruct justice. It's not clear that she was.

No: the relevant question for sentencing Libby is whether she was covert when her identity was leaked. Libby was obstructing justice and perjuring himself during the investigation into the crime, and the crime was making a covert CIA agent not-covert. This is not just backwards logic, it's silly. It's like arguing that you can't sentence a man for murder unless you can show that the victim was alive during the murder investigation.

I've explained, repeatedly

No, you have not. Hilzoy laid out points 1 to 9. You are claiming she got some or all of them wrong, or was at least wrong to come to the conclusion she did. Where, then, did she get them wrong?

Michael Cain: What I meant (and I certainly don't speak for von) is that there are plenty of examples of a court ruling that a statute does not mean what I think it says, and even that a statute does not mean what the legislature thought they were saying when they passed it. If there were a body of case law that provided examples of what the courts thought the statute says (e.g., that pay stubs are indeed required as evidence, or that the person must reside outside the country rather than just travel there, or that 30 days of travel per year is sufficient but three are not) I would be more confident that I knew whether or not Plame was covered. I think that she should be, but I don't know that she is.

Oh. Yeah, that actually makes sense. Thank you for responding with such clarity: I hope Von takes you as a good example.

...but I see he has no intention of either explaining where he thinks Hilzoy "got it wrong", or withdrawing his misleading claims in either post or update.

...Von?

For Jes:

Here are Hilzoy's points 1-9, and my brief responses thereto:

(1) I did not say, nor did I mean, that she had been determined by a court of law to be a covert agent. I said that she was one. This means: as a matter of fact, she met the definition of 'covert'.

There are two statements here: "I did not say, nor did I mean, that she had been determined by a court of law to be a covert agent." Fine. It doesn't affect the analysis, and I'm perfectly happy to acknowledge that.

"I said that she was one. This means: as a matter of fact, she met the definition of 'covert'."

Hilzoy's perfectly entitled to think that Plame met the definition of covert, of course, which includes the legal definition of covert, as she concedes in the next paragraph (reprinted below).

(2) I don't think I was clear in my own mind whether I was using 'covert' in its legal or colloquial sense, since I thought she was covert in both senses (and had read the statute, so knew what it involved.) However, let's take the legal one. Here's the definition (the part I take it she falls under):

Well, if Hilzoy thinks that Plame is covert in both senses -- including the legal ssense -- and recognizes her prior statement could communicate as much, the argument by Gary and others that I somehow misread Hilzoy and have been misportraying her words is incorrect. Hilzoy may be allowing that Plame was covert in the dictionary sense, but she also acknowledges that she both wrote and intended that Plame was covert in the legal sense. For this reason, I continue to see no reason whatsoever to apologize to Gary, nor do I understand why he believes himself vindicated by this post by Hilzoy.

(3) I believe Valerie Plame to have been, at the time of the leak(s), an employee of an intelligence agency; specifically, the CIA. I believed this before I saw the present court filing, which reiterates it. I do not believe that I am being unduly gullible for thinking that she was a CIA employee, but I'm open to arguments.

I don't think that this point is disputed.

(4) I believe that Valerie Plame's employment with the CIA was classified. The filing asserts this, and I do not believe that the CIA lied about this fact, if for no other reason than that classification, as I understand it, is normally documented, and had her employment been declassified prior to the leak(s), there would be evidence of that. This strikes me as a straightforward matter of fact; it is because it is so straightforward that I think it is unlikely that the CIA would lie about it in a case involving someone with extensive government connections.

There are two questions here: (1) was she ever covert? ("Classified" is insufficient.) (2) Was she covert when others committed the underlying acts that later resulted in Libbty's perjury conviction)? I don't know if anyone much cares about (1) as a legal matter ("was she ever covert"), so the debate is really about (2).

Given the CIA's confirming, pre-publication statement to Novak regarding Plame's employment with the CIA, I think there is some doubt as to (2). There may have been an initial crime committed (by the initial leaker), but once the CIA confirmed her status as an employee, subsequent disclosures could not have violated the IIPA.

(5) I believe that Valerie Plame has served outside the US during the past 5 years. Again, the CIA asserts that she has, and as it is a straightforward matter of fact, on which evidence would presumably be available to people in the government, I think it unlikely that they are lying.

The CIA asserts that she traveled outside the US within the last 5 years on CIA business, but what it means to "serve" outside the US has never been defined by a Court of law. Lying has nothing to do with it, incidentally. The CIA has the facts and has taken a legal position on them; it's possible to take a different legal position on those same facts. (Of course, the facts haven't been shared with Libby or us - i.e., what trips, where, how long, for what reasons - only the CIA's conclusions. There are perfectly sound reasons for this, of course, but it does make legal argument more difficult.)

(6) I see no complicated legal questions yet. The only point debatable legal point, I think, is whether travelling overseas to do CIA work counts as "serving" overseas. I think that it does, and I think so not based on anything the CIA said, but on the fact that in the next section of the definition, the statute discusses people who "reside and act" outside the US, which would be an odd thing to do if, by 'served', it meant something like 'resides'. This, however, is my own judgment about what the statute means.

Obviously, I disagree that there are no "complicated legal questions" yet. Assume that Plame was covert at the time her name and status were leaked to Novak. Assume that she ceased to be covert, however, as soon as a CIA spokesperson said "Plame is a CIA employee" to Novak. Disclosures prior to the CIA's confirmation of Plame's employment status are potential violations of the IIPA; disclosures after, however, are not.

Why does this matter to Libby's case? Fitzgerald's argument is that Libby's sentence should be enhanced because he lied to cover up a crime (viz., a violation of the IIPA). But if all of Libby's lies occurred with respect to acts after the CIA's disclosure of Plame's status, this element of the enhancement statute is not met.

(7) I also do not see the relevance of questions like: were her trips all to Montreal? Montreal is outside the US. A trip to Montreal thus meets the requirements of the statute. Likewise, I do not see that the fact that she worked out of Langley would make it false that her employment status was classified; those seem to me two quite different things. Again, however, I am open to argument.

Again, and leaving aside the above, "served" has never been defined by a court of law. "Served" could mean exactly what Hilzoy says it means. But it very well be defined to mean place of employment -- which would exclude Plame -- rather than places where your employment may take you. I also appreciate that Hilzoy is confident that her view of the law is correct, but have been around long enough to realize that confidence in your view of the law is not the same as being ultimately found right by a Court of law.

By the way, Kevin Drum adopted a much narrower definition of "served" in this post, which tentatively concludes that outline Plame was not a violation of the IIPA: http://www.washingtonmonthly.com/archives/individual/2005_10/007450.php (not know if he changed is mind). At a minimum, this is evidence that reasonable (lay) minds can differ on the statute.

(I offer no legal opinion myself regarding the meaning of "served" because it would require an analysis that I have not undertaken.)

(8) So: I seem to myself to have relied on the CIA for two pieces of information: that Plame's employment status was classified, and that she had gone outside the US on CIA business. Neither is a point of legal interpretation, and so the CIA's desire (or lack of it) to stretch the requirements of the IIPA does not seem to me to be relevant. What is relevant is whether or not they would lie about straightforward matters of fact, in a very high-profile case in which the other party has access to government documents.

I think it's quite obvious that I disagree with this statement.

As a tangent, I also note that an essential element of the IIPA is scienter -- that the disclore knew of Plame's status as a covert agent (if she was one). Even if Hilzoy and the CIA are correct that Plame was covert at the time of the relevant disclosures, that does not mean that the IIPA was violated and Libby's sentence thereby enhanced.

(9) I am also relying on my sense of Fitzgerald's trustworthiness. I assume he would have checked this out. I do not trust him because I always trust prosecutors (see earlier comment about Duke.) I trust him because I have observed his conduct and concluded that I can trust him. I am, as always, prepared to admit that I was wrong to do so, given evidence; but I do not believe that the fact that I trust him is evidence of some more general gullibility. It is certainly not evidence that I always trust what one side says in a court battle. Again, see Duke.

All prosecutors -- all attorneys -- are advocates. They are required to be candid with the Court, but they are asked to be representatives of their cause and even the best prosecutor loses cases -- not because he lies, but because he gets the facts or law wrong. Hilzoy's appeal to Fitzgerald's authority is wholly misplaced given our adversarial system and the fact that the underlying evidence regarding the trips has not been produced, no one has been prosecuted (much less convicted) under the IIPA, and key terms in the IIPA have not been defined by any Court of law.

I sincerely hope that the above is helpful to Jes (and others), and that lack of time to write it has not led to a lack of clarity.

Gary, thanks for letting me have the last word, although I continue to find your confidence in your position re: "what Hilzoy meant" somewhat surprising, given that Hilzoy's point #2 (above) is to the contrary. But why take Hilzoy's word on what she meant? ("I don't think I was clear in my own mind whether I was using 'covert' in its legal or colloquial sense, since I thought she was covert in both senses (and had read the statute, so knew what it involved.)")

For Jes:

Thank you. I feel this thread has kind of died, and won't wake it again (especially as, presumably, Libby's sentencing on June 5 will wake another round of blog posts) but I note and appreciate your full response.

"Gary, thanks for letting me have the last word"

Still.

However, I will read with interest any reply Hilzoy makes, when she returns, to your long comment of June 03, 2007 at 12:33 PM, Von.

Point of order: you seem to have intended to provide a link to Kevin Drum, which you might or might not want to fix if that's still your intention.)

I would note that von misreads Drum's post, which does not address the question of whether overseas travel while based in the US constitutes service overseas for the purpose of the IIPA.

I concur in LB's 5:37pm, not that that means anything.

And von, as far as I'm concerned (which again means very little), unless you have regulations or explicit legislative history to the contrary, the idea that (absent lying by the CIA) Plame "traveled outside the US within the last 5 years on CIA business" and yet somehow did not meet the definition of "served" is laughable.

And this:

Given the CIA's confirming, pre-publication statement to Novak regarding Plame's employment with the CIA, I think there is some doubt as to (2). There may have been an initial crime committed (by the initial leaker), but once the CIA confirmed her status as an employee, subsequent disclosures could not have violated the IIPA.

Unless a CIA spokesperson can declassify information at will, this is incorrect. Also, it seems that Libby leaked before Novak's column (IIRC) and lied after. Assuming that's right, there's no sentencing enhancement for covering up a crime via lies even though said crime later became a non-crime? E.g., I speed on May 3rd, on May 5th speeding is no longer a crime and on May 7th I lie about my speeding on May 3rd, under the sentencing enhancments my lie is a nothing? Actually, that might be plausible.

Von seems to be relying very heavily on his belief that the cia spokesman confirmed her employment. Can anyone verify this?

Unless a CIA spokesperson can declassify information at will, this is incorrect.

Yes, mostly. I believe the head of the CIA can declassify, but I also believe there's a proper way to do that other than just blurting the information out over the phone.

Again, I could be wrong, there, but your point stands: disclosure doesn't equate to declassification.

and yet somehow did not meet the definition of "served" is laughable.

I'm guessing you haven't encountered very many classification guides.

I would note that von misreads Drum's post, which does not address the question of whether overseas travel while based in the US constitutes service overseas for the purpose of the IIPA.

It doesn't address that question specifically, no, but it does suggest that the question is irrelevant because of where Plame was based.

Again, however, I don't pretend to speak for Drum today: indeed, I located a passage in which he suggests that travel outside the US is relevant, and therefore rescinds his prior judgment (http://www.washingtonmonthly.com/archives/individual/2007_05/011399.php).

Unless a CIA spokesperson can declassify information at will, this is incorrect.

A CIA spokesperson may not be authorized to declassify information, but this does not mean that his or her actions may not declassify information as a de facto matter by making the information public. It certainly seems to be enough to derail a prosecution under the IIPA.

But even if you think the question is debatable, it still admits the existence of a disputable legal question.

von, I am confused. You keep referring to the CIA spokesman as verifying her employee status and therefore derailing prosecution. If the leaking (and for the sake of argument agree that she was covert at the time of the leak) occured prior to the CIA spokesman getting involved, how does that negate the crime (if it was, and covertness is not the only requirement for it to be a crime.)?

If I am aware of certain classified information, I tell that information to someone, that someone asks someone else to confimr something I said, doe sthat mean I am no longer in the wrong form a legal point of view? Quite honestly, that makes no sense to me.

Also, Libby's lying, as Fitzgerald pointed out repeatedly, prevented him from being able to determine if a crime was actually committed. He was not charged with lying about a crime being committed but lying about things that prevented sufficient information to determine if a crime was committed. It doesn't really matter if a crime was committed or not.

It certainly seems to be enough to derail a prosecution under the IIPA.

Based on what? Can you identify any prosecution under the IIPA that has ever been derailed because of disclosure of the agent's status by the CIA (note that the Plame situation does not qualify -- first, it is arguable whether a CIA request not to publish a story identifying Plame as CIA constitutes confirming her status, and second, there is no indication that that request is what prevented Fitzgerald from bringing a prosecution under the IIPA)? I doubt that you can.

You appear to be switching back and forth between saying that any judgment about how a law is likely to be interpreted is inappropriate until a court speaks to the issue, a position with which I disagree, and making such unsupported judgments yourself. While there's nothing wrong with exercising your own judgment as to how a court would be likely to interpret the IIPA, in this particular instance, I think your judgment is difficult to support -- the idea that an injudicious statement by a CIA spokesperson, in the absence of an official decision to declassify an agent's identity, would be sufficient to remove that agent from covert status under the IIPA seems, while not impossible, very unlikely as a matter of statutory interpretation. The analogy that comes to mind is arguments about privileged documents accidentally produced in discovery -- while nothing's privileged unless it's kept confidental, accidentally produced documents will generally still be treated as privileged in court.

Even assuming for the sake of argument that the CIA spokesman's conversation magically outed Plame for all time and for all purposes, Plame's name had already been leaked five times prior to that conversation (by Rove, Libby, and Armitage), so I think it's pretty meaningless to argue about whether the jury is still out regarding leaks 6, 7, and 8.

You appear to be switching back and forth between saying that any judgment about how a law is likely to be interpreted is inappropriate until a court speaks to the issue, a position with which I disagree, and making such unsupported judgments yourself.

LB, as I think I've said repeatedly above, I have nothing against folks making judgments regarding unsettled law. I do have a problem with citing a prosecutor's statement on an unsettled question of fact and law and stating, essentially, "case closed."

Based on what? Can you identify any prosecution under the IIPA that has ever been derailed because of disclosure of the agent's status by the CIA (note that the Plame situation does not qualify -- first, it is arguable whether a CIA request not to publish a story identifying Plame as CIA constitutes confirming her status, and second, there is no indication that that request is what prevented Fitzgerald from bringing a prosecution under the IIPA)? I doubt that you can.

Given that there have been somewhere between few and no prosecutions under the IIPA, there are no examples to be had. But having the CIA spokesperson confirm someone's employment status with the CIA does seems to me to be enough to derail a prosecution under the IIPA. Would such a prosecution nonetheless succeed in some circumstances? I have no idea, given the dearth of caselaw. Would it have succeeded here? Again, we just don't know because it was never tried.

John, under the analysis I posit, the first statement would be a potential IIPA violation, but after confirmation by the CIA futher disclosures would not be. Note that the CIA could simply have said, "no comment" regarding Plame's employment with it (or issued a standard "the CIA does not comment on employment matters"), which "strongly urging" Novak not to run the story. Instead, as I understand from the Court filings, the CIA spokesperson actually said, "Plame's a CIA agent. Please don't run the story."

But having the CIA spokesperson confirm someone's employment status with the CIA does seems to me to be enough to derail a prosecution under the IIPA.

So, basically, in your view, one mistake by one CIA employee after a covert agent covered by IIPA has been leaked, is enough, in and of itself, to mean that the leak which occurred before the CIA employee made a mistake can't be considered illegal, because the CIA employee's mistake automatically makes legal all leaks that occurred prior to that mistake?

This seems extremely odd to me. Can you explain how this "declassification in reverse" works?

In UK law, a person who leaks classified information has committed a crime even when that information becomes declassified. You're saying that in the US, this is not so, and that leaking the information effectively makes the leak legal?

"John, under the analysis I posit, the first statement would be a potential IIPA violation, but after confirmation by the CIA futher disclosures would not be."

Von, how many cases of the government maintaining in court that classified information is still classified, no matter that it's been disclosed in the press, or the Congressional Record, or in a book, or on the web, or otherwise has entered the public domain, would you like me to provide?

Contrawise, how many cases can you cite to back your personal theory that a private conversation, whose contents you haven't even presented a transcript of, and presumably don't actually know, other than through filtered, non-objective, accounts, can declassify classified information?

You present this "analysis I posit," but where is the legal grounding for it, exactly? So far as I can tell, it's wholly pure imagination for now. But if I'm wrong, I'd like to know.

"Note that the CIA could simply have said, 'no comment"'regarding Plame's employment with it (or issued a standard 'the CIA does not comment on employment matters'), which 'strongly urging' Novak not to run the story."

Which would have brought us Tom Maguire, and perhaps you, and others, forward to explain that this would mean that the CIA hadn't "taken affirmative measures" to keep Plame's CIA affiliation covert, and thus she wasn't covert. Win-win for the administration!

von: as I said, I'm fine with taking my original statement to refer to the legal definition of covert. I do not agree with this, though: "It was reasonable to assume that she was placing stock in Fitzgerald's legal conclusion, rather than simply the facts". The legal definition of 'covert' is not all that complicated. I took the CIA document to be evidence of certain facts, e.g. of Plame's having travelled overseas during the last 5 years. I then drew a (legal) conclusion. That is all.

Specifically, I did not mean to imply that a violation of the IIPA had occurred. As others have noted, the IIPA has more elements than: disclosing the name of a covert agent; so my saying that Plame was covert (plus the obvious addition: and someone disclosed it) do not amount to saying that the IIPA was violated.

It seems to me possible that you took me not just to be saying that Plame was covert, which is what I said, but to be agreeing with Fitzgerald's conclusion here: " Fitzgerald's argument is that Libby's sentence should be enhanced because he lied to cover up a crime (viz., a violation of the IIPA). But if all of Libby's lies occurred with respect to acts after the CIA's disclosure of Plame's status, this element of the enhancement statute is not met." I was not taking a position on that at all.

About your response to point (4), specifically the part where you say: "classified is insufficient": I was attempting to take the elements of being covert, under the law, one by one. Those elements (the ones relevant to Plame) are: someone is (a) an employee of an intelligence agency, (b) whose identity as an employee is classified, and (c) who has served outside the US within the past five years. That's why I was talking about 'classified', not 'covert' in point 4.

For this reason, I don't agree with this: "Given the CIA's confirming, pre-publication statement to Novak regarding Plame's employment with the CIA, I think there is some doubt as to (2)." -- where (2) is whether she was covert, under the legal definition. As I just said, that definition (as it applies to Plame) has three elements. The relevant one here is: being classified. Unless what a CIA officer said to Novak actually declassified (rather than merely disclosing) her identity, then I do not think that it is relevant.

About (5) and (6): I'm not sure that the CIA was taking a position on 'served'. I was, but meant it to be based on my own reading of the statute.

About your reply to (6) more generally: as I noted above, I don't see that it makes sense to argue that Plame ceased to be 'covert' once a CIA employee disclosed her employment, given the statute, which talks about whether an agent's employment is classified. Unless disclosure automatically declassifies something, I don't see how the CIA's disclosure (assuming arguendo that it exists, I haven't checked) affects her covert status.

The relevance to Fitzgerald's case is irrelevant to the point I was trying to make, which was just that she was covert, not about anything involving the enhancement statute.

About your reply to (7): I recognize the difference between presenting an interpretation and that interpretation's being found right by a court of law. I was claiming only to do the first. I think that you have to believe that this sort of activity makes sense; otherwise, I don't see how to interpret this statement: "I offer no legal opinion myself regarding the meaning of "served" because it would require an analysis that I have not undertaken." -- given that you are not yourself a court of law. Whatever it is that you might do but haven't, I suspect it's what I took myself to have done.

About your reply to (8): I'm puzzled about what you disagree with me on here. Is it my report about what I took myself to rely on? Why would you doubt that? Is it what you think I would have needed to rely on to come up with a good analysis? That would be more likely. I continue to believe, however, that all I needed to rely on the CIA for was two pieces of factual information, plus my own reading of the statute.

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