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May 30, 2007

Comments

Colonel Mustard in the conservatory with a candlestick.

"It was Sideshow Bob!"

With the lead pipe, in the Conservatory!

Sebastian D,

Great minds think alike, and apparently ours do, too.

"She made a claim of fact, based on the information provided by the CIA. The legal context of that is irrelevant."

I take it that von simply disputes hilzoy's position that there is a truth of the matter outside the legal context. This seems very odd to you and me, but I guess in an absolutist sense it's reasonable. Let's chalk this up to a failure of language, which has overloaded many terms like "covert" and "murder". von wants sentences to end in four dots, not three; hilzoy notes that everybody perfectly well understands what this means ...

"That's what Hilzoy's post did: It essentially said, 'case closed, because Fitzgerald and the CIA say so.'"

No, it didn't. Von, you're imagining this, plain and simple. It's pure projection.

She wrote:

Valerie Plame Wilson was a covert agent all along [...] Personally, I never thought that whether Valerie Plame was covert on the day she was outed was really the point [...] She had been a covert agent in the past [...]
Etc. There is not one g-ddamned word there about the IIPA, or the law, or courts, or a legal case.

You're simply so damn fascinated with the legal case that you don't notice that she said nothing about it!

I'm tempted to put this in caps. This insistence that she made a legal claim and was talking about the Libby trial is purely a projection from inside your head.

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.

SD, the CIA summary states, in a conclusory fashion, that Plame working at CIA headquarters but traveled "at least 7 times to more than 10 countries" in 2002. She traveled under cover, but sometimes traveled under her own name. The CIA also states, again in conclusory fashion, that Plame's employment with the CIA was classified. This is certainly enough to make a prima facie case, but it hardly brooks no possibility that the defense will be able to point to countervailing facts. Plame was driving to CIA headquarters most days, based in the US, and traveling under her own name when on CIA business. Can you tell me that it's inconceivable that the defense will not be able to identify a time when Plame or the Agency expressly identified her as a CIA employee during the relevant period? Or that every one of the trips overseas was a daytrip to Montreal? Because either fact may be enough to deprive her of protection under the IIPA.

Also, it's not convincing to accuse someone of moving the goalposts when, y'know, they haven't.

"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, maybe you've been a lawyer too long. The word "guilty" exists outside the legal dictionary, and still has meaning. You're guilty of writing as if this were an untruth.

In other words, you're wrong. People are guilty of endless things, and they are "guilty" in English without having been found legally so in the court of law.

"Legally" is not a word that is invisibly appended before all nouns. "Guilty" does not mean "legally guilty." Jeepers.

Rilkefan:

I take it that von simply disputes hilzoy's position that there is a truth of the matter outside the legal context.

No. Again: I dispute the contention that because Fitzgerald (or the CIA) says X in a court filing, it's true, particularly since the defense has not yet responded. Here's what I wrote (first paragraph, 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.

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?

No to all of your questions. On the other hand, the CIA is the only authoritative source for the terms under which Plame worked for them. If I accepted your law firm's statement as to your employment history with them, that wouldn't mean I had any exaggerated view of their credibility generally. All it would mean is that, as your employer, they had first hand knowledge of the manner in which you worked for them.

If someone in a position to have similar first hand knowledge of Plame's employment were prepared to testify that the CIA's account was inaccurate, I'd start weighing credibility of one source against the other. In the absence of any such well-supported testimony, I'm prepared to accept the CIA's statement as accurate.

The CIA determines what the law is?

No. For the purpose of forming my own opinions, I do. I read the statutes, apply them to the facts, and come to conclusions. This must be a process you're acquainted with.

Gary, this is very tedious.

Von, maybe you've been a lawyer too long. The word "guilty" exists outside the legal dictionary, and still has meaning. You're guilty of writing as if this were an untruth.

....

"Legally" is not a word that is invisibly appended before all nouns. "Guilty" does not mean "legally guilty." Jeepers.

I admit that I live in a insular legal word, but no one with whom I'm familiar with uses the term "legally guilty." We say "guilty." Now, you're right that I should have used the "convicted" rather than "guilty" in the passage below:

"If you say that someone is [convicted] 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."

""Legally" is not a word that is invisibly appended before all nouns. "Guilty" does not mean "legally guilty.""

Or even appended before all adjectives.

"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"

No, it doesn't. Once again, Von, that you interpolate the words "as a legal matter" there doesn't mean that those words are there. They're not. You're literally making this up. (And not realizing it. It would be one thing if you were correctly interpolating words and meanings that the author of your quotes intended, but you're not: you're imagining them.)

"[...] (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*)"

That's a perfectly debatable and legitimate point, on the other hand, which is actually responsive to the relevant issue of fact (not law).

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)

The fact that you must include the caveat "as a legal matter" means that we are talking past each other. No one has made this claim. Several people, myself included, have specifically disavowed it.
I don't know why you're misinterpreting this, but it's becoming silly. Could you maybe quote someone arguing explicitly that the CIA's determination is legally binding? And then maybe argue the point with that poaceous individual?

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

Guilty=convicted in legal jargon. But there are non-jargon definitions of 'guilty'. Jargon definitions do not trump non-jargon ones. Notice, for example, that in normal usage one can be guilty of things that aren't even crimes (eg guilty of violating the posting rules).

Meese's statement was a good example of the fallacy of equivocation. He used the emotional appeal of condemning the 'guilty' (ie those who have actually committed crimes) while he preserves the technical truth value by referring to those who had been found guilty by a court.

____

Im also curious about this little thought experiment: let's say that the Wilson issue is never decided by a court. Are you saying that no one should come to any non-legal conclusions or have any non-legal opinions about her status because no court decision would have been reached?
Can we safely conclude that the Miami Heat won the NBA last year? It's not been heard in court, after all. There is plenty of documentation on their side, but should we withhold judgement until a lawyer for the Hawks has a chance to present his counterargument?

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

I agree with that, Katherine.

On the other hand, the CIA is the only authoritative source for the terms under which Plame worked for them. If I accepted your law firm's statement as to your employment history with them, that wouldn't mean I had any exaggerated view of their credibility generally. All it would mean is that, as your employer, they had first hand knowledge of the manner in which you worked for them.

Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response? Because that's very close to the issue here.

Oh now you have fallen into repeating a lot of very dull, shopworn talking points. Quickly: "Her own name". uess what. It's not her name that was classified and secret. It was her intelligence relationship with the United States.
She drove to work: Guess what, lots of people who work for the CIA -- covert and otherwise -- drive to Langley. Does not mean that they're not under cover. Incidentally, not just anyone can do that. Have you ever tried to get off at the CIA exit at Langley? Try it and tell us about the experience. It won't be pleasant.
"Based in the U.S." The statue only requires that she have "served outside the U.S." in the five years preceding the leak. Unless the CIA is lying, she did. Period. I can also pretty confiddently tell you that "every one of the trips overseas" is not going to turn out to be "a daytrip to Montreal," inasmuch as Montreal is, last time I looked, on the same continent as the U.S. But guess what, the statute doesn't say "overseas", it says "outside the U.S."
The question is not whether there is some outside possibility that someone could credibly dispute the CIA's rundown. that's once again moving the goalposts around. the question is whether someone can legitimately conclude, based on the abvailable evidence, that Plame was covert within the meaning of the IIPA. The available evidence points one way and one way only. the likelihood of contrary evidence coming to light -- given that this non-covert talking point was flogged endlessly and has never had a shred of support, despite Cliff May's claiming that "everyone knew" -- is very very slight, not enough to impugn hilzoy's post or the Newsweek article.

Gary and Carleton, I accept that you think I'm wrong for thinking that Fitzgerald and the CIA are asserting that Plame was covert "as a legal matter." But, if I'm wrong, would you please tell me why they put it in a court filing asking for a higher sentence for Libby because he was, allegedly, trying to cover up a crime?

Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response?

This case has been discussed in the media for three years now, and no information from anyone in a position to know has appeared that contradicts the CIA's factual claims about the terms of Plame's employment. Seriously, what sort of contrary factual testimony are you visualizing here? A CIA insider saying the CIA's lying and Plame never left the country? It's possible, in the 'anything's possible' sense, but seems awfully unlikely at this point. Do you have any concrete expectation that the CIA's facts will be contradicted, or are you just being skeptical on general principles?

(Now, if some contrary testimony from someone with first hand knowledge shows up, I'll certainly consider it. But given the circumstances, I strongly expect that no such testimony will appear.)

von: "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*)"

Thanks, that helps. If you had started out by saying "I don't trust the CIA to say whether Plame was listed as covert in the classified employee database" etc. then I might have responded more usefully (or shut up more usefully).

SD, It's not encouraging that you needn't even wait to see what Libby may say in response to the Government's filing before pronouncing judgment. I also don't agree with your claim that the CIA must be untruthful, rather than simply wrong, for Libby to prevail.

The question is not whether there is some outside possibility that someone could credibly dispute the CIA's rundown. that's once again moving the goalposts around.

SD, as you know, I haven't moved the goalposts one iota. Why do you keep saying this?

But thanks for the implicit concession, i.e., that "there is some outside possibility that someone could credibly dispute the CIA's rundown."

"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."

No, it isn't. You seem to be missing the distinction in meaning (in English; not in legal terminology -- we actually speak English in America, and Legal is only used in legal dealings) between "guilty" and "convicted."

"Guilty" is a matter of fact, whether known or unknown, provable or unprovable, legally charged or uncharged, legally addressed in any way, or unaddressed in any way.

"Convicted" is a matter of fact as to whether a duly consituted court made such a finding.

These are Two. Different. Things.

Katherine stated: "'Convicted of' just isn't synonymous with 'committed.'"

This is correct. You can't change someone else's words, substitute your own, claim they mean the same thing, and that claim that therefore the other person didn't say what they said, but what you say they meant. (Since you first introduced "committed," you can certainly withdraw that word, and ask the same question about "convicted," but you can't maintain that one word is identical in meaning to the other, because that isn't true.)

This what you consistently keep doing here, starting with Hilzoy in your post, and on down through the thread, with more people than I've kept track of at this point: insisting that phrases and words are what people wrote, when they didn't.

Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response? Because that's very close to the issue here.

Even if you think that this is a mistake (ie there may be other evidence that hasn't been examined yet) , that does not mean that I have explicitly or implicitly made a legal finding, or that I believe that one has been made.

You said that hilzoy had made a "direct statement... that Plame met the definition of covert agent under the law". You did *not* say that she was mistaken to trust the CIA in forming a non-legal opinion. You said that she said that the CIA was making a binding legal finding.
This is still not true.

Do you have any concrete expectation that the CIA's facts will be contradicted, or are you just being skeptical on general principles?

(Now, if some contrary testimony from someone with first hand knowledge shows up, I'll certainly consider it. But given the circumstances, I strongly expect that no such testimony will appear.)

No, I don't have a concrete expectation: Indeed, were I to bet on it, I'd bet on the facts being as Fitzgerald and the CIA state. But, as I said in the original post, and have repeated throughout,* you don't simply accept the statement of a prosecutor and an interest at face value. The defense also gets a chance to have it's say and, hey, maybe it will surprise us.

*In the bizarro-world of SD, maintaining this consistency is called "moving the goalpost."

I also don't agree with your claim that the CIA must be untruthful, rather than simply wrong, for Libby to prevail.

They have to be untruthful for their factual statements to be false (barring ridiculously unlikely errors). The court might interpret the law differently from the way that appears obvious to me, and so find that the CIA's facts do not support Fitzgerald's position that Plame was covert under the terms of the IIPA. But there isn't any real room at all for the CIA to be honestly mistaken about the facts of Plame's employment.

Carleton, I think that what I said is clear from what I actually said, rather than your reformulation of it.

Gary, since I've already responded on the convicted --> guilty point, I presume you must have simply missed it.

They have to be untruthful for their factual statements to be false (barring ridiculously unlikely errors).

LB, the CIA's filing states conclusions, not, generally, facts. It's possible that it's simply incomplete, not false.

But, as I said in the original post, and have repeated throughout,* you don't simply accept the statement of a prosecutor and an interest at face value.

Ergo, things that aren't court decisions just aren't facts like those real, court-decided facts- because they haven't gone through the adversarial process.

I can see now why hilzoy's statement was confusing to you. She asserted a fact, and you naturally assumed that she meant a court-tested fact, since that's the bestest kind of fact.
But no, us non-lawyers must often satisfy ourselves with facts of the inferior kind. Sometimes we gather them from court documents; it's kinda like dumpster diving at the steakhouse after the lawyers have had their tasty dinners, doncha know.

So, on the factual issue, your gripe with Hilzoy is that it's unacceptably hasty to accept the testimony of one party on a point of fact, even where it appears overwhelmingly likely that they're the only source with knowledge of that fact. On the legal issue, your gripe is that it's unacceptably hasty to draw one's own legal conclusions from a statute where a court has not yet opined.

You know, Von, we here on the blog don't actually have the power to sentence Libby. In a courtroom, I'd want the judge to be just as restrained as you're being. In a blog post, I think your standards of restraint are wildly exaggerated.

Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response?

Contested by whom? No one has contested that Plame's employment with the CIA was classified. No one has contested that she served outside the country during the last five years. Various people with no personal knowledge one way or the other have speculated, but that counts for nothing. If and when Libby's lawyers contest either of these points, I'm confident hilzoy and other open-minded sorts will consider what they have to say, but one shouldn't assume that they have any basis to contest either point.

But, if I'm wrong, would you please tell me why they put it in a court filing asking for a higher sentence for Libby because he was, allegedly, trying to cover up a crime?

Is that why Fitzgerald included the information in his sentencing memorandum? Absolutely not. He made the point in order to rebut the defense's argument that Fitzgerald's investigation should have been terminated at an early stage because Plame was clearly not covert as defined by the IIPA.

Let's pretend Libby had been charged under the IIPA. He would be entitled to assert all legal defenses, including the argument that Plame's various trips overseas didn't really count as "serving overseas" within the meaning of the statute. The court would then make a ruling, and maybe Libby would win and maybe he'd lose.

But the topic is not whether Libby would have been convicted of violating the IIPA, but whether the investigation should have been terminated since Libby obviously couldn't have been guilty of an IIPA violation. And it's obvious that Fitzgerald is right on this point; at best, Libby had a plausible legal argument, but it certainly didn't provide a basis for terminating the investigation altogether.

So again, if the defense intends to "contest" this issue, they're going to have to show that the CIA was simply lying about Plame's employment being classified, or about her having traveled overseas on business within the last five years. And assuming there was such a lie, the argument would go, Fitzgerald should have investigated further and found out about the lie, at which point he would have terminated the investigation since the IIPA would be out of the picture. It's unlikely they have any basis to make such an argument.

Fitzgerald is not contending that Libby violated the IIPA; indeed, he continues to take the position that there is not a sufficient basis to bring charges under that statute. He's merely rebutting the argument that he should have stopped the investigation on day one because Plame obviously wasn't covered by the IIPA. Whether Libby might have a plausible legal argument in response to a hypothetical IIPA charge is completely irrelevant.

Gary and Carleton, let's try this one more time. Let's go in small steps.

As I understand it, you think I'm in error -- indeed, per at least Gary, must issue an apology and retraction -- for making the following statement:

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

Have I got that much right?

Carleton, I think that what I said is clear from what I actually said, rather than your reformulation of it.

Sometimes I restate things to see if I understand them clearly.

Of course, being non-responsive does help you avoid the gulf between what you claimed hilzoy said, and what she actually said...

You know, Von, we here on the blog don't actually have the power to sentence Libby. In a courtroom, I'd want the judge to be just as restrained as you're being. In a blog post, I think your standards of restraint are wildly exaggerated.

That may be, LB.


I can see now why hilzoy's statement was confusing to you. She asserted a fact, and you naturally assumed that she meant a court-tested fact, since that's the bestest kind of fact.

Y'know, having seen the sausage being made, I wouldn't necessarily call a court-tested fact "the bestest kind of fact."

What I object to is precisely as LizardBreath states in his/her* post above.

*My apologies for not remembering if it is a he or she.

She asserted a fact, and you naturally assumed that she meant a court-tested fact, since that's the bestest kind of fact.

I refuse to accept the statement that court-tested facts are the bestest kind of fact. That is all.

Contested by whom? No one has contested that Plame's employment with the CIA was classified. No one has contested that she served outside the country during the last five years. Various people with no personal knowledge one way or the other have speculated, but that counts for nothing. If and when Libby's lawyers contest either of these points, I'm confident hilzoy and other open-minded sorts will consider what they have to say, but one shouldn't assume that they have any basis to contest either point.

No one has contested it (in a court of law) because it has never before been asserted (in a court of law). Moreover, it may be significant that the first time the assertion is made is during the sentencing phase, when the burden of proof (for the government) is much lower. The timing is at least suggestive of one or more problems with the claim.

LB, the CIA's filing states conclusions, not, generally, facts. It's possible that it's simply incomplete, not false.

Have you read it? Aside from use of the word 'covert', which I suppose could be characterized as a conclusion, it's all claims of fact.

Moreover, it may be significant that the first time the assertion is made is during the sentencing phase, when the burden of proof (for the government) is much lower.

Erm, Plame's covertness or otherwise wasn't an element of the case against Libby. It's been publically stated that Fitzgerald didn't bring a case under the IIPA (where her covertness would have been an element) because he didn't think he could prove intent. What significance do you see in not proving a fact that isn't relevant to the case being prosecuted?

Moreover, it may be significant that the first time the assertion is made is during the sentencing phase, when the burden of proof (for the government) is much lower. The timing is at least suggestive of one or more problems with the claim.

It is not. It is suggestive of the fact that Libby wasn't charged with anything that would required proving this. In fact, introducing this might well be prejudicial- it's not relevant to the crime, but it might make the jury want to punish someone...
Anf, as has been pointed out to you several times, Fitzgerald very likely had other problems with charging Libby under that statute.
if (A & B) => C, then -C doesn't tell us anything about the individual truth values of A or B. It only tells us -(A & B). That is, if it's raining and you're outside then you're wet. If you're not wet, does that suggest anything about your location? Not really. Unless you live in Seattle.

Is it not a common practice during sentencing hearing for eg the children of the murder victim to say what a great dad he was, how much they miss him, etc? Do we then conclude that those 'facts' weren't introduced at trial because they are flimsy? Or do we properly conclude that they weren't introduced at trial because they weren't relevant to determining guilt?

Von: Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response?

Wrong analogy. If *Von* says "my employment history was thus," and his employer *agrees* ... *that* would be the analogy.

Unless Valerie Plame has been arguing she's *not* covert under the IIPA?

Von (paraphrased): it's not true just because the CIA said it

Well, of course not. But if what they say is (1) not implausible, (2) pretty easily contradicted if false, and (3) consistent with the other facts, then we are justified in deciding it's probably true, i.e., "true."

Have you read it? Aside from use of the word 'covert', which I suppose could be characterized as a conclusion, it's all claims of fact.

Not at all, LB. For example, the report refers to Valerie Wilson as "she", when no judge has examined her hoo-ha to determine her gender. We probably need a jury trial before we can sanction this as a real, court-tested fact. Until then, it's just an opinion, and a flimsy one at that- who knows what sort of counter-evidence could be brought against this so-called fact?

"Erm, Plame's covertness or otherwise wasn't an element of the case against Libby."

Ignorant question - why is this info coming out now? (Or coming back out - I thought Corn or Isikoff had more or less said the same thing a while ago.)

Not without potential relevance to the thread, Plame is suing the CIA b/c they won't let her publish a memoir that includes the exact dates she served ... even tho the same info has been published in the Congressional Record.

This is the latest in a series of fed efforts to "classify" stuff that's been made public.

"(2) pretty easily contradicted if false"

How? Maguire wants to see Plame's paystubs, which would supposedly demonstrate she got some sort of covert-five-year duty raise - beyond that, I don't see how to convince a skeptic here.

von: But thanks for the implicit concession, i.e., that "there is some outside possibility that someone could credibly dispute the CIA's rundown."

I take it you're familiar with the expression "reasonable doubt"?

Also, would you mind responding to my hypo above?

No one has contested it (in a court of law) because it has never before been asserted (in a court of law).

Really? Fitzgerald has been taking the position that Plame was covert as defined by the IIPA for at least a year.

How? Maguire wants to see Plame's paystubs, which would supposedly demonstrate she got some sort of covert-five-year duty raise - beyond that, I don't see how to convince a skeptic here.

Well, if her employment with the CIA really were common knowledge before she was outed, then it should be trivial to find witnesses who would testify that "Sure, back in 2002 I knew that Val was CIA." That hasn't happened. The fact that she was publically known to be employed by Brewster Whatever before she was outed, and that that organization is now known to be a CIA front, establishes that the CIA was taking action to protect her identity -- that could be refuted by testimony that Brewster whatever wasn't a CIA front (that is, from its real owners saying that it was a legit business), or that she didn't work for them. That hasn't happened. I suppose it might be hard to refute the CIA's assertions about the overseas travel.

This sort of thing is never pretty.

Von, stop digging. You're not convincing anyone, and the most charitable interpretation here is that you got misread Hilzoy and then got a bad case of the stubborns when people stared at you in shocked awe that you could someone read Hilzoy's post and come to that conclusion.

You're being hyper-technical to try to walk back the cat, and it's not making you look good.

Here's a hint: We're using the "Reasonable person" standard of judgement. In short, given the evidence we have to date, the context of the story, and the fact that other than assuming gross malfeasance on the part of Fitzgerald or the CIA, along with a conspiracy of supporting liars, it's quite reasonable to conclude that Plame's status was covert, she was covered under the IIPA, and someone probably broke the law.

No court has found that to be true, to be sure.

So what? We're quite familiar with the facts, and I can't imagine a response from Libby's lawyers that could even call the relevent facts into question. They've been confirmed from too many sources, too many times, by people with no real reason to lie and who had the relevent experience, access, or personal knowledge to actually make the case.

You're digging yourself a pit for what appears to be no reason.

Hilzoy -- and Gary, and myself, and tons of other people -- have done nothing more remarkable than draw a conclusion based on widely available evidence and determined that, barring something truly surprising, it's unlikely that conclusion is wrong.

How horrifyingly wrong of us.

Actually, it's been at least 3 years since Fitzgerald first took the position in court papers that Plame was covert under the IIPA. Judge Tatel's concurring opinion from the Judy Miller subpoena appeal (370 U.S. App. D.C. 4) says:

As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years"--representations [*127] I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.)

This is not a judicial finding, of course, since the judge openly says he's taking Fitzgerald's word for it. But it's a recognition that Fitzgerald took the position, way back in 2004, that the CIA had been making specific efforts to conceal Plame's employment and that she had worked overseas within the previous 5 years. These are the only two requirements to be "covert" under the IIPA.

Three years after the fact, with Libby still having said nothing to contest either allegation of fact, can we at least start to presume that he's got nothing? Otherwise, we have to believe that not only has Libby kept his rebuttal under his hat for three long years, but that he hasn't even leaked it to one of the many friendly conservatives who've been writing op-eds arguing that Plame wasn't covert.

"I admit that I live in a insular legal word, but no one with whom I'm familiar with uses the term 'legally guilty.' We say 'guilty.'"

Yes, whether it means "legally guilty" depends on whether the speaker/writer means that, or simply means "factually guilty." The distinction remains crucial: "guilty" doesn't, outside legal proceedings, necessarily mean "legally found guilty" in English. It just doesn't.

"Guilty" does mean "legally guilty" in a legal context, but most of us don't communicate only in a legal context, and we don't only speak in legal terminology. English actually has meaning not limited to legal terminology.

Do you disagree?

"Now, you're right that I should have used the 'convicted' rather than 'guilty' in the passage below...."

Comity!

"Gary and Carleton, I accept that you think I'm wrong for thinking that Fitzgerald and the CIA are asserting that Plame was covert 'as a legal matter.'"

Von, I haven't addressed, or said a word, about what Fitzgerald or the CIA have asserted about anything "as a legal matter."

I'm at a loss as to how you know what I "think" abut a subject that I've never addressed.

rilkefan: "If you had started out by saying 'I don't trust the CIA to say whether Plame was listed as covert in the classified employee database' etc. then I might have responded more usefully (or shut up more usefully)."

This would be an entirely sensible separate point, and a legitimate topic for discussion and debate.

But in point of fact, I'm doubtful that the CIA has a database tag for "covert" or "non-covert" "in the classified employee database."

If anyone wanted to discuss a question of fact about the CIA's use of "covert," I'd start off by saying that it's extremely unclear to me that they ever use that term at all in regard to formal binary labeling of employees as one or the other. It may be the case that they do, but I don't recall noticing a distinction marked by those words, in all my decades of reading about the CIA.

It's absolutely possible that I simply have missed it. But it's a topic I'd be curious to establish more facts about.

The Agency makes a major distinction between who is and isn't under official cover versus non-official cover (NOC). And they distintinguish between how classified a document or fact is. And they distinguish between what used to be the Directorate of Operations, which has now largely morphed into the Clandestine Service (though it also encompasses other IC employees involved in humint) and the Directorate of Intelligence -- although nowadays the lines can be quite blurred, given all the joint task forces and Centers, and the fact that there's no wall, theoretical or otherwise, between these Directorates, and people from one often work on a daily basis with those from another.

There are different levels of classification for the information that someone is employed by CIA, depending on their job, I think (I'm not entirely sure, though, off the top of my head).

But I'm not aware of anything that would lead me to believe that one could walk down a hall at Langley and theoretically label people "covert, covert, covert, non-covert, covert, non-covert, non-covert," and so on. This may certainly simply mean that I'm unaware of it.

On the other hand, there's a clear distinction between someone who is an overt analyst for the Directorate of Analysis, and somone who is working covertly for the Clandestine Service, under a cover.

So I, at least, remain a trifle unsure precisely what the CIA does and doesn't mean in this case of saying Plame was "covert."

Fitzgerald's court filing is here; it took a bit of searching to turn up the attach ed exhibits.

We already knew that she worked for the Counter-Proliferation Division of the Department of Operations (now the Clandestine Service), and to some extent, every employee of the former DDO, or now Clandestine Service, is covert, though not necessarily under cover. For that matter, generally speaking, everyone at in the former DDO, or now Clandestine Service, is encouraged to either dissemble about their employer, or outright lie about it.

The CIA statement emphasizes that Plame always used cover when traveling, and that at all times the CIA was "taking affirmative measures to conceal her intelligence relationship with the United States."

What I remain a bit unclear about is whether that's all they mean when they say she was "covert," or if there's more, and whether they actually use the term "covert" as an adjective about employees to distinguish one category from another. I'm not entirely clear that they do -- which may simply be ignorance on my part -- or whether they're simply trying to respond as accurately as possible, given that the law in question isn't directly relevant to how the CIA deals with its employees.

My impression, frankly, is that "covert" in this context simply describes people who use cover, and who at all times when dealing with uncleared civilians, engage in the practice of concealing their true employer (CIA).

Which would make it a perfectly accurate description, insofar as the CIA is concerned, and make their statement the best faith effort to respond queries relevant to the IIPA statute, while still not necessarily (though it may!) meaning that the CIA has a binary category for all personnel of "covert" or "non-covert."

Or not. I'm simply not entirely sure, as I said, about this detail.

Now, it seems to me that if the above were the case, and it does represent the CIA's best-faith response, then the question isn't actually all that fascinating, but, hey, if I were trying to poke holes around here, that's the direction I'd poke a bit more in, myself.

So here is the tedious version of why I said "Valerie Plame Wilson was a covert agent all along".

(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'.

(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):

"(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—
(i) whose identity as such an officer, employee, or member is classified information, and
(ii) who is serving outside the United States or has within the last five years served outside the United States"

(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.

(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.

(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.

(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.

(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.

(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.

(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.

So, von: which part, exactly, was I wrong about?

Oh, but one thing I should have said is that so far as I can tell -- which is pretty limited, mind -- it seems fair, from what information we have from the CIA, to conclude that if any CIA personnel are considered "covert," that Plame fit under that label, in my judgment -- which isn't legally binding, as it happens.

Aside from all the dopey spy-novel silly ideas all these rightwing bloggers/commenters keep putting forward, about how real covert officers don't work at headquarters, and don't ever use their real names at any time, I don't know of any form of deeper covertness used by an actual CIA officer (rather than a foreign source they're running) than the sort of regime Plame lived under.

All the claims I've seen in this regard from the rightwing bloggers, as mentioned above, have been utter fantasy notions of the CIA, completely unconnected from actual CIA practice.

I'm perfectly willing to consider new such claims, though.

'So I, at least, remain a trifle unsure precisely what the CIA does and doesn't mean in this case of saying Plame was "covert."'

Right, this (to my 0-actual-knowledge view) is what Maguire is getting at with "covert/classified", and what I was saying last night about clashing criteria. _However_, he also claims there's a paystub test, so I thought that there is in fact a database column or virtual equivalent with a check mark or not by Plame.

"The CIA statement emphasizes that Plame always used cover"

That is, non-official cover, right?

Not without potential relevance to the thread, Plame is suing the CIA b/c they won't let her publish a memoir that includes the exact dates she served

I've heard this sort of thing happens all the time. OTOH Larry Johnson has stated publicly that Valerie and he were in the same training camp together, so that ought to bracket her employment period rather neatly.

"As I understand it, you think I'm in error -- indeed, per at least Gary, must issue an apology and retraction...."

I've said nothing whatever, Von, to indicate a belief on my part that you "must" do anything.

I did say this: "...you might want to consider how well you can support that claim, and whether you might wish to consider stepping back from it."

That doesn't mean that modifying that suggestion/invitation into an imperative -- "per at least Gary, must issue an apology and retraction" -- leaving me suggestion that you, ah, consider withdrawing this assertion, too.

"Have I got that much right?"

No.

"*My apologies for not remembering if it is a he or she."

Let's issue a program!

To start, before the Gender Police arrest anyone: Von is male; Dutchmarbel is female; Lizardbreath, a name a little sister might use instead of "Elizabeth," is female.

"But I'm not aware of anything that would lead me to believe that one could walk down a hall at Langley and theoretically label people 'covert, covert, covert, non-covert, covert, non-covert, non-covert,' and so on. This may certainly simply mean that I'm unaware of it."

The comment I wrote this in, in context, was quite rambling, more so than it should have been.

I should at least have gone back and noted that if what's meant by "covert" is, as I suggested later in the comment, whether or not one is living with a formal cover story, than one actually wouldn't have any problem walking down that hall, and binarily distinguishing between the two types of employees (if one had that knowledge, that is).

I might note that my suggestion about "covert" meaning, in essence, "living under formal cover" comes also to a fair degree from the circumstances under which the Intelligence Identities Protection Act came about in 1982, which was the spate of reveals of CIA officials working under cover overseas; basically it was the Get Philip Agee Act.

Protecting those under cover people, some of whom were then murdered by terrorist groups, was the goal behind the Act. Mind, all the ones I can think of were under official cover, working out of an embassy, and -- the horror -- using their own names, and even driving to work.

"That is, non-official cover, right?"

Nope. The CIA statement specifically says in regard to her travel that she "always traveled under cover [...] whether using official cover or non-official cover (NOC)--with no ostensible relationship to the CIA."

Re Maguire: "_However_, he also claims there's a paystub test, so I thought that there is in fact a database column or virtual equivalent with a check mark or not by Plame."

I've not read Maguire religiously, or remotely, so I've missed his exposition on this. Pointer?

In any case, while, as I've said, I'm unclear on some details of CIA procedures in this regard, I'm doubtful that there's a significant dichotomy between the CIA's hypothetical regarding of "people living under cover" as synonymous with "covert" (and then taken with the rest of the IIPA's requirements), and the meaning of the IIPA.

Certainly while an understanding of Congressional intent, insofar as one can be derived, is not dispositive to the interpretation of a law, for a variety of reasons, including the varying ambiguity of such "intent," the intent of Congress here was, overall, quite straightforward: protecting the lives of serving intelligence officers and informants who are under cover from having their CIA relationship revealed, which could endanger their lives and end the usefulness of their work.

As I said, understanding that isn't remotely legally dispositive, but it does satisfy me on a personal level that Plame was the type of person Congress intended to cover. I don't see any significant distinction between her employement and that of the people Agee revealed, a few of whom were killed.

Throw me the pay-stubs argument, if you like.

Gary and Carleton, let's try this one more time. Let's go in small steps.

As I understand it, you think I'm in error -- indeed, per at least Gary, must issue an apology and retraction -- for making the following statement:

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

Have I got that much right?

well, von, you are in error in that you mischaracterize what Hilzoy wrote. Whether you apologize is up to you.

this and the previous thread are two of the weirdest threads I've ever read on this blog. If Von's argument is only that we collectively should hear from the defense before accepting the CIA's factual statements as the uncontested truth, then i'm really not sure what the fuss is about. but it seems that there is something else going on and i really have no idea what it is.

Gary, here's Maguire. It seems pretty clear to me that he's often a hack, but maybe he has an occasional point. Note that his failings are nothing compared to his regular commenters

In particular.

Once more with preview: in particular.

Von wrote--

"No, I don't have a concrete expectation: Indeed, were I to bet on it, I'd bet on the facts being as Fitzgerald and the CIA state. But, as I said in the original post, and have repeated throughout,* you don't simply accept the statement of a prosecutor and an interest at face value. The defense also gets a chance to have it's say and, hey, maybe it will surprise us."

This was my understanding of von's position this morning when I posted earlier. It seems to me to make much of the thread unnecessary. What people should be arguing about (and some are) is whether there is any realistic chance that the defense could have refuted what the CIA and the prosecutor claimed. Most of us think no (I'm insufficiently interested to have an informed opinion). I'm guessing that if there was a way to disprove Plame's covert status along the lines that von hypothesized somewhere above, it probably would have been leaked a long time ago.

But I'm not 100 percent sure. Maybe 95-99 percent. BTW, what would "reasonable doubt" mean, if you translated it into a probability?

"Once more with preview: in particular."

Thanks. I had read his recent posts, but not that one.

The core point seems to be: "...per this law, CIA officers get an upward adjustment in their pension for service abroad."

This seems to me to speak very narrowly to a pay policy, and nothing else. I don't see that it necessarily logically would remotely follow that there's any relationship at all between what a legal ruling on who precisely is covered by IIPA would show, and who the CIA chooses to give a pay bonus to.

The assumption that the same criteria would be used strikes me as no more than a possibility, at best. Why that would be dispositive information therefore, I can't see.

We know why the IIPA was written. I can't see any connection behind its intent, and the U.S. Code provision on how the CIA awards an annuity. I have no idea why Congress would intend to specifically use the same criteria for both: Congress isn't famed for making sure that it's generally consistent, for the sake of abstract consistency, in its multitude of laws.

So I don't see why it would be necessarily relevant to IIPA that this annuity provision exists. A court might find otherwise, but why assume it?

In other words, I don't see any merit to the notion, although if the courts should sometime rule otherwise, I'll change my mind. Points for effort, though.

Of course, being insufficiently interested also makes my personal estimate of the probabilities basically useless. Thought I'd hurriedly admit that in case anyone else notices and bothers to point it out.

"BTW, what would 'reasonable doubt' mean, if you translated it into a probability?"

My purely subjective standard would be "at least 1% of doubt remaining."

I wouldn't want to authorize punishing someone if there was more than that amount of doubt as to their guilt, loosely speaking.

But since I don't know of a precise objective metric for doubt, this doesn't do anything to clarify what "reasonable doubt" would mean in any kind of objective way.

I'm not sure why the defense's argument is considered particularly weighty.

I have a hard time imagining what evidence Libby's defense could bring to the judge to counter CIA-provided information about Plame's employment history.

It's more like a defense lawyer arguing against a victim's phone records showing a thousand harrassing calls from the defendent, than a defense lawyer arguing against a prosecutor's asserted theory of the case.

That's true, Gary, in most cases. But what does "reasonable doubt" mean anyway, sticking to subjective interpretations? I'm not at all sure. It'd make it tough for me if I were ever on a jury (hasn't happened yet and I'm safe now for another 4 years).

This isn't entirely a threadjack, since it seems to me to be what von's post is about.

"But what does 'reasonable doubt' mean anyway, sticking to subjective interpretations? I'm not at all sure."

I agree that it seems that there's considerable room for subjectivity and that it's ambiguous on its face. Would any of our criminal lawyers like to speak to any citations on how the law has spoken to this more definitively?

I know that the concept of the "reasonable man/person" goes way back in the common law. I don't know exactly what one is taught in law school about exactly what "reasonable doubt" means, beyond that it means whatever a given jury thinks it means.

The typical standard for "reasonable doubt" that I recall from law school was from Blackstone, and said it was better to let twenty guilty men free than have one innocent covicted, which would translate to 95% certainty.

We used to talk about whether you could put a number on the concept of reasonable doubt in Civil Procedure class. The short answer is, no you can't. The law intentionally leaves the concept of reasonableness up to the jury; in fact, if the jury asks the judge for a better explanation of reasonable doubt, the judge generally isn't allowed to do any more than read the definition to them again.

Hilzoy wrote: So, von: which part, exactly, was I wrong about?

I see Von has neither answered Hilzoy's question nor updated his post to admit error.

Libby has filed its response to the gov't sentencing memorandum, linked to here.

And from reading the defense response, it offers no evidence that the CIA's factual assertions about Ms. Plame's employment are false -- it complains about not having had full discovery on them, and raises questions about the legal import of those factual assertions, but doesn't offer any contradictory factual evidence.

thanks, LB.

now can we, von? NOW?

or shouldn't the answer be:

no, you still cannot count on anything said in a prosecutor's brief (even if it merely quotes something that, in another context, would be perfectly adequate).

Cause, look--before this, we couldn't trust it because the defense response might contain some KILLER REBUTTAL!

and I'm a real lawyer so I've seen it happen!

well, okay, the actual defense response doesn't contain anything like that.

But it MIGHT HAVE! In fact, the KILLER REBUTTAL could still be lurking out there, and just didn't get included in because the defense attorney ran out of time and fell asleep, and his partner was too drunk to finish up.

(and I'm a real lawyer and I've seen it happen).

So, if the merely possible existence of a KILLER REBUTTAL!! should keep us from believing anything in the prosecutor's filing *before* the defense files their response, why shouldn't the continued, possible existence of a KR prevent us from believing it now?

I mean, what's happened now--a bunch of fallible agents working on a budget and a time-line tried to cobble together their best shot, and it was lousy.

But the truth is out there!
So we have to keep suspending judgement!

But the topic is not whether Libby would have been convicted of violating the IIPA, but whether the investigation should have been terminated since Libby obviously couldn't have been guilty of an IIPA violation. And it's obvious that Fitzgerald is right on this point; at best, Libby had a plausible legal argument, but it certainly didn't provide a basis for terminating the investigation altogether.

I have greatly enjoyed this particular debate, but this is the paragraph that clarified things nicely for me. I have to agree with von that hilzoy probably overreached, at least a bit: the CIA has provided testimony as to Plame's status that a reasonable person would likely agree made her covert, in the common-sense use of the term; but the question of whether she would be found to be covert under the meaning in the IIPA is unresolved. OTOH, von is definitely guilty -- but not convicted :^) -- of nit-picking, since whether she was covert under the IIPA is not material to the current stage of the legal proceedings.

The defense contends that the prosecutor had no plausible reason to believe that a crime had been committed, so should never have brought Libby before the grand jury; Fitzgerald responds with the CIA statement regarding Plame's status, and contends that it supports the view that a crime could have been committed; the judge will decide (even if no findings of fact or law are ever written) which argument is more convincing, and whether the penalty for lying should be light or heavy.

Grand juries routinely hear things that have not, and may not be, subject to a legal finding of their truthfulness. I don't think I've seen von answer the specific question of whether he believes the CIA's statement is a sufficient basis to continue an investigation into whether a crime occurred (apoligies if he has answered that question, and I've just missed it).

I have greatly enjoyed this particular debate, but this is the paragraph that clarified things nicely for me.

Thanks for the compliment; I tend to go on, and sometimes I worry that I bring more obfuscation than clarity to the party.

The other salient point, it seems to me, is what I said in my 7:00pm from last night: Fitzgerald has been claiming in court papers that Plame was covert under the IIPA for more than three years, presumably giving Libby's lawyers more than enough time to offer whatever response they might have. I admire the creativity of folks like Tom Maguire who maintain that it's all up in the air until we see the paystubs; but for some reason, I get the feeling that even if we saw the paystubs, they would always come up with some other reason to claim that the issue is still undecided.

the CIA has provided testimony as to Plame's status that a reasonable person would likely agree made her covert, in the common-sense use of the term; but the question of whether she would be found to be covert under the meaning in the IIPA is unresolved.

Well, since Von is no longer responding to inquiries about why he feels this is not yet shown to be so, will you do so?

Hilzoy explained in some detail upthread what had led her to the conclusion that Von challenged and that you claim you think was "overreached". So, you should be able to respond to her comment (May 31, 2007 at 07:13 PM) and show which of 1-9 you assert that Hilzoy "got wrong" or "overreached".

Von ought to be able to do that, but he has fallen curiously silent.

I think that issue is also addressed in my 7:00pm. There are only two requirements for a CIA employee to be legally covert as defined by the IIPA: (1) the CIA must be making specific efforts to conceal your employment and (2) you must have served overseas within the last 5 years. The CIA document addresses both these legal elements; the document certainly isn't katy-bar-the-door conclusive, but it's a mistake to say that the document is relevant only to the everyday sense of "covert." It directly addresses the legal elements of covert status under the IIPA.

Well, now that Team Libby has filed (days late) its magnum opus on Scooter's sentence, we now know that they've come up with a goose-egg as far as factually challenging Plame's status. (Of course, anyone who has followed this case has known this for a good long time, seeing as they shook every bushin town -- including interviewing her neighbors -- ina futile effort to come up with a single person who knew that Plame worked for the CIA prior to the Novak story). I assume now that we have Von's permission to continue to adhere to our entrely reasonable conclusion that Plame was covert -- in the legal sense as well as in the ordinary sense. I, for one will sleep much easier knowing that the "profoundly silly" position I foolishly took an the basis of credible evidence may now be taken without fear of being branded "silly" by an inferior intellect.

Regarding Team Libby's response:

Aside from pointing out that Fitzgerald's claims regarding an IIPA violation were not previously disclosed ("These assertions represent an attempt to reinject into the case an issue the government could have raised earlier, but chose not to"*), Libby's response casts some doubt on whether Plame was a covert agent under the law. For instance:

"It is undisputed that, as the investigation swiftly uncovered, Mr. Novak’s two primary sources were Richard Armitage and Karl Rove, and that CIA spokesperson Bill Harlow also confirmed information about Ms. Wilson’s CIA employment to Mr. Novak."

When a CIA spokesperson is confirming Ms. Wilson's CIA employment to a journalist -- even if merely in response to a journalist's questions -- it is (i)questionable whether Ms. Plame was a covert agent and (ii) highly questionable whether Plame continued to be a covert agent.

Regarding whether Hilzoy was commenting on Plame's legal status: It seemed to me she was from the context, but if she says she wasn't -- and a lot of others thought she wasn't -- it's easy for me to concede that I misunderstood.

von

*Also consider the following statements, revealed in the defense memoradum:

We are necessarily hampered in our ability to counter the government’s assertions regarding Ms. Wilson’s status under the IIPA because the Court ruled – at the government’s behest – that the defense was not entitled to discovery of the information necessary to challenge them."

"Early in discovery, Mr. Libby sought discovery of documents relating to whether Ms. Wilson’s status as a CIA employee was classified. See Mot. of I. Lewis Libby To Compel Disc. of Rule 16 and Brady Material in the Possession of Other Agencies at 2 (Jan. 31, 2006) (Dkt. 32). The government refused to provide the requested discovery on the ground that it was irrelevant. It noted (correctly) that Ms. Wilson’s CIA status was “not an element of any of the three statutory violations charged.” Gov’t Consol. Resp. to Def. Mots. to Compel Disc. at 28 n.11 (Feb. 16, 2006) (Dkt. 36). In fact, according to the government, it was “irrelevant whether Mr. Wilson’s wife actually did work at the CIA” at all. Gov’t Resp. to Def. Third Mot. to Compel Disc. at 11 (April 5, 2006) (Dkt. 80)."

"First, the government claims that its “investigators were given access to
Ms. Wilson’s classified file.” Gov’t Guidelines Mem. at 5 n.2. This is tantamount to asking the Court and Mr. Libby to take the government’s word on Ms. Wilson’s status, based on secret evidence, without affording Mr. Libby an opportunity to rebut it. Such a request offends traditional notions of fairness and due process. United States v. Blackwell, 49 F.3d 1232, 1235 (7th Cir. 1995) (“It is well established that a convicted defendant has a right to be sentenced on the basis of accurate and reliable information, and that implicit in this right is the opportunity to rebut the government’s evidence.”); United States v. Edelin, 180 F. Supp. 2d 73, 75 (D.D.C. 2001) (it is necessary “to protect the defendant’s Fifth Amendment due process right by ensuring that defendant has the ability to rebut any aggravating factors asserted by the Government”)."

"Second, the government relies on a terse two-and-a-half page summary of Valerie Wilson’s employment history that was generated by the CIA, which purports to establish that “Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.”3 We have never been granted an opportunity to challenge this conclusory assertions or any of the other unsubstantiated claims in this document, nor permitted to investigate how it was created. If nothing else, the fact that the CIA’s spokesperson confirmed Ms. Wilson’s CIA employment to Mr. Novak calls into question whether the government was taking
affirmative measures to conceal her identity."

"The summary described above was provided to the defense along with a companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important
to bear in mind that the IIPA defines “covert agent” differently. It states: “The term ‘covert agent’ means— (A) a present or retired officer or employee of an intelligence agency . . . (i) whose identity as such an officer, employee, or member is classified information, and (ii) who is serving outside the United States or has within the last five years served outside the United States.” 50 U.S.C. § 426. The CIA summary of Ms. Wilson’s employment history claims that she “engaged in temporary duty (TDY) travel overseas on official business,” though it does not say whether such travel in fact occurred within the last five years. Further, it is not clear that engaging in temporary duty travel overseas would make a CIA employee who is based in Washington eligible for protection under the IIPA. In fact, it seems more likely that the CIA employee would have to have been stationed outside the United States to trigger the protection of the statute. To our knowledge, the meaning of the phrase “served outside the United States” in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA remains very much in doubt, especially given the sparse nature of the record."

Well, now that Team Libby has filed (days late) its magnum opus on Scooter's sentence, we now know that they've come up with a goose-egg as far as factually challenging Plame's status.

Funny, SD. I've excerpted certain relevant portions of Team Libby's "goose egg" above. Leave aside the predictable legal argument that there isn't a basis to find Plame covert because the Government aggressively (and successfully) fought the disclosure of evidence relating to the charge, introducing only a CIA statement after the trial, during sentencing. Focus instead on the fact that Plame's CIA employment was confirmed to Novak by a CIA spokesperson, which does cast some doubt on whether she was (or continued to be) covert.

I still think Fitzgerald likely would have had the better of the argument -- if all the evidence was released. But it wasn't, and there's enough here to make your "goose egg" statement transparently weak.

and that CIA spokesperson Bill Harlow also confirmed information about Ms. Wilson’s CIA employment to Mr. Novak."

I think that's misleading:

Harlow, the former CIA spokesman, said in an interview yesterday that he testified last year before a grand jury about conversations he had with Novak at least three days before the column was published. He said he warned Novak, in the strongest terms he was permitted to use without revealing classified information, that Wilson's wife had not authorized the mission and that if he did write about it, her name should not be revealed.

Harlow said that after Novak's call, he checked Plame's status and confirmed that she was an undercover operative. He said he called Novak back to repeat that the story Novak had related to him was wrong and that Plame's name should not be used. But he did not tell Novak directly that she was undercover because that was classified.

Jim Henley's wholly speculative scenario (offered in the spirit of 'sometimes smart people with no ax to grind are able to employ their powers of imagination to intriguing effect').

In response to a Brady request for information regarding Plame's covert status, Fitzgerald argued that the issue was irrelevant, but he also made an affirmative representation that the government had no documents or information in its possession that would tend to rebut the government's position. This was at a very early stage of the case. So it's not just that, gee, there might be a ton of exculpatory stuff out there, but poor Scooter wasn't permitted to get any discovery.

It's also worth remembering the reason WHY the court wouldn't give Libby discovery on this issue: because any documents he never saw couldn't possibly be relevant to his conduct or state of mind in relation to the crimes alleged. In other words, at best, what Libby did was leak Plame's name all over the place without even inquiring into whether she was covert. (At worst, of course, he knew she was covert and did it anyway.) In that scenario, he's equally culpable whether or not it turns out that some document in the bowels of CIA headquarters reveals that she technically wasn't covert. Of course, this is just another way of making the same point von makes in the non-objectionable portion of the post.

Von, with regard to Karl Rove and Richard Armitage, yes, they were undoubtedly told that Plame worked for the CIA by someone who should not have so told them. (Armitage seems to have been an innocent sock-puppet: Rove, not so much.) We already know there was a leak: asserting that because we know who the primary recipients of the leak were, that means Plame wasn't covert is absurd. Obviously once Plame's identity as a CIA employee had been leaked, she couldn't be covert any longer, but that says nothing about whether she was covert before her identity was leaked.

Spartikus has dealt with the Harlow issue.

Von, you don't normally keep repeating Republican talking-points like this. What is wrong with you?

Libby's sentencing memorandum also contains a big whopper:

The government has refused for years to take a position regarding whether Ms. Wilson was a covert agent as defined under the IIPA. For example, in his October 28, 2005 press conference, in response to a reporter’s question, the Special Counsel stated: “I am not speaking to whether or not Valerie Wilson was covert.” Special Counsel Patrick J. Fitzgerald’s Press Conference, Oct. 28, 2005 Tr. at 8.

In fact, as I documented yesterday, Fitzgerald quite clearly took the position way back in 2004 that Plame met the requirements to be "covert" under the IIPA.

However, he had made that argument in a sealed affidavit, and the portion of the D.C. Circuit's opinion referring to that argument was redacted from public view until February 2006.

Thus, when Fitzgerald gave his press conference in October 2005, he quite properly refrained from revealing the contents of sealed court documents. That doesn't change the fact that he had, in fact, taken the position that Plame was covert way back in 2004. And for Libby to now point to that press conference as evidence that Fitzgerald never took a position on Plame's status is stunningly dishonest.

I find it odd that, according to the logic I'm seeing here, a covert agent whose employment is leaked can somehow retroactively lose her covert status.

"The defense contends that the prosecutor had no plausible reason to believe that a crime had been committed, so should never have brought Libby before the grand jury"

Here is a timeline of events (here is another). Some notable events:

[from the second timeline:] September 26, 2003 – The Department of Justice authorizes the FBI to investigate the unauthorized disclosure of Valerie Wilson’s name. (Fitzgerald, Patrick J., Department of Justice, United States of America v. I. Lewis Libby. 28 October 2005).

[...]

[the rest from the first timeline, unless noted]: 30 September 2003: The Justice Department officially launches its full criminal investigation into the leak and requires White House to preserve all relevant evidence.

[...]

[second timeline] October 14, 2003 – Libby is interviewed by FBI special agents on this day and on November 26, 2003.

[...]

[first timeline] December 2003 or January 2004: Rove's lawyer Robert Luskin says Rove has signed a waiver authorizing prosecutors to speak to any reporters Rove had talked to.

[second timeline] Janurary 2004 – The grand jury investigation starts.

March 5, 2004 – Libby testifies before the grand jury.

March 24, 2004 – Libby testifies before the grand jury a second time.

Fitzgerald is appointed:
On December 30, 2003, Fitzgerald was appointed Special Counsel (under Department of Justice regulation 28 CFR Part 600) in the Plame investigation. Through this, Fitzgerald was delegated "all the authority of the Attorney General" in the matter. In February 2004, Acting Attorney General Comey clarified the delegated authority and stated that Fitzgerald has plenary authority.
Fitzgerald explained at length at this press conference how the FBI had interviewed Libby in October 2003, at which time he committed his perjuries.

Let's mark this again: The investigation was launched 30 September 2003. Libby committed his perjury in October, 2003. Fitzgerald wasn't appointed until 3 months later, on December 30, 2003.

So the claim is that Fitzgerald had no reason to believe a crime had been committed, after the FBI had decided a crime had been committed, months before Fitzgerald was appointed.

This seems problematic.

Von: "Regarding whether Hilzoy was commenting on Plame's legal status: It seemed to me she was from the context, but if she says she wasn't -- and a lot of others thought she wasn't -- it's easy for me to concede that I misunderstood."

I'm not sure this word, "easy," means what you think it means.

"Von: "Regarding whether Hilzoy was commenting on Plame's legal status: It seemed to me she was from the context, but if she says she wasn't -- and a lot of others thought she wasn't -- it's easy for me to concede that I misunderstood."

Your post still explains at length that "our readership loses it." And that:

[...] 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.
Since it's "it's easy for me to concede that [you] misunderstood," perhaps you'd like to address this in your post, given your fondness for updates.

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

Where did you end up arriving?

And since you now say that "it's easy for me to concede that I misunderstood," do you still assert that I invited you to "go down the path of primrose stupidity"?

I'm sure you'll be able to graciously address these queries.

Slarti: I've heard this sort of thing happens all the time.

With CIA memoirs, sure. The novel part is that the info is (allegedly) in the public record already, so they're trying to re-insert the feline into the bag.

Jes and Spartikus, to be (or remain) a covert agent under the relevant statute, Plame's "identity as an employee [of, here, the CIA] must be classified information." Harlow clearly revealed that Plame was a CIA employee. Whether he also warned/begged/pleaded with Novak not to release Plame's name is legally irrelevant to whether Plame was covert under the statute. It's her employment with the agency that is important.

From the point of Harlow's disclosure forward, it is very arguable whether Plame continued to be a covert agent under the terms of the statute and at least raises a question whether she was a covert agent previously.

Steve, you're conflating two separate points. The government's position regarding whether Plame is covert is not "under seal"; it's brief is. The Defense is correct to point out that the government's pronouncements are, at best, all over the map on this one.

And since you now say that "it's easy for me to concede that I misunderstood," do you still assert that I invited you to "go down the path of primrose stupidity"?

Yes, Gary. For the reasons stated in the original post, the logical way to read Hilzoy's statement in context was that she was making a legal assertion, and then she again repeated her position in terms that suggested that she was taking a legal position in comments to this post.

Harlow clearly revealed that Plame was a CIA employee.

That's not how I read that: he said she did not authorise her husband's trip and her name should not be used. This is not confirmation of employment with a particular organization.

Von: "For the reasons stated in the original post, the logical way to read Hilzoy's statement in context was that she was making a legal assertion, and then she again repeated her position in terms that suggested that she was taking a legal position in comments to this post."

Good to know. Almost all the people who have commented on the topic, and Hilzoy, are illogical. Only you correctly perceive logic.

So it's "it's easy for [you] to concede that [you] misunderstood," but only if we understand that you were the only logical person, that it was logical to misunderstand, and that almost everyone else who read both you and Hilzoy are illogical.

So you're still claiming of your readership that "our readership loses it," and while "it's easy for [you] to concede that [you] misunderstood," you still "respectfully decline [Farber's] invitation to go down the path of primrose stupidity" to conceding that you misunderstood.

So you were wrong, but you were right to be wrong, and although you've wound up agreeing with me that you were wrong, I was "stupid" to invite you to consider that possibility.

Gracious, indeed.

And good also to know in the context of Charles conniption that I said that Randy Paul "actually knows what he's talking about."

Clearly I should have, rather than discussing someone else's words, thanked Charles and declined his invitation go down the path of primrose stupidity.

How do you know Harlow revealed that she was an employee? Nothing in what spartikus quoted would indicate that. Do you have another source?

Let me propose a few points on which I'd like to think we can form a consensus.

1) Exposing the identities of undercover CIA employees is a very bad thing.

2) Exposing the identities of non-undercover CIA employees, on the other hand, is not particularly troublesome.

3) Some right-wing commentators have taken the position that Plame was not undercover in the slightest, that she was a desk jockey and everyone in the world knew where she worked; but there's not a lot of evidence to back that up, and none of us around here take that position.

4) Outing a CIA employee who is undercover, but is technically not "covert" as defined by the legal language of the IIPA, is still a Very Bad Thing.

5) Thus, the important issue is whether Plame was undercover in the everyday sense, and we all agree that she was.

6) Whether Plame was "covert" under the IIPA definition is a technical matter, involving trivia like how recently she worked outside the country.

7) The evidence we've seen sure seems to point to the fact that Plame was "covert" as defined by the IIPA, but if charges were actually brought under the IIPA and the defendant were permitted to investigate the CIA's claims more deeply, it's possible some new fact could come to light.

7) Right-wing operatives like Victoria Toensing have tried to distract from the evident truth of proposition #4, above, by obsessing over the question of whether Plame was "covert" under the IIPA, acting as though this was the only issue that truly mattered.

8) The more time we spend arguing over the "legally covert" question, the more we're doing exactly what those people wanted us to do when they started laying the smokescreen in the first place.

9) Let's just agree that Libby did a Very Bad Thing, and got convicted of lying about it, and leave it at that.

Can we stipulate to all this?

The enumeration in your post, of certain points, shall not be construed to deny or disparage others made by the people.

Steve,

I am not going to stpulate to 2. Not that it changes much of what follows.

von: Jes and Spartikus, to be (or remain) a covert agent under the relevant statute, Plame's "identity as an employee [of, here, the CIA] must be classified information." Harlow clearly revealed that Plame was a CIA employee.

Well, (1) you haven't actually quoted any direct testimony to show that Harlow told Novak that Plame worked for the CIA: you've only cited that Libby claimed this was the case. But, if for the sake of argument your (1) is true, then (2) you're arguing backwards, as Anarch points out: you're saying that because she wasn't treated as covert after her identity was leaked, she could never have been covert at all.

And you have still not responded to Hilzoy's points, 1-9, to let her know what you claim she got wrong.

So you were wrong, but you were right to be wrong, and although you've wound up agreeing with me that you were wrong, I was "stupid" to invite you to consider that possibility.

Gracious, indeed.

I wasn't trying to be gracious. Hilzoy's comment that Plame was, indeed, covert was promoted and based on a legal filing by Fitzgerald. It was reasonable to assume that she was placing stock in Fitzgerald's legal conclusion, rather than simply the facts (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.

the CIA has provided testimony as to Plame's status that a reasonable person would likely agree made her covert, in the common-sense use of the term; but the question of whether she would be found to be covert under the meaning in the IIPA is unresolved.
==========
Well, since Von is no longer responding to inquiries about why he feels this is not yet shown to be so, will you do so?

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.

Until a few weeks ago, the issue of whether carbon dioxide is a pollutant which can be regulated under the Clean Air Act (and indeed, must be regulated) was "unresolved." Reasonable people could and did argue both side of that. Now we know that, in general, the statute requires such regulation. I anticipate that future case law will clarify the situation further: e.g., a coal-fired power plant must be regulated, a charcoal-fired backyard barbecue need not be.

She says, however, that she didn't intend to comment on the legal issue, and I believe here.

Sorry, that's an error. In fact, Hilzoy said that she did intend to comment on the legal issue -- to reach a legal conclusion -- but didn't mean to imply that the matter had been determined by a Court.

So, again, how was my interpretation that Hilzoy was making a legal argument wrong?

Jes,
(1) you haven't actually quoted any direct testimony to show that Harlow told Novak that Plame worked for the CIA: you've only cited that Libby claimed this was the case.

That's because it's been admitted.

But, if for the sake of argument your (1) is true, then (2) you're arguing backwards, as Anarch points out: you're saying that because she wasn't treated as covert after her identity was leaked, she could never have been covert at all.

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.

And you have still not responded to Hilzoy's points, 1-9, to let her know what you claim she got wrong.

I've explained, repeatedly, why one should (1) reserve judgment until you here both sides of an argument and (2) the importance of the defendant being able to test the facts asserted against him (which didn't happen here, because the evidence was not produced).

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