Well, Knock Me Over With A Feather!

by hilzoy

Valerie Plame Wilson was a covert agent all along:

"An unclassified summary of outed CIA officer Valerie Plame's employment history at the spy agency, disclosed for the first time today in a court filing by Special Counsel Patrick Fitzgerald, indicates that Plame was "covert" when her name became public in July 2003. (...)

The unclassified summary of Plame's employment with the CIA at the time that syndicated columnist Robert Novak published her name on July 14, 2003 says, "Ms. Wilson was a covert CIA employee for who the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.""

Personally, I never thought that whether Valerie Plame was covert on the day she was outed was really the point, outside of a court of law. She had been a covert agent in the past, and was entitled to assume that the government in whose service she had put herself at risk would not repay her by revealing her identity, especially not to score some cheap political point. Moreover, outing her exposed her, anyone she had had contact with, and any assets or organizations that had been used in creating her cover. It also gave other covert agents, and people they were trying to recruit, grounds to wonder whether our own government would decide to blow their covers if it thought there was something to be gained politically. Outing her was both wrong and profoundly stupid, whether she met the definition of 'covert' under the IIPA.

For some reason, though, other people seemed to think it did matter outside the courts, and went on and on about how if Plame was not actually undercover deep in the wilds of Tajikistan at the very moment she was outed, everything was somehow fine and dandy. Whatever.

The reactions on the right have been interesting. Ed Morrissey, to his credit, accepts that Plame was covert, but claims this just shows how incompetent the CIA was. As far as I can tell, PowerLine, the frontpagers at RedState, Malkin, and Hewitt have yet to mention it. Tom Maguire says this:

"Newsweek has an interesting view of the law, and the usual suspects amongst the lefty bloggers are falling in line behind it - when a prosecutor expresses an opinion in a sentencing memorandum, that is dispositive - case closed, no further questions, move on. (...)

Fitzgerald has "finally resolved" the question simply by stating his opinion! No defense brief has been filed, no judge has ruled, but Fitzgerald has spoken so it is time to move on. (...)

So, is Ms. Plame covert? We now have the belated and uncontested opinion of a prosecutor who was unwilling to argue this point previously to add to the stack of unpersuasive opinions. My official editorial position remains unchanged - we don't know, the legal work to be establish this has not been done, and we are not likely to find out."

I don't know why he says this, since Newsweek and Fitzgerald cite the declassified CIA summary (pdf) of Plame's employment status. It's not just Fitzgerald's opinion.

And then there are the true believers., like Macsmind (spelling mistakes in original):

"What you see her is a complete broadside fabrication from the rogues and nothing more. It might fool the fools of the MSM, but for those who were there and known, it’s crap pure and simple. Fitzgerald is showing more and more the partisen that he is, a poltical hack of the first order. Fact is that if this document had any authenticity to it Fitzgerald could have charged Libby under IIPA. It didn’t and he knew it."

Right.

The only reason I mention this entirely unsurprising development is to note two points. First, publius and I have recently been asked why we regard Fox News as biassed. In my case, the answer was: I click it on every now and again, and almost every time I hear something presented as fact that either isn't so, or isn't clear at all, or lacks some relevant context that would affect what people made of it. Somehow, though, the idea of slogging through a lot of Fox transcripts to try to make this case didn't really seem all that appealing, so I let it drop. Now, however, Glenn Greenwald, who is plainly made of stronger stuff, has slogged through Fox's discussions of Plame. His conclusion:

"If Fox were your principal source of news, you would believe that the proposition that Valerie Plame was not considered "covert" by the CIA was a fact so established that nobody really questioned it (...)

Imagine having risked your life to go undercover for your country as a CIA operative and then having to listen to the likes of Jonah Goldberg, Fred Barnes and company belittle your work by falsely insulting you as a "desk jockey" and acting as though you were nothing but a worthless file clerk, all in order to protect the Leader and assure his followers that they did nothing wrong. "

Second, Christy at FDL notes how often Victoria Toensing et al appeared on various news shows, in print, and before Congress asserting that Plame was not covert. (Sample, from Toensing's op ed in the WaPo: "On Dec. 30, 2003, the day Fitzgerald was appointed special counsel, he should have known (all he had to do was ask the CIA) that Plame was not covert, knowledge that should have stopped the investigation right there.") Christy asks:

"And so today, I'm calling for more honest bobbleheads. I don't think it is too much to ask that if people are going to sling information around like it is so much hash, that at the least they have some rudimentary knowledge of the veracity of its component ingredients. Otherwise, they could just be serving the general public a dish of crap, couldn't they? And, frankly, bobbleheads ought to be held to account as to whether or not the acid that comes dripping so blithely off their overly-whitened fangs is true or false."

She's right. People who get up on TV and say things that just aren't so should forfeit their credibility. TV stations, newspapers, and other media outlets should refuse to use them: the media's job, after all, is to present the facts, not to present the spin offered by all sides regardless of its veracity. If someone can be shown to have said things that were just not so, and that she ought to have known were at least open to question, she can no longer be trusted to convey facts accurately, and the media should have done with her. And we should notice which media outlets do this, since any that continue to invite someone like Victoria Toensing to comment on current events are by that fact showing us that they are not interested in whether or not the people they give a platform to are telling the truth.

Comments

[cleek]

i forget the name of the internet law that says a comment about a spelling mistake will usually involve a spelling mistake of its own, but...

"Sample, from Tpensing's op ed in the WaPo..."

[hilzoy]

cleek -- thanks! fixed.

[rilkefan]

"whether or not the acid that comes dripping so blithely off their overly-whitened fangs is true or false."

Someone needs to lay off the metaphors.

[Dan]

She's right. People who get up on TV and say things that just aren't so should forfeit their credibility. TV stations, newspapers, and other media outlets should refuse to use them: the media's job, after all, is to present the facts, not to present the spin offered by all sides regardless of its veracity.

But that would be like, you know, responsible, and ethical and all. Can't be having such things slow down the business of media, now can we?

More seriously, until Fox News gets hit where they hurt, they have no reason at all to stop giving the likes of Fred Barnes any airtime.

[KCinDC]

Cleek, there's some dispute about what to call it.

[Sasha]

First, publius and I have recently been asked why we regard Fox News as biassed.

My answer would have been "Because we have eyes, ears, and a God-given ability to think."

[Jay C]

"If someone can be shown to have said things that were just not so, and that she ought to have known were at least open to question, she can no longer be trusted to convey facts accurately, and the media should have done with her."

Nice sentiments, hilzoy; (and almost needless to add, I agree with you 100%) - but this view fails to take into account one of the most pervasive - and, IMHO, one of the most negative and corrosive - changes to the business of presenting the "news" over the last 20 years or so. That is the relentless "politicization" of virtually everything to do with the operations of the government - and, more importantly, the way such operations are reported on by the press.
When everything is reduced to a matter of "politics", it is an easy matter to dismiss any complaint, criticism or accusation as being (basely) "politically motivated", The Bush 43 Administration, and its apologists/enablers in both the "traditional" and online media are (and have been for 6+ years) proven masters at manipulating these lines of inquiry. Virtually every "defense" of Administration policies or proposals has tended to begin with calumnies - often quite personal - against the critics: and usually bolstered with accusations of "politics" as the main motivation. Thus, we get high-handed dismissals of wrongdoing like:

"Fitzgerald is showing more and more the partisen that he is, a poltical hack of the first order."

as a catchall excuse for ignoring the most obvious of facts. "Facts have a liberal bias" may make a cute tagline on a blogpost; but the application of this prejudice in real-life media loses its amusement value pretty quickly.

[Jake - but not the one]

The truth is knowable thru conviction and faith - no facts required. Always. If Victoria says something is true, or false, then somewhere, and in someone's mind, her statement is true. If the corporations, that "someone's mind", who own the media want it to be true, it is. No mere facts, or lack therof, can change the truth.

The Plame affair made the Administration look bad. Since the Administration is NOT bad, it is affair that is false. Any facts to the contrary are inadmissable. Faith brings that kind of certainty.

I am sure there are Republicans who are dismayed at the turn their party has taken. Unfortunately, they are not the among the leadership of the party.

Jake

[von]

Hilzoy, all this filing establishes is that the government (including Peter Fitzgerald) believes that Plame was covert. It's not a determination of the Court and it's not a finding of fact; indeed, the defense hasn't yet even responded.

Fitzgerald may very well be correct and Plame may very well have been covert, but that's not established in this filing -- any more than a criminal complaint establishes that a defendants is guilty. This is merely one side of the story.

[Jesurgislac]

Von: Hilzoy, all this filing establishes is that the government (including Peter Fitzgerald) believes that Plame was covert.

Just as all The Truth About The Moon Landings established was that NASA (including Buzz Aldrin) believes that men did go to the Moon.

Exactly equivalent.

[Morat20]

Some people -- like the Just One Minute guy -- won't believe Valerie Plame was covert unless God himself came down and said so. And probably even then, they'd explain that while she was 'covert' from God's perspectve, she wasn't covert under the fallible standards of human laws, ergo "Libby good, Fitzgerald Bad, Liberals Suck".

Give it up. They're not interested in reality, not when torturous rationalizations create a far more comforting place to live.

[farmgirl]

von, I'm confused -- the CIA has stated affirmatively (during VPW's testimony on the Hill, if not here; I would assume that the unclassified employment summary referred to in the article was provided by the CIA but that does not seem to be clearly stated) that Valerie Plame was a covert agent, and this latest document just fleshes out the details. Are you saying there needs to be a court finding of fact for all CIA statements? Could we have that standard applied to the vast body of assertions made by the President and Vice President, claiming to be based on Intelligence?

[rilkefan]

I suppose the CIA could be wrong on this - they've been wrong before. By that standard, I'd like to find out if Bush was actually president after the 2000 election - afaik that was never determined in a court of law.

[Gary Farber]

Ed's response, attacking the CIA, suggests major ignorance of what constitutes being "covert." He writes (I omit quoting all of what he quoted):

The unclassified summary of Plame's employment with the CIA at the time that syndicated columnist Robert Novak published her name on July 14, 2003 says, "Ms. Wilson was a covert CIA employee for who the CIA was taking affirmative measures to conceal her intelligence relationship to the United States."

They were? Plame drove into the office in Langley. She traveled abroad under her own name. She helped arrange for her husband to do some fact-checking on a sensitive intelligence matter. Her husband, former Ambassador Joe Wilson, then came home and leaked his observations to two nationally-known journalists, and then wrote his own op-ed in the New York Times under his byline.

And her husband managed to list her in Who's Who, where any journalist could look up the entry -- and where Robert Novak did just that.

If that's keeping an agent covert, it speaks volumes about the agency's competence during the George Tenet years.

So now we have confirmation that Plame did get her cover blown. I suppose the only reason that Fitzgerald didn't bother to indict Richard Armitage for the crime was that it would have meant explaining how the CIA tried to hide its NOC asset in plain sight.

One at a time. Ed puts forth that Plame wasn't covert because "Plame drove into the office in Langley."

And? I'm unclear if Ed believes that truly covert people parachute in, or use the tunnel from China, or the secret subway from the White House, or what, but how else one would go from one's house, or anywhere else, to CIA HQ in Langly, without driving, I'm unclear.

Now, use of a car, and the US highway system, doesn't constitute a violation of tradecraft or covertness.

Does Ed believe that enemy agents/terrorist sympathizers are hanging around the entrances to CIA HQ in Langley, taking pictures of the thousands of people that stream into work there very day?

Because, remarkably, the CIA actually thought of that possibility, and thus have always had extremely tight security that rapidly investigates anyone who makes the turn-off towards CIA headquarters. They descend on you, and check you out, and if you're suspicious, will do more, and if not, you're sent packing with a stern warning.

Ed may be unaware of this. Of course, he would be dumb to be making pronouncements without looking into the facts, and dumb for not having figured out this might be the case, but still, he might not have looked into it.

Otherwise, I'm not clear what his point is in noting that Plame, like all other CIA employees, covert and overt, uses a car when they go to Langley.

"She traveled abroad under her own name."

Yes. And lived under her own name. This is because her job was covert, not the fact that Valerie Plame existed. Remarkably, all sorts of people, including Americans, travel overseas every day, using their own name, and yet this does not prove they are CIA officers. Not even when they're covert CIA officers, and the fact that they work for the CIA is therefore a secret.

How use of one's own name reveals that one works covertly for the CIA remains unclear to me, but perhaps Ed will explain at some point.

"She helped arrange for her husband to do some fact-checking on a sensitive intelligence matter."

The relevance of this to a claim that she wasn't covert is obscure to me.

Then we go to the rest of the usual complaints, which involve the usual lack of note of the mysterious concept of "cause and effect" and "sequence," in which Ambassador Wilson (the guy who faced down Saddam Hussein face to face in Baghdad, getting him a commendation from President G. H. W. Bush!) engaged in actions for no cause whatever, in response to nothing, and in which what he does is politics, but what the Administration does is national security. At that point we're just back to the politics of it all, and everyone can play.

But Ed's odd misconception that somehow you're not covert if you've not changed your name seems to loom large here, and in the minds of his like-minded friends, no matter that it makes little sense, and bears no relation to actual covert tradecraft.

As always, the comments to the most are full of thoughtful people reconsidering what they think.

Yeah, I keed. They're good for laughs, though: "Nope, after the US State Department, the CIA is the most Anti-American institution in the entire United States Government, and the quicker we tear it down, fire all the damn Leftists and Democrats who work there and have ruined it, the better off we will all be!"

Darn tootin'!

[Incertus]

I pretty much figured that Plame was confirmed as covert the moment Fitzgerald started the actual investigation into her outing. Isn't the first step to discover if any crime was committed? If Plame wasn't covert, then there was no crime, and the whole thing ends before we get to grand jury testimony and the like. Or did I miss something?

[Ugh]

The Executive Director at the time Plame was outed, a man not known for his general kindness, sympathy and empathy, personally called her and told her that he would do whatever she asked of him - such was the outrage at CIA over her outing (don't recall what book this was in). The idea that she was just some "paper pusher" is nonsense.

[Ginger Yellow]

She's right. People who get up on TV and say things that just aren't so should forfeit their credibility. TV stations, newspapers, and other media outlets should refuse to use them: the media's job, after all, is to present the facts, not to present the spin offered by all sides regardless of its veracity.
The most absurd thing about this is that it's not only a question of justice or ethics. Why don't these outlets have more self-respect? Don't they care about being shown up as schmucks again and again by these liars? As a journalist myself, when I find out that someone has lied to me I either drop them as a source or make damn sure everything I use is separately corroborated. For any real journalist, it's not a pleasant feeling to know you've been used to spread lies. It feels like a personal insult and it should.

[Gary Farber]

"Hilzoy, all this filing establishes is that the government (including Peter Fitzgerald) believes that Plame was covert."

Yes, von, it establishes that the CIA believed that Plame was covert.

Could you expand on the theory that the CIA could be wrong about this, please? It seems potentially very interesting. Please do explain further?

[Gary Farber]

"I pretty much figured that Plame was confirmed as covert the moment Fitzgerald started the actual investigation into her outing. Isn't the first step to discover if any crime was committed? If Plame wasn't covert, then there was no crime, and the whole thing ends before we get to grand jury testimony and the like. Or did I miss something?"

For one thing, how long the investigation had been going on before Fitzgerald came into it. He didn't "start" the investigation, which is relevant to various charges about what he should have done when the investigation started, absent his being issued a DoJ time machine we haven't heard about.

[rilkefan]

Gary, doesn't the CIA make this determination by some set of criteria which is not necessarily exactly the same as specified in the law(s) in question? I assume some HR section there knows what the CIA thinks a covert person is, but that might just involve getting a signature from an official who knows what covert is when he sees it.

[Jesurgislac]

doesn't the CIA make this determination by some set of criteria which is not necessarily exactly the same as specified in the law(s) in question? I assume some HR section there knows what the CIA thinks a covert person is, but that might just involve getting a signature from an official who knows what covert is when he sees it.

Quite possibly. But I can't believe (as Von seems to assume) that the CIA didn't know before they took the case to the DoJ what the terms of the statue were: and I really can't believe that the DoJ didn't know what the terms of the statute were.

So, as it stands: the CIA believe they were employing Plame as a covert agent.

The DoJ believed that Plame was covert under the statute that made exposing her identity a criminal offense.

Even President Bush said more than once that leaking Plame's identity was a leak of classified information. (Well: actually, he didn't. He was so cautious about what he did say, that I suspect that he'd got stringent legal advice about exactly what to say.) But if Plame was not legally covert, if Cheney, er, whoever Libby was shielding had a perfect right to disclose Plame's identity to anyone he chose - why didn't the President say so, back in October 2003, and resolve the whole issue?

So: Bush thinks Plame was covert, but maybe he was badly advised.

The DoJ thinks Plame was covert, but maybe they never bothered to check the relevant statutes before they launched the investigation.

The CIA thinks they were employing Plame as a covert agent.

And Buzz Aldrin thinks he landed on the Moon.

None of that, evidently, is good enough for Von: so what would be?

[cleek]

I really can't believe that the DoJ didn't know what the terms of the statute were

you've been following the DOJ attorney fiasco, right ?

[Gary Farber]

"Gary, doesn't the CIA make this determination by some set of criteria which is not necessarily exactly the same as specified in the law(s) in question?"

Yeah. That doesn't seem to be in play in this case, contrary to claims otherwise, so far as I'm aware, though it's always possible I've missed something, but it's a fair statement.

[Sasha]

I pretty much figured that Plame was confirmed as covert the moment Fitzgerald started the actual investigation into her outing. Isn't the first step to discover if any crime was committed? If Plame wasn't covert, then there was no crime, and the whole thing ends before we get to grand jury testimony and the like. Or did I miss something?

[snark]Obviously, a partisan hack like Fitzgerald would ignore something like if it meant attacking the administration.[/snark]

[rilkefan]

"But if Plame was not legally covert, if Cheney, er, whoever Libby was shielding had a perfect right to disclose Plame's identity to anyone he chose - why didn't the President say so, back in October 2003, and resolve the whole issue?"

I think von isn't asserting Plame wasn't covert - just that the legal procedure to decide that question hasn't been followed. The president might not want such a proceeding to occur (since the answer is kinda obvious [was it Atticus Finch who said, 'Never ask a question you don't know the answer to"?]), and he might not want to be caught on tape quibbling about "controlling legal authority" or whatever the catchphrase is - supposedly he's held to a higher standard than "is it legal?".

[Jesurgislac]

Rilkefan, I would actually like Von to answer: does he himself think that we can't yet be sure that Plame was covert? And if he does think that this is still an area of uncertainty, what would convince him that she was?

[rilkefan]

What I'd like to know is whether someone has gotten Bush père's reaction to this.

[spartikus]

I understand the point, but it seems fairly ridiculous -> wouldn't the employer be called in by a court to determine the job status of an employee?

[Ugh]

What I'd like to know is whether someone has gotten Bush père's reaction to this.

Pissed at Jeb for losing his first run at the Florida governorship, forcing poppy to go with W. as the next Bush candidate, leading to the current disaster.

[Steve]

It's worth noting that this is news only in a limited respect. It's been known for over a year that Fitzgerald had concluded Plame was covert under the IIPA; what's new about Fitzgerald's latest filing is that we actually get to see the supporting documents from the CIA which back that up.

But even though Plame was covert, the reason charges weren't brought under the IIPA is that Fitzgerald didn't believe he could establish a different element of the statute - the requirement that the leaker have actual knowledge of Plame's covert status. One of the reasons he couldn't make this determination, by the way, was Libby's decision to lie under oath regarding where he had heard about Plame.

And I keep hearing today the argument that we mustn't take the prosecutor's word for anything. Why do I feel like this argument emanates from the same general quarters where Jose Padilla's imprisonment has been championed lo these many years? (I must except von from my condemnation, as he is consistently scrupulous in my book.)

[hilzoy]

von: are you suggesting that when the CIA, Fitzgerald, or whoever prepared the employment history I linked to, says that "the CIA declassified and now publicly acknowledges the previously classified fact that Ms. Wilson was a CIA employee from 1 January 2002 forward, and the previously classified fact that she was a covert CIA employee during this period" (pp. 2-3), they are misrepresenting what the CIA believed? Or didn't bother to ask? Because if not, I have a hard time seeing how this isn't dispositive.

[Anderson]

forget the name of the internet law that says a comment about a spelling mistake will usually involve a spelling mistake of its own

That would be Godwyn's Law.

[grandp]

perhaps I am oversimplifying but since she was employed by the CIA, it would seem to me that her employer would be the one who made the determination of what her employment status was. Isn't that the way it works in our corporate society?

[von]

Yes, von, it establishes that the CIA believed that Plame was covert.

Could you expand on the theory that the CIA could be wrong about this, please? It seems potentially very interesting. Please do explain further?

I'll respond to Gary, since he made an early point later made by others. The CIA and the Special US Attorney can both assert that Plame was covert under the relevant statute. Indeed, both have (although the CIA's General Counsel took some time to verify it, it appears). But that does not mean that Plame was actually covert within the meaning of the relevant statute: Only a Court can decide that.

Keep in mind that both the CIA and the SUSA are executive agents, and that while their arguments regarding what the law is will, of course, be entitled to some respect, they do not get the final word in our system of government. Were it otherwise, a defendant could be found guilty based on the determination of the prosecutor alone and no-one should have the least problem with President Bush unilaterally declaring that person X or Y are an enemy combatant.

Incidentally, before you write the next comment, think this through -- because I'm right (and it's not close); moreover, it's also in your long term political interests for me to be right.

[von]

perhaps I am oversimplifying but since she was employed by the CIA, it would seem to me that her employer would be the one who made the determination of what her employment status was. Isn't that the way it works in our corporate society?

You're confusing employment status with a violation of law, and your use of the term "corporate society" makes no sense in context.

[cleek]

That would be Godwyn's Law

deliciously subtle. took me four reads before i figured it out.

[von]

Rilkefan, I would actually like Von to answer: does he himself think that we can't yet be sure that Plame was covert? And if he does think that this is still an area of uncertainty, what would convince him that she was?

Jes -- the definition of "covert" in the relevant statute is either (1) unusually limited or (2) poorly drafted (take your pick). It's not clear to me that Fitzerald could have actually satisfied that Plame's status met the defintion beyond a reasonable doubt -- which is presumably why he didn't try to prove a claim under the statute beyond a reasonable doubt, but is mentioning the argument in a sentencing document (which is subject to a much lower burden of proof).

Note, however, that whether Plame was covert as a legal matter has very little to do with whether she was covert in the ordinary sense of the word, or whether outing her caused damage to national security.

[Anderson]

Von, I hear ya -- adversarial system & all that -- but what most of us are thinking is that Fitzgerald would be pretty dumb to stick his neck out, if the opposition had anything to cut with.

At the least, I would think you might concede that the burden of persuasion is now on those who would say she's *not* covert. I'm a bit puzzled what more we could expect CIA and Fitz to do, at this point.

[Jonas Cord Jr.]

It's been known for over a year that Fitzgerald had concluded Plame was covert under the IIPA... And I keep hearing today the argument that we mustn't take the prosecutor's word for anything.

Well, outside of trials that are newsworthy and contentious, people usually don't necessarily take a prosecutors word for anything, and wait for the case to proceed to come to a determination. It's like when people assumed the occurence of a rape because the prosecutor brought a case against the Duke Lacrosse team, it's an understandable thing to do but not intellectually honest.

[LizardBreath]

Von, I don't believe your argument stands up. The law is pretty simple -- the question all along has been whether the facts of Ms. Plame's employment corresponded to the requirements of the law (with the major question being: (1) whether she'd served overseas during the preceding five years, and (2) whether the CIA had been actively taking steps to keep the nature of her employment secret. Those aren't legal questions, they're fact questions, and the only reason they were ever in doubt was that the answers, known to the CIA all along, were classified.

You can take the position that it's wrong to ever state a legal conclusion without a court's holding on the specific facts, but there's a point at which that becomes absurd, and I think you're well past that point.

[Jonas Cord Jr.]

At the least, I would think you might concede that the burden of persuasion is now on those who would say she's *not* covert. I'm a bit puzzled what more we could expect CIA and Fitz to do, at this point.

Bring charges of exposing a covert agent against someone. It's easy.

Unless you actually believe that the burden of proof is on the publicly accused but not formally charged.

[Davebo]

Bring charges of exposing a covert agent against someone. It's easy.

Won't the civil suit server the same purpose?

[Carleton Wu]

von,
While facts that haven't been determined by a court might not have legal weight, it's sophistry to argue that the lack of a legal finding means that the matter is completely ambiguous. And I don't think anyone is suggesting that the CIA's statement would be- or should be- legally binding, just that it's another very strong piece of evidence in favor of the proposition. And nothing appears on the opposite side of the scale (except hot air, as Gary pointed out above).

...which is presumably why [Fitzgerald] didn't try to prove a claim under the statute beyond a reasonable doubt...

Someone pointed out above that Fitzgerald was probably more limited by the need to prove that Libby *knew* of Plame's status. Who knows, but your presumption here appears unwarranted.

[LizardBreath]

Von and Jonas --

Yes, without a court's determination, we don't impose criminal sanctions on people, regardless of how clear the facts and the law appear. That has nothing to do with whether it is reasonable to look at the now public facts and law and conclude that a crime did take place.

[hilzoy]

Personally, my best guess as to why Fitzgerald didn't bring charges under the IIPA was that given Cheney and Bush's ability to declassify at will, it would be difficult to prove intent if the leakers were ordered by either of them. While we're in the realm of speculation. I certainly think there are a lot of reasons other than lack of confidence in Plame's covert status.

[Carleton Wu]

Bring charges of exposing a covert agent against someone. It's easy.

Unless you actually believe that the burden of proof is on the publicly accused but not formally charged.

Perhaps you were unaware that there is more to the statute than 1)proving that A was a covert agent and 2)proving that B revealed that A was employed by the CIA.
That is, both 1 and 2 can be provably true but a criminal case still might not exist.
[I will give you a hint: Steve, 4:13pm, this very thread].

Perhaps you were also unaware that, once in a rare while, something does something morally questionable (or even reprehensible) without anyone being able to prove that they broke the law. Yet, in these rare circumstances, some of us still think it's important to discuss the matter. We even go so far as to form non-binding non-legal opinions on the matter, and act on those opinions. Bunch of busybodies we are, huh?

[Anderson]

Jonas, there's an *intent* requirement that has, let me check -- hm -- zero to do with whether or not Plame was covert.

[von]

While facts that haven't been determined by a court might not have legal weight, it's sophistry to argue that the lack of a legal finding means that the matter is completely ambiguous.

Responding to Wu (and Lizardbreath by implication): I'm not arguing that the matter is "completely ambiguous". I'm stating that it's incorrect (as a matter of either fact or law) to state that Plame has been found to be a covert agent when she hasn't been. It may be that Fitzgerald's argument carries the day. It is quite compelling. From personal experience, however, I have seen many a seemingly compelling argument demolished in an opposition brief.

Indeed, Fitzgerald never pursued claims against anyone under the relevant statute for the actual leak. That is indicative that he felt he couldn't prove the case. Was it because he had doubts about establishing whether Plame was covert? Was it purely a problem showing that Libby (and others) had the required scienter (i.e., knowledge of her status)? We don't know.

[Slartibartfast]

I don't think it's been established that Cheney has declass authority, although I might have missed that.

Furthermore, I don't think that Bush can ex post facto declassifiy anything, and can't legitimately claim to have declassified anything he hadn't notified the agency heads of. Speaking from memory here, but I think that's how declass works.

Other than that, I'm going to wait for the various arguments related to covertness thrash themselves out, and hope that someone, somewhere is going to eventually charge somebody else with having disclosed classified information.

[Anderson]

Was it because he had doubts about establishing whether Plame was covert? Was it purely a problem showing that Libby (and others) had the required scienter (i.e., knowledge of her status)? We don't know.

What do you mean, we don't know? Fitzgerald has stated, under penalty of Rule 11, that Plame. Was. Covert. How are you now wondering if he has doubts on the subject?

[john miller]

I don't believe there is any declaration in this post that someone broke the law. The declaration is that Plame was classified by the CIA as covert. The legal sense only has meaning if someone was being charged with violating the law.

Additionally, the fact that noone has been accused of violating the law does not mean the law has not been broken. A high school classmate of mine was brutally murdered. A friend of mine in the police department told me they were certain who did it, yet no arrest was ever made. I guess that means that a crime was not committed if we listen to the argument of those who believe that since no charges there was no crime.

Was she covert? Yes, by the CIA's definition. Did outing her do damage? Almost certainly. Was it done by someone who was aware of her status? Very probably.

Is this administration criminal? DUH.

[LizardBreath]

You know the law. I think you're a lawyer (I may have that confused). You know the facts (under the assumption that the CIA's knowledge of the relevant facts, and its veracity, is not being questioned. If it is, that's a different question).

Can you actually think of an argument for which there is any legal support that she was not covert under the meaning of the statute, or are you simply arguing that what any court will determine, given a statute and a set of facts, is radically unknowable until the determination has been made, to the point that discussion of what a reasonable court would decide is improper? If the first, I'd be interested in hearing it, if the second I can't imagine why you're interested in participating in this conversation at all.

[Jonas Cord Jr.]

Lizardbreath,

...whether the CIA had been actively taking steps to keep the nature of her employment secret.

While you may hold this as a fact, the fact that she worked at the CIA Headquarters building makes that fact pretty nonsensical to me.

That has nothing to do with whether it is reasonable to look at the now public facts and law and conclude that a crime did take place.

Had criminal charges been filed, I think we'd actually have enough facts to make that conclusion in an intellectually honest way. It's fine if we all suspect there is a crime, or if we suspect there isn't, but to run around with such certainty and conviction is just not worthwhile, in my opinion.

Davebo,

Won't the civil suit server the same purpose?

Maybe. But I doubt anyone is going to be declassifying stuff for a civil suit, but I'm no lawyer.

Anderson,

Jonas, there's an *intent* requirement that has, let me check -- hm -- zero to do with whether or not Plame was covert.

I thought you have to prove that there was *intent* to out the *covert* agent?

[LizardBreath]

You have to prove intent to convict someone of violating the statute. You don't have to prove intent to settle whether or not she was covert.

[von]

What do you mean, we don't know? Fitzgerald has stated, under penalty of Rule 11, that Plame. Was. Covert. How are you now wondering if he has doubts on the subject?

Since you're familiar with Rule 11,* you surely understand that there's a difference between averring that your allegations "have evidentiary support" and proving the allegation. You might also want to consider that Fitzgerald burden of proof is radically lower at the sentencing phase than at the trial phase.

This assumes that Fed.R.Crim.P. 11 is similar to Fed.R.Civ.P. 11.

[von]

As I understand the statute, both Jonas and Lizardbreath are correct regarding the intent element:

"you have to prove that there was *intent* to out the *covert* agent"

But -

"You don't have to prove intent to settle whether or not she was covert."

[Carleton Wu]

I'm stating that it's incorrect (as a matter of either fact or law) to state that Plame has been found to be a covert agent when she hasn't been.

How about this: there is compelling evidence that she is (ie would be if examined), and virtually no evidence that she was not.

[Gary Farber]

"I'm stating that it's incorrect (as a matter of either fact or law) to state that Plame has been found to be a covert agent when she hasn't been."

Cool, Von, but if you search this thread, you will find that, as it happens, the only person here to bring up the question of whether Plame has been "found" to be a covert officer, rather than that the CIA has confirmed that she was a covert officer, is you.

You're arguing with straw.

The legal case is over, if you hadn't noticed. There are no further proceedings by any grand juries, or the prosecutor, and so far as I know, there are no investigations proceeding or remaining on anyone else. The legal case, aside from sentencing of Libby, and his appeals, is over.

That's not what anyone here has been talking about. Legal issues weren't what Hilzoy addressed in her post.

In point of fact, she wrote:

[...] Personally, I never thought that whether Valerie Plame was covert on the day she was outed was really the point, outside of a court of law.

[...]

For some reason, though, other people seemed to think it did matter outside the courts, and went on and on about how if Plame was not actually undercover deep in the wilds of Tajikistan at the very moment she was outed, everything was somehow fine and dandy. Whatever.

At no point in Hilzoy's post do I see her addressing legal issues. Did I miss something?

No one has been discussing legal issues here. The topic has been the issue of fact, that the CIA confirmed that Plame was a covert employee, and the various reactions to that.

Thus your plunging into to explain that a court hasn't found on the question is completely irrelevant to what the post said, and what people have been discussing.

It may be a worthwhile point -- though I still don't know what the larger point is -- in which case you might want to make a post of your own about it -- but as regards the fact that only the CIA has confirmed that Plame was covert, and not a court, I don't know what more to say beyond that I'm not clear why anyone should care.

[Francis]

von: you're playing a lawyer's trick in your last post. The phrase "has been found" necessarily implies a judicial procedure.

Did OJ kill his wife? Most people would say yes, even before his quasi-confession.

Has he been found to be the killer? Technically, both yes and no. He was found not guilty of the crime, but found to be liable in a civil proceeding.

Hilzoy did not say that Ms. Plame has been found to be covert, she said that Plame was covert.

Now, the defense may yet have an argument why she was not, as a matter of law, covert, but it appears from what hilzoy reports that the facts, which are uniquely within the possession of the CIA, strongly support that legal conclusion.

hypothetically, what would contradictory facts look like? Consider the following: the CIA reports to the President. The President had [orally] delegated the power to declassify Plame's status to the VP. By ordering his subordinates to leak Plame's name, Cheney legally declassified Plame's status.

The CIA could not, therefore, as a matter of law, been taking affirmative measures to protect her status. While individuals within the CIA may have been trying to do so, their actions were legal nullities because their superiors had overruled them.

[Gary Farber]

"While you may hold this as a fact, the fact that she worked at the CIA Headquarters building makes that fact pretty nonsensical to me."

Jonas, I don't know how to break it to you, but the entire Clandestine Service, outside of people in the field, or in training, works out of CIA headquarters.

As I pointed out, going in and out of Langley isn't something that terrorists or foreign services can monitor, and is not a reveal of anyone's status. You simply won't find any professional support for any such claim, if you look into it for yourself, which I encourage you to do.

Reality:

The Role of a Staff Operations Officer

These officers contribute to the Clandestine Service mission primarily from our Washington, D.C. area headquarters, providing fast-paced research and case management in support of colleagues overseas. This includes monitoring counterintelligence issues and providing support needed to deal with our foreign contacts in the field. Staff Operations Officers must be knowledgeable on both operational tradecraft and international issues in order to enhance their interaction with field-based officers.

The Clandestine Life

Operations Officers and Collection Management Officers spend a significant portion of their time abroad, on tours of two to four years. Typically, Operations Officers will serve 60% to 70% of their careers overseas, while Collection Management Officers will be overseas for 30% to 40% of their careers. Staff Operations Officers, although based in the Washington, D.C. area, travel overseas on a temporary basis.

Officers in each of these careers are under cover. By the very nature of this clandestine business, officers can expect limited external recognition for themselves and their families.

This is how it works. Covert agents aren't all off in embassies and mysterious missions. This isn't a movie.

When Operations Officers will serve 60% to 70% of their careers overseas, that means that they serve 40% to 30% of their careers at Langley.

While Collection Management Officers will be overseas for 30% to 40%, that means they spend 70% to 60% of their time at Langley.

And you don't go in and out of covert status. Once you're blown, you're blown.

Which, incidentally, is why all the rightwing fuss about what Plame did after she was blown -- the picture in the magazine -- which didn't make her identifiable, anyway, but never mind -- and so on, is completely nuts, since it ignores the fact of linear time, and that once she was blown, that meant she wasn't undercover any more.)

[Carleton Wu]

While you may hold this as a fact, the fact that she worked at the CIA Headquarters building makes that fact pretty nonsensical to me.

So, you're comfortable substituting your armchair judgment on whether that's a reasonable thing for the CIA and the DOJ's very-well-informed judgment.

Me, I think that makes your judgment look pretty bad. Like someone questioning a doctor giving a patient an injection bc 'making holes in people to make them better is nonsensical'.

Had criminal charges been filed, I think we'd actually have enough facts to make that conclusion in an intellectually honest way.

Wazs Hitler guilty of war crimes? Well, he was never *charged*, so via Jonas we can't really *know*, in an intellectually honest way.

[Dantheman]

hilzoy,

"my best guess as to why Fitzgerald didn't bring charges under the IIPA was that given Cheney and Bush's ability to declassify at will, it would be difficult to prove intent if the leakers were ordered by either of them. While we're in the realm of speculation. I certainly think there are a lot of reasons other than lack of confidence in Plame's covert status."

My guess has always been different. From what I have seen, including other commentaries on this filing, Fitzgerald believes the person he would have to bring such charges against would be Cheney. And it is not clear whether he can do so for acts committed in his official capacity in a criminal court, as opposed to through the impeachment process before Congress.

[von]

OK, Gary (and the rest), replace "was found to be a covert agent" with "Valerie Plame Wilson was a covert agent all along" (what Hilzoy wrote in her post). I don't see the difference, and I think it's highly misleading to suggest that I've constructed some sort of strawman argument.

[Gary Farber]

"I don't see the difference, and I think it's highly misleading to suggest that I've constructed some sort of strawman argument."

You're arguing the law; in your new post, you claim Hilzoy was also arguing the law. Moreover, you claimed that Hilzoy's post (above) "post [...] declar[ed] that Plame has been found to be a 'covert agent' under the law...."

There seem to be problems with the accuracy of this assertion.

Could I suggest you reread this comment thread, with attention to the fact that prior to your arrival, no one was addressing legal issues?

Mind, I wasn't suggesting that you were deliberately misrepresenting things; my impression is that you simply plunged into commenting without realizing that no one had been discussing a point of law at any time, prior to your starting to insist that people's non-existent claims about the law were wrong.

As I said, I think if you simply reread the thread, you may perhaps realize where you somewhat misapprehended, and that in fact Hilzoy made no claims about a finding in law, and neither did anyone else.

[Gary Farber]

"OK, Gary (and the rest), replace 'was found to be a covert agent' with "Valerie Plame Wilson was a covert agent all along" (what Hilzoy wrote in her post). I don't see the difference...."

Wait, I'm more confused by this than I realized. :-)

You don't see the difference between the issue of fact as to whether the CIA regarded Plame as covert, and whether she met a legal definition?

I'm not sure what to say to that. Anyone else?

[Morat20]

Gary:

What I find amusing is do you know how a court would determine whether someone met the legal definition of covert?

They'd ask the CIA, and barring some truly stupendous piece of counter evidence -- like, perhaps, the CIA having taken out a full page ad in the paper lauding that person as 'Spy of the Month' -- the court would take their word on it. And then they'd ask "Has this person been out of the country 'on the job' in the last 5 years, and the CIA would say "Yes" and that would be it.

In short, a court's finding of fact would be to take the CIA statement at face-value. But while that's good enough for a court, we shouldn't do that....for some reason.

Make it makes Libby cry or something.

[Gary Farber]

Off-topic for a moment, but remember Hilzoy's post on Lou Dobbs and the great leprosy threat? Those interested might wish to read this.

[KCinDC]

If it's unacceptable, or irresponsible, or something to make a statement unless a court has ruled that it's true, then conversations are going to be pretty limited. Or does this rule apply only to the statement "Valerie Plame Wilson was a covert agent all along"?

[hilzoy]

KCinDC: I don't think we have sufficient evidence to answer that question. We probably never will, since I can't imagine how it would come up in a court of law.

On the other hand, what I just said is pretty unsupported too, for the same reasons.

No, wait! I take that back! That hasn't been found to be truuuuuuuuuuuuue.........

[swallowed by infinite regress]

[Gary Farber]

Where did I put that infinite loop life preserver?

[bernard Yomtov]

Does the court actually have to rule on the covertness question? Why? This filing is in connection with Libby's sentencing. That does not suggest, to me, that the court has to rule on Plame's status as a legal matter.

Of course then the Maguires and Toensings of the world will never give up. No court ruling means no covertness (covertitude? Can there be certitude about covertitude? Not in their latitudes.)

They probably won't give up anyway. Let's say the defense does not address the "covertness" issue. What happens then? They claim the defense is incompetent. Judge Walton says "covert?" He's a left-wing mole who snuck by Bush (or burrowed under, I guess)

[Steve]

My guess has always been different. From what I have seen, including other commentaries on this filing, Fitzgerald believes the person he would have to bring such charges against would be Cheney. And it is not clear whether he can do so for acts committed in his official capacity in a criminal court, as opposed to through the impeachment process before Congress.

You're probably right, actually, but there's a nuance to it.

As I noted in my 4:13, Fitzgerald has said all along that the missing element of an IIPA charge is the requirement that the leaker have actual knowledge of the agent's covert status. That's hard to prove.

I think when all was said and done, Fitzgerald was fairly confident that Libby, Rove, and Armitage were all clueless as to Plame's covert status. That's pretty much how the trial testimony ended up looking - after it's revealed, by David Corn or whoever, that Plame was covert and thus Novak's column was an outing, suddenly there's a succession of "oh shit" moments within the White House as everyone runs around trying to figure out if they're going to jail now.

But Cheney is, potentially, a different story. Fitzgerald has hinted at Cheney's involvement numerous times, sometimes more subtly than others, and I think he felt that if Libby had told the truth about exactly how he learned the Plame information, he might have been able to bring charges against Cheney. Libby's perjury, unfortunately, prevented him from being able to go there.

Some of this is an educated guess on my part, but it fits with the basic information that Fitzgerald is a careful, conservative prosecutor who doesn't go too far out of his range. His investigation didn't feature all kinds of salacious leaks, and it seemed like he would have been more than happy to fold his tent with no charges brought if that had been the outcome of his investigation. So I don't think he was simply trying to nail someone, anyone, on a perjury charge, just to say he got a scalp. I think Libby's perjury must have been a pretty big interference with his investigation for matters to have progressed to this point.

[Slartibartfast]

after it's revealed, by David Corn or whoever

What are you saying here? That Corn spilled the beans?

[von]

Gary, click through to find out what Hilzoy's linking.

[Steve]

What are you saying here? That Corn spilled the beans?

That's such a standard talking point on the right, as it happens, that I'm surprised you've never encountered it.

The sequence of events, as documented extensively at dkosopedia, among other places, was that Novak published his column disclosing that Valerie Plame "is an Agency operative on weapons of mass destruction." Two days later, David Corn published an article effectively saying "if she actually works for the CIA, Bob Novak's sources may have just violated the IIPA."

The wingnut talking point, as best as I understand it, is that Corn was the first to actually use the word "undercover" in connection with Plame - even though he never claimed to have any knowledge regarding her employment one way or the other - somehow his column, and not Novak's, was the source of the outing. It's kinda stupid, but you know how it goes.

[Ugh]

Steve - I think slarti was playing on the vegetables (or legumes, or whatever).

[bernard Yomtov]

I think slarti was playing on the vegetables (or legumes, or whatever).

Maybe he was saying the whole thing is succotash.

[Slartibartfast]

I'm just saying that' an idea that can't be beet, Steve.

[Ugh]

BY: "Maybe he was saying the whole thing is succotash."

slart: "I'm just saying that' an idea that can't be beet, Steve."

Ugh: [stabs self in eye]

[Jon H]

Re: smarter bobbleheads

I sent a comment to WBUR after they had Reuel Marc Gerecht of AEI on their NPR show On Point, discussing relations with Iran.

Gerecht is one of the guys who, a few years ago, basically insisted Iraq was developing tactical antimatter weapons, autonomous Terminator robots, and weaponized white-girl-disappearing spores, but who now says Iraqis are incapable of building weapons based on old technology like 'Explosively Formed Penetrators', so it must be coming from Iran!.

I noted that Gerecht and the rest of his ilk are like surgeons who developed and promoted a surgical technique that was then used and killed thousands of patients because the technique was based on the assumption that humans do not bleed when cut.

WBUR surely wouldn't keep calling such a physician to be a guest to comment on medical issues for years and years. So why do they keep inviting the Gerechts, the Kagans, the Kristols, etc?

[Jon H]

Rilkefan writes: "Gary, doesn't the CIA make this determination by some set of criteria which is not necessarily exactly the same as specified in the law(s) in question? I assume some HR section there knows what the CIA thinks a covert person is, but that might just involve getting a signature from an official who knows what covert is when he sees it."

The criteria of the law may seem different, but they are not independent of information the CIA has provided. The law has no other basis for making the distinction.

If we were talking about a database, the CIA's employee table might well have a 'COVERT' column, but that would be defined in the way that serves their own operational requirements, not a historical mode like the law.

The law's definition of covert is just like a few query against the CIA employee table with some WHERE clauses (covert = 'Y' AND covert_date IN ('2002','2003'...) AND has_foreign_service = 'Y' AND foreign_service_date > '2002' etc) ANDed together that filter out some of the CIA's employees.

Can anyone suggest a scenario in which a CIA agent's employment record demonstrates no evidence of ever being covert, and there is none for any other agency, but the agent *is* considered covert by the law?

[rilkefan]

I think the people who argue about this hold that what foreign service means is not necessarily what the CIA says, etc.

[Steve]

I can't believe I completely missed the vegetable pun. I meant to cop to my cluelessness earlier, but for some reason, when I tried to post I got like 8 captcha screens and finally gave up.

[rilkefan]

Actually. Maguire claims that the CIA doesn't distinguish between "covert" and "classified", the CIA hasn't actually said if she was really covert according to clear standards, there's no evidence she got the pay raise of a covert agent, blah blah blah. He gets hammered on a few points here.

[rilkefan]

Have I mentioned lately that I really hate the captcha mechanism? Compose post, hit preview, wait. Revise, preview, wait. Post, wait, wait, squint at squiggles, enter, wait, ...

[Jon H]

"I think the people who argue about this hold that what foreign service means is not necessarily what the CIA says, etc."

Mostly based solely on the disingenuous arguments of Toensing, a severely biased individual who is playing on her role in drafting the law to give undeserved credibility to her specious arguments on what the law means which hinge on details that are not actually in the law.

Forgive me if I don't find this persuasive.

[rilkefan]

"Forgive me if I don't find this persuasive."

Feel free to take it up with Maguire if you want to argue about this. He does seem to have one compelling argument: the CIA's legal counsel hasn't responded to Congress on the question. Of course the obvious response is that it's a politically sensitive truth. Or the CIA doesn't like to talk about even declassified info.

[Jon H]

"the CIA's legal counsel hasn't responded to Congress on the question."

Maybe the White House has ordered him not to respond.

Wouldn't be the first time, would it?

[rilkefan]

"Maybe the White House has ordered him not to respond."

There'd be quite an uproar if that got out. In a sane universe, that is. Still, seems too risky to be likely. Also, it'll start to look bad if the counsel stonewalls.

[liberal japonicus]

I mentioned at TiO, but if you look at the captcha graphic with your eyes slightly higher than the screen, it is much clearer than if you are slouched down in your chair. This is not to accuse anyone of bad posture, however.

[Jesurgislac]

Rilkefan: There'd be quite an uproar if that got out. In a sane universe, that is. Still, seems too risky to be likely.

You're talking about the Bush administration, Rilke. You'll have to come up with some other reason why they wouldn't do that. I'm thinking of Gonzales's "visit" to Ashcroft in the ICU, at the President's request, to see if he could bully Ashcroft into signing off on the President's even-more-illegal-than-the-present version wiretapping program, but I could have come up with half a dozen other examples.

[Jon H]

" I'm thinking of Gonzales's "visit" to Ashcroft in the ICU, at the President's request, to see if he could bully Ashcroft into signing off on the President's even-more-illegal-than-the-present version wiretapping program, but I could have come up with half a dozen other examples."

Or the Medicare actuary who was forbidden to provide Congress with his estimates of the total cost, which far exceeded the total bandied about by the administration.

[Jon H]

Sorry, I'm referring to the total cost of the Medicare drug bill.

Hey, what's that Preview button?

[Dantheman]

I, too, tried to post last night on the vegetable puns, but my entry was squashed by typepad.

[cleek]

oh peas, we carrot believe a word BushCo says.

[john miller]

leek, would you please squash the vegetable puns. Or else I will turnip my nose at you.

[Dantheman]

john,

Consider that it's the best we can do at our celery. Lettuce alone.

[Ugh]

AAAAAAAAAAHHHHHHHHHH!!!!!!!!!!

[Slartibartfast]

Lettuce endive-or to now gather together the chards of our national dignity.

[Anderson]

Maguire claims ...

Maguire also claims that waterboarding isn't torture, or if it is, then no big deal.

I am going to have to hear some compelling reason to attend to anything he has to say, before I take him seriously again.