Decision ‘08

Plame - Covert Status Proved At Last By Prosecutor’s Bald Assertion

Was Valerie Plame covert? (Ye gods, this again?) Well, the lefty blogosphere is abuzz with the final ‘proof’ - proof that consists of an assertion by the prosecutor in a court filing:

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.

Interesting. I suspect our friends on the left are able to apply a bit more critical thinking when their political sympathies are less aligned with the prosecutor. But I stand ready to assist in the current case.

Here are Isikoff and Hosenball:

May 29, 2007 - In new court filings, [Sentencing memo, Plame employment] special counsel Patrick Fitzgerald has finally resolved one of the most disputed issues at the core of the long-running CIA leak controversy: Valerie Plame Wilson, he asserts, was a “covert” CIA officer who repeatedly traveled overseas using a “cover identity” in order to disguise her relationship with the agency.

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.

Oddly, the Newsweek headline writers seem to realize the absurdity of this by contributing a “Was She or Wasn’t She?” hed, and the authors do manage to inject qualifiers later in the story, as here:

Fitzgerald attempts to shoot down the idea that the agent’s job was mostly analysis.

Patrick Fitzgerald is certainly entitled to his opinion - after all, Rep. Waxman expressed his opinion the last time the left declared “case closed” on her covert status, and yet somehow the case remained open. As I noted at the time, Waxman quite clearly danced around the question of whether Ms. Plame was “covert” as defined by the IIPA rather than by the less exacting in-house CIA standard, and did not offer what I described as the magic words, to wit, “Ms. Plame had covert status under the law as defined by the Intelligence Identities Protection Act“.

So what was the opinion of CIA Counsel on Ms. Plame’s status under the statute? That would not be fully dispositive either, but it would certainly carry some weight. Bob Novak followed up on this with various annoyed Republican Congressman, and wrote this on April 12:

On March 21, Hoekstra [Ranking Republican on the House Intel Committee] again requested the CIA to define Mrs. Wilson’s status. A written reply April 5 from Christopher J. Walker, the CIA’s director of congressional affairs, said only that “it is taking longer than expected” to reply because of “the considerable legal complexity required for this tasking.”

So as of April 2007 the CIA had not yet done the homework to form an opinion.

And now Patrick Fitzgerald joins in. Let’s present the entirety of the legal analysis offered in his latest filing (relax - I have the bandwidth, and you’ve got the time):

First, it was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press.

It was clear! That was easy - gee, why can’t the CIA figure it out lo these many years later? Left unanswered - does “very early in the investigation” refer to the period before Fitzgerald came on? Just who made this judgment, and on what basis? Where is the homework? Who knows?

I’ve lost most of my interest in PlameGate, to be honest - it’s run on now for almost as long as the war itself. Nevertheless, I’m willing to entertain the possibility that Plame was covert - but certainly an assertion by Fitzgerald is no proof at all. Nor does it shed light on whether the leaker (Scooter Libby? No, Armitage - haven’t you been paying attention?) thought she was covert when he blabbed his fat mouth to half of Washington…

UPDATE 10:39 p.m.: Before I get clobbered as a credulous fool, I know that there was also an internal CIA employment summary attached to the Fitzgerald court filing - but the definition of covert is one of the oldest controversies in this whole matter. Maguire again:

As to “Plame’s covert status is based upon the CIA’s own internal documents which make clear she was covert”, I have labored at length to point out that the CIA, in its own vernacular, uses “covert” and “classified” interchangeably without regard to the IIPA. This was emphasized in my discussion of the Waxman hearing (linked above under “noted at the time“) and is not a new point. However, I did allude to it in the original post above by saying “Waxman quite clearly danced around the question of whether Ms. Plame was “covert” as defined by the IIPA rather than by the less exacting in-house CIA standard”. This semantic point - “covert” is used interchangeably with “classified” by the CIA but is not consistent with “covert” as per the relevant statute - is simply not controversial, subtle, or new. I also linked to a Dan Froomkin on-line chat (in the link under “my official editorial position“) which said this:

Blacksburg, Va.: How can the question of Valerie Plame Wilson’s status at the CIA (covert or not) finally be cleared up?

Dan Froomkin: Wouldn’t that be nice? Fitzgerald tried to clear it up yesterday, stating quite definitively that her status was classified. Which means that while she technically may not have been covert by the standards of the IIPA, her identity as an operative was secret, and should not have been disclosed.

Given the continued debate over what is a fact, it would be nice if it were revisited journalistically and definitively.

Still, I’m willing to give ground and say it looks like she was covert under the standards most people would use. I still say that leaves motivation and knowledge of her status unexplained, and it says nothing at all about why Libby is facing three years and Armitage skated…

31 Responses to “Plame - Covert Status Proved At Last By Prosecutor’s Bald Assertion”

1 JB Says:
May 30th, 2007 at 10:39 pm
Yawn…
2 Fargus Says:
May 30th, 2007 at 10:41 pm
Astounding, Mark. Disagree with the guy if you will, but it’s plain pernicious to bring in your obfuscating buddy to say Fitzgerald did nothing but assert.

From the MSNBC story:

WASHINGTON - 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 summary is part of an attachment to Fitzgerald’s memorandum to the court supporting his recommendation that I. Lewis “Scooter” Libby, Vice President Cheney’s former top aide, spend 2-1/2 to 3 years in prison for obstructing the CIA leak investigation.

More than assertion. Shameful, Mark. I guess it’s easier to just ignore those points if you don’t want to address them.
3 Mark Says:
May 30th, 2007 at 10:46 pm
Sorry, Fargus, I guess we cross-posted - I put an update up about the summary’s attachment, of which I am well aware…I realize I was playing it too cute, and I wanted the update to reflect that I’m willing to acknowledge that the scales of proof are leaning Plame’s way…
4 Mark Says:
May 30th, 2007 at 10:55 pm
To flesh out the distinction, lest you think we are splitting hairs - it’s been known for quite some time that the CIA considered her covert under their own internal standards - at least as far back as the Waxman hearings, as Tom points out. The question has always been whether she was covert under the Intelligence Identities Protection Act, which has a quite exacting standard that is more rigorous than the CIA’s. It was not ALWAYS a moot point, because this was, after all, a legal proceeding…but it’s worth noting that Fitzgerald declined to go after anyone for violating the IIPA, so he presumably knew that the facts of the case would not support such a prosecution.

My point is simply this: as I said, I’m willing to acknowledge Plame was covert under the standard definitions. I don’t think it has been proven or can be proven with what we know whether she was under the relevant statute. It’s a moot point NOW, however, given that Fitzgerald did not pursue it. The new revelations are interesting, but they don’t really add much new, other than more details of her covert (yes, covert, under her employer’s standards) assignments.

Now, clearly, Plame and the CIA did not want her identity known. It’s not a good thing that it was revealed - my only remaining interest in this case is to see Scooter Libby pardoned, because (a) we all know he was doing what his boss told him to do, (b) we also know he’ll never give up Cheney, and (c) Armitage should have been the one in the docket to begin with…
5 too many steves Says:
May 31st, 2007 at 4:53 am
Can we get a lefty conspiracy theorist to explain how Berger and Armitage remain free men? I’m particularly interested in any connections from those two to the Bush Administration.
6 Fargus Says:
May 31st, 2007 at 7:56 am
Libby’s trial was for lying to the grand jury, not for the revelation. Obstruction of justice.

As for Berger or Armitage, I fail to see why it’s relevant to this discussion, unless you’re one of those moral relativists who’s going to assert that as long as there’s somebody who’s done something worse out there, Scooter Libby should be free.
7 too many steves Says:
May 31st, 2007 at 10:04 am
No, no, no. I am quite comfortable with the Libby result - lying to the grand jury is a crime for which he stands convicted and should be punished. I object to the inconsistency inherent in the contrast between the zeal with which this alleged crime - the outing of a covert agent - was pursued and the near total ignoring, from a legal perspective, of Armitage’s role.

Why are people still trying to prove she was covert? To convict the Bush Administration of some sort of malfeasance? But Armitage did the revealing; was his role non-criminal given Fitzgerald refused to bring charges (on anyone)? If so, then why is this still being discussed? Because the criminal charge is settled so the only thing left is a public tarring and feathering of the BushCheneyRove cabal?

I really don’t get it.
8 peter Says:
May 31st, 2007 at 12:01 pm
Mark: if you believe that Libby should be pardoned for making perjurious statements because “we all know he was doing what his boss told him to do,” then surely you must also believe that Cheney should be tried for subornation of perjury.

Or is the executive branch subject to impeachment for perjury only when there are Democrats in the White House?
9 Bob from Ohio Says:
May 31st, 2007 at 12:15 pm
A report from the CIA? I guess it is a slam dunk she was covert.
10 Fargus Says:
May 31st, 2007 at 2:51 pm
TMS: I think (and this is supposition here, so take it for what it is) that part of hte reason people were still interested in whether or not she was covert is because of all the smearing of Plame and Wilson, both here and elsewhere, that happened directly as a result of that question.
11 peter Says:
May 31st, 2007 at 3:50 pm
There’s more to it than that: numerous right wing pundits repeatedly excused the administration’s actions by claiming that Plame was not covert. Now that we know she she was covert, few if any of them have retracted what they said or apologized for their error. They simply moved on to the next meme in hopes that it will stick. Since they will not acknowledge their mistake, it is left for others to do so.

http://www.salon.com/opinion/greenwald/?last_story=/opinion/greenwald/2007/05/31/thompson/
12 peter Says:
May 31st, 2007 at 3:55 pm
“I think (and this is supposition here, so take it for what it is)” — so this is merely suppository?

(On a related subject: have you ever wondered what happened to Preparations A through G?)

The question I am interested in: were either Bush or Cheney among those who wrote letters to the sentencing judge for Libby?
13 Mark Says:
May 31st, 2007 at 7:29 pm
Peter, if Fitz could have gone up the chain to Cheney, he surely would have. I think that’s what happened with Libby all along - surely Fitzgerald never REALLY wanted this man to go to prison, but was using the threat of prison to get him to crack - but he was the good soldier, and didn’t (crack, that is)…
14 Peter Says:
May 31st, 2007 at 8:06 pm
I’m not sure if Fitzgerald could go after Cheney absent an impeachment resolution — I may be wrong, but I think that impeachment is a prerequisite for bringing criminal charges against a sitting President or Vice President –

However, you’re dodging the issue. If, as you say, Libby perjured himself at the instructions of Dick Cheney, then by definition Cheney is culpable for subornation of perjury. I will make the assumption that you supported the impeachment of Bill Clinton for his (arguably) perjurious statements. How can you justify Clinton’s impeachment without demanding Cheney’s impeachment for similar offenses?
15 Scott Says:
May 31st, 2007 at 8:06 pm
Mark, am I missing your humor here? By “crack” do you mean tell the truth. Fitzgerald asserts that Libby “lied repeatedly and blatantly about matters at the heart of a criminal investigation.” And you still ask why he’s going to prison? You say that Fitz was “using the threat of prison to get him to crack,” but it sounds like he was trying assess what happened and Libby threw sand in his face. Are you cool with that, is that ok with you? Or is it only ok if the witness doesn’t think that questioning is justified? (Peter is right, the reason we are still debating this is because Republicans have attempted to use the ambiguity of the situation to nullify the fact that a crime was committed.) I think that it’s pretty clear that Libby was covering for the Vice President so that he wouldn’t be “outed” as a blatant propogandist. Interesting how often this administration tries to keep the truth from the public, argues that “no crime was committed,” and then apologizes for handeling the situation so poorly.
16 Mark Says:
May 31st, 2007 at 8:21 pm
Hey, Peter and Scott, I DO think Cheney told Libby what to say to the reporters. However, you still have to get to a criminal act by Cheney - and there you’re back to the old ‘is covert under CIA rules covert under the IIPA’, and did Cheney know she was covert, etc., etc. It’s a long way from assuming the Vice President told Libby to strike back to assuming the Vice President knew it would be illegal to do so. And my suppositions do not proof make…

I’ve said it in the past and I’ll say it again: justice says Libby should go to jail. Mercy says he shouldn’t, given these circumstances. Thus, the old expression “I throw myself upon the mercy of the court”. The president may just be merciful himself, with the gift of a pardon.

I should also note that I never said Clinton should serve prison time, I merely said he should have been impeached. And he was…and he was disbarred, temporarily, at least. I think that was punishment enough for him…and I think a similar judgement would be plenty for Libby, too…
17 Scott Says:
May 31st, 2007 at 9:33 pm
What an unbelievably illogical and circular argument. You basically admit that Libby was covering for Cheney. They you say that because Fitz couldn’t find a criminal act by Cheney (because Libby was so good at lying), Libby deserves to be pardoned by Cheney’s boss.

Please explain why Libby deserves mercy. Because he was only covering for his boss? He was being a patriot?

Bush would be “merciful” for pardoning the man that “threw sand in the eyes of the umpire” so that he couldn’t assess whether there was a crime? The same man who ordered the investigation and committed to fire anyone who did any wrong doing. You are totally going off the deep end here Mark.
18 Peter Says:
May 31st, 2007 at 9:49 pm
Post 15: “crack” refers to the hemorrhoid humor in Post 12.

Post 16: “you still have to get to a criminal act by Cheney:” the criminal act is subornation of perjury. It seems evident to me that Cheney knew that Plame was covert under any definition and instructed Libby to perjure himself to the grand jury. I think it is prima facie — it certainly rises above the level of probable cause.
19 Mark Says:
May 31st, 2007 at 10:23 pm
Oh, Peter, nonsense - you can’t go in front of a jury and just say, Hey, it’s obvious, give me a conviction. You need proof, testimony, etc. Now Scott says he doesn’t see why Libby deserves mercy, since he declined to provide that testimony and lied - that’s fine. It’s a perfectly reasonable stance. I do want him to receive mercy, not because it is logical, but because it is merciful - but you hardly have to accuse me of going off the deep end because I don’t want to see a patsy go down.

We’ve got a bad tendency around here these days (I do it, too) of getting hysterical about disagreements. There’s no need to question my sanity over this matter. We just disagree, that’s all…
20 Peter Says:
May 31st, 2007 at 10:40 pm
Of course you need proof, testimony, and evidence. However, the first step for an ordinary citizen would be to call a grand jury. The criterion for doing so is probable cause. Due to Cheney’s special circumstance as a sitting Vice President, the first step would be to draft articles of impeachment.
21 Mark Says:
May 31st, 2007 at 11:01 pm
Well, the Democrats have rightly decided that’s a political loser. Bush has more than enough problems on his hands to keep his approval ratings in the tank…if I were a Democratic strategist, I would say, “let them stir in their juices”. A heavy hand might boomerang and win sympathy points, as we saw with Clinton…
22 Scott Says:
May 31st, 2007 at 11:10 pm
Retracting my statement that you’ve gone off the deep end, let’s just try to understand each other here. What is your definition of “patsy?” To me this implies that Libby was somehow taken advantage of and used without his knowledge. This seems at odds with facts given that he has not yet told the truth. Do you think that he didn’t know that he was lying for Cheney?

Please understand that from my perspective, pardoning Libby or encouraging Bush to do so, is a finger in the eye of those of us who would like some accountability from this administration. How can anyone be against government accountability? I’d trade Libby for Cheney in a second, but Libby is the one prohibiting that at this point.
23 Anonymous Liberal Says:
June 1st, 2007 at 12:08 am
I’m late to the game here, but for it’s worth, I think Maguire is totally out to lunch on this one. It’s pretty darn clear that the folks at the CIA, FBI, and DOJ had concluded that Plame was a “covert agent” within the meaning of the IIPA from a very early stage. I really doubt they had any concerns about being able to establish this in court. The reason they didn’t prosecute Libby for an IIPA violation was almost surely because his repeated lying made it impossible for them to determine his knowledge and intent.

I still say that leaves motivation and knowledge of her status unexplained, and it says nothing at all about why Libby is facing three years and Armitage skated…

How about this. Armitage didn’t repeatedly lie under oath in an effort to obstruct the investigation. And Libby is facing 3 years because that’s what the sentencing guidelines call for for these crimes, of which he was convicted beyond a reasonable doubt. I find the suggestion that Libby’s case involves any degree of injustice to be incredibly weak. He chose to lie in a criminal investigation. He chose to cover for his boss. He chose to take this to trial. And he was represented at trial by the best legal team money can buy.
24 Rob Says:
June 1st, 2007 at 8:06 am
AL -

I just don’t see how you get to that point:

It’s pretty darn clear that the folks at the CIA, FBI, and DOJ had concluded that Plame was a “covert agent” within the meaning of the IIPA from a very early stage.

If the IIPA was violated, then who violated it?

Also, if it was so clear that she was covert from time zero then why did the ENTIRETY of Fitzgerald’s efforts at the trial go to great lengths to avoid the issue of covertness? If Fitz wants to argue that Libby’s actions deserve harsh punishment because she was “clearly” covert then why didn’t he establish something that was apparently so clear during the actual trial?
25 Fargus Says:
June 1st, 2007 at 12:29 pm
Because of Libby’s repeated obfuscation, it made it difficult or impossible to tell who knew what when. So while it may be pretty clear that she was covert, it’s impossible to tell who knew that she was covert when they leaked her name, and intent is a large part of that proceeding.
26 peter Says:
June 1st, 2007 at 1:36 pm
Re post 21: the political question (would it be good for the Democrats’ political fortunes if they impeached) is separate from the constitutional question (have Cheney’s actions reached the threshold of impeachment).

The question remains: if impeaching Clinton was the right thing to do (constitutionally), is it also the right thing to do for Cheney? If not, why not?
27 Mark Says:
June 1st, 2007 at 7:47 pm
No, because there is no evidence against Cheney. If that’s because Libby lied, well, that’s how the ball bounces. Clinton would have never been impeached without that blue dress of Monica’s, that established conclusively that he was lying. I don’t Libby ever wore a blue dress for Cheney (ouch!)…

Scott, all of you are quite right that the case against Libby is solid. I base my plea for mercy on the fact that the real leaker was Armitage. Anonymous is too kind with him - had he come forward at the very beginning, and publicly stated that he was the leaker but he didn’t know how much harm he had done at the time, this would have died away pretty quickly. That doesn’t excuse Libby’s behavior, but Armitage’s conduct stinks to high heaven…
28 Peter Says:
June 1st, 2007 at 10:09 pm
You write in Post 4 that Cheney directed Libby to perjure himself — your suggestion is that this is what really happened but there is no evidence to prove it?
29 Mark Says:
June 1st, 2007 at 10:49 pm
No, no, no…let’s get one thing straight. I’m not saying Cheney told Libby to perjure himself. He fell on his sword of his own accord, in my opinion.

What I said is that Cheney instructed Libby to strike back against Joe Wilson. The subject of how he got the Niger gig (and his wife’s involvement) was part of that pushback.

That’s NOT a statement that Cheney knew Plame was covert at the time - and let’s remember, Armitage had ALREADY blown her cover to half of Washington, including the press corp, before these events took place.
30 Peter Says:
June 2nd, 2007 at 9:49 am
OK — that’s reasonable — I’m far less inclined to give Cheney the benefit of the doubt than you are, but I will grant that mere speculation that Cheney instructed Libby to perjure himself (in addition to striking back at Wilson) does not rise to the level of probable cause — to borrow the Watergate phrase, there’s no smoking gun –
31 Mango Says:
July 2nd, 2007 at 11:19 pm
I think I am much less educated about the case than anyone who has posted here, but can I ask– I’m still extremely confused about the reason that Armitage was not prosecuted. One person (Mark) suggested it was because there was insufficient evidence to go for under IIPA. Another (Anonymous Liberal) said it was because Armitage didn’t perjure himself.

If the former, then it must be inconclusive whether Plame was really covert at the time, or that Armitage knew she was covert.

If the latter, then we assume that Fitzgerald gave Armitage brownie points for honesty.

Where am I going wrong here?