Tackling Toensing

David Corn, 'Hubris' author and Joe Wilson promoter, is grappling with Victoria Toensing, a chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration."

Ms. Toensing is pushing back with an NRO article that summarizes their debate so far.  Now, frankly, I am not much interested in their main theme, which is a dispute over whether David Corn "outed" Valerie Plame himself with his July 16, 2003 article.  The notion is that Mr. Corn hyped her possible status as a covert agent and wondered whether the Intelligence Identities Protection Act had been violated by the people who leaked to Robert Novak for his July 14, 2003 column, thereby pegging Ms. Plame as having classified status. 

(My offical view - the Corn/Wilson screaming did not exactly draw attention away from Ms. Plame, but dedicated foreign spy-catchers should have picked up on the Novak column from July 14.  Of course, they also should have taken an interest in the wife when hubby Joe announced in his July 6 2003 op-ed that he did consulting and travel for the CIA.  I have serious problems with her tradecraft if Ms. Palme expects us to believe that she wss making a serious effort to preserve her cover.)

However, Ms. Toensing reiterates a point she has made many times - being "covert" is a matter of statutory definition under the Intelligence Identities Protection Act; it is different from having classified status or from being a CIA employee with "Non-official cover", i.e., a "NOC".  Let's just review that part of the definition of "covert" that might apply to Ms. Plame:

(4) The term "covert agent" means—

(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;

Ms. Plame was a current employee of an "intelligence agency"; we have been assured by Special Counsel Fitzgerald that her status was classified, and we do not doubt him.

But did she qualify under clause (ii) - was she serving outside the US, or had she served outside the US in the previous five years?

If Ms. Plame does not qualify under that clause, she is not "covert", whatever else she may be.  That can lead to the odd result noted by Ms. Toensing:

On September 5, 2006, Corn wrote, “Plame was an operations officer working on a top priority” and that in the “early 1990s, she became what is known as a nonofficial cover officer. NOCs are the most clandestine of the CIA’s frontline officers.” A NOC is not necessarily “covert,” and Corn’s using them as synonyms does not make them the same. 

Now, the frustrating bit - none of this is debate is new, yet it seems to remain unresolved.  Folks on both sides of the debate have been wondering whether Ms. Plame had "served outside the United States" more or less since this scandal broke.  And the wondering takes two forms:

(a) Did Ms. Plame ever actually travel abroad on official business?  Per her biography, as reconstructed from Joe Wilson's book and other sources, it appeared that she had been posted to CIA headquarters in Langley since 1997, which was more than five years prior to her outing in 2003. 

The question of overseas travel seems to have been answered by 'Hubris', which reports that she went to Jordan to confer about aluminum tubes.

However, there is another question:

(b) Does "serving outside the United States" include traveling outside the United States on official business, or does it mean "formally posted abroad"? 

If the latter, Ms. Plame's business trips do not qualify her under the five year limit, since her current posting was domestic.  In that case, her "outing" would not violate the IIPA regardless of her classified status.

Ms. Toensing has addressed this point previously, in a Dec 2004 piece that appeared in the WSJ and a Jan 2005 WaPo contribution:

Her status as undercover must be classified, and she must have been assigned to duty outside the United States currently or in the past five years. This requirement does not mean jetting to Berlin or Taipei for a week's work. It means permanent assignment in a foreign country. Since Plame had been living in Washington for some time when the July 2003 column was published, and was working at a desk job in Langley (a no-no for a person with a need for cover), there is a serious legal question as to whether she qualifies as "covert."

And what is the source of Ms. Toensing's expertise on this?  Her co-author was Bruce Sanford, and they wrote this:

As two people who drafted and negotiated the scope of the 1982 Intelligence Identities Protection Act, we can tell you: The Novak column and the surrounding facts do not support evidence of criminal conduct.

Fine, she helped draft the law and years later is opining as to Congressional intent.  Let's hear from the other side, relying on the oft-quoted Larry Johnson, a retired intelligence
officer:

Ms. Toensing is wrong. Let us pray that Ms. Toensing is not practicing law these days because, if her comments in this article reflect her abilities as an attorney, clients could be in serious trouble. Valerie Plame was a "covert agent" as defined by the law. In her cover position as a consultant to Brewster-Jennings, Ms. Plame served overseas on clandestine missions. Just because she did not live overseas full time does not mean she did not work overseas using her status as a non-official cover officer.

"If her comments in this article reflect her abilities as an attorney, clients could be in serious trouble"?  Pretty bold talk from a fellow most famous for writing "The Declining Terrorist Threat" in July of 2001.  And other than foot-stomping, Mr. Johnson offers no support at all for his assertion.

And the well-regarded "EmptyWheel", an attorney consultant/savant posting at "The Next Hurrah" has offered this cogent legal precis:

Victoria Toensing was out beating her "this doesn't qualify for IIPA" horse again.

If there is more at that site on offer from Emptywheel I am not finding it.

[But NOT a foot-stomper - Jeralyn Merritt of TalkLeft opined that the use of the IIPA would be "a stretch", although she was not commenting specifically on the five year rule.]

So at this point we are not getting much of an argument from anyone: appeals to self-authority on the right, foot-stomping on the left, and no facts offered by either side three years on.

And keep in mind - no one has ever been tried under the IIPA so, for that specific statute at least, the issue has never been before a judge.

However!  My possibly quixotic thought is this - the concept of "serving abroad" cannot be a new one.  In the glorious bureaucracy known as the US Government, there are handbooks and definitions for everything.  Furthermore, someone somewhere must have litigated their entitlement to some benefit (health coverage, death, disability, whatever) based on the length of their service abroad, the circumstances of their service abroad, or some such  I would like to challenge interested bloggers and readers to chime in with their suggestions as to relevant definitions or case law that might settle this.

And let me kick it off with a few ideas, all of which support Ms. Toensing's view (you will have to trust me that I have not found support for the other side and buried it).

First, if Ms. Plame had been a covert geologist, this issue would be settled - from the US Geological Survey manual:

D. Service abroad means service on or after September 6, 1960, by an employee at a post of duty outside the United States and outside the employee's place of residence if that place of residence is a territory or possession of the United States.

Since she is not a geologist this excerpt is merely suggestive - it is a small leap of faith to presume that the US Geological side has not chosen to break new ground here, and instead is adopting a standard government-wide definition.

Here is something suggestive from the State Dept manual (with emphasis added):

SEC. 504. 78 SERVICE IN THE UNITED STATES AND ABROAD.— (a) Career members of the Service shall be obligated to serve abroad and shall be expected to serve abroad for substantial portions of their careers. The Secretary shall establish by regulation limitations upon assignments of members of the Serv-ice within the United States. A member of the Service may not be assigned to duty within the United States for any period of continuous service exceeding eight years unless the Secretary approves an extension of such period for that member be-cause of special circumstances. (b) Consistent with the needs of the Service, the Secretary shall seek to assign each career member of the Service who is a citizen of the United States (other than those employed in accordance with section 311) 79 to duty within the United States at least once during each period of fifteen years that the member is in the Service.

If the continuous eight-year-limit clock could be stopped simply by traveling abroad on business, this passage requiring special approval by the Secretary seems like nonsense.

More suggestive material - here is a definition of eligibility for the Thomas Jefferson Star for Foreign Service, which is sort of a Bronze Star for the Foreign Service:

The Thomas Jefferson Star for Foreign Service recognizes individuals who, while traveling or serving abroad on official business, are killed or incur a serious illness or injury that results in death, permanent incapacity, or disability.

You know my question!  If "traveling abroad" is synonomous with "service abroad", why does this definition make a distinction between them?  The actual statute makes a similar distinction:

The President, upon the recommendation of the Secretary, may award a Thomas Jefferson Star for Foreign Service to any member of the Foreign Service or any other civilian employee of the Government of the United States who, while employed at, or assigned permanently or temporarily to, an official mission overseas or while traveling abroad on official business, incurred a wound or other injury or an illness...

I invite other contributions - comments and trackbacks are open.  But I think we will find that Ms. Toensing is right and the foot-stompers are, well, promoting a bit of non-reality-based thinking.  First time for everything.

MORE:  Lest you doubt the significance - if Ms. Toensing's perspective can be firmly established there are major implications for the Libby trial, starting with, how could Fitzgerald have spent over two years investigating a situation that could not have been criminal and segueing to, what is the meaning of "perjury" or "obstruction" when there is no possibility of an underlying criminal charge?

Put bluntly - if Libby had said to investigators, "You got me - Dick Cheney told me that Valerie Plame had classified status but I blabbed to reporters anyway", neither Cheney nor Libby could have been charged under the IIPA because of the five year rule.  And Fitzgerald should have known that when he took Libby's testimony.  So what was Fitzgerald investigating - a conspiracy to commit a non-criminal act?

Well - our research notwithstanding, I Boldly Predict we will hear a lot about this from the defense at Libby's trial.

DETAILS, DETAILS:  From Rick Ballard:

According to the Foreign Service Act of 1980 under CHAPTER 5—CLASSIFICATION OF POSITIONS
AND ASSIGNMENTS:

SEC. 505. 80 TEMPORARY DETAILS.—
A period of duty of not more than six months in duration by a member of the Service shall be considered a temporary detail and shall not be considered an assignment within the meaning of this chapter.

That definition certainly pertains to the DoS - whether the CIA follows the same rules is a different question.

A ROAD SIGN TO THE TRUTH:  This topic has surely been answered, at least for State:

SEC. 413. 73 DEATH GRATUITY.—
(a) The Secretary may provide for payment of a gratuity to the surviving dependents of any Foreign Service employee who dies as a result of injuries sustained in the performance of duty abroad, in an amount equal to one year's salary at the time of death. Any death gratuity payment made under this section shall be held to have been a gift and shall be in addition to any other benefit payable from any source.

So - if a member of the State Dept. dies while traveling overseas but posted in the US, are they eligible for the death gratuity?  This can't be a hard question.

ANOTHER ROADMAP:  A CRS Report for Congress was prepared in Oct. 2003 reviewing the IIPA, but it does not touch upon the question at hand.  However, the footnotes give cites to the legislative history, so an interpid researcher could follow that trail.

Comments

[T Miller]

Her status may be questionable to us, but the CIA did somehow convince Justice under Ashcroft to take up the matter.

[Cecil Turner]

Now, frankly, I am not much interested in their main theme, which is a dispute over whether David Corn "outed" Valerie Plame himself with his July 16, 2003 article.

I don't think that's the point of contention. Per the IIPA, the critical piece of information is the "covert agent's intelligence relationship to the United States." Toensing undoubtedly knows that, and thus Corn couldn't possibly be "outing" Plame. Toensing rather appears interested in Corn's source, who would be knowingly blabbing about her covertness.

Also, the element of the crime that appears least sustainable to me is the same:

knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States

It's hard to see how that's compatible with a Langley desk job, especially if she's doing things like introducing her hubby at interagency meetings. The five-year criteria looks like the second-biggest fly in the ointment (or perhaps they're the same size). Toensing hits both.

[Sue]

What if Fitzgerald was investigating the Espionage Act? That is the only Act he mentions by name in the Presser.

[maryrose]

Let's put Victoria and David Corn side by side on the Fox network and then do a poll to see who is more believable. Victoria would win hands down. Corn comes across like a slick used car salesman.

[Sara (Squiggler)]

And the most operative words are "intelligence relationship to the United States," which is far more broad than having to protect a specific "covert" assignment identity. No one who drives to Langley each day is trying to conceal an intellignence relationship.

And let's not forget that the agency took no steps to get an agreement of confidentiality from Wilson before he acted as their agent. If there was any effort to conceal Valerie's intelligence relationship they certainly would have gone to better lengths to protect her and them from any mention by Wilson regarding his Niger trip. They didn't know what he'd say. But the law says they have to make affirmative (preemptive) efforts to conceal.

[clarice]

TM, I really trust you when you say you are not burying the evidence fot the ant-Toensing argument. LOL

It's not just that she drafted the law, it's that while at DoJ she handled these referrals regularly. And forget the driving to Langley business, there's much stronger evidence that the agency never met one of those requirements--establishing that they did everything in its power to prevent disclosure of her identity. For Chrissakes, it was the agency thru Harlow, that confirmed her employment to Novak.

I know fro cases I've handled the agency never would confirm or deny anyone's employment. In fact, when Toensing left the government, she set up a special panel of security clearance holding attys just to handle civil litigation matters respecting CIA employees because the agency would not release their names/pension info/ salaries etc for such litigation except under very stringent secrecy arrangements.

[noah]

Pardon me, but the debate is tiresome. Fitz knows the answer but we (the little people) aren't entitled to know apparently. Could be she is but no one fulfills the other requirements for prosecution.

And I very seriously doubt TM's contention that Novak's article was crucial for spy-catchers...if it was then they are a pretty clueless bunch!

[Rick Ballard]

TM,

According to the Foreign Service Act of 1980 under CHAPTER 5—CLASSIFICATION OF POSITIONS
AND ASSIGNMENTS:

SEC. 505. 80 TEMPORARY DETAILS.—
A period of duty of not more than six months in duration by a member of the Service shall be considered a temporary detail and shall not be considered an assignment within the meaning of this chapter.

That definition certainly pertains to the DoS - whether the CIA follows the same rules is a different question.

[verner]

It seems to me noah, that going to Jordan and working with Jordanian Intelligence would have been a lot more useful for the serious spy catchers anyway. They already had her in the book (and in Who's Who too! LOL)

I guaran- damn-tee you, that broad did not go to Jordan as any NOC. She might have still used Brewster Jennings with the neighbors at pot-lucks, but she went to Jordan under official cover. For all practical purposes, she wasn't "transitioning," she had "transitioned." And if that was not so, then Corn would have shouted it from the mountains. Instead, he has to use slimeball language (as usual) and hope we wouldn't catch on.

[maryrose]

That is an excellent point Rick. Though I agree with Noah-the debate is tiresome because who are you going to trust on this issue Victoria Toensing who has worked in the dept. or a partisan hack writer like Corn

[Dell]

CIA operates domestically and always has, so she may have been protected under the act as an informant or something else other than a CIA operations officer.

The service star and awards and benfits are usually gone after toward the end of their careers. They all see psychiatrists and usually have a 'diablity' towards the end to get the benefits and awards.

Plame is going to claim she was disabled. Most CIA operations officers claim this.

Larry and Jim both confirmed who she was going back to the 'farm' training. It was done at a time when the Iran desk was being created. Like Plame, they have agendas behind being leaked or leaking.

Fitzgerald would not do his job and we now have CIA analysts working at NSA/DIA and this is a mistake. Everyone in the military knows this.

Plame leaked herself at 'Vanity Fair' confirming she was a CIA operations officer, paramilitarily trained. The next day 10 operations officers were outed(assassinated) in Iraq. This was a plan, but unfortunately, the Iraqi police(who are now going to jail) waited until she confirmed herself-it could have been someone like the VP if they waited.

[clarice]

Toensing handled hundreds if not thousands of these referrals. From the outset she argued the only possible applicable law was the IIPA and it didn't fit AND if the Agency honestly filled out the 11 question affidavit, there could have been no predicate for the investigation. DoJ twice turned it back (apparently for that reason). Why did they depart from law and practice?And then only after a well-placed leak to Andrea Mitchell(never investigated) and after Armitage's confession...

Byron York wrote about the genesis of the case and the letter some time ago. Did the Dept bypass normal procedure because of political-press pressure? Did the case proceed without the necessary affidavit?

"It is not clear what accounted for the Justice Department's delay in beginning the Wilson investigation. But the chronology, along with the information in the Kedian letter, suggests that the Wilson matter was the subject of an extended consultation between the CIA and the Justice Department, in that the department took no action on the CIA's request until news of Tenet's intervention was leaked to the press. At that point, with political pressure rising, the department began an investigation. Three months later, with political pressure even more intense, the attorney general and his deputy recused themselves from the matter and appointed Fitzgerald."

the real cover up?

[Patrick R. Sullivan]

Verner is exactly right. She couldn't have gotten to first base with Jordanian Intelligence if she was operating as from Brewster-Jennings. She had to be known to them as CIA. So, they weren't, 'taking affirmative measures to conceal such covert agent's intelligence relationship to the United States'.

And, so, Patrick Fitzgerald lied to a Federal Court to get the authority to put Judy Miller in jail.

[cathyf]

However, Ms. Toensing reiterates a point she has made many times - being "covert" is a matter of statutory definition under the Intelligence Identities Protection Act;

And I'll reiterate a point I've made a gazillion times, too. Being "classified" is a matter of statutory definition. It is defined in various executive orders, the latest being EXECUTIVE ORDER 13292, and the last 3 or 4 of which have contained this language:

Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to:

1. conceal violations of law, inefficiency, or administrative error;
2. prevent embarrassment to a person, organization, or agency;
3. restrain competition; or
4. prevent or delay the release of information that does not require protection in the interest of the national security.

Given what we know about Ms Plame's odd employment history, there is at least the appearance that the only thing that the Brewster-Jennings "cover" was covering was some shady scheme to keep her on the payroll during a period where 1/3 of the CIA was being laid off and the CIA didn't have any real work for her to do. Now it's not like gold-bricking on the federal payroll is any source of shock or anything, but no matter how many times you stamp "classified" on something, if it's really just an attempt to do of any of these four things then it's not classified. Period. And it looks to me like the CIA has problems with (1), (2) and (4). (I can make a non-serious argument for (3), but that would be strictly for amusement purposes, since piling on is so unsporting.)

[verner]

Clarice, the only evidence any of the Wilsonistas have to claim that she was "covert" and subject to IPPA is the mysterious "referral" letter--a letter, shall we add, that we are not allowed to see, and that Fitz (very much to his own sorry benifit) is keeping from Libby's team. And as you point out, the whole referral seems pretty damned weird.

Toensing has been right from the beginning. One mistake? Maybe. But a whole string of them? We're talking major smoke and mirrors here.

[clarice]

I really wish I knew if anyone is investigating this? Mac hints they are, but if so it seems to be well-hidden from view.

[topsecretk9]

--And, so, Patrick Fitzgerald lied to a Federal Court to get the authority to put Judy Miller in jail.--

Or someone lied to him?

[verner]

I'm not holding my breath Clarice. I think the administration wants all of this to just go away. Goss, for all of his faults, did a pretty good job of clearing out the refuse, we can only hope that Hadley is doing the same.

There is probable cause to hook Val up to a polygraph and find out who she has been leaking classified infromation to (obviously Corn) She's still subject to non-disclosure laws. They're not going to do it though.

[cathyf]

--And, so, Patrick Fitzgerald lied to a Federal Court to get the authority to put Judy Miller in jail.--

Or someone lied to him?

Well, isn't a filing in Federal Court under penalty of perjury? I say we charge Fitzgerald with perjury and obstruction and let a jury sort it out.

And note, it wasn't just "a" federal court. Fitzgerald lied his way all the way up to the Supreme Court to put Miller in jail.

[topsecretk9]

speaking of my last comment...a theme to ponder

A former attorney for the CIA denied that the government knowingly presented false evidence in the case of a former operative who has spent 20 years in prison for selling arms to Libya.

A federal judge threw out the 1983 conviction against 75-year-old Edwin P. Wilson on Tuesday, saying the government failed to correct information about Wilson's service to the CIA that it admitted internally was false.

Retired U.S. District Judge Stanley Sporkin, who was CIA general counsel at the time of Wilson's trial, told the Houston Chronicle in Thursday's editions that officials did not intend to present a false affidavit.

"They are fine people," he said of the federal attorneys involved. "And there were differences - that was all. At the time it was written, I can assure you the people who prepared it thought it was a proper affidavit."

October 30, 2003
http://www.phillyburbs.com/pb-dyn/news/27-10302003-187935.html

[Wilson's a Liar]

Just as the Clintonistas did not count on Monica keeping that blue dress, so the Wilsonistas did not count on the existence of a Victoria Toensing who actually helped draft the IIPA (and of course they did not count on Dick Armitage showing up as the actual leaker.) and of a blogosphere that would start fact-checking them all and not stop. They thought they could baffle the press with bullshit about "White House Crimes" and force President Bush to fire Karl Rove. They all knew there was no IIPA violation to begin with. They just kept throwing their crap at the wall and eventually it stuck. Now poor David Corn is just trying to salvage a tiny bit of his own reputation. It is to laugh. "Oh, what a tangled web we weave, when first we practice to deceive."

[clarice]

Maybe in the investigation of the NSA leak--which I think porbably involved some DoJ lawyers--this has come out? Or in that same investigation, it came out in interviews with CIA employees? Or--has this turned up in the prison leak case? Would the CIA IG have reviewed the referral correspondence and noticed the rotting fish smell?

[maryrose]

I think Val and Joe's part in this kerfuffle will come to light now that the major msm have abandoned them and their lawsuit is in the works. Too much exposure and I wager the lawsuit will disappear. They have squeezed all the blood they are going to get out of this turnip.

[topsecretk9]

from Clarice's link:

After consultation with the CIA," Kedian wrote, we advise that we view any such documents in our possession as not discoverable."

The documents remain classified and contain information compiled for law enforcement purposes that is neither material to the preparation of the defense, nor exculpatory as to Mr. Libby. In addition, the documents are protected from disclosure because they contain inter-agency, pre-decisional preliminary evaluations and recommendations of government officials covered by the deliberative process privilege. Moreover, the documents also contain legal analysis and opinion prepared by a CIA attorney, as well as communications between the CIA attorney and the Department of Justice, that are protected from disclosure by attorney-client communications privilege and the attorney work product privilege.

The Houston Chronicle article above, could have "CIA legal analysis" and communications betwxt DOJ been a pissing match between DOJ and CIA legal got their nose bent that Doj wasn't buying it and went to Tenet? And since the article states "information about [Edwin] Wilson's service to the CIA that it admitted internally was false" could that the case here too?

Just a thought.

[lurker]

One problem with Larry, Jim, and EW's argument is that they honed in on just one and only one category that they used to justify Plame's status as NOC or covert or whatever.

Toensing's argument is that in order to verify that a CIA operative or employee or whatever is NOC or covert is that all categories must be met to satisfy the status as NOC or covert.

Even a small trip to Jordan when CIA made no effort in keeping Plame's status and identity a secret does not qualify her as NOC or covert.

CIA's actions complicated by DOJ's twice-rejections establishes a fog of cloud over the CIA Referral letter to this very day.

What convinced DOJ and Comey to assign a SP to this case? Schumer? Conyers? MSM? Or all of the above?

[clarice]

Well, here's Mac today:
"I think it’s time for Senator Chuck Schumer to come clean before his real involvement is fully disclosed - because make no mistake, it’s coming" Mark Levin has invited him to come on his show and answer some questions. He's not responded yet.

[JM Hanes]

What sort of "communications between the CIA attorney and the Department of Justice" would qualify for "attorney-client communications privilege"? For that matter, how does a CIA attorney qualify as a DoJ "client" in the first place?

[clarice]

I think that's standard and accepted when the DoJ is representing another agency in Court as they would be in prosecuting something after receipt of a referral letter.

[Les Nessman]

Heh. And just think...none of this 'was she covrt or not' matters in this case. Even if Plame WAS covert....NOBODY FROM THE BUSH ADMIN 'OUTED' HER ANYWAY!

Like Seinfeld sez: It's a show about nothing!

[JM Hanes]

TM:

If the dispute over whether Corn outed Plame doesn't interest you, how about a proper Fisking of his dizzying definitions of covert/NOC/operative alongside his tortured explanation of Val's transitioning to and fro? He outright contradicts himself more than once in his erstwhile self-defense. Given your eye for the absurd, it could be highly entertaining.

[JM Hanes]

I'm not sure that the CIA was rebuffed twice by DoJ. It's my impression that they only called for a rewrite once. I believe Polly USA corrected me on this one -- and provided a timeline she had worked up -- a few months (which seem like years!) ago.

[Wilson's a liar]

JMH - check out AJ Strata today. He fisks Corn quite well!

Oh, and BTW, the Justice Department is basically the "law firm" for all of the federal government. So it is plausible that communication between lawyers at CIA and DOJ is priveleged. CIA no doubt made sure there were some priveleged items in that referral precisely so it could be protected from prying eyes. I've seen this done many times in government as well as corporate life.

[BumperStickerist]

Minor quibble -

Larry Johnson's a former intel guy, not a retired intel guy.

The Larester left the biz to go work for the Bush administration and then went into private industry and then, judging from his blog, into some private institution with wi-fi access.

---

[Dale in Atlanta]

NOC: if you want to find out if Plame was a "NOC", find out what type of passport she travelled on?

If she travelled on a Diplomatic or "Official" passport, it's very likely the CIA did NOT consider her a "NOC"!

People who travel overseas, on those type of passports, are IMMEDIATELY suspected of being CIA, even if they are Not!

If she travelled overseas, on her "business" trips, with a standard civilian "Blue" passport, then I'd say she was a "NOC", and I'd say the IIPA does NOT apply!

I strongly suggest, especially on her trips to Jordan, she was using a "black" Diplomatic or "red" Offcial passport, which would make her NOT a "NOC"; but I also suspect, that LJ, Wilson, et. al, will lie about it!

Trips overseas: with 40+ years exp, with travelling overseas via the Military and State Department, for me and my family, everyone knows, that your status depends upon WHERE YOUR BILLET is assigned!

So, IF, her Billet was at CIA HQ's, then, even short business trips overseas, did NOT make her "covert/NOC", whatever!

If her Billet, when she was "outted" was Assigned OVERSEAS, then she was a NOC!

The only exception, are Offical Orders, which transfer you overseas to a temp billet/job overseas; called TAD in the military, TDY in the Civilian world!

IF she was on Offcial TDY orders (not sure the CIA calls them that..?); then her billet was officially transferred overseas, and she's "covert/NOC"

If she travelled overseas, on official business, but without TDY orders, then, her behind was officially in Langley, and she can complain until the cows come home, she wasn't "officially" overseas!

Anyway who had confirming/non-confirming info, I'll be glad to read it!

[Syl]

lurker

Toensing's argument is that in order to verify that a CIA operative or employee or whatever is NOC or covert is that all categories must be met to satisfy the status as NOC or covert.

No. I think we have to start being careful about the terms we use, just as Toensing is.

If we're not as careful as she is, we will have missed the damned point.

Classified status and NOC are working definitions.

Covert is ONLY a statutory definition.

And 'covert' only applies if all the stipulations in the IIPA are met.

So Valery's classified was, most likely, classified. She was also a NOC.

But she was not covert because the definition did not apply to her.

BTW, Clarice said:

I know fro cases I've handled the agency never would confirm or deny anyone's employment.

This was true during the time Clarice was there. That changed, however, during the Clinton years. It cost too much money to make sure tha no CIA employee's info was ever made public so it was decided that the employees who were 'clerical' and such would no longer have that protection.

That's why Novak could call up the CIA and ask about an employee. During prior years there was no point in doing so because the CIA would neither confirm nor deny nufink about nobody.

There have ALWAYS been NOC types working at Langley and these have classified status and are still neither confirmed/nor denied.

(As I've said many times, Harlow goofed big time on that one.)

[clarice]

Thanks for clarifying that, Syl

[topsecretk9]

very interesting...from new little theory emerging, HERE, and HERE

Scott Muller was appointed the CIA Director of the General Counsel office on OCt. 23, 2002

He will oversee the CIA’s legal affairs and serve as Tenet’s top legal adviser.

, so he was in charge the Summer of 2003

Here in Time, "Palace Revolt" starts with (sorry, long paste)

James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey's farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed to getting it right—and to doing the right thing—whatever the price. These people," said Comey, "know who they are. Some of them did pay a price for their commitment to right, but they wouldn't have it any other way."

One of those people—a former assistant attorney general named Jack Goldsmith—was absent from the festivities and did not, for many months, hear Comey's grateful praise. In the summer of 2004, Goldsmith, 43, had left his post in George W. Bush's Washington to become a professor at Harvard Law School. Stocky, rumpled, genial, though possessing an enormous intellect, Goldsmith is known for his lack of pretense; he rarely talks about his time in government. In liberal Cambridge, Mass., he was at first snubbed in the community and mocked as an atrocity-abetting war criminal by his more knee-jerk colleagues. ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson.

They had no idea. Goldsmith was actually the opposite of what his detractors imagined. For nine months, from October 2003 to June 2004, he had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers. Their insurrection, described to NEWSWEEK by current and former administration officials who did not wish to be identified discussing confidential deliberations, is one of the most significant and intriguing untold stories of the war on terror.

These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law....

...But somehow, in the vetting of Goldsmith, one of his important views was overlooked. Goldsmith is no executive-power absolutist. What's more, his friends say, he did not intend to be a patsy for Addington and the hard-liners around Cheney. Goldsmith was not the first administration lawyer to push back against Addington & Co. At the CIA, general counsel Scott Muller had caused a stir by ruling that CIA agents could not join with the military in the interrogation of Iraqi prisoners. But Goldsmith became a rallying point for Justice Department lawyers who had legal qualms about the administration's stance...

Something to think about.

[boris]

riding rough-shod over the law and the Constitution

But have no problem conspiring to ride rough-shod over the elected administration fighting a war.

Something to ponder alright.

[clarice]

Boris, you get right to the point.
I like that in a man. *wink*

[clarice]

Here's an early note on Comey and Fitz, including the kind of prosecutors they were and Comey's battles with the WH. (I notice our pofarmer commented there.)
snakes

[David Walser]

MORE: Lest you doubt the significance - if Ms. Toensing's perspective can be firmly established there are major implications for the Libby trial, starting with, how could Fitzgerald have spent over two years investigating a situation that could not have been criminal and segueing to, what is the meaning of "perjury" or "obstruction" when there is no possibility of an underlying criminal charge?

Put bluntly - if Libby had said to investigators, "You got me - Dick Cheney told me that Valerie Plame had classified status but I blabbed to reporters anyway", neither Cheney nor Libby could have been charged under the IIPA because of the five year rule. And Fitzgerald should have known that when he took Libby's testimony. So what was Fitzgerald investigating - a conspiracy to commit a non-criminal act?

TM, as you may recall, many of us were very upset about this possibility from the outset. It seemed an abuse of prosecutorial power. Jeff, Jerry, et al, assured us that our concerns were unfounded -- the referral from the CIA was proof positive that Fitzgerald was investigating a real crime rather than creating one in his very own perjury lab. Now, it appears that the most likely explanation is that Fitz bought the Corn/Wilson story of an effort to harm Plame as push back for Wilson's speaking truth to power. Since the "outing" was not illegal, Fitzgerald went about finding some other way to punish the evil doers.

This reminds me of when my younger brother was in high school. He started dating the daughter of the local chief of police; something which was not illegal but which displeased the chief to no end. The chief set out to demonstrate to my brother just how miserable the chief could make life if he continued to date the chief's daughter. (He got something like 10 tickets in one day. One was for parking more than 18" from the curb.) I suspect that most supporters of civil liberties would be outraged by the chief's actions, as we were at the time. (Or as I am whenever I think of it.) Why are they so willing to give Fitz a pass on this?

[Tom Maguire]

Fitz knows the answer but we (the little people) aren't entitled to know apparently.

I am not so sure he does know the answer - it may have dawned on him early on that *not* knowing was much safer - if someone pulled out a memo to Fitzgerald dated Feb 2004 stating flatly that the IIPA did nto apply, it woul dbe harder for him to suppor this investigation than if he simply played "don't ask, don't tell."

Her status may be questionable to us, but the CIA did somehow convince Justice under Ashcroft to take up the matter.

In Fitz we trust - in some circles, that talking point will never grow old.

In fact, the CIA had to kick the DoJ to get them to take up the case, and the CIA would certainly favor an expansive view of the IIPA. Also,it is not their call as to just what law has been broken - they reported (Conyers letter) that classified info had been leaked (which was apparently true, but maybe not illegal.)

and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States

I agree the gov't would have a hard time passing that test, but it is (one might argue) more subjective. Also, the statute (oddly) does not say they must be taking "All reasonable" affirmative measures, or anything else - one might argue that if they are taking one or two affirmative measures while also doing ten stupid things, they still qualify.

What if Fitzgerald was investigating the Espionage Act? That is the only Act he mentions by name in the Presser.

Good question, but why did we need the IIPA if the Espionage Act covered the Agee situation?

FWIW, here are the 11 questions that form the basis of the CIA referral. The questions, at least, put th enix on th enotion that Valerie's covert status was carefully evaluated:

1. Date and identity of the article or release disclosing the classified information.

2. Specific statements which are classified and whether the data was properly classified.

3. Whether the classified data (search) disclosed is accurate.

4. Whether the data came from a specific document and, if so, the origin of the document and the name of the individual responsible for the security of the classified data disclosed.

5. The extent of official dissemination of the data.

6. Whether the data has been the subject of prior official releases.

7. Whether the prior clearance for publication or release of the information was sought from proper authorities.

8. Whether the material or portions thereof or enough background data has been published officially or in the press to make an educated speculation on the matter possible.

9. Whether the data can be declassified for the purpose of prosecution and, if so, the name of the person competent to testify concerning the classification.

10. Whether declassification had been decided upon prior to the publication or release of the data.

11. What effect the disclosure of the classified data could have on the national defense.

[clarice]

Reconcile this piffle from the Fitz presser with his "good leaks" "bad leaks" merde:
"I can say," he announced that day, "that for the people who work at the CIA and work at other places, they have to expect that when they do their jobs that classified information will be protected. And they have to expect that when they do their jobs, that information about whether or not they are affiliated with the CIA will be protected. . . . I will say this. I won't touch the specific damage assessment of what specific damage was caused by her compromise"--none has ever been shown--"I won't touch that with a 10-foot pole. I'll let the CIA speak to that, if they wish or not. I will say this: To the CIA people who are going out at a time that we need more human intelligence, . . . they need to know that we will not cast their anonymity aside lightly."

[clarice]

Could that referral questionairre refer to anything BUT rhe INR which Libby never saw, which Armitage leaked and which he said was in a form that did not alert the reader that Plame was covert?On what other document does her name appear?

[Sue]

Good question, but why did we need the IIPA if the Espionage Act covered the Agee situation?

Because it didn't. And if she [Plame] didn't fit the definitions of the IIPA, what other law could have been broken in order to keep the investigation going?

And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.

That is a difficult statute to interpret. It's a statute you ought to carefully apply.

I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is in England the Official Secrets Act.

Fitzgerald Press Conference

[JJ]

Great post!

Always answer the obvious first!

What did David Corn know, and when did he know it?

[Florence Schmieg]

So someone is looking into Chuckie Shumer's role in all of this. Good. I am convinced he is in it up to his elbows.

[Dale in Atlanta]

Back when I worked at a certain Government "institution", reading and handling Classified Information, we had a fairly accurate "rule of thumb", that we followed when we read the Washington Post every morning, to see how much/or what CLASSIFIED information was being leaked:

(During the Clinton Administration, I might add...)

Top Secret information took 2 Days to be leaked to the Press, and appeared on the Front Page...

Just plain old Secret information, took 3 days to be leaked to the press, and was always buried back in the mid-sections somewhere!

You could set your calender by it, was so accurate of a "rule of thumb..."

Also, the other thing we had to remember, as "nobodies", we were go to jail for "mishandling" CLASSIFIED information, but the "leakers" ("Govt Officals", senior Military, etc.) would like get to write a book, make millions, and then get out on the lecture circuit, and earn more!

It may sound cynical, but it's pretty damn accurate!

[didasko]

Hey folks - just thought I'd let you know - I just submitted clarice's WS article on realclearpolitics.com

If it receives enough recommendations, it appears on the home page under ReaderArticles

If so inclined, you can go here ReaderArticles and look for The Case of the Missing Crime

[clarice]

Thanks, didasko! How nice of you.