Groan! Now we are going to hear about Valerie Plame's pension? Tedium, thy name is... Just One Minute - this is important stuff! The issue of whether Ms. Plame was actually a "covert agent" as defined by the Intelligence Identities Protection Act was identified as a key issue in her case by the eerily prescient James Taranto back in October 2003 when the case first made headlines. And it appears that Mr. Libby may be the victim of either CIA chicanery or malfeasance by Fitzgerald; either way, the impact of the information presented below could affect Libby's sentencing, his hopes for a successful appeal or a Presidential pardon, and the reputation of the Fitzgerald investigation. So tough it out, and on with the pension story!
One key issue from the statutory definition of "covert agent" is whether Ms. Plame met the requirement for service abroad. From Mr. Taranto:
Left unanswered is the question of when Plame has her last overseas assignment; if it was before July 1998, then by July 2003, when her identity was revealed, she would no longer have been a "covert agent" for the purposes of the Intelligence Identities Protection Act.
Victoria Toensing noted the same "service abroad" issue in 2005.
So, did Ms. Plame perform service abroad for the CIA after July 1998? One place to look would be her CIA personnel files - by statute (Title 50, Section 403r, "Section 403r. Special annuity computation rules for certain employees' service abroad"), CIA officers are entitled to an upward adjustment in their pension benefits for service abroad. This is from the Friday NY Times, describing Ms. Plame's legal issue with her proposed book:
The letter [from the CIA human resources are to Ms. Plame], from February 2006, was entered into the Congressional Record by Representative Jay Inslee, Democrat of Washington, in January 2007. Mr. Inslee was introducing legislation to allow Ms. Wilson to qualify for a government annuity.
The letter said that Ms. Wilson had worked for the government since Nov. 9, 1985, for a total of “20 years, 7 days,” including “six years, one month and 29 days of overseas service.”
More background and the full text of the letter are in this post.
So by law we should have guessed that Ms. Plame's service abroad was tracked in her personnel file (OK, I did guess exactly that last February), and in fact it was.
And the rest should fall into place nicely, yes? In response to questions about Ms. Plame's service abroad, CIA lawyers or Patrick Fitzgerald and his Department of Justice investigators will cite her personnel file, which presumably has been maintained in accordance with standard CIA practice. Her file will document the most recent period for which she received credit for service abroad, thereby resolving the point about her qualification as a covert agent under the IIPA, right?
Not so fast.
Patrick Fitzgerald filed documents related to Libby's sentencing last week [Sentencing memo, Sentencing calculation, Plame employment history] which resolved the issue to the satisfaction of, well, the easily satisfied - that includes Messrs. Isikoff and Hosenball of Newsweek. And was any mention made of her service abroad as tracked by the CIA personnel department under long established CIA rules? Uhh, no. The judge and the defense were offered a summary employment history which touched on her service abroad as follows (and I am quoting the Newsweek paraphrase, until I can get a copy/paste version of the government filing):
“She traveled at least seven times to more than 10 countries,” the document states. “When traveling overseas, Ms. Wilson always traveled under a cover identity … At the time of the initial unauthorized disclosure in the media of Ms. Wilson’s employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.”
Huh? This is the dog declining to bark in the night - her CIA personnel file has the dates for which she received credit for service abroad, so why not mention that? Is it possible that the DoJ investigators did not have access to her file? No, per footnote 2 on page 5 of the sentencing calculations, we are assured that "The investigators were given access to Ms. Wilson's classified file". [Is it possible that national security censors struck an anodyne sentence such as "As per Title 50 Section 403r, Ms. Plame's most recent credit for service abroad occurred in 2002"? Would that really give away more than "She traveled at least seven times to more than 10 countries"? Please.]
So, both the CIA and the DoJ had access to Ms. Plame's file detailing her dates of service abroad, yet chose not to present that information to the defense. Why might they do that? A suspicious mind would wonder whether they would omit that data if it were helpful to their case, or only gloss past it if her most recent date of service abroad were say, 1997, when she was recalled to the United States (as per this Vanity Fair profile).
This is not right - our legal system has discovery rules for a reason. IF Ms. Plame's formal dates for service abroad buttress the prosecution position, that should be disclosed to the defense so that they will not waste time pursuing a false trail, or so that the prosecution can prepare arguments that the CIA formal procedures do not comport with the language and intent of the IIPA. On the other hand, if her formal dates for service abroad support the defense position, that should be disclosed so that the defense can argue that this represents the best established practice and settles the issue.
But it is simply not appropriate for Fitzgerald to unilaterally conceal this from the defense, especially when it is a reasonable guess that it was concealed because it would aid the defense.
As background, Byron York has a number of pieces describing the legal maneuvering that led to this cursory summary. The defense requested discovery on a lot of classified info including Ms. Plame's employment history and classified status; Fitzgerald insisted the case was limited to perjury and that Ms. Plame's status was not at issue; and eventually Judge Walton ordered [link] this summary as a compromise. Let's note that Judge Walton reviewed the material before endorsing the summary. Let's also note that he had a tremendous volume of material to review, so Ms. Plame's dates of service may have been overlooked (hidden in a file dump, as it were). Or, since his final rulings restricted the trial issues to perjury rather than Ms. Plame's status, Judge Walton may have believed the IIPA issue was irrelevant.
In any case, it is safe to say that Fitzgerald was not eager to present Ms. Plame's employment background - maybe an embarrassment with her dates of service was part of the reason. If so, it strikes at the heart of the prosecution's case - for example, in his affidavit to the Miller court weighing her subpoena, Fitzgerald clearly convinced Judge Tatel that his investigation was contemplating violations of the IIPA. Did Fitzgerald also explain that there were serious problems with such a prosecution, such as an issue as to whether Ms. Plame was covered by the statute? That affidavit has not yet been made public, but if the judges had ruled against Fitzgerald the case against Libby would have been much weaker.
Fitzgerald also resurrected the IIPA issue in his sentencing memorandum - the defense noted in their response that they were denied a chance to fully engage this issue in the trial phase; if that was compounded by the concealment of key information from the defense, there is a problem here.
It may be that Judge Walton will probe these issues at Libby's sentencing. Or an appeals court may take some interest in how it came to be that Fitzgerald never disclosed Ms. Plame's formal dates of service to either the court hearing the Judy Miller subpoena or to the Libby defense.
And from another direction, Rep. Peter Hoekstra has tried to get the CIA Counsel to opine on Ms. Plame's covert status. Per Robert Novak, as of April 2007 they were still mystified:
On March 21, Hoekstra 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."
I have a suggestion for Mr. Hoekstra - perhaps he can ask the CIA Counsel some simpler questions, to wit, what is the last date on which Ms. Plame received credit on her pension (under Title 50, Section 403r) for service abroad, and what is the CIA definition of "service abroad" in that context. That should be easy enough for the CIA Counsel to address in this lifetime. [As protection against after-the-fact revisions, Mr. Hoekstra should also inquire as to the most recent date of service abroad reported in Ms. Plame's file as of July 2003, whether any revisions have been made since then, and the circumstances that led to those revisions.]
There may be an innocent explanation for all of this. But in light of Fitzgerald's determination to conceal Ms. Plame's employment history and in light of the fact that a "service abroad" date which should have been readily available and clearly relevant was not disclosed, some questions for Fitzgerald ought to be addressed.
Unfortunately, it is not as if Fitzgerald would never, uhh, shade his disclosures and filings - in the course of the Libby trial at least two transgressions were revealed: he had disclosed to the defense that John Dickerson of Slate may have received a Plame leak (from Ari Fleischer) but concealed the information that David Gregory of NBC News would have received the same leak at the same time. And in the course of his legal maneuvering with Tim Russert, Fitzgerald failed to inform the court that Tim Russert (who was resisting a subpoena to testify) had already given evidence to DoJ investigators.
Or for a more recent example of Fitzgerald's tactics, consider his recent sentencing memorandum. Isikoff and Hosenball make much of the fact that "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".
But the defense response provided a bit of clarification which Fitzgerald had overlooked, or forgotten, or something:
The summary described above was provided to the defense along with a
companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important to bear in mind that the IIPA defines “covert agent” differently.
Indeed it does.
Why was Fitzgerald dancing with the NBC stars? Who knows? Why did he overlook or conceal the information about Ms. Plame's formal dates of service abroad? Let's hope someone asks him.
UPDATE: Writing at firedoglake, Jeff Lomonaco, one of the brightest bulbs on the Plame Christmas tree, takes up the debate. I take specific issue with this:
Now, it may well be useful to consider whether the CIA's standard way of proceeding would be to include the kind of covert work abroad that Plame did in the five years before the Bush administration blew her cover in its pension calculations, though it's far from clear that this should be controlling in the interpretation of the IIPA, as Maguire seems to suggest (and I'll come back to this).
But now Tom is telling us that Valerie Plame's pension benefits track her service abroad.
Well, yes, the CIA clearly "tracks" it in the sense of monitoring it. I plainly am not arguing that the CIA handbook is dispositive on the issue, since I make the point that the defense would want an opportunity to examine and rebut the information if it went against them. However it is a sufficiently relevant data point that it should have been disclosed to the defense.