Well, I Read It There First...

Good job by the Anon Lib, who was a month ahead of the latest Administration pronouncement on the NSA surveillance program.

And let's double down!  The Anon Lib also tackles Byron York's latest article on the Plame investigation - let me pull out one cogent bit, and one that strikes me as less so.  Cogent first:

The endless confusion over whether or not Plame was covert stems from a misunderstanding of the term "covert." The term "covert" (at least as I understand it) is not a real world designation used by the CIA to describe its agents. Rather, it is a statutory term used by the Intelligence Identities Protection Act to describe the type of agents it is intended to cover, i.e., agents who have served in an undercover capacity within the last five years, etc. etc. In other words, there is no document that says whether or not Plame was a "covert agent." That's a matter of statutory interpretation which only a judge can determine. ...Given there have been few, if any, prosecutions under the IIPA, there is virtually no case law interpreting its various provisions. That means it would be very hard to predict how a judge would decide the issue. Long story short, the question of whether or not Plame was "covert" is a difficult legal question that will, most likely, never be decided by a court, and therefore, never have a definitive answer.

And less so:

Federal prosecutors never turn over discovery material they are not required by law to turn over. This is particularly true when that material is both classified and potentially very sensitive. Given that everyone (including York) acknowledges that Plame was at one time a CIA officer operating under non-official cover, doesn't it stand to reason that any damage assessments might contain highly sensitive and classified information? Why in the world would Fitzgerald just hand that material over to Libby's defense team when he has no obligation to do so? Wouldn't that be pretty careless?

Well, the defense team has security clearances and is proceeding under the Classified Information Procedures Act, so "careless" may not be the mot juste here.

Eventually I intend to gather my guesses about the various defense discovery requests in one post but for now, let me Boldly Predict that Fitzgerald will lose on both the CIA damage assessment of the leak, and on information pertaining to Ms. Plame's status.

Let me come back to Fitzgerald's assertion in his filing regarding the importance of compelling Judy Miller's testimony - "To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work."

Now, the meaning of that statement is not crystal clear, and it is possible that Fitzgerald means that he has evidence that one or more of the people who discussed Plame with Libby mentioned her classified status, but nothing in Libby's notes or subsequent conversations confirms that he heard and understood that.

But an equally reasonable interpretation is that none of the people who discussed Plame with Libby mentioned that her status was classified.

If Libby offers his "busy man, failed memory" defense, he will be making two points - other things, such as mentioned in the PDBs, were very important, and Ms. Plame's CIA affiliation was never flagged to me as being important.

And will that second claim be credible?  One might think that the documentary evidence of her status and the actual harm done would confirm (ex post) the judgments made by Cheney, Grossman, the CIA briefer, and others who discussed Plame with Libby - this was no big deal.

In one of their filings, Fitzgerald argued, in effect, that facts don't matter - it was only Libby's state of mind as to the importance of Plame that is relevant.

But if Libby's story is that he inferred from the words, body language, and demeanor of his various confidants that Ms. Plame's CIA affiliation was not critical, and the facts support him, that seems exculpatory.  Put another way, if the documents flatly contradict him one might expect the prosecution to present them as contradicting his story - how, they might ask, could all these people have been so wrong about her status, and isn't it easier to believe that Libby is misrepresenting their conversations?

Of course, it may be that the documents do contradict Libby.  But if anyone actually mentioned Ms. Plame's classified status to him, that fact is missing from the indictment, and seems to be inconsistent with the excerpt from the Miller filing.

Time will tell, and my money's down.

MORE:  FWIW, the closest the indictment gets to a hint of Libby worrying about classifed info is here:

13. Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson's trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.

But since Wilson's trip was itself classified, that may be all Libby had in mind.

Comments

[clarice]

While her status might not have been "covert" in the files and be a matter of legal interpretation, it hardly seems irrelevant to the question of whether there ever was a crime being investigated. That the question was one to be determined by the court surely didn't relieve Fitz of the need to investigate that first.
Critical to the issue is the answer the CIA was compelled to give (per DiGenova) with the referral--what steps the agency had taken to protect her identity.
And what indication they gave that she had been stationed abroad in the precceding 5 year period.
I donot think York is the party being disingenuous here.

[kim]

It might help explain why Joe was so blase about outing his wife until someone told him that he should be outraged that someone else might do so.
=======================================

[David Walser]

AL is correct that the term "covert" has a particular statutory meaning that may be difficult to ascertain without help from a judge. However, the fact the question of Plame's covert status may have been difficult to determine does NOT help those supporting the charges against Libby. If we cannot know without a judge's ruling whether Plame was covert, Libby could not have known she was covert, either. Without the knowledge Plame was covert, Libby could NOT have knowingly outed a covert agent. At this point, Fitz' investigation should have stopped. Since Libby (or anyone else) could NOT have violated the law without the knowledge AL says it was impossible for them to have had, there was no POSSIBLE criminal activity for Fitz to investigate. Therefore, the only charges that could EVER have arisen out of Fitz' questioning members of the Administration were charges of perjury. It was just plain wrong for Fitz to continue his investigation when his only aim was to catch someone in what he could claim was a lie.

That's not to say there might not have been some possible public purpose in learning who had leaked Plame's name to the media. Would that we we so carefully guarded all our secrets! However, a criminal investigation is not the proper tool for such an inquiry.

[maryrose]

David Walser: you are correct and I hope Libby's lawyers will bring up this point. I know of no judge who has ascertained that Plame was covert. Saying it {Wilson} doesn't make it so.

[ed]

Mr. Walser, if we follow your line of logic, there could NEVER be a prosecution of ANY IIPA violation because a judge would first need to determine the covert status of any agent. The judge would need state their decision publicly enough so that the violator was made aware of the judges decision BEFORE the violator made the agents status public. That can not logically happen as the judge would violate the statute first.

[ed]

Anyway, the IIPA states that the violator must be aware that they are disclosing the identity of someone who fits the criteria of "covert", not the judges ruling on "covert".

[Patrick R. Sullivan]

One doesn't need case law, one only has to read the statute and see if Plame's circumstances fit it. They don't.

[clarice]

ed, the drafters of that law said it was narrow on purpose to cover the Ames type deliberate outing of people he knew were covert. There hasn't been a single prosecution under it for a reason. He hardly ever applies.

[clarice]

Should read--IT(not he) hardly ever applies.

[noah]

AL may be cogent but I don't find it at all unreasonable, despite the lack of case law, for someone at Langley to conclude that the IIPA was violated if he reads the name of a currently operating NOC agent in the NYT. Nor is it a stretch that the IIPA was violated if said agent had been "on the bench" so to speak for less than 5 years and that care was being taken protect said agent's identity.

The whole thing about damage assessment is a red herring anyway. If Libby had outed a covered agent, the damage done might conceivably affect his sentence upon conviction but is entirely irrelevant as to whether he violated the law.

[ed]

I understand the law is very narrow in order to apply to a very small set of offenders. In Mr. Walser's version that set of offenders is so small as to not exist.

[clarice]

Actually, that's because Walser correctly reads the law.
Noah doesn't.

[TM]

Mr. Walser, if we follow your line of logic, there could NEVER be a prosecution of ANY IIPA violation because a judge would first need to determine the covert status of any agent.

and

One doesn't need case law, one only has to read the statute and see if Plame's circumstances fit it.

I'll go with "statute".

In a gray area, a prosecution might be tricky - as with Plame, does "served abroad" mean "stationed abroad", or "flew through a foreign airport"?

But there would still be plenty of black and white cases - covert agent currently stationed overseas, for example - where the leaker would be laughed at with this "I didn't know the statute applied" defense.

[kim]

Ed fell off the line of Walser's logic right after the first time David wrote 'judge's ruling'. Ed misinterpretated the meaning of that sentence and the next.
==============================================

[Other Tom]

First, I agree with the "cogent" assertion, i.e. that "covert" is a statutory term as opposed to one used by the CIA. Second, the fact that no judge has yet put any judicial gloss on the statute does not remotely suggest that it can't be violated--a violation can be charged, and somewhere down the road a judge will have to decide, under the particular facts, whether the statutory language applies. Third, any sensitive or classified information in a CIA damage assessment is not essential to the information ultimately being sought, which is simply whether or not there was any damage, and if so to what extent. That conclusion could be released to the defense without disclosing any sensitive information. The conclusion, whether or not it is relevant to any of the offenses charged in the indictment, is highly relevant to some of the boilerplate in that indictment, and also relevant to Fitz's public statments. Unless the judge is prepared to order in advance that Fitz is preculded from making any reference to "harm" done to all of us, or to the CIA, etc., then he should order that the assessment be disclosed to the defense. Fourth, it should always be kept in mind that "covert" status and "classified" status are two different things--one can be the latter without being the former. The two terms invoke two entirely different statutes. Again, the indictment does not allege violations of either of the statutes, so the question is not relevant to the charges, but is decidedly relevant to some of the claims made by Fitz in his grandstanding press conference and in the indictment. The judge should either bar him from mentioning it or order that the evidence of her classified status be turned over.

[ed]

Sorry Clarise but I don't understand how you can cast your lot with a reading of the law that nulifies itself. In Walser's view it the IIPA does not exist.

[David Walser]

Ed - No need to call me Mr. Walser. It's David or Dave to friends and enemies alike.

You are right. My logic would subsume the entire law. However, and maybe I should have been more clear, it was AL who was making the claim that the statutory definition was so difficult to apply it could not be done without the help of a judge. His reasoning: Since a judge MIGHT rule that Plame met the definition, it was okay for him to continue his investigation. My point, if you accept AL's claim that the definition is so difficult to master you can't know without a judge's help whether someone is covert or not, Libby could not have had the requisite knowledge to violate the law. Period.

On the other hand, I don't think the law's definition of covert is nearly that difficult to apply. Very few people outside of the CIA would have the requisite knowledge and Libby clearly did not. Nor did anyone at the White House. (A covert agent's identity is something that is not shared except on a need-to-know basis. In this case, all that would need to have been said, if Plame were truly covert, "Wilson was recommended by a CIA agent familiar with both Wilson and the issues. The identity of the agent is classified.") Fitzgerald should have been able to review the law and see that Plame did not meet the definition and that no one at the White House would have had the requisite knowledge even if she did. Heck, I've been making this argument since day one with the caveat that there might be some unknown fact that would alter this conclusion. As more facts become known, it's becoming impossible to imagine a situation where the law could have been violated.

Under either approach, the definition requires a judge to resolve or it can be applied without such assistance, yields the same result: Fitz should have known no crime was committed in disclosing Plame's name and he should have shut down his investigation.

[ed]

Kim, could you please enlighten me as I've reread the sentences and get the same interpretation each time.

[clarice]

ed--Go get the Statute--Print it out if you need to-lok at all its parts.None are optional as you seem to suggest. Every part must be there to prosecute.

You seem troubled by the existence of a Statute which is so hard to violate no one's been prosecuted for that since its passage.
Well, it was passed to cover a very unusual case,Ames. Congress was outraged when they noticed the Espionage Act didn't allow Ames to be prosecuted and passed this to deal with such cases should they ever occur in the future. So far, it's been collecting dust.

[David Walser]

Ed, the sentence Kim referred to began with the word "If". It's an if, as I hope my second post made clear, that I don't accept as true. However, if you accept AL's argument that the statute is so vague it justified Fitz "confusion" as to whether a crime could possibly have been committed, that view of the law makes it impossible to violate. But, I repeat myslef...

[ed]

Clarice,

lok at all its parts.None are optional as you seem to suggest. Every part must be there to prosecute.

I am not saying anything is optional. All I said was that David's origional post professes an interpretation that isn't just "so hard to violate no one's been prosecuted for that since its passage."

As he has since stated, the interpretation he put forward is IMPOSSIBLE to violate/prosecute. He doesn't even agree with it. I was merely objecting to that one interpretation. Where are you getting this stuff?

[Lew Clark]

I seriously doubt that anyone that has been in the government as long as Libby and dealt with classified information every day, being very careful not to reveal that information to unauthorized persons, never checked to see what a CIA employee did at the CIA before discussing her. I think Cheney, Rove, Libby, etc. asked CIA. And they were told by CIA that she did not meet IIPA. Libby/Libby's lawyers, will not make that statement prior to the trial. But, if it comes to trial, you can bet that Libby will testify, "On such and such a date, the Office of the VP contacted the Director, CIA inquiring as to the status of Valerie Wilson (Plame). The Director, CIA stated that she did not meet the IIPA definition of covert agent.
The possibility that Libby and company determined that she was covert as described in the IIPA and then proceeded to out her is beyond the realm of belief. If they were that evil/devious they would not have picked up the phone, called a number of (less than friendly) Washington reporters and said "Just a heads up, Joe Wilson's wife is a covert agent, but don't tell anyone I told you, because I can go to jail for life. But I know you won't tell because all Washington reporters have this rule, what happens in the White House, stays in the White House".
Now there is the way outside possibility that Libby assumed, based on how freely she was being discussed, she wasn't a covert agent. That was not a wise assumption, but still takes him off the hook per IIPA. Because he (1) Had to have learned that she was a covert agent through his official duties, and (2) Intentionally divulged her identity to cause harm to the U.S. If he didn't know, he couldn't have violated the act.
And sending someone to jail for lying about when, where, and how you didn't violate the law is, in this non-lawyer's opinion a hard sell for the prosecution.

Just a note: I’m glad I’m retired from the federal government. Because I gave a lot a sworn testimony in my career. Never, to my knowledge, did I make an incorrect statement about material facts. But I know I didn’t get every minute non-material fact exactly right. And now, with the Martha Stewart/Patrick Fitzgerald rule in effect, I’d be going down big time for failing to notice that that person had hazel eyes and not blue eyes. Of course, I’m not totally clear of the statute of limitations on all those cases, so I may still be breaking rocks at “Club Fed” for the rest of my natural life.

[PaulV]

It does not take a judge to see that IIPA does not apply when statutory requirements are clearly not met. A judge is only necessary when there is a close case.
Yhe experts say that this is not a close case

[ed]

Just for the record, I don't think Libby violated the IIPA either, but that was not Fitzgeralds only mission here.

[clarice]

ed, perhaps I confused you for a moment with noah--though I must say I find both of you doing everything you can to avoid the clear terms of the Statute.
Lets parse Noah's reading :

AL may be cogent but I don't find it at all unreasonable, despite the lack of case law, for someone at Langley to conclude that the IIPA was violated if he reads the name of a currently operating NOC agent in the NYT. Nor is it a stretch that the IIPA was violated if said agent had been "on the bench" so to speak for less than 5 years and that care was being taken protect said agent's identity.

The clear language of the Statute makes your point ridiculous. The stationing abroad in the 5 year period preceding the "outing" is a mandatory predicate for the Statute's application.

The whole thing about damage assessment is a red herring anyway. If Libby had outed a covered agent, the damage done might conceivably affect his sentence upon conviction but is entirely irrelevant as to whether he violated the law.
Again, a singular and singularly wrong reading. No damage, no violation.

_________

Of course, there may be the Red Queen rule of statutory interpretation now in play,"The law means what I say it does."

[Gary Maxwell]

Since when in our legal system are all other parties absolved of any responsibility to make an informed decision on whether something in a law is applicable? I thought that is why we have law enforcement personnel that do investigations and why they consult with prosecutors and why sometimes law enforcement fails to arrest someone, why sometimes an arrest happens but the appropriate prosecutor fails to indict. In this case we also had a long term sitting Grand Jury to help the prosecutor decide if it appears a crime was committed.

[cathyf]

Mr. Walser, if we follow your line of logic, there could NEVER be a prosecution of ANY IIPA violation because a judge would first need to determine the covert status of any agent. The judge would need state their decision publicly enough so that the violator was made aware of the judges decision BEFORE the violator made the agents status public. That can not logically happen as the judge would violate the statute first.

That's just a strawman. If you follow that logic then no law could ever be enforced. The legal system has principles of "reasonableness" and "good faith" and usually prosecutors are "reasonable" and act in "good faith." So nobody gets indicted for perjury and obstruction of justice in a bank robbery investigation without the prosecutor and/or police first making a "reasonable" and "good faith" determination that there really was a bank, and it really did have money, and the money really is missing.

But the rules for Sooper Dooper Special Prosecutors appear to be different...

cathy :-)

[clarice]

I am so sorry about the open italics.

[Patton]

This thread is my exact comment from the last thread....

and when you get right down to it, what Fitz is claiming is perjury is that
Cooper says Libby didn't say 'from reporters' and Libby claims he said 'from reporters'. I recently looked at the openly to Coopers Time magazine piece on this whole thing and Cooper seems like a terrible witness. The President makes one comment, which may have been fed to him by a media guy - and Cooper blows it up to the LEADER OF THE FREE WORLD IS FOLLOWING MY CASE!!!

Similarly, with Tim Russert, its a one or two sentence difference and the problem there is that Andrea Mitchell has essentially said what Libby said, and
Russerts contention that he would remember something this explosive is contracted by all other known facts. That Libby said he was surprised may simply mean he was surprised the press all knew already.

On Miller, I just can't believe any decent juror would convict someone on Judith Millers testimony since she is flacky and appears to have a worse memory then Libby.

[Rick Ballard]

Lew,

You are raising an extremely important point. Fitz's prosecution of this farce greatly increases the probability that anyone in the government being questioned by an investigator in any matter will suffer from early onset Arkansas Alzheimers beginning with their response to the first question of "For the record, please state your name".

Fitz's charging in this matter cannot have him in good odor within the DoJ. Polishing the tarnish off of this one will take a while.

[ed]

I never said anything about my interpretation of the statute other than I believe based on what I've read up to this point that Libby DID NOT violate it. How am ignoring anything?

[clarice]

Yes,Patton. "Maestro,Memories", please.

[clarice]

ed, I apologize though I have trouble with this Just for the record, I don't think Libby violated the IIPA either, but that was not Fitzgeralds only mission here. In fact that was Fitz' mission. If this statute did not apply, his mission was over. No other statute existed to cover this.

[David Walser]

"Just for the record, I don't think Libby violated the IIPA either, but that was not Fitzgeralds only mission here." - ed

What was the rest of his mission? As Clarice has pointed out, the purpose of IIPA is to be the ONLY means of punishing someone for disclosing a covert agent's name. What other crime could have been committed that would have warranted Fitz' investigation? Yes, for the public record, it might have been nice to know how Plame's name came to be known. (I can think of a lot of other things I'd rather have investigated.) But, does such a question warrant the use of a CRIMINAL investigation? Wrong tool. Predictable result.

[clarice]

Lew, you might say much the same of the Franklin prosecution and the indictment of the two AIPAC guys. It was a new, exceedingly large stretch of the Espionage Act and has the potential of shutting down all informal discussion of issues with journos. Not a single reporter in this town who covers military/international affairs has not received briefings like these.

[clarice]

David. It even fails the prosecution for idle curiousity test. We still don't know who told Woodward or Novak, do we? And that's because even in his investigation of something not covered by any law, Fitz confined himself to checking only those who talked to people in the WH...and also refused to be concerned about those who leaked about Plame or Wilson or the Mission unless the leak was in his mind designed to punish "whistleblower" Joe.

[Gary Maxwell]

Some seemed to forget that David Walser was simply extending the logic of AL to its full extension. He is not wrong if you accept the logic that a judge was needed since its so complicated.

How do we ever get a conviction on any new criminal law. My god, no judge has ruled on this stuff.

Put any perfume you want on the skunk you want, its still Pepe. Teh Prosecutor and his grand jury either/or failed to indict. That means a decision was made on Ms. Plame's status. Some just dont like the decision and want a "do over."

[David Cohen]

I have a couple of questions:

1. Wouldn't someone being prosecuted for violating IIPA have a constitutional right to have a jury decide whether Ms. Plame was covert under the statute. Isn't that a question of fact for the jury based upon the evidence presented at trial and the definition of "covert" given to the jury by the judge?

2. Doesn't Fitzgerald's position here hint that he doesn't ever expect to have to prove that Plame was covert? In other words, that he's not contemplating bringing an IIPA action at all? (In other words, wouldn't Fitzgerald be running a risk of annoying the judge by fighting tooth and nail to keep this information away from Libby if he's just going to have to turn it over to Rove in a month or two?)

[ed]

Clarice, we know your thoughts on the Espionage Act, but the prosecutor in THIS case may not have agreed with you.

[clarice]

What evidence so you have for that, ed. The Statute is clearly inapplicable and the presser establishes that,,Fitz never tried to eave that into his pack of lies.
As to the gj, my bet is he never even presented the IIPA stuff to them..He only asked them to indict on what he got.

[Anonymous Liberal]

However, if you accept AL's argument that the statute is so vague it justified Fitz "confusion" as to whether a crime could possibly have been committed, that view of the law makes it impossible to violate.

David, this isn't at all what I was saying. The language of the IIPA isn't so vague that in all cases it is impossible to tell whether it has been violated (if it was, it would be unconstitutional). As Tom points out, it's easy to imagine very clear cut violations of the IIPA. But Plame's case may fall into a gray area that requires interpration of the 5 year limitation and the protective measures language of the statute. For that reason, even if Fitzgerald believes strongly that Libby violated the statute, he cannot be 100% certain that a judge will agree with his interpretation.

Secondly, as someone above pointed out, if Fitzgerald were prosecuting Libby under the IIPA, he would not have to prove that Libby knew he was violating the statute, only that he knew the various factual predicates described in the definition of "covert." Virtually no criminal statutes require a prosecuter to demonstrate that the defendant knew he was violating the specific law at issue.

Finally, your argument assumes that the IIPA is the only statute at play here. It's not. The Espionage Act has been at play since the very beginning, and comments Fitzgerald has made hint strongly that he believes the Espionage Act was violated. For tactical reasons, however, he feels he can vindicate the interests of justice by prosecuting Libby on the easier and clearer-cut charges.

[Other Tom]

To me, it does not follow that "a decision was made on Ms. Plame's status." There are a variety of reasons why Fitz could have concluded that he couldn't convict under IIPA (and thus didn't seek an indictment under that statute), regardless of whether he ever reached a conclusion about her status. Second, unrelated point: I don't recall there being any provision for pretrial depositions in federal criminal cases (except in instances such as the likely death of a witness before trial), yet a lot of posts seem to contemplate such depositions. Can someone with recent experience enlighten us?

[Gary Maxwell]

comments Fitzgerald has made hint strongly that he believes the Espionage Act was violated.

Momma always told me that actions speak louder than words. In this case his actions are screaming "No violation here".

[David Walser]

AL - Welcome to the fray. If the Plame case falls into a gray area where the Special Prosecutor had a legitimate doubt whether Plame was covered by the law, he had to have had a legitimate doubt that Libby had the requisite knowledge, too. While it's true, the law does not require Libby to have had knowledge of the statute, it does require him to know that Plame was covert, as defined by the statute. Which means he had to know her identity was protected, that the CIA was taking affirmative steps to protect her identity, etc. Again, if after all this time Fitz still has doubts about whether Plame met this definition of covert, it's impossible to believe that Libby KNEW she did.

[owl]

After giving a news conference written by his witnesses, I think Fitz gave up long before on anything related to his mission. He decided his mission was protecting the Whistleblower. He bought the MSM and therefore Wilson had to be a whistleblower and those nasty people in the WH could not be allowed to get by with presenting the facts.....regardless.

[cathyf]

comments Fitzgerald has made hint strongly that he believes the Espionage Act was violated.

I think those comments hint strongly that Fitzgerald believes that he can get away with making highly inflammatory and predudicial statements which he knows are false and intends for the purpose of tainting the potential jury pool. And violate Mr. Libby's Sixth Amendment rights.

cathy :-)

[clarice]

I'm calling you AL.

Lots of statute--like the IIPA--require knowledge of wrongdoing to punish an Act. The concept is called scienter. If you pass a false coin, not knowing it's counterfeit, no problem. If you pass it knowing it is, you do have a problem.

As Thom has noted, the NSA leak investigators have made clear, they regard their first task as ascertaining whether the Espionage Act was violated. They are not hauling Bill Keller into court to compel his testimony unless they have reason to believe it was. And that is the normal pattern--indeed, requirement--for an ethical prosecution.

If the area was Grey, I don't see it..Wilson's book suggests Plame didn't meet the 5 year test. There was insufficient effort on the part of the agency to protect her identity. And if there was any damage to be down by the revealing of the identity of a twice outed person I'd be astonished, and Woodward says there wasn't.

[Cecil Turner]

I think AL misses slightly by not providing some evaluation of whether or not Plame meets the definition of covert in the statute. I suspect it's because she quite apparently does not, at least by any objective reading. It's fine to say it'd be determined by a judge (though I agree with Mr Cohen above that it's more likely to be a jury); but I think the clear likelihood is that it'd have been rejected.

On the issue of whether Fitz was looking at the Espionage Act, the footnote on the bottom of page 28 of his 8/27/04 affidavit suggests he was:

If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 if the information is considered "information respecting the national defense." [discussion of IIPA follows]

However, I find Clarice's argument that it wasn't national defense information compelling (and apparently Congress did too . . . hence the IIPA). Further, I think Fitz's phrasing is tacit admission he thinks it's a stretch.

[clarice]

Cecil, I take it that's the affidavit Fitz filed in the Miller case and we already noted that even there he fudged, leaving out the other portion of the Statute that he'd have to prove to make it relevant, and it wasn't. (IIRC Byron York revealed that Fitz legerdemain.)

[Sue]

AL,

What Fitzgerald said was he didn't figure out what statute or crime was committed, prior to his investigation. Right the opposite, BTW, of what they say they are doing in the NSA leak case. I don't Fitzgerald was investigating the leak, under IIPA or Espionage. You have to ignore UGO in order to think leaking her name damaged national security or violated the laws.

[David Walser]

AL - Regarding the Espionage Act, I don't think it was ever in play. My understanding is that the Espionage Act predates IIPA by several decades and that Congress passed IIPA because the Espionage Act did NOT cover disclosing the identity of an agent even if that identity was classified. A basic principal of statutory interpretation is that Congress does things for a reason. (This is known as a legal fiction.) Why pass IIPA if the Espionage Act already covered what IIPA was to cover? Why make IIPA's reach so narrow if they wanted the broader reach of the Espionage Act to apply? The answers to these questions demonstrate that Congress intended IIPA to be the sole remedy for the outing of an agent.

[Sue]

Cecil,

If Libby leaking violated the Espionage Act, why does UGO's leak not violate it? What would be the difference?

[Patton]

So according to Fitzgerald..as I understand it, the CIA could have reported to the DOJ that someone was speeding in front of CIA headquarters and IT WOULD HAVE HAD TO BE INVESTIGATED TO FIND OUT THE WHO, WHAT WHERE, WHY AND HOW BEFORE DETERMINING IF A FEDERAL CRIME WILL BE CHARGED.

[Anonymous Liberal]

I'm calling you AL.

Lots of statute--like the IIPA--require knowledge of wrongdoing to punish an Act. The concept is called scienter. If you pass a false coin, not knowing it's counterfeit, no problem. If you pass it knowing it is, you do have a problem.

Clarice, you're conflating two very different things. Of course most crimes have a knowledge element (scienter), but that knowledge applies to your conduct itself, not the law. Only a small handful of statutes require you to have knowledge that you are specifically violating a statute. To take your coin example, the prosecutor would need to prove that you knew the coin was counterfeit, not that you knew passing a counterfeit coin was against the law. Don't you remember this from first year criminal law?

[Anonymous Liberal]

AL - Regarding the Espionage Act, I don't think it was ever in play. My understanding is that the Espionage Act predates IIPA by several decades and that Congress passed IIPA because the Espionage Act did NOT cover disclosing the identity of an agent even if that identity was classified.

I don't think you're right about this, David. Fitzgerald specifically mentioned the Espionage Act multiple times in his press conference. He certainly thinks its in play.

[Gary Maxwell]

A basic principal of statutory interpretation is that Congress does things for a reason. (This is known as a legal fiction.)

That I like.

[Jeff]

TM - My sense is that there are least two indications that Libby knew, or reasonably should have known, the Plame's status was classified more telling than the indictment's mention of the Libby-Edelman conversation. First, the indictment's mention in paragraph 9 of Count One that Cheney told Libby around June 12 that he had learned from the CIA that Plame worked at CPD. And second, Tatel's less-redacted opinion notes on p. 28 notes testimony that Libby himself said that Plame worked at CPD. (In addition, there appears to be separate testimony, though it may be referring to the same event, that Libby told Fleischer that Plame worked in the Counterproliferation area of the CIA.) My understanding, which may be mistaken, is that CPD is on the DO side of the CIA, which means it is much more probable that she was classified, under cover, than if she worked on the other side of the CIA, and Cheney and Libby would know this. Also, am I wrong that people like Libby have an affirmative responsibility, perhaps even an obligation, to find out and make sure info about a CIA employee's status and other stuff is not classified?

[Gary Maxwell]

Fitzgerald specifically mentioned the Espionage Act multiple times in his press conference.

What else did he mention in that press conference that turns out not to be exactly Hoyle?

And I know I am asking for it but exactly why is that you think he did not prosecute on this most obvious law transgression?

[Jeff]

The indictment states that the Espionage Act was part of the investigation, and Fitzgerald's 8-27-04 affidavit states that it was. You can claim till the cows come home that it shouldn't have been, and maybe you're right. But as a simple matter of fact, it was.

[clarice]

He also mentioned "classified" and harm to national security in his presser and when asked on discovery to provide evidence said it was not "material" so I wouldn't credit what he claimed about the Espionage Act is material either. And I do recall clearly that his fn in the affidavit in the Miller case was as disingenuous as his presser.

As for the scienter required to make out a violation of the IIPA it's not some super special kind. It is exactly llike the counterfeit coin kind--

Whoever, having or having had authorized access to classified
information that identifies a covert agent, intentionally discloses
any information identifying such covert agent to any individual not
authorized to receive classified information, 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, shall be
fined under title 18 or imprisoned not more than ten years, or
both.

It was designed to cover the Ames situation and it does not cover more. Ames knew these folks were covert and the agency was taking affirmative steps to conceal their identity.

Someone else not privy to this information could intentionally disclose such an agent's identity but could not be punished for so doing.

If Congress meant to cover more it could. But it didn't.

[Jim E.]

clarice wrote: "We still don't know who told Woodward or Novak, do we?"

True. But there's a lot "we" don't know about this case. Much of what preoccupies us here in blog-land is trying to figure out the answers to truly interesting questions: who were Novak's and Woodward's sources? what's in the redacted portions of the released court documents? etc, etc.

But here's the thing: Fitz knows the answers to most, if not all, of the many questions we ponder here. He knows who Novak's source is. He knows what's in the redacted portions of the court documents. He knows exactly what Libby and Russert and Rove and Pincus and Bush and Cheney testified to. We don't. He knows ALL of these things. We know none of them. My point is that several of us (me included) have been spinning our wheels to try to answer lots of questions that Fitz already knows the answer to.

And even if you don't trust Fitz, he has had a three judge panel, and now the trial judge, who are all looking over his shoulder. They know the answers to most, if not all, of our questions, too. And then there's Libby's own quite competent lawyers. There are several layers of safeguards built in to protect Libby's interests. There was a laughable assertion yesterday--coming in addition to clarice's reliable anti-Fitz screeds--in the comments that Fitz had created his very own Star Chamber. People seem to forget about the safeguards and instead act as if Fitz is the judge, jury and executioner. He's not.

Many here are quick to scold anyone who dares propose that Libby might be guilty of wrongdoing. Yet many of the same people have already made up their minds that Fitz is an untrustworthy scoundrel, even though the information released publicly is so obviously incomplete. There is not enough information in the public record in this case to so casually accuse Fitz of professional misconduct.

Finally, on a somewhat different topic: if Libby is not charged with the Espionage Act or IIPA, why does Plame matter? When Al Capone was convicted for tax evasion, did the prosecution have to present evidence of Capone's involvement in various homocides? I ask these questions not out of snark, but because I don't understand the preoccupation with Plame's status given what Libby is charged with.

[Jeff]

TM - A question about Libby's defense strategy, which I am having a hard time wrapping my mind around, particularly in the wake of how much ink was spilled here suggesting that Libby never really testified that when he heard about Plame from Russert, it was as though he were learning it for the first time and that he had forgotten the conversation with Cheney a month earlier and had no recollection of talking about Plame with others like Fleischer. His story is evidently going to be that when he testified first in the fall of 2003 and then again in the spring of 2004, he misremembered and produced this very specific, internally consistent narrative. Is the claim that he misremembered not remembering the Cheney conversation when he talked to Russert, or that when he was testifying he never claimed he did not remember in July 2003 the June 2003 Cheney conversation, but he may just have misremembered how the Russert conversation went? And what about Fleischer - is the idea that when he testified in fall 2003 he just didn't remember the Fleischer conversation correctly, but remembered hearing from Russert three days later and at that point must have remembered the Fleischer conversation - no, that can't be it, unless the claim is that he never testified that he learned the info from Russert as though it were new. So what is his story of what he misremembered exactly when he testified?

[Patton]

"""To take your coin example, the prosecutor would need to prove that you knew the coin was counterfeit,"""

And if the President, had ordered you, as his agent in a time of war, to pass counterfeit coins in order to weaken a foriegn power....?? or to sniff out a CIA mole passing secrets to her husband who was leaking them to the press. Hmmmm

[clarice]

The safeguards in place under the Special Prosecution Act were all avoided when Fitz was appointed in violation of the Act.
Starr had more safeguards under the broader Independent Counsel Act.
He has operated as if he were the Attorney General even though he was never confirmed to that position by the Senate.

[clarice]

I think the big flaw in AL's argument is conflating the nature of the scienter involved to make out a crime with the knowledge of it being a crime. The scienter in this Act is very specific because it was designed to cover only particular an d particularly grievous instances of disclosure, It was not a hidden super secrets act .

[Patton]

Jeff, what does any of that have to do with Fitzgerald discovering who leaked to Bob Novak? Libby had no knowlegde of who leaked to Novak. At this point Fitz knew who it was and knew it wasn't Libby.

The only 'sand thrower' here has been the unnamed official who did the leak and Fitz himslef who has so far covered for him/her.

[cathyf]

Clarice, you're having a brain fart. The IIPA was passed to deal with the Agee fiasco, not the Ames fiasco. (Hey, they both start with 'A'!)

cathy :-)

[Anonymous Liberal]

David, Clarice,

I still think you are conflating two very different issues. The fact that Plame’s covert status, under the terms of the IIPA, might be legally murky does not mean Libby could not have had the necessary knowledge to have violated the IIPA. Libby’s knowledge of Plame’s employment status is what it is; he knew certain things about her and didn’t know others. His knowledge of the meaning of the law is irrelevant. If Fitzgerald were to try Libby under the IIPA, a judge would determine exactly what “covert” means. Fitzgerald would then present all of his evidence to a jury, and the jury would decide whether, based on the evidence, Libby’s had the requisite knowledge to have violated the statute.

Just because some provisions of criminal statute are not 100% clear as applied to every situation, does not mean a case cannot or should not be prosecuted. This is why we have trials. It is through the prosecution of these “gray area” cases that the law gets refined and clarified.

[clarice]

It's a bad day--thanks..I'll light a match and spray.

[Sue]

Jeff,

Why does UGO not face charges? Any clue?

[topsecretk9]

Sue
UGO does not face charges because he was only gossiping. Big dif :-)

[clarice]

I'm sorry, AL I simply can't follow you there especially as Fitzgerald has now repeatedly said he never fully investigated the threshold questions which he regards as not material.
Those questions may be harder under this Actthan they are in most criminal cases, but I think it obvious he never "fully investigated" them because it is so obvious they could never be met, and there's a reason we call them threshold questions. A prosecuto may and often does fail to persuade a jury that a law was broken but it does not obviate his obligation to not proceed unless he has investigated and determined there is reasonable grounds to proceed further.

As I understand it the CIA makes about 150 such referrals a year and there are hardly any--maybe none--which go to full blown investigations let alone prosecutions. And the reason is that the IIPA sets a very high threshold .

[maryrose]

JimE

Fitz is not a very good prosecutor if he is looking at the Espionage Act when it clearly doesnt apply in this case.

[cathyf]

... when he [Libby] testified first in the fall of 2003 and then again in the spring of 2004 ... produced this very specific, internally consistent narrative.

So, Jeff, if Libby produced this specific and internally consistent narrative, why didn't Fitzgerald indict him on the basis of it? Why would Fitzgerald keep that testimony secret, and let Libby off scot free for it, while at the same time indicting Libby for his other testimony, the vague rambling incoherant babbling?

And how is it that you have access to Libby's "specific, internally consistent" testimony that wasn't in the indictment?

cathy :-)

[topsecretk9]

Noah - FYI

I did finally see and answered your comment on the last thread

[JM Hanes]

The idea that anyone driving into Langley on a regular basis could conceivably be operating under non-official cover is risible. Even the idea that her employment at the CIA, which any interested party could easily ascertain, might qualify as highly senstive information seems almost as absurd, though her specific assignments might be a different matter. If "covert" is not a technical designation, however (and AnonLib makes perfect sense in this initial observation), then Libby would have no reason to know or to suspect that Plame was a covert operative.

Libby never fit the profile of the spy vs. spy type mole that the IIPA was clearly designed to trap, and what really bothers me is that Tenet had to have known that fact when he signed the original referral. I've never bought the excuse that someone just slipped it into a stack of daily documents which he signed without bothering to read. The Plame contretemps was in full swing by the time the CIA forwarded its request to Justice.

As to Fitz' citing the Espionage Act on multiple occasions, it was, IIRC, to explain why the dangers of prosecution under that statute far outweighed any conceivable benefit.

[Rick Ballard]

Clarice,

If I recall my legislative history correctly, IIPA's construction was so severe because there was a fear of the CIA abusing covert status. The act placed a huge burden on the CIA to do their damned job in keeping a covert agent covert. IIPA definitely was a legislative reaction to Agee - but Congress wasn't about to give the CIA a free hand in criminalizing an event (outing an agent) that they were responsible for seeing did not occur.

[noah]

Clarice, I agree my comment was all wet and was suitably dismissed. But clear something up for me. In the debate here and elsewhere it has been argued that the NSA disclosures did not harm national security and therefore prosecution is either not warranted or not prosecutable. Others have stated that there is no burden to show harm to national security. Whats your take?

[clarice]

Yes, Rick.
Noah the IIPA requires a showing of harm to national security.

Going back to the absurd claim that the Espionage Act might have applied..the Fitz affidavit in the Miller case gives a very misleading summary of the Act as he claims it might possibly apply.Here's what he said:

footnote 15, p. 28 of this affidavit.

“If Libby knowingly disclosed information about Plame’s status with the CIA, Libby would appear to have violated Title 18, USC,Sec. 793 if the information is considered information respecting the national defense. In order to establish a violation of Title 50,USCSec.421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date we have no direct evidence that Libby knew or believed Wilson’s wife was engaged in covert work.”
Here is that section .http://www.capdefnet.org/fdprc/contents/past_newsletters/january_1995/title/18_usc_793.htm

I defy you to show how it could possibly have an application here.

[Rick Ballard]

JMH,

I believe that Tenet had to sign the referral due to administrative and morale issues. The protection of classified information cannot be subverted because of politics and if a referral was SOP - then it was SOP.

To me it's a "larger picture" issue. Tenet may well have known that Plame was gaming the system - btw what's her job today? - but you don't subvert the system to deal with a gamer - you crush them with the bureaucratic tools at hand.

Plame rolled the dice and lost. I just don't see why Libby should have to pay for it.

[cathyf]

My understanding is that the Espionage Act predates IIPA by several decades and that Congress passed IIPA because the Espionage Act did NOT cover disclosing the identity of an agent even if that identity was classified.

Just a minor point, but the Espionage Act was passed more than several decades before the IIPA, in 1917. It predates the entire classification schema by several decades -- the classification system started in 1952 with an executive order.

The Espionage Act has its own internal definition of what is a secret, and it specifically requires that a reasonable person believe that disclosing the information in question would cause material harm to the US in order to be found in violation. Congress certainly did not pass a law in 1917 that says, "It's illegal to disclose something designated by some system that won't be invented for another 35 years." For the Espionage Act to be in play the "classified" info in question has to pass the legal definitions in the Espionage Act. The idea that disclosing the ancient-history section of Valerie Plame's resume in 2003 had any national security implications doesn't pass the laugh test.

And the prosecutor's first duty in any investigation is to make sure that any "crimes" which he is investigating pass the laugh test. But again, I guess the rules are different if you are a Sooper Dooper Special Prosecutor.

cathy :-)

[David Walser]

AL - I'll throw you a bone: The requisite knowledge Libby would have needed to violate the law is not EXACTLY the same as knowing that Plame was "covert" as defined by the law. That is, if Libby knew that her identity was being protected, that the government was currently trying to protect her identity, and that disclosure of her identity would harm the national interest, he had the knowledge necessary to violate the statute. He would not have needed to know whether a one day trip to Paris was sufficient to have served abroad within the last five years.

However, the assertion that there has EVER been a legitimate question of whether Plame was covert for IIPA purposes is risible. Plame's covert status was disclosed by Aimes. It was disclosed as second time by the CIA, itself. For the 6 years before the Novak column, she was working at Langley and the CIA was taking no affirmative steps to establish her a new covert identity. The lack of covert status was apparent from the start. The only question was whether Fitz knew some fact that would show, despite everything to the contrary, that Plame really was covert. Maybe she kept an apartment in Beirut under the name of Nancy Drew and her marriage to Joe was just an elaborate cover. Most days she was whisked out of the country in some super-sonic jet to do great things for us. The more we learn about what Fitz knows, it's becoming all but impossible to maintain that there might be some missing fact that would change the perception on this question.

Worse is the revelation that Fitz has not ever fully explored this issue. Why not? The only plausible explanation is that he did not want to know the answer. Because knowing that no crime could have been committed would have made it ethically wrong to question Libby and the others. From my point of view, willful ignorance does not lessen the ethical violation.

[Jeff]

Why does UGO not face charges? Any clue?

Obviously, this is more speculative than usual. Options: 1)He may yet - in fact, I've been thinking for a while it was more likely that UGO gets indicted than that Rove does, though I may be wrong about that. 2)He's pled and flipped, having been forced into quite a deservedly tough spot by Woodward. 3) 1 and 2 mainly have to do with obstruction-type charges. As for the underlying charges, maybe Fitzgerald decided either that UGO didn't have the appropriate intent or state of mind to be charged with violations of IIPA or Espionage Act, or maybe he decided that he (Fitzgerald) was not confident of convicting UGO on charges relating to crimes he believed UGO committed, as appears to be the case with Libby. Now, if it's the latter, then UGO definitely has to end up charged or pleading on obstruction-type charges; if it's the former, harder to say, I suppose. I really have no idea at this point which of all these options is more likely.

[noah]

Clarice, my question was whether the prosecution must prove whether national security was damaged in the course of prosecuting the NSA leaks which presumably would be under the Espionage Act.

[cathyf]

2)He's pled and flipped, having been forced into quite a deservedly tough spot by Woodward.

Wow, is it really possible to plead guilty to a crime in the United States and not have it be a matter of public record?

cathy :-)

[clarice]

Jeff,"More speculative than ususal", indeed.
Let's start with why the Prosecutor was so desirous of protecting the reputation of the leaker in court if he's about to indict him?
Answer that, and I'll read what you are speculating.

[Gary Maxwell]

willful ignorance does not lessen the ethical violation.

Dante had another level of hell specifically for those who chose not to know so as to claim no ethics viloation, didn't he?

[noah]

topsecrtk9, thanks...somehow I missed that fact somewhere along the line. :-)

[clarice]

Noah--yes it does, and since both the President and the head of the CIA said that leak was very damaging to national security, I'd guess they've done and assessment and found that to be so.

Gary:Lasciate ogni esperanza voi che entrante.

[Jeff]

cathyf - I'm not sure I quite understand, because Fitzgerald did indict Libby on the basis of that narrative. And I'm getting this from the account of the all the ways in which Libby's and others' testimony contradict each other. Libby needs each and every one of the points on which the other witnesses' testimony contradicted his to break in his favor for his story to hang together. Likewise, the fact that he is contradicted at each one of these points is part of what makes the case against him stronger than just a matter of several discrete contradictions. Just as all of the contradictory points go together for Libby, the fact that they are all contradicted by others makes it more persuasive that Libby was lying.

I suspect part of our disagreement is that I am, and have consistently been, more skeptical than most of you here that Libby's testimony is so unclear. In that regard, I am joined not only by Fitzgerald, of course, but by the grand jury who heard Libby, by the FBI agents who interviewed him, and by Tatel, perhaps among others.

This is part of my question: is the defense going to claim, do you think, that Libby was just unclear in his testimony, or that he gave a coherent account that was simply mistaken as a result of faulty memory? And are they specifically going to claim that he never meant to claim that he felt as though he were learning from Russert about Plame for the first time, or that he did claim that, but when he claimed it in the fall of 2003 and spring of 2004, he was simply mistaken in his memory for very understandable reasons?

[noah]

And the answer at this particular moment is "liberal dunce"! Good point, Cathy!

[Tollhouse]

Ames, Agee, Plame, whatever. In clarice's defense, it's certainly hard to keep all the various charlatans that have been gainfully employed at the CIA straight.

[clarice]

Cathy, another great contribution from you.

I wonder if Tatel has yet awakened to the wool Libby was pulling over the Court's eyes. Have the other judges? Should Fitz take sick leave when any issue in the case winds up there again?

[Gary Maxwell]

Or maybe its cuz there is no crime here period. Much simpler explanation.

[clarice]

Tollhouse, the only deponent I ever faced who lied from beginning to end was a CIA officer, and he didn't break a sweat while doing it.

[Sue]

Jeff,

The Judge said Libby couldn't know who UGO was, because his privacy was important and he was facing no charges. That doesn't sound to me like he has pled or is facing any charges.

[David Walser]

"And are they specifically going to claim that he never meant to claim that he felt as though he were learning from Russert about Plame for the first time, or that he did claim that, but when he claimed it in the fall of 2003 and spring of 2004, he was simply mistaken in his memory for very understandable reasons?" - Jeff

I've always thought the claim would be he answered Russert AS IF he was hearing for the first time. In other words, he was testifying that he was feigning surprise when Russert told him what he did. I'd have to see the transcript of the entire session to see if this spin hangs together, but it seems plausible that he meant to convey on impression and conveyed another. Since Fitz was looking for perjury that's what he found; not a moment of being less than articulate.

[Gary Maxwell]

Gary:Lasciate ogni esperanza voi che entrante.

No fair with the latin. I was raised a Protestant and the public school did not instruct in it. My modicum of Spanish gets to something about waiting.

[clarice]

We could prepare a list of Fitz' ethical transgressions and send it to the Office of Professional Responsibility to investigate.
Under his sooper dooper appointment he's not under the supervision of the AG, but he wears another hat as a US Atty and as such his ethical responsibilities are under their purview.
Let's see:
(a) pursuing an investigation without first investigating the threshold questions:
(b) making misleading statements to the US Ct of Appeals in the Miller case;
(c) making statements in his presser and in the indictment for which he had no proof nor any intention to prosecute.

[clarice]

Gary--My latin is non existent but it's the sign over the Inferno ..abandon hope all ye who enter here.