JustOneMinute: 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.