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

[MJW]

An interesting question, which as far as I know hasn't been answered, is: Did Fitzgerald tell the appeals court (the one Tatel sat on) that he knew who Novak's source was, and it wasn't Libby?

I recently re-read the affivavit Fitz filed, along with the court's opinion, and, though there are redactions that make any conclusion uncertain, I doubt that he did.

In the Aug. 7, 2004 affidavit Fitzgerald filed with the appeals court, it's possible footnote 3 might reveal Novak's source. The footnoted sentence is:

While the initial reporting regarding Ms. Plame's employment was in a column by syndicated columnist Robert Novak (2) the investigation of unauthorized disclosures is not limited to disclosures to Novak. (3)

Footnote 2 reads:

Novak authored a July 14, 2003, Chicago Sun Times column revealing Plame's purported association with the CIA. (A copy of that column is annexed as Exhibit C.)

Footnote 3 reads:

REDACTED (4 lines, I believe)
In seeking to determine the sources for these disclosures, and the motives for the disclosures, the investigation also necessarily has sought to determine whether, as was reported in The Washington Post in September 2003, administration officials called a number of other members of the media in order to reveal information about Ms. Plame. The investigation has focused primarily on disclosures pre-dating July 14, 2003, the date of Novak's column.

I think the section of Novak's column makes it unlikely that Fitzgerald reveals in this footnote that the Novak mystery has been solved. In a section titled "The Novak Column," Fitz says:

14. On. Monday, July i4, 2003, Robert Novak published his syndicated column revealing that Wilson's wife was an "agency operative on weapons of mass destruction." Novak also reported, "[t]wo senior administration officials told me his [Wilson's] wife suggested sending Wilson to Niger to investigate the Italian report." A Time magazine piece authored by Mr. Cooper (as well as several coauthors) entitled "A War on Wilson?" appeared on the Internet later that week (July 17) which stated:

And some government officials have noted to Time in interviews (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction. These officials have suggested that she was involved in her husband's being dispatched Niger to investigate reports...

(Copy annexed as Exhibit F.)

15. A Newsday article the following week quoted an intelligence official as confirming Valerie Plame's purported status as a CIA employee. (Copy annexed as Exhibit D.)

16. The media published more information in the fall of 2003 confirming that Novak was not the only reporter contacted during the relevant period. The September 28, 2003, Washington Post reported that one unidentified source had advised that two top White House officials had contacted at least six reporters prior to the time that Novak published his July 14 story. (Copy annexed as Exhibit G.) The October l2 Washington Post story by Pincus and Allen revealed that a Washington Post reporter had been told about Wilson's wife's employment by an
administration official on July 12, two days before Novak's column was published. (Exhibit E.) And Novak himself described the circumstances of his contact with his two administration sources in his October 1, 2003, Chicago Sun Times column. (Copy annexed as Exhibit H.)

There is certainly nothing in this section to indicate Fitzgerald knows the identity on Novak's primary source.

[clarice]

No. It would appear he did not.

[topsecretk9]

MJW - Why does he include #15? Do you have any idea? I don't, he didn't follow-up on their subpoena's so he's just fudging (with fingers crossed) as far as I am concerned.

It is a mystery to me why Fitz has been so married to the "public record". I know it's practically covert, BUT the NYT's, WAPO etc... DO have correction pages AND, as Hubris illustrates, when they get their sources all crazy like (Senior Admin? OH, we meant lowly flack, never-mind) they don't exactly rush to correct the "record"

as was reported in The Washington Post in September 2003, administration officials called a number of other members of the media in order to reveal information about Ms. Plame. The investigation has focused primarily on disclosures pre-dating July 14, 2003, the date of Novak's column.

Read Hubris, Mr. Fitz!

[JM Hanes]

Fitzgerald's affidavit to the Tatel court was almost as outlandish as his pre-indictment press conference -- and even more cynically disingenuous. I'm still astonished that he managed to get Tatel to endorse letting a lesser crime pinch hit for a larger crime that can't be proven.

[clarice]

JMH I'm not sure I get your point. Tatel in any event took a position not adopted by the other two members of the panel.

It was disingenuous though, wasn't it. It suggests that he is seeking the source of the leak to Novak as well as other leaks.

[clarice]

Any notion on why Isikoff and Corn rushed this book out now. While, of course, the Armitage thing was not widely known before, but someone at NRO suggested Corn wanted to get it our offensively now to try to cover up his role in this travesty.

[MJW]

TSK9 asks why Fitz included paragraph 15 in the Novak section. I was also puzzled, until I read the Newsday article, which is more or less a rehash of Corn's column. I think Fitz mentioned it because it forcefully put forward the storyline he bought into.

[clarice]

Very good catch MJW.

[MJW]

I should add, the Newsday article forcefully put forward the storyline Fitz wanted the appeals court to buy into.

[clarice]

Frank Anderson the ex-Cia officer who says how terrible the outing is in the Newsday article is of course one of the CIPS.
http://72.14.203.104/search?q=cache:sfwKOb0HCxgJ:www.tnr.com/doc.mhtml%3Fi%3D20060612%26s%3Dscheiber061206+Frank+Anderson+Veteran+Intelligence+Professionals+for+Sanity&hl=en&gl=us&ct=clnk&cd=1>Vips

[clarice]

****VIPS***

[clarice]

Now who was this man quoted by Newsday:
"A senior intelligence official confirmed that Plame was a Directorate of Operations undercover officer who worked "alongside" the operations officers who asked her husband to travel to Niger.

But he said she did not recommend her husband to undertake the Niger assignment. "They [the officers who did ask Wilson to check the uranium story] were aware of who she was married to, which is not surprising," he said. "There are people elsewhere in government who are trying to make her look like she was the one who was cooking this up, for some reason," he said. "I can't figure out what it could be."

"We paid his [Wilson's] air fare. But to go to Niger is not exactly a benefit. Most people you'd have to pay big bucks to go there," the senior intelligence official said. Wilson said he was reimbursed only for expenses"

Fulton Armstrong?
Pilar?
Someone working with VIPS?

[MJW]

Clarice, I believe JMH is referring to the following assertion in Tatel's opinion:

Finally, while it is true that on the current record the
special counsel’s strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel’s identification of culprits, perjury in this context is itself a crime with national security implications. What’s more, because the charges contemplated here relate to false denials of responsibility for Plame’s exposure, prosecuting perjury or false statements would be tantamount to punishing the leak.

This clearly parallels Fitz's belief, as stated later in the press conference, that:

But at the end of the day, I think I want to say one more thing, which is: When you do a criminal case, if you find a violation, it doesn't really, in the end, matter what statute you use if you vindicate the interest.

If Mr. Libby is proven to have done what we've alleged -- convicting him of obstruction of justice, perjury and false statements -- very serious felonies -- will vindicate the interest of the public in making sure he's held accountable.

It's not as if you say, "Well, this person was convicted but under the wrong statute."

Whether it originated with Fitz in his argument to the appeals court, or whether Fitz adopted it from his co-prosecutor, Tatel, I don't know.

[clarice]

Thanks. I just couldn't recall his specific comments. In fact, however, in its present form, that has proven to be false, hasn't it.

Niters.

[topsecretk9]

"We paid his [Wilson's] air fare. But to go to Niger is not exactly a benefit. Most people you'd have to pay big bucks to go there," the senior intelligence official said. Wilson said he was reimbursed only for expenses"

Makes you wonder why the CIA or retired assholes was in such a hurry make a trip the same guy made, in what we KNOW the same fashion seem like a hardship, a drag...Wilson cleared his calendar, booked the trip and boogied the day he supposedly got the green-light....I can tell you today, as much as I'd take the all exspenses paid, it would take me slightly more than 1 day to get to get after-school care.

[topsecretk9]

OK...here is a question..why did he even subpoena these newsday cats, in light of him knowing about Armitage in the first place?

(and then never follow through, which has been answered, and I still think it was a shotty investigation)

[topsecretk9]

given the reasons he used Newday, I should add.

[topsecretk9]

The Committee to Protect Journalists is alarmed by 18-month prison sentences and heavy fines handed down against the director and editor of the Niger private weekly Le Républicain on charges of defaming the government and publishing false news. A court in the capital, Niamey, found Director Maman Abou and Editor Oumarou Keita guilty on both counts and returned them to prison where they have been for the last month, according to their lawyer and news reports.

The two have been in jail since August 4 in connection with a July opinion piece suggesting that Prime Minister Hama Amadou’s foreign policies were “deserting the West for Iran.”

http://www.cpj.org/news/2006/africa/niger05sept06na.html

[Daddy]

I think Corn believed that his personal role in helping launch this entire beltway soap opera was gonna' raise him to the iconic status of a Woodward and Bernstein. And why not? A gaga-eyed MSM was just swallowing the script whole. The self-righteous drivel of that dreamily coifed, bunko yellowcake debunker. The "Behesting" Dick Cheney and his villainous cabal of frogmarching co-conspirator's, hell bent on revenge. The cheesecake photo-shoots of the fetching (and privacy loving) Agent Valerie, so wrongfully revealed in all her tender vanity as the Who's Who of Foggy Bottom victimettes. And to top it all off, a baseball talking Inspector Javert, whose sense of Justice is dwarfed only by his stench of Injustice. Shakespeare would kill for such a cast of Shylock's and Desdemona's. Toss in a couple numbers from Leonard Bernstein and this thing'd be on Broadway till our grandkids are speaking Arabic.
And to think, that Corn's dream of becoming Woodward got shot down by none other than Woodward himself. Betch'a Bernstein would'a kept his mouth shut. Damn the bad luck. Ah well Dave, that's Hubris.

[Bob]

Looks like "poor"">http://www.variety.com/vstory/VR1117950338?categoryid=38&cs=1poor"">"poor" Joe needs all the help he and Val can muster.

"The monies will go toward legal expenses in their case against members of the Bush Administration for leaking Plame's identity as a covert CIA officer."

He was also trolling the http://www.nj.com/news/jjournal/index.ssf?/base/news-1/1158647150245850.xml&coll=3>Menendez campaign too!

Nothing like jumping on a sinking ship... attaboy Joe, add to Menendez's troubles!

[Rocco]

"A senior intelligence official confirmed that Plame was a Directorate of Operations undercover officer who worked "alongside" the operations officers who asked her husband to travel to Niger.

The forgeries were found in the DO CPD safe. They were placed there on Oct 16, 2002 when the IC finally received copies from Rome. A meeting was convened the following day with all the differing IC bureau's. This is when an INR nuclear analyst noted the "funky emblem."

So the IC knew in mid October that the documents were forgeries! Everything that happened after that meeting must be evidence of a plot to bring down a sitting president.

Page 58 of the SSCI

(U) On October 16, 2002, INR made copies of the documents available at the NIAG meeting for attendees, including representatives from the CIA, DIA, DOE and NSA. Because the analyst who offered to provide the documents was on leave, the office's senior analyst provided the documents. She cannot recall how she made the documents available, but analysts from several agencies, including the DIA, NSA and DOE, did pick up copies at that meeting. None of the four CIA representatives recall picking up the documents, however, during the CIA Inspector General's investigation of this issue, copies of the documents were found in the DO's CPD vault.

[Jeff]

So the IC knew in mid October that the documents were forgeries! Everything that happened after that meeting must be evidence of a plot to bring down a sitting president.

I love the reasoning in that paragraph! I can't wait to see how you explain the December communication between an INR analyst and a DoE analyst where they complain about the fact that the fools at Winpac - who were telling the administration what they wanted to hear - were being allowed to drive the narrative about Iraq's wmd program on things like Niger, and how it would end up making the administration look bad. Was that part of the plot? Was Winpac in on it, contrary to all appearances? Or was that a false complaint, put there so that later, they could explain they tried, when in fact they stood aside and let Winpac do its dirty work?

[Jeff]

I recently re-read the affivavit Fitz filed, along with the court's opinion, and, though there are redactions that make any conclusion uncertain, I doubt that he did.

In order to stop this from becoming a Known Fact in the pages of the Weekly Standard and on the Wall Street Journal op-ed page, let me point out that you are almost certainly wrong and that you are looking in the wrong place in the 8-27-04 affidavit. The place where the leaks are specified is almost certainly paragraphs 12 and 13, which is part of the section setting forth the general factual background on the investigation. That's where they fit chronologically (not where you try to say they're missing) and observe that footnote 4 is attached to part of the redacted material, and it goes into the meaning, as understood by various officials interviewed, of "on the record," "background," "deep background," and "off the record" comments. That footnote is almost certainly attached to a description of the leaks to reporters he knew about at the time, including Armitage's and Rove's leaks to Novak.

[verner]

Rocco

Just go to the Vanity Fair Website and read that sham of a piece written by Unger that is sourced exclusively by Joe's VIPS buddies. The plot is clear. Get Ledeen and the neo-cons (Cheney).

But Joe tripped them up with his big faux pas.

As for WINPAC, plenty of analysts found evidence that Iraq sought uranium from Saddam. Hitchens, and others, have documented this quite well. Then there's A Q Kahn. The only people who were trying to cook the evidence were Val's buddies. Why? We still don't have the big picture, but I would imagine it either has to do with CYA for a major failure on their part, or some other nefarious reason. And Joe, with his "Rock Creek" connections, and involvement through the 1999 trip is likely in on it.

All of the BS on Valerie's classified status is one of their last gasps, and an attempt to intimidate the administration (Gonzales) and others from looking further into their dealings. It doesn't matter what Libby said because every Journalist he discussed Valerie with already knew who she was--thanks to the Wilson's leaking classified information to journalists like Pincus, Kristoff, Judis and Corn, or Armitage's big mouth. And Fitz knows it. Further, Comey knew it before he ever appointed Fitz.

[verner]

Make that Sought uranium from Niger.

[Pofarmer]

OT

On the McCain Brouhaha

"Let's kill all the military Lawyers"

http://www.strategypage.com/htmw/htlead/articles/20060919.aspx

[Cecil Turner]

. . . who were telling the administration what they wanted to hear . . .

With the exception of that little faith-based parenthetical, I'd have to agree. Proffering the forgeries to IAEA made the whole CIA look like buffoons. The idea that they did it intentionally is hard to credit.

In order to stop this from becoming a Known Fact in the pages of the Weekly Standard and on the Wall Street Journal op-ed page

Now that is hilarious. As if the WS or WSJ could hold a candle to the WaPo or NYTimes when it comes to making up facts in this case (e.g., "debunking"; "behesting"; documents "false on their face"; "stovepiping"; "President authorized leaking Plame's identity"; "covert"; "Libby lied about Key Judgments").

That said, I agree that the Armitage info is probably in the redacted paragraphs, and on this point Fitz is probably only guilty of over-emphasizing the 1x2x6 story (e.g., "advised" rather than "claimed"), and suggesting through placement that they relate to Novak's sources. More troubling is this, redacted from the affidavit but present in Tatel's opinion:

Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as “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”—representations I trust the special counsel would not make without support. [emphasis added]

This is clearly a misuse of the term "covert," and Fitz's intent (to imply Val is covered by the IIPA, when he had to know that was dubious at best) is also obvious.

[Sue]

What about other truly covert agents? When they tire of the excitement, do they too slide into more routine jobs with the agency?

It's hard to say, since those that are truly covert agents don't allow their spouses to bring attention to them by lying about what they didn't find in Niger.

[verner]

“a person whose identity the CIA was making specific efforts to conceal"

And other than a phoney, flimsey "Brewster Jennings" cover, that statement is also debatable.

The specific efforts obviously did not include:

a) mentioning her name in a memo and

b) Harlow confirming to Novak, not only her employment, but quite a few details about her--a huge no no.

As I said before, one mistake you could see, but two? Forget it.

And Fitz knew all of that.

[jerry]

Just a quick quote from "Inside the Ring" by Gertz and Scarborough in the Washington Times -- supporting Joe Wilson:

"Wilson's right
Former Ambassador Joseph C. Wilson IV is hard-pressed to find evidence of a conspiracy inside the White House to out his wife, Valerie Plame, as a CIA operative.
But in the end, he appears to have been right when he wrote in a 2003 New York Times op-ed that Iraq never talked to Niger about buying more yellowcake, a processed uranium that can be further refined into weapons-grade material."

Haven't followed the discussion recently, everyone's sure been busy though.

[cathyf]

during the CIA Inspector General's investigation of this issue, copies of the documents were found in the DO's CPD vault.

This is kind of off-topic, but when they refer to the "DO's CPD vault" I don't think they mean a safe in an office, but the entire CPD office. At Langley, the entire building is made up of giant walk-in vaults. Imagine one of those big bank vaults with the giant door, but 20x bigger and full of desks and people rather than safe-deposit boxes. Space is pretty cramped (it's not like it's simple to just call a contractor and add on.) Imagine a cramped cubicle zoo like a call center, but with 3x as many people and stuff crammed in there, and of course crappy old trashed furniture. (The government can spend $700 on a toilet seat, but when it comes to giving an employee a desk and chair made after 1960 they suddenly get all financially prudent.)

The whole "we lost it in the vault" story sounds pretty flakey when you are thinking of a little safe in an office. But if they are saying, "we found it on a secretary's desk, halfway down a pile of other stuff," well ok that's flakey, too, but in an entirely different way.

[Patrick R. Sullivan]

'The difference with Operations Officers, I take it, is more or them keep a day job even in the States; though I don't really know.'

Almost certainly not. The CIA is prohibited from spying inside the USA.

Btw, what was the name of the babe who had a website advertising her former NOC status only TWO years gone. I think she's either a VIPSter or a pal of Scary Larry.

[Patrick R. Sullivan]

'Proffering the forgeries to IAEA made the whole CIA look like buffoons. The idea that they did it intentionally is hard to credit.'

Cecil, isn't there a saying among enlisted men, that 'if you want to make the top sargeant look like a fool...follow his orders'?

[verner]

Jerry, just read it. They are basing that conclusion on the phase II report.

Go see Hayes and Hitchens in this weeks WS. They demolish it.

[clarice]

Daddy, I once tried to write the entire thing up as a comic opera and gave up. It was beyond my capacity.

Cecil--that passage is the one in Tatel's opinion that most stuck in my mind. It most certainly was taken from a very disingenuous statement in Fitz' affidavit and for the longest time was used by Wilson defenders to argue there was proof Plame met the IIPA test.

Reading thru this I am struck how similar we are to Talmidic scholars who each day go theu a passage in the Torah and its interlineations to debate its meaning.

[clarice]

***TalmUdic***

An online friend who was reading this discussion made, I think, an excellent point I'd like to share with you:

"I noticed in the JOM discussion of Fitz and Tatel's opinion that Tatel said:

the charges contemplated here relate to false denials of responsibility

It certainly looks like Fitz persuaded Tatel that the perjury/obstruction charges did relate to responsible parties, that Libby's claimed obstruction impeded Fitz from discovering the leaker(s). In light of this state of mind on the part of Tatel, it is possible that failure to disclose Armitage's known role influenced the opinion to such a degree that it should be either revisited or a new court could take up this issue of misrepresentation.

I notice that Fitz says his investigation covers the Novak lead and other leaks. This seems to be an allegation that the WH leaked to Novak and others. From other information it appears certain that Fitz knew about Armitage's role--he assured Armitage he wouldn't be prosecuted. Fitz's wording conflates Armitage's leak to Novak with Libby/Rove's quite apparently innocent conversations with othe reporters, presenting a materially false impression of facts that Fitz already had determined: that whether or not Libby/Rove's recollections of those conversations were accurate, they were entirely benign as to Plame even when the reporters' recollections are accepted at face value. There seems no escaping that Fitz intentionally mislead the court. "

[Patrick R. Sullivan]

Okay, here she is

'Melissa Boyle Mahle risked her life as a CIA field officer in the Middle East until her departure from the Agency in 2002.'

And published 'Denial and Deception' in 2005. Under the Flexible Five Year Plan?

[Jeff]

Cecil

That bit is not redacted from Fitzgerald's affidavit, and it is significant for two reasons. First, it shows that Fitzgerald has a different interpretation of the IIPA from Toensing. He is clearly glossing the definition of a covert agent in the statute, and equating the "serve abroad within the last five years" clause as having "carried out covert work oversease within the last 5 years." Fitzgerald may be wrong - presumably that would need to be worked out through litigation. But it definitively shows that Toensing is flat wrong when she contends that Fitzgerald knew from the outset that no crime had been committed because the IIPA was not applicable to Plame. (There is an additional reason why she's wrong, which is that the grand jury was also investigating possible violations of the Espionage Act. Toensing can argue all she wants that the Espionage Act doesn't apply, but again, even if she's right, the fact remains the grand jury was investigating possible Espionage Act violations, and any determination that that Act could not apply here would have to be made in the course of litigation.)

Second, Tatel might seem to take too strongly Fitzgerald's rather more conditional statement (especially with the "knew or believed") in taking it as a sign that Plame was covert under the IIPA understanding. But I suspect Tatel know and take fairly straightforwardly the bit of legislative history that says that to identify someone incorrectly as a covert agent is not a crime under the IIPA. So the point is that if Libby believed Plame was covert under the IIPA, but he was wrong, he could not be charged under the IIPA. Therefore, Tatel is on good grounds as taking Fitzgerald's footnote in his affidavit as a statement of his conviction that the IIPA applied to Plame.

Again, it could turn out that the courts wouldn't agree with Fitzgerald's argument about the statute. Presumably Toensing's own current interpretation of the statute is different. But for Toensing to argue that Fitzgerald knew there could be no violation of the statute is evidently incorrect.

[boris]

whether or not Libby/Rove's recollections of those conversations were accurate, they were entirely benign as to Plame even when the reporters' recollections are accepted at face value

What can the "keep hope alive" crowd be after given wht is known? Sure they may oppose and detest Cheney & Co but clearly there is no there there.

They must suspect, or have subjectively speculated themselves into believing that Libby/Rove did set out to smear the Wilsons with 6 or more reporters who have not been discovered yet because of Libby/Rove's obstruction. What else could fuel their steadfast hostility in the face of so much debunking?

[verner]

Mahle published her book through the Nation Institute's "Thundermouth Press. Need I say more? OK, I will--she was also interviewded on book TV by Dana Priest.

She also has had some dealings with the VIPS and signed a letter in support of Valerie.

Although, as you point out, blowing her cover, and putting her face on TV has obviously not hurt any of the "covert" agants she worked with in the ME.
end/dripping with sarcasm>

[verner]

What else could fuel their steadfast hostility in the face of so much debunking?

Face Saving and denial. These people have devoted their lives to this crusade. When I call it the cult of Wilsonista, I'm not really kidding. The psychology is much the same.

[maryrose]

In the WSJ today there is a report that muslims blame the USA for Pope Benedict's remarks. Someone said yesterday on this blog that it wouldn't take long to blame us for this latest misunderstanding. Anyone threatening violence for the pope needs to be removed from any position of power immediately. Where are the moderate Muslims on this? All you hear is silence. Disgraceful.

[boris]

for Toensing to argue that Fitzgerald knew there could be no violation of the statute is evidently ...

For Toensing to argue that Fitzgerald knew, or should have known there could be no violation of the statute is evidently reasonable.

After all Fitz is a well financed highly esteemed leagal superstar. Toensing no doubt has a phone and any question Fitz might have could easily be answered. One Rather suspects Fitz was on a mission and was willing to exploit language in order to vindicate the interest and prosecute perjury or false statements as tantamount to punishing the leak.

[clarice]

The other day Patton did a very amusing replay of the Fitz presser interlineating the known fact about Armitage having been the leaker. If one did the same thing with the unredacted portions of the affidavit to the Miller Court we'd see how misleading it was.

Jeff certainly doesn't think so, I realize, but I think that is beyond serious debate.

[Jeff]

Jeff certainly doesn't think so, I realize, but I think that is beyond serious debate.

How convenient for you! That's a good debater's trick: declare your weakly grounded argument to be beyond debate. Nicely done.

Toensing no doubt has a phone and any question Fitz might have could easily be answered.

Oh that is too funny. Fitzgerald informs us in his affidavit about the personnel with whom he conducted the analysis of statutes. I can't say I'm shocked that they had the good judgment not to call Toensing. I take it the opinions of someone involved in drafting a statute voiced only twenty years later in the context of a highly charged case, even where said drafter is not a partisan hack masquerading as a dispassionate legal observer, does not really count as part of the legislative history.

[boris]

a partisan hack masquerading

Regardless of what you think of Toensing, her point is either correct or not. A trip overseas either qualifies for IIPA or it doesn't.

If the Fitz claim is obviously incorrect, who points that out is irrelevant. Fitz appears to be deliberately and willfully ignorant on this detail.

[boris]

One Rather suspects Fitz was on a mission and was willing to exploit language in order to vindicate the interest and prosecute perjury or false statements as tantamount to punishing the leak.

Just want to add ... Regardless of what Fitz believes, it's clear at this point "the leak" is not legally punishable, yet apparently many are still full on to vindicate a hostile interest and prosecute perjury or false statements as tantamount to punishing a leak that deserves no punishment.

Why?

[clarice]

Is the affidavit in html form anywhere. If it is we can post it and write in at each critical juncture what we know about Armitage's confession and see what we think.

It seems obvious to me that the Court was not informed of that and moreover that Fitz piggybacked onto the leak to Novak a suggestion that this benign, inconsequential, remarks to reporters constituted further similar leaks when we all know they did not.
And I seriously doubt that if the Court had known that, it would have taken the unprecedented step of finding Miller in contempt for which she spent 85 days in jail.

[Sue]

Why is everyone surprised that Fitzgerald would take a liberal view of the IIPA? He classified Wilson as a whistleblower, even though he didn't meet the qualifications, didn't follow procedures if he did meet the qualifications, revealed classified information, some of which he shouldn't have had access to, either that or his wife was also a source.

Good leaks vs bad leaks. That is the case Fitzgerald was/is pursuing. His pleadings discuss the pushback by the WH against Wilson. Not his wife, necessarily, but Wilson. Politics made criminal.

[lurker]

Perhaps if the Team Libby adds Toensing and her co-author of IPPA and those authors of the Espionage Act to their defense witness list to explain IIPA and Espionage Act, they would blow Fitz away with his glossing (mis)interpretations of both IIPA and Espionage Act?

[boris]

Unfortunately lurkster the IIPA and Espionage Act have already done their duty as facade for a counterfit investigation. Now that their are differences in testimony they can prosecute memory lapses in place of actual violation of law that never applied.

[Sue]

How ironic is it if the democrats take back the House in November and start impeach proceedings, one of the witnesses for the defense of Bush will be Fitzgerald? ::grin::

[lurker]

"Jeff certainly doesn't think so, I realize, but I think that is beyond serious debate.

How convenient for you! That's a good debater's trick: declare your weakly grounded argument to be beyond debate. Nicely done."

Actually, I think it's a strongly-grounded argument. :)

[lurker]

Now that we *know* that Plame was not covert, is there any proof that Plame was NOC?

Besides, since Joe Wilson was proven as a liar, how do we know he's telling us the truth that Plame was NOC?

Funny how Corn interprets NOC as a deep cover version of covert.

[Jane]

I take it the opinions of someone involved in drafting a statute voiced only twenty years later in the context of a highly charged case, even where said drafter is not a partisan hack masquerading as a dispassionate legal observer, does not really count as part of the legislative history.

With all due respect, where else could you go to get a better understanding of the statute?

[lurker]

OT:

Anyone think tax cuts hurts the economy?

Read this Largest tax receipts on Sept 15

[lurker]

As for a highly charged case, it really did not need to be a highly charged case as it turned out to be a...MISSING case!

[Jeff]

where else could you go to get a better understanding of the statute?

Though I'm tempted to say that when it comes to Toensing, you could look pretty much anywhere. But the serious answer, I take it, is the standard one: you look at the statute to see if there's a definition (nope), you look at the caselaw to see if there's any interpretation of the relevant phrase (nope, as far as I can tell), and then you look at legislative history. Beyond that, you go into court and the lawyers make their best arguments, based on the purposes of the statute and that sort of thing. And again, as Tom himself suggests, Toensing's positions now, regardless of the fact that she repeats ad nauseam that she was an author of the statute, don't carry any more weight than anyone else's, especially given her rather prejudiced view of the whole matter.

[maryrose]

Jeff:
Toensing is not a partisan hack masquerading as a knowledgeble source. She is someone a lot more familiar with the law than Wilson Plame or Corn or for that matter YOU!

[lurker]

"Beyond that, you go into court and the lawyers make their best arguments, based on the purposes of the statute and that sort of thing. And again, as Tom himself suggests, Toensing's positions now, regardless of the fact that she repeats ad nauseam that she was an author of the statute, don't carry any more weight than anyone else's, especially given her rather prejudiced view of the whole matter."

Toensing doesn't appear to be prejudiced over the IIPA and Espionage Act. She's basing years of experience dealing with CIA referrals to conclude that Plame is not covert. I believe she does carry far more weight than anyone else's that did not handle as many CIA referrals as she did, especially those lawyers and analysts working for Fitz that had no or little experience in handling CIA referrals.

Bottom line, she is the correct source.

[clarice]

Rick had kindly posted the affidavit on YARGB http://yargb.blogspot.com/2006/01/fitz-affidavit.html and I have copied portions of it.

Let the interlineation(in italics) begin:

Wilson, who was not a government employee at the time of the trip and REDACTED PLAME who if she spoke about this was revealing classified information, wasn't she?spoke to several reporters, including Nicholas Kristof of the New York Times and Walter Pincus of the Washington Post, who wrote articles on May 6 and June 12 respectively concerning Wilson's trip to Niger, without naming Wilson. The articles called into question the accuracy of the "16 words." Those news stories generated significant conversation within and between the Office of the Vice President, the CIA, the State Department and the White House as to the circumstances under which Wilson's trip was undertaken.
I-SECA-4

The Wilson Op Ed Piece

10. On July 6, 2003, Wilson authored an Op-Ed piece in the New York Times entitled “What I Did Not Find in Africa” and was interviewed for an article in the Washington Post about his trip. Both items appeared in the July 6 editions of the respective newspapers. Also on July 6, Wilson appeared as a guest on Meet the Press, hosted that day by Andrea Mitchell. Those media appearances by Wilson generated heightened media interest and increased frustration in the Office of the Vice President that the Vice President was being identified incorrectly sd the person sending Wilson on his trip. As a result of press inquiries at the White House the day following the articles and Wilson’s television appearance, White House Press Secretary Ari Fleischer stated at a July 7, 2003 press “gaggle” that the Vice President had not requested Wilson’s trip, had not been aware of it and had not been briefed on the results.
REDACTED
11. Thereafter, the issue of how the “16 words” came to be in the State of the Union was a very prominent issue during the week of July 7 to July 12, while the President and several cabinet members were on a trip to Africa. The attention was increased in part by remarks by National Security Adviser Dr. Condoleeza Rice on Air Force One on July 10, 2003, which appeared to attribute blame for the “16 words” to the CIA. On Friday, July 11, 2003, CIA Director Tenet issued a written statement accepting responsibility for the inclusion of the “16 words” in the State of the Union address.
(snip)

The Novak Column

14. On. Monday, July i4, 2003, Robert Novak published his syndicated column revealing that Wilson's wife was an "agency operative on weapons of mass destruction." Novak also reported, "[t]wo senior administration officials told me his [Wilson's] wife suggested sending Wilson to Niger to investigate the Italian report.”The source of this was Armitage the CIA’s Harlow and Novak said somehing like he’d heard that, too when Novak asked him A Time magazine piece authored by Mr. Cooper (as well as several coauthors) entitled “A War on Wilson?” appeared on the Internet later that week (July 17) which stated:
(snip)

15. A Newsday article the following week quoted an intelligence official as confirming Valerie Flame's purported status' as a CIA employee. (Copy annexed as Exhibit D.)And if I didn’t have my head in a dark place, I’d have realized that this guy was working with Wilson and the VIPS who were openly encouraging intel officers to leak secret information to the press. In fact, this guy’s quote is useful to me because I can fool them into thinking Plame met the IIPA test when I have no evidence to suggest that was true.

16. The media published more information in the fall of 2003 confirming that Novak was not the only reporter contacted during the relevant period.Woodward was told specifically, too, by Armitage but under my “Don’t ask, don’t tell” policy and Woodward’s don’t waive policy, I found out too late to tell this Court. The September 28, 2003, Washington Post reported that one unidentified source had advised that two top White House officials had contacted at least six reporters prior to the time that Novak published his July 14 story. (Copy annexed as Exhibit G.) The October l2 Washington Post story by Pincus and Allen revealed that a Washington Post reporter had been told about Wilson's wife's employment by an

I-SECA-6
REDACTED

administration official on July 12, two days before Novak's column was published. (Exhibit E.) And Novak himself described the circumstances of his contact with his two administration sources Actually three sources-ARMITAGE, HARLOW and ROVE, the last of whom merely confirmed that he, too, had heard what the first two told Novak but then became prey for my witch hunt costing him about $5 million legal fees and god knows how much tsuris. The two who did tell however are "good leakers" and they're okay by me.in his October 1, 2003, Chicago Sun Times column. (Copy annexed as Exhibit H.)

The Instant Subpoenas

17. The instant subpoenas to New York Times reporter Miller concern conversations between I. Lewis Libby, a/k/a "Scooter Libby," and reporter Miller in July 2003though I blindsided her and asked her at the gj about a previous conversation with Libby. She was so afraid I'd put her ass back in jail that she rushed me those notes and when I then breached our agreement and asked her to name the other obvious sources in her notes, she did what I hoped she'd do and said she couldn't recall and related documents. Libby, a subject of this investigation who has testified twice before grand jury to date, is Assistant to the President, Chief of Staff to the Vice President, and Assistant to the Vice President for National Security Affairs.
REDACTED

81. The testimony of reporter Miller is central to the resolution of the criminal investigation concerning Libby. Her testimony is essential to determining whether Libby is guilty of crimes, including perjury, false statements and the improper disclosure of national defense information. The grand jury needs to know when Libby advised Miller about Wilson's wife — during their private meeting outside the White House on July 8 or during the three minute telephone call cm July 12 - and whether Libby qualified his disclosure to Miller by REDACTED If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Tine 18, United States Code, Section 793 if the information is "information respecting the national defense.” In order to establish a violation of Tide 50, United States Code, Section 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 that Wilson's wife was engaged in covert work.(snip)In fact we’d already heard from the leaker, Armitage that he didn’t know that and we have NO EVIDENCE THAT PLAME HAD CARRIED OUT COVERT WORK OVERSEAS WITHIN THE LAST 5 YEARS OR THAT THE CIA WAS MAKING SPECIFIC EFFORTS TO CONCEAL HER IDENTITY

[lurker]

And would make an excellent defense witness for Libby to explain why Plame was not covert.

[clarice]

**** correction**The source of this was Armitage the CIA’s Harlow and ROVE said somehing like he’d heard that, too when Novak asked him

***by Armitage but under my “Don’t ask, don’t tell” policy and ARMITAGE’s don’t waive policy, I found out too late to tell this Court

[lurker]

Which part are your "redlines" to the affidavit? Bold and italics?

[clarice]

Italics, including the italics in Bold.

[boris]

The IIPA requirements rather clearly exclude Valerie Plame. The intent was to apply to agents operating under cover in foreign lands with false identities. Trying to shoehorn Val into that category has been an obvious excercise in BJ-esque word twisting.

[clarice]

Yes, Boris. But look how cleverly Fitz misled the Court into thinking she was covered without ever representing directly to the Court that she was.

[verner]

Let's have a little history lesson.

Phillip Agee, a communist ex-CIA agent who now runs a travel agency in a Havana used by Medea Benjiman and other marxists hiding in "progressive' clothing, decided that he didn't Like the mean ole CIA messing with the people's revolutions in various third world world countries. So, he outed as many agents on foreign assignment as he could. Ever read Covert Action Quarterly? He founded it. Agee is the darling to this day of Institute of Policy Studies (where Martha Honey is still on the payroll) types and is on smooch smooch terms with many of David Corns friends/associates, especially Alexander Cockburn of Counterpunch, the first media sponser of the VIPS. Indeed, I would be astonished if Agee was not on David Corn's Rolodex!

The law was passed, now get this, because what Agee did was not illegal. While it was important to respect the 1st. ammendment (we wouldn't want a shaddow government, now would we? or Rogue CIA agents hiding behing their "classified" status) it was recognized, mainly because the Athens station chief was murderded many feel thanks to Agee, that covert agents overseas needed extra protection against malicious outing by communists and other enemies of the American people intent on harming national security.

The law was never meant to provide "cover" for a bleached blonde gold-digging hustler, sitting on her ass in Langley, who took it upon herself to try and take down the president through lies.

That's what Toensing meant. And it appears that Comey, his ex-Kennedy staffer assistant, and a few CIA lawyers may have been playing fast and loose with the original intent of the law for blatant political reasons. And they, and Fitzgerald, are hiding it from us.

[Jane]

you look at the statute to see if there's a definition (nope), you look at the caselaw to see if there's any interpretation of the relevant phrase (nope, as far as I can tell), and then you look at legislative history.

So if I understand you, in interpreting the true and clear meaning you would go to the statute itself, and avoid like the plague the writer of the statute who of course would have more knowledge than anyone else of the itent of the statute. Yeah, that sounds like something the "reality based community" would come up with.

Beyond that, you go into court and the lawyers make their best arguments, based on the purposes of the statute and that sort of thing.

Ahhh so you would then rely on advocates own intepretation of the statute rather than the maker's interpretation - how novel!

Surely the silliness of that position is apparent to you.

[Sue]

As an aside, Larry Johnson did an interview on Democracy Now with Amy Goodman. Just so happens, at the end of Johnson's interview, Goodman was going to interview Phillip Agee. Here is the exchange between Goodman and Johnson:

We're about to speak with former C.I.A. agent Phillip Agee in Cuba, would you stay with us?

LARRY JOHNSON: I don't really care to be on air with Mr. Agee. I think he's a traitor and has already cost the lives of some Americans.

The only time I have found I had any respect for Scary.

http://www.democracynow.org/article.pl?sid=03/10/02/158200>Source

[maryrose]

clarice:
With your inserts this whole case against Libby becomes such a travesty in justice. It is almost frightening how vulnerable a person can become with out 5th amemdment rights or a lawyer present. Any case Fitz wanted to make up would have blindsided the most fluent or careful person. Libby got caught in the crosshairs. Kind of like musical chairs and he was in the wrong place when the music stopped.

[verner]

I remember that Sue. Made me laugh like a cat. By the way, Agee went on to say that he didn't see anything wrong with outing Val! LOL. Now do we get that line in Hitchens' Slate piece where he points out the absolute irony of "radicals" taking up Valerie's cause.

The idea that David Corn, progressive shill, Nation contributor, past resident scholar of IPS, would take up the cause of prosecuting anyone under the IIPA is a complete cosmic joke.

[clarice]

I think with this closer look at the affidavit I am going to write the OPR at the DoJ and suggest an investigation into this is long overdue.

[Neo]

While the legislative history argument goes to Toensing, I bet is that Fitz interpretation of IIPA came from the referral the CIA sent (at least twice).

There was some mention of legal arguments being included when it's production was requested, but denied.

[verner]

Good for you Clarice! Mark Levin seems to be on the case as well (with his challange to Schumer) I hope that you will make sure the letter is cc'd to the WS, WSJ, Toensing etc. etc. We need to make sure that the DOJ can't pretend they didn't get it.

[Sue]

Verner,

Actually, Agee said he didn't care.

http://www.democracynow.org/article.pl?sid=03/10/02/159258>Source

AMY GOODMAN: Do you condemn the blowing of Valerie plain's cover?

PHILLIP AGEE: I don't have any feelings whether it's the right thing to do or the wrong thing to do. What is wrong is that it's simply dirty politics.Whether it was the blowing of her cover or some other action.

It's small potatoes compared to the whole scenario of lies that was used to justify the invasion of Iraq and the continuing occupation of that country.

[verner]

Well Sue, pretty close, and same difference I guess. He couldn't exactly side with the Bushies, now could he? LOL. Fidel might kick him out, and then he'd have no place to go.

[Sue]

One thing worth noting that Agee said in the interview:

because at that time I was involved with quite a lot of other people in a guerrilla journalism campaign

Interesting choice of words. A "guerrilla journalism campaign." Isn't that what Joe was doing?

[Jeff]

Jane,

The idea that to determine original intent you would turn to what one of the people involved in drafting (not voting on) the statute reports now beyond what is in the actual legislative history from the time is just astonishing to me. I think Tom is right not to accord Toensing's own protestations in the present much weight.

And have you read any of the motions in the case on matters of law? Not a whole lot of legislative history to begin with, much more on the caselaw, and certainly no reports from staffers who helped write bills saying what they mean twenty years after the statute was drafted and passed into law (to say nothing of subsequent amendments). And I refer, of course, to motions from Libby's defense as well as from Fitzgerald.

clarice - I thought you already submitted that complaint. Or is this another one? As for your intelineations, it's hard to tell what your point is, since they are so unserious. It's funny, however, that you completely snip out the redacted paragraphs where Fitzgerald is almost certainly reporting what he knew at that time about leaks to journalists, including the leaks from Armitage and Rove to Novak, as well as Libby's to Cooper. It's hard to know if he would include there Pincus' source, since we don't know for sure that the source had gone forward, though I suspect s/he had, and we also don't know if Fitzgerald would have included that later in the affidavit where he actually makes his case for compelling Pincus to testify.

[verner]

Sue,

David Fenton, Ira Arlook, William Goodfellow, IPS, CIP--all of Joe's friends who he began working with in the summer/fall of 2002 were the Guerrilla Journalism campaign, and allies of Agee.

These people have been at this game for a long long time. And like most marxists, they don't believe in morals or rules--just results.

[boris]

determine original intent you would turn to what one of the people involved in drafting ...

Is perfectly reasonable when there is disagreement in interpretation, which you have allged. In situations where one group is distorting clear wording to advance an agenda, the author of those words is well qualified to point that out.

Either admit that the words are so clear that author intent is unnecessary, or back down on bashing the author for being a Republican. You can't have it both ways.

[boris]

Rove to Novak, as well as Libby's to Cooper

However one may characterize "heard that too", it is preposterous to assert as part of a conspiracy to punish a whistlblower.

Clearly most here don't consider those words as leaking or confirming.

[Cecil Turner]

That bit is not redacted from Fitzgerald's affidavit, and it is significant . . .

Well, I can't find it. There's this similar footnote, but that's as close as I can come:

In order to establish a violation of Tide 50, United States Code, Section 421, it would be necessary to establish that Lobby 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 that Wilson's wife was engaged in covert work.

Unless we're to believe this is the only reference, and Tatel took it to mean he was claiming Plame actually fit this description, which he clearly doesn't, here. And note again the subtly misstated law: "knew or believed"; "covert work overseas."

Fitzgerald may be wrong - presumably that would need to be worked out through litigation.

Now we need litigation to quote a statute? Not your most convincing point, here. Ditto for Tatel misunderstanding the "knew or believed" formulation. If Libby "believed" Plame was covert, but she wasn't, then it's obviously not an IIPA violation. Either Fitz is totally incompetent, or he knows that. His phrasing is misleading, and it appears to be intentional.

But for Toensing to argue that Fitzgerald knew there could be no violation of the statute is evidently incorrect.

I'd suggest his misstatements on the law demonstrate he knows he has a problem there and is trying to talk around it. Which would bolster Toensing's case, rather than disprove it.

[verner]

Does anyone have the date when the bill was passed? The congressional record should clear up any issues over intent. Toensing would not have written her piece unless she knew that she had proof to back up her assertions. She was there.

[boris]

If Libby "believed" Plame was covert, but she wasn't, then it's obviously not an IIPA violation.

But well deserving of vindication of interest and prosecution of perjury and false statements as tantamount to punishing a leak that deserves severe punishment despite not actually being illegal.

[boris]

Remember that in cases where the law is unclear it is the duty of the prosecuter to determine what the law should be. In this case, the law should be ... punish Libby.

[clarice]

Jeff, I held back sending it, and I'm glad I did. Because I think we have so much more now.

I don't get the point about my leaving out the redacted portions. I concede that they may contain more detailed disclosures re Armitage but given the obvious sleaziness of the entire filing, I seriously doubt it.
You've the cite to the affidavit, make your argument.

Tell you guys what, I'm going to post my draft letter. Anyone who thinks he has some useful edit to make, be my guest.

____________________

H. Marshall Jarrett, Counsel
Office of Professional Responsibility
950 Pennsylvania Avenue, N.W., Suite 3266
Washington, D.C. 20530
Re: Patrick Fitzgerald’s handling of the Plame Case

Dear Mr. Jarrett:

I am writing to suggest that if one is not underway yet, it is long past due to undertake an investigation into the circumstances of the appointment of Patrick Fitzgerald and the way in which he has conducted this matter.

As a general overview of the inappropriate way in which he handled this matter, I reference this article in the Weekly Standard. http://www.weeklystandard.com/Content/Public/Articles/000/000/012/720lutwz.asp

As to more specific references to inappropriate conduct not outlined there, I draw your attention to his statements in the press conference announcing the indictment and particularly ask that you read those statements in light of recent developments: That Fitzgerald know from the outset of his appointment Richard Armitage was Robert Novak’s source and that the prosecutor apparently never fully explored with him whether he had spoken to other reporters as well nor sought that he give waivers of confidentiality to any he had. The “good leakers” “bad leakers” and “whistleblower” distinctions made by the prosecution are a frank prescription for criminalizing politics and was unprofessional . And the suggestion in those statements that the defendant had deliberately disclosed the identity of an undercover agent and harmed national security in so doing, prejudiced the defendant, slandered him in the public eye, and far exceeded the evidence in the prosecution’s possession and the indictment itself .

Further, the affidavit he filed in the Miller appeal was a model of misdirection and disingenuousness clearly designed to mislead the Court. Taken as a whole, the affidavit conflates the Armitage leak to Novak with Libby’s quite apparently innocent conversations with other reporters, presenting a materially false impression of the facts the prosecution already had determined. Whether or not Libby’s recollections of those conversations were accurate they were entirely benign. I ask you to focus attention in particular on paragraphs 9-17 and 81 of that affidavit and read them in light of recently revealed facts: that Armitage told Novak and Woodward earlier and in far greater detail about Plame’s role and identity than did Lewis Libby or Karl Rove who were pilloried for three years for innocent, passing comments to reporters who asked THEM about information, reporters who already seem to have known about Plame’s identity due to the indiscretions of Plame and Wilson.

Significantly, Fitzgerald’s reference to a Newsday article suggesting that Plame fell within the IIPA failed to note that the source(s) for those claims were Wilson allies in the Veteran Intelligence Professionals for Sanity, a group which ironically was urging intelligence officers to leak classified information.Even more ironically some of them are connected with Mr. Agee, whose own deliberate revelations of undercover CIA agents was the very impetus for the Stature. At no time in the unredacted portions of the affidavit did Fitzgerald directly say that Plame met the test of the IIPA—which she clearly does not—but in various ways he deliberately left the Court with that impression in order to affect the rare contempt order and jailing of a reporter.

Further, while portions of the affidavit remain redacted, it doesn’t appear that the Prosecution was adequately forthcoming to the Court in revealing that the disclosure to Novak was by someone who did not get that information from Libby or Judith Miller. Indeed, Miller herself may have received it from Armitage as well. Her notes reflect other sources, prior to the June 23 meeting with Libby and she had in the recent past written interviews with Armitage.Fitzgerald's grand jury interrogation of her respecting those sources, moreover, seems to conflict with the agreement he'd reached with her not to ask about sources other than Libby.

Finally, I think it important to investigate the circumstances surrounding the extra-statutory appointment of Fitzgerald by James B. Comey after the source of the leak was known, whether it was by arrangement with any members of the Senate Judiciary Committee and whether any members of that Committee were informed by anyone in the Department of Justice or the Special Prosecutor’s office of the Armitage disclosure and, if so, when they were and by whom.

I recognize that the special prosecutor is acting in a unique capacity. On the other hand Comey created a special circumstance not contemplated by the Statute when he appointed a Department of Justice employee to the slot where the Statute contemplates an outside counsel, it seems he is covered by the operations of your office. If you feel he is not, I would appreciate your disclosing that to me even though I appreciate that non-jurisdictional issues are and should remain non-public during any investigation. Because I think the conduct hear demands investigation, and if it is beyond your jurisdiction, I will seek it in another forum.

[cathyf]

Toensing was on one of the talk radio shows last night. She put the discussion into the context of vigorous protest on the part of the press when the IIPA was first proposed. The law was significantly constrained and weakened in reaction to journalists worried that it would have a chilling effect on the press and on public debate in general.

It's not just that her job was to write the bill. Her job was rewrite the bill over and over in back-and-forth consultation with journalists in order to weaken and constrain it -- to create the very weaknesses and constraints that Jeff claims don't exist.

[Jeff]

Go for it, clarice!

Now we need litigation to quote a statute?

No, to authoritatively interpret it when there is dispute, as there evidently is over what the meaning of "serve abroad" means. Cecil, if you look at my post interpreting that footnote in the affidavit, I've addressed the issues you raise. For one thing, Fitzgerald is not misstating, he's glossing the statute, that is, expressing his interpretation of the clause about serving abroad. He's not trying mislead anyone; he's taking a position.

[cathyf]

Whether or not Libby’s recollections of those conversations were accurate they were entirely benign.

Ambiguous pronoun problem. How's about something like:

Whether Libby’s recollections of those conversations were accurate, or his conversational partners' recollections were more accurate, both sides to each conversation recall something entirely benign.

[maryrose]

Jeff:
Clarice's delineations above scare you to death because they make so much sense. To the practiced eye of a Plameologist it combines and illustrates all that is wrong with the prosecution of Libby. Her letter above also summarizes what needs to be examined by the powers that be. Fitz was inept and out of his league on this one. The coming weeks will prove me correct and I await your acknowledgment of where you went wrong in your analysis. Last point-stop hiding behind TM to bolster your own opinion. If it"s strong enough or a viable point it will stand on its own merits. Stop being snarky to Clarice.

[clarice]

Thanks--I also caught a few typos..stature for statute and hear for hear..

[maryrose]

" Glossing the statute" Is that Fitz doing it the "Chicago Way"

[Jane]

The idea that to determine original intent you would turn to what one of the people involved in drafting (not voting on) the statute reports now beyond what is in the actual legislative history from the time is just astonishing to me.

Jeff,

What does the legislative history say? What were the votes? How do those two things differ from what the drafters say?

And have you read any of the motions in the case on matters of law? Not a whole lot of legislative history to begin with, much more on the caselaw, and certainly no reports from staffers who helped write bills saying what they mean twenty years after the statute was drafted and passed into law (to say nothing of subsequent amendments). And I refer, of course, to motions from Libby's defense as well as from Fitzgerald.

I'm not sure I understand the question, but you have caselaw and you have statutes, they are two different things. There would never be a reason to use a "report from a staffer" in a legal brief if there was adequate caselaw or the statute was clear on its face. Lacking that, the drafter of the statute is as good a place to start as any.

You seem to be suggesting Toensing can't be trusted because she isn't saying what you want her to say. That's nothing more than your own achilles heel coming up to bite you. Toensing has been utterly consistent in this matter which is a lot more than we can say of Fitzgerald.

[boris]

Looks good. Possible typo -- know from the outset -- should be -- knew from the outset --

[clarice]

Thanks, Boris.

[boris]

his interpretation of the clause about serving abroad

Which is contrary to a plain english interpretaion and the intent of the author. Furthermore easily determined and confirmed.

It misstates the authors intent of the clause in a contrived agenda serving fashion.

[clarice]

The use of legislative history to shed light on a statute is nothing new, though often overused. In this case, I think the terms are clear enough that Toensing isn't offering up something that conflicts with the clear terms.

In any event, the prosecution never charged it, so it is clearer still that Javery felt he couldn't make that case and jimmied up crimes out of benign misrecollections or testimonial veriances to get an indictment.

[Gary Maxwell]

Who here is shocked that Jeff once again cant quite see it. I have to admit it must be tough going through life being so consistently wrong like he is. To flaunt it in post after post must reveal some deeper flaw, however.

[Jane]

I dunno, I think Jeff raises good points and good issues, and is good practice for those of us who disagree with him. Plus I've never once seem him write "Bush/hitler". Hell I'm quite pleased there are some democrats left of his ilk.