Verbosities

War Room - Salon.com

Meanwhile, in a separate opposition to the prosecution's sentencing memorandum, Libby's lawyers address an issue that has caused no small amount of controversy recently, the prosecution's assertion that Valerie Plame (also known by her married name, Valerie Wilson) -- the former CIA agent whose outing sparked the investigation that ultimately ensnared Libby -- was indeed a covert agent. Libby's lawyers argue that the assertion Plame was covert, based on an unclassified summary of her classified file, "is tantamount to asking the Court and Mr. Libby to take the government's word on Ms. Wilson's status, based on secret evidence, without affording Mr. Libby an opportunity to rebut it. Such a request offends traditional notions of fairness and due process."

It's interesting that the attorneys for Libby are choosing to challenge this notion, as it actually has very little bearing on the sentencing. If you read Patrick Fitzgerald's opposing memorandum, filed earlier this week, he asserts that the fact that there is no prosecution coming out of this investigation doesn't mean that perjury and obstruction of that investigation are acceptable. The argument seems to be whether the investigation should have continued once it was determined that the leak wasn't done with malice.



Here's the relevant statute, which sets the bar awfully high for prosecuting the disclosure of a covert agent. Basically, the leaker has to have personal access to classified information, has to intentionally disclose the information, and has to "know" that by disclosing the information he's outing the agent. In other words, all Armitage, Libby and Rove had to do in the investigation was create plausible deniability around the intent of the leak, which they did. On page 15 of Fitzgerald's memo, he states that "Mr. Libby's false testimony obscured a confident determination of what in fact occurred, particularly where the accounts of the reporters with whom Mr. Libby spoker (and their notes) did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent." What he's saying is that the obfuscation of the facts combined with the high burden of proof to prosecute kept him from putting together a prosecutable narrative. Hence, no charges.



So Libby's lawyers are essentially arguing then that if the determination of "covert" status can be challenged, then there is no underlying crime, which means the perjury doesn't really matter. Here's their argument on the issue of Wilson's "covert" status:

Libby's lawyers don't specifically refute the prosecution's assertion that Plame qualified as covert under the relevant statute, the Intelligence Identities Protection Act, but they do call it into question. They observe that the IIPA definition only includes those CIA agents "serving outside the United States" or who have "within the last five years served outside the United States," and that the unclassified summary says that within the relevant time-frame Plame "engaged in temporary duty travel" while otherwise remaining the U.S., and say that "it is not clear" that travel meets the IIPA definition. "In fact," they write, "it seems more likely that the CIA employee would have to have been stationed outside the United States... the meaning of the phrase 'served outside the United States' in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA remains very much in doubt."

Ironically, for a party that rails against so-called "judicial activism" and "legislating from the bench," it seems like they'd really like to get a judge to narrow the definition of "covert" in the IIPA statute. Here's the statute again, and here's the definition from Section 426. When you're reading this, note how broad the definition is. That's why the Libby lawyers are hinting that a court challenge might be their best bet at getting this issue cleared up:

(1) The term “classified information” means information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security.



[snip]



(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

One piece of clarification is probably necessary here... When those that argue that this doesn't necessarily apply, or that she wasn't "classified under IIPA," the burden of proof does not lie with the agency to make this determination. In other words, the CIA does not have to say (and indeed does not say) "this agent is filed as IIPA covert."



When looking at the statute's definition there, Wilson fits the description as it's written broadly based on the facts as we know them. One, Valerie Wilson most certainly fell under (4)(A) as an employee of an intelligence agency. Two, under (4)(A)(i) the CIA has confirmed via declassified employment records that her identity as an agent was classified information. Three, (4)(A)(ii) applies in a broad reading, as she did serve in some capacity overseas as an intelligence agent.



Note that "serving outside the United States" is not defined, and I'm absolutely certain the Jack Bauer Republican mindset could easily imagine a scenario where an agent based in the US takes a covert mission overseas for a week, and who they'd defend under this statute tooth and nail if a Democratic administration flipped.



Point is, the Libby lawyers and various right-wing bloggers aren't challenging the notion that Wilson was "covert," they are continuing to challenge the notion that she was "covert under IIPA." It seems that unless there's a court ruling that attempts to narrow the meaning of the broadly written definition of covert in that act, that their argument really can't go much of anywhere in solving this issue.



Bonus points to the righties if they can wrap their heads around the history of this act, and figure out who pushed for it to be written the way that it is. Unfortunately guys, you get your plausible deniability, but the father of this act certainly didn't do a good job in helping you discredit the agent and agency on the flip side.

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