Tom Maguire has a great post up about La Plame’s pension files and the light they might shed on her “covert” status with respect to the legal definition under IIPA.
One key issue from the statutory definition of “covert agent” is whether Ms. Plame met the requirement for service abroad. From Mr. Taranto:
Left unanswered is the question of when Plame has her last overseas assignment; if it was before July 1998, then by July 2003, when her identity was revealed, she would no longer have been a “covert agent” for the purposes of the Intelligence Identities Protection Act.
Victoria Toensing noted the same “service abroad” issue in 2005.
So, did Ms. Plame perform service abroad for the CIA after July 1998? One place to look would be her CIA personnel files – by statute (Title 50, Section 403r, “Section 403r. Special annuity computation rules for certain employees’ service abroad”), CIA officers are entitled to an upward adjustment in their pension benefits for service abroad.
So that was all provided to the defense during discovery, right?
In response to questions about Ms. Plame’s service abroad, CIA lawyers or Patrick Fitzgerald and his Department of Justice investigators will cite her personnel file, which presumably has been maintained in accordance with standard CIA practice. Her file will document the most recent period for which she received credit for service abroad, thereby resolving the point about her qualification as a covert agent under the IIPA, right?
Not so fast.
Patrick Fitzgerald filed documents related to Libby’s sentencing last week [Sentencing memo, Sentencing calculation, Plame employment history] which resolved the issue to the satisfaction of, well, the easily satisfied – that includes Messrs. Isikoff and Hosenball of Newsweek. And was any mention made of her service abroad as tracked by the CIA personnel department under long established CIA rules? Uhh, no.
Well, but . . .
So, both the CIA and the DoJ had access to Ms. Plame’s file detailing her dates of service abroad, yet chose not to present that information to the defense. Why might they do that? A suspicious mind would wonder whether they would omit that data if it were helpful to their case, or only gloss past it if her most recent date of service abroad were say, 1997, when she was recalled to the United States (as per this Vanity Fair profile).
This is not right – our legal system has discovery rules for a reason. IF Ms. Plame’s formal dates for service abroad buttress the prosecution position, that should be disclosed to the defense so that they will not waste time pursuing a false trail, or so that the prosecution can prepare arguments that the CIA formal procedures do not comport with the language and intent of the IIPA. On the other hand, if her formal dates for service abroad support the defense position, that should be disclosed so that the defense can argue that this represents the best established practice and settles the issue.
But it is simply not appropriate for Fitzgerald to unilaterally conceal this from the defense, especially when it is a reasonable guess that it was concealed because it would aid the defense.
That’s kind of suspicious of you, Tom. I mean,
In any case, it is safe to say that Fitzgerald was not eager to present Ms. Plame’s employment background – maybe an embarrassment with her dates of service was part of the reason. If so, it strikes at the heart of the prosecution’s case – for example, in his affidavit to the Miller court weighing her subpoena, Fitzgerald clearly convinced Judge Tatel that his investigation was contemplating violations of the IIPA. Did Fitzgerald also explain that there were serious problems with such a prosecution, such as an issue as to whether Ms. Plame was covered by the statute? That affidavit has not yet been made public, but if the judges had ruled against Fitzgerald the case against Libby would have been much weaker.
Fitzgerald also resurrected the IIPA issue in his sentencing memorandum – the defense noted in their response that they were denied a chance to fully engage this issue in the trial phase; if that was compounded by the concealment of key information from the defense, there is a problem here.
It may be that Judge Walton will probe these issues at Libby’s sentencing. Or an appeals court may take some interest in how it came to be that Fitzgerald never disclosed Ms. Plame’s formal dates of service to either the court hearing the Judy Miller subpoena or to the Libby defense.
And from another direction, Rep. Peter Hoekstra has tried to get the CIA Counsel to opine on Ms. Plame’s covert status. Per Robert Novak, as of April 2007 they were still mystified:
On March 21, Hoekstra again requested the CIA to define Mrs. Wilson’s status. A written reply April 5 from Christopher J. Walker, the CIA’s director of congressional affairs, said only that “it is taking longer than expected” to reply because of “the considerable legal complexity required for this tasking.”
I have a suggestion for Mr. Hoekstra – perhaps he can ask the CIA Counsel some simpler questions, to wit, what is the last date on which Ms. Plame received credit on her pension (under Title 50, Section 403r) for service abroad, and what is the CIA definition of “service abroad” in that context. That should be easy enough for the CIA Counsel to address in this lifetime.
Still, I mean it’s not as though he’s liable to . . .
Unfortunately, it is not as if Fitzgerald would never, uhh, shade his disclosures and filings – in the course of the Libby trial at least two transgressions were revealed: he had disclosed to the defense that John Dickerson of Slate may have received a Plame leak (from Ari Fleischer) but concealed the information that David Gregory of NBC News would have received the same leak at the same time. And in the course of his legal maneuvering with Tim Russert, Fitzgerald failed to inform the court that Tim Russert (who was resisting a subpoena to testify) had already given evidence to DoJ investigators.
Or for a more recent example of Fitzgerald’s tactics, consider his recent sentencing memorandum. Isikoff and Hosenball make much of the fact that “Patrick Fitzgerald has finally resolved one of the most disputed issues at the core of the long-running CIA leak controversy: Valerie Plame Wilson, he asserts, was a “covert†CIA officer”.
But the defense response provided a bit of clarification which Fitzgerald had overlooked, or forgotten, or something:
The summary described above was provided to the defense along with a companion summary that defined a “covert†CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.â€Â4 It is important to bear in mind that the IIPA defines “covert agent†differently.
Indeed it does.
Oh, well. I mean, if you’re going to argue this as a matter of law.
For those who don’t understand why this is troublesome, here is Clarice Feldman’s excellent conspectus:
Andrew Card and then-White House Counsel Alberto Gonzales went to the hospital to clarify this with Ashcroft, and Comey dramatically recounted to the Committee how he rushed there to be certain that they would not persuade Ashcroft to change his mind. In his view, he was a champion of civil liberties against the overreaching, unseemly efforts of others. The President became personally involved, reauthorized the program himself pending NSA’s reworking of the program to Comey’s satisfaction which it did in one week’s time. To my mind Comey should have spent less time turf protecting and a great deal more time on timely communications and teamwork to resolve the issue without the need for his eleventh hour dash to the hospital with sirens blaring. Interestingly, when Senator Specter questioned him as to whom he’d had disagreements with on the program, he mentioned Card, Gonzales, Vice-President Cheney and David Addington. Despite several opportunities to name others, he never said Lewis Libby, but it was Libby who was the point man in trying to get the Department of Justice to sign off on the NSA program. It’s unlikely that he forgot this. Just as it’s more likely that he didn’t want to draw the Committee’s attention to the fact that he had, in this same period of time, sicced his friend Fitzgerald on to his political opponents inside the Administration, knowing full well they were not responsible for breaking to Novak the news that Wilson’s wife worked at the CIA.
With full knowledge of the nearly impossible task Libby had inside and outside the Administration, the Probation Department’s recommendations for downward departures of a recommended sentence far less than what the prosecution is seeking should guide the Judge to sentence Libby to probation only.
No matter how Judge Walton acts on Tuesday, the President should not continue to wait further before exercising his power to pardon Libby, something at least one or two of the jurors requested at the time they rendered their decision. It is obvious that the President has wanted to show respect for the legal process by staying out of the matter, allowing the Department of Justice and the Special Prosecutor and Court to act in accord with the law and their professional judgments. But in the sentencing papers he just filed, it is clear that the unsupervised Special Prosecutor has no professional judgment worth counting on. In these latest papers, as he did to judicial admonishment following his shocking “rebuttal” closing argument at the trial, Fitzgerald suggests that Libby lied to cover for the vice-president, implying that the leak to Novak (which as we now know came from Richard Armitage, Karl Rove and the CIA’s Bill Harlow) was coordinated by the Vice President. His “evidence” for this plot is transparently thin gruel-notations on news articles about Wilson and a twisting of one statement Libby made in the course of hours of interrogations in which he consistently argued that the vice president never urged him to disclose Plame’s identity or role in her husband’s Mission to Niger.
It simply does not occur to this man that when the press is reporting that Cheney sent Wilson, that Wilson “rebutted” the intelligence the Administration was relying on, that the Administration knew that and ignored it anyway and that not a single one of these things is true, the vice president would want to respond credibly to these monstrous lies. To a reasonable mind, it does not follow that an effort to craft a credible and accurate response to a pack of lies involves a deliberate plot to break the law.
(Of course, it would have helped if the CIA had timely informed the White House that it had sent Wilson and explained why they considered his report confirmation, not rebuttal information. But then this agency did not require Wilson to sign a non-disclosure agreement and yet classified the information about the trip. This series of acts meant that Wilson was free to lie about his Mission, while the Administration was seriously constrained in responding.)
In any event, there is more wrong with the Prosecutor’s sentencing filings than can be fully dealt with here. Leaving aside the warrantless claims of wrongdoing by the Vice President and the demand for a higher sentence on the crackpot notion that had Libby not lied, the government could have proven a master plot by Cheney, the Fitzgerald fantasy of a master Cheney plot is, in fact, preposterous on its face. Certainly if Armitage and Rove and Harlow were puppets in Cheney’s hands, we’d have some evidence of this which had not sprung full blown from Fitzgerald’s fevered brow. What is not a fantasy is that Wilson’s story as reported by Nick Kristof and others was a fabrication, and that Plame has given three inconsistent sworn versions of her role in the Mission .
Equally fact-free is the claim in these papers that Plame was “covert” within the meaning of the Intelligence Identities Protection Act (IIPA). One would have thought that a good investigator would have made an effort to find out whether this was the case at the beginning, not at the sentencing, where Fitzgerald is seeking an upward revision of the sentence claiming now that Plame is “covert”, in circumstances shocking to anyone with a notion of due process.
At trial, the Prosecutor denied the defendant access to classified records about Plame’s status, saying her status was irrelevant because he was charging no violation of that law. The parties were thereafter barred from mentioning it, though Fitzgerald broke that when he made his hyperbolic “cloud on the vice president” rebuttal closing to the jury-an act which breached the court’s rule and put before the jury prejudicial matters never introduced into evidence and in a time and manner precluding a response.
Fitzgrald’s “evidence” for this is largely taken from the recent Waxman hearing, which proved no such thing, and an undated summary of her personnel records, which also prove no such thing. He has deliberately conflated the Agency’s terminology with that of the far more restrictive language in the Act and hidden from view the facts necessary to ascertain when her service abroad ended, a necessary factor in such an analysis. (Her husband in his book said she stopped serving abroad in 1997,which, if true, would place her outside the purview of the IIPA.) Certainly the same service records (including pension records) summarized by the Prosecution reveal when her service abroad ended. Why has he not presented these records to the Court and defendant?
Indeed, with that very summary in hand, Judge Walton said at trial that he was unable to determine Plame’s status. The CIA general counsel has been asked by Congressman Hoekstra, ranking Republican on the House Intelligence Committee, to render an opinion on whether Plame is covered by the IIPA and it has not been able to do so to my knowledge, though one might have thought this should have been requested by the prosecutor some four years ago, if he seriously believed this was the case. One would have thought that if he had evidence that Plame was covered, he’d have offered it into evidence when he was arguing the Judith Miller case challenging reporters’ privilege, or in this case, for that matter, where the absence of such evidence certainly accounted for some confusion by the jury .
And this tardy claim that Plame was covert, of course, ignores the other insurmountable barriers to an IIPA claim: The Agency certainly cannot show it did everything in its power to prevent her identity from disclosure, and there has never been any evidence that anyone under investigation by Fitzgerald knew of her status in the Agency, in large part because the Agency had been so careless. The only thing this filing shows to a certainty is that Fitzgerald demonstrates here, as he does in the Conrad Black case in Chicago, a too-eager jumping into cases without adequate research, a snipping the edges off the truth to make them fit the jigsaw puzzle case in his mind, a granting of immunity to the people really responsible for the claimed wrongdoing and then counting on the court’s predilection to give the government the benefit of the doubt and the jury’s distaste for the defendant to carry him through despite the weaknesses of the case which remains.
To the part of the public which has watched real national security leaks published regularly on the front pages of the major newspapers without a single indictment or apparent punishment of the sources, any sentence beyond probation will result in well-warranted rage. The President should know that we are fed up with the misuse of resources to deal with this petty matter occasioned by the conduct of the CIA and its agent Plame and her husband themselves, while far larger, truly significant matters remain unpunished.
And then there is the gall of the Department of Justice pursuing this while failing to notify the 9/11 Commission of Sandy Berger’s deliberate theft and destruction of classified documents in a manner seemingly designed to obstruct the work of the Commission, the shockingly small punishment the Department sought and its continued failure to fully enforce the paltry plea agreement it received.
In sum, a failure of the President to pardon Libby now, no matter how the Judge acts on Tuesday, will foster further contempt for the law and the workings of the Department of Justice under his watch, not respect for it. It’s time for him to change course, take charge, and put an end to this long running miscarriage of justice.
Has anyone considered the futileness of these sorts of arguments given that the information needed to determine whether she was covert or not might be secret?
Are you being funny, or are you serious, shine?
plus the 50 USC 403r might not be dispositive, as not everyone is under it:
Yuck. Has anyone really looked through all that statute? ugh.
Doesn’t matter, Plame/Wilson, Wilson/Plame have dug a hole and pulled it in on top of them. Now congress has publically admitted that both lied to them and the American People. How long will it be before the indictment comes down? 25 years + for both.
I thought heet had already gavelled this one, thus closing off the need for any further discussion.
This should be pretty simple. Presumably, assuming Fitzgerald is a competent prosecutor, he would have presented his best case. Were he able to show that Plame was covered by the IIPA at the time, it should be rather easy for him to lay that out, legally. Simply making assertions of fact puts him in the moonbat school of argument.
The silence from the left has been deafening since Libby’s team filed its rebuttal to Fitgerald’s sentencing memorandum. The Libby filing makes mincemeat out of Fitzgerald’s arguments for the applicability of the IIPA to this case in a variety of entertaining ways. I highly recommend reading it. You can find it over at Maguire’s.
I know this isn’t a legal question per se and I’m sure, given the opportunity, heet, timmah and others will mock me for screwing with the settled science but:
We are still left with this wierd presentation in parallel: during the pre-trial and the trial, Fitz downplays Plame’s covert status, going so far as to suggest that it is irrelevant to his ability to prosecute Libby for perjury and obstruction of justice. Yet here we are in sentencing and Fitz introduces a CIA memo proclaiming Plame’s covert status to help the judge up the time.
By Fitzgerald’s calculus re: Plame’s covert status; Grand Jury Indictment, Pretrial and Trial; Not Important! Sentencing hearing: Important!
I’ve said it before and I’ll say it again; if somebody other than heet, timmah and Larry Johnson can prove to me that Plame was covert and that someone in the Bush Administration outed her with full knowledge of this status, then they should be fried like a green tomato. Until then, the “everybody knows she was punished because of Joe” has as much evidentiary validity as “everybody knows Hilary made an illegal killing on Whitewater.”
Projection does not necessarily equal reality.
I’ll go a stage further, BJ-
But it was most likely Valerie or her tw husband 26
It makes sense when you think about it. As far as meeting the elements of perjury / obstruction, it really doesn’t matter what the underlying situation is. Thats what the trial is for.
But once you’re determining how serious this obstruction / perjury really is, then of course the underlying situation will matter. Thats what sentencing is for.
And the trial is to establish the facts of the underlying situation. So why ensure that the trial is prevented from addressing these, and then seek to introduce them after the trial as a factor that should influence the severity of the sentence?
Sorry- does not compute.
shine
In case you missed it, read here and in the comments where Apprendi, Blakely and Booker are discussed. In a nutshell, any fact that will push up Libby’s sentence at pj beyond the guidelines supported by the jury verdict MUST be presented to a jury.
The trial just needs to determine whether the elements of the crime are met. Thats different than other factors which might affect sentencing.
Your honor, the jury has found the defendant guilty of possession of cocaine. The defendant has therefore helped bankroll the narcoterrorists who murdered Sister Alma Valenzuela and her companions, and therefore ought to be sentenced as accessory to those heinous murders. The prosecution requests life in prison.
Darleen, beyond the guidelines or beyond the statute?
Ah, the old Red Queen “Sentence First, Trail Second” school of legal jurisprudence.
And the sentencing is by law required to be commensurate with the crime that has been proved at trial.
I’m not a lawyer, so of course there is almost certainly as great deal about the “law” that I don’t know—but speaking as someone to whom these fucking sacks of shit happen to apply in my daily life, what Fitzgerald is doing makes the sack of shit smell like lilacs in bloom.
Shine, the matter was settled in the thread you cited. So, unless you are an attorney, why consume Darleen’s valuable time? Does she have to shred you as she did Moops?
[By the by, spoom – moops spelled backward – is a frothy, air-whipped dessert having little of substance but much of air. And calories, of course. Perhaps delicious, but useless, calories.]
Shine
Apprendi says statute, but Booker says that guidelines are effectively statutes, so any fact that would push a def from, say the middle range to the upper range, must be decided by a jury.
I think it’s clear that if Fitzie was engaged in ethical behavior rather than ego pumping, he would be asking for a sentencing hearing in front of a jury to actually find that Plame was “covert” under IIPA.
Red queen? I think its mandatory in death penalty cases. Also happens in civil cases, where there is a liability and a damages phases. Makes a bit of sense. You do want victims to make statements about how they have been hurt in order to determine a sentence, but you don’t want that swaying a guilt determination. Assuming it’s not an element.
As he knows perfectly well that she wasn’t, he would be crazy to let a jury anywhere near the facts.
Unless he could stuff the jury with heet, moopsy, timbo, toilet and that other one whose name I can never remember. And even then he wouldn’t have a majority.
So, shine, regardless of the various legal opinions you are OK with a prosecuter who, after four years of obstensibly investigating illegalities related to the IIPA, could only produce perjury and obstruction charges to one “B” player, then argues that Plame’s status as covert under IIPA is “irrelevant” to the charges brought (a position with which I agree) and then slam dunks a “recently declassified” CIA memo claiming Plame was covert in order to alleviate a sentencing report favorable to said “B” player?
It may or may not be legal and/or regular practice but it still seems unfair, petulant and borderline immoral. If you are OK with this, how much of that opinion is tainted by partisan feelings?
Bwaaa HaHa, furriskey, that would be the oh, so erudite upyernoz! Not as good as timmah’s old handle of “neoconsstink” but still reflects a most trollish petulance.
Feh!
Karl Malden to Marlon Brando in One Eyed Jacks
“Oh, we’ll give you a fair trial and then we’re gonna hang you”.
It’s nice to have a plan.
Thalia blew into my ear as I read that: this whole business is trollish flatulance, noxious fumes issuing meteoristically from nether orifices with no intent but to inflict misery upon those virtually present.
Hash, rehash, re-rehash.
Ahhgg. Begone, evil vapors!
Geeze man:
Trollish Petulance? Evil Vapors? Trollish Flatulance? Hash – Re – Hash?
I sense a potential product line of delectible drinks target marketed to the “of course I have no life” blog commentator railing against trollstorms.
Wake up the boys in research, smack ‘em around, and get ‘em cracking!
It’s tough to argue with Fitgeralds’s own filing in the case cited by the defense in its rebuttal, that there was no evidence that Fitz saw to indicate Libby had seen anything to give him any clue that Plame’s status was classified, covert or protected. Punishment for violating the IIPA has to come from “knowing” violations. Fitzgerald’s own filings in the case present contrary evidence.
killjoy
If she was covert, according to the statute, Fitz would simply lay out how the “outer” had access to this information, knowingly leaked it, that Plame had been posted overseas within the last 5 years, and that the CIA was taking affirmative steps to conceal her intelligence relationship. 4 simple criteria. Yet, all that is presented is that the CIA felt she was covert, according to a standard different than the statute.
I’m not ok with a lot that prosecutors do. They seem kind of mean. I’ve talked to a public defender, and he just did not get what motivated prosecutors. I’m into Warren court style protections for defendants. I have no idea what is normal for investigations of this sort, but I can imagine it is standard that they get mad at things like lying and obstruction.
Sorry for the buzz kill.
I’m not ok with a lot that prosecutors do.
But if they get all mad and stuff, yhat makes it OK right Shine, especially if the person they are mad at is member of the Maladministration and the person the really want to get is the person’s boss?
Why not tell us what you really think instead of dancing around?
Yeah, it’s just so mean not to understand that rapists, robbers and murderers just had a bad moment or two.. we just need to understand ‘em, get ‘em some therapy, hand em a job and they promise, by golly they pinkie promise never ever to do it again.
btw shine, can you pause a moment in your musings to address the actual SCOTUS ruling I linked and quoted from?
Is shine in high school in Rosa Linda?
I’m into Warren court style protections for defendants.
Oh, me too. We would never had the benefit of mandatory sentencing and three strike provisions without the featherheaded actions of the feelgooders on the Warren court. Lefties wouldn’t be perpetually puzzled by the fact that the crime rate goes down as the prison population goes up.
The result was as totally unintended as it was completely forseeable, of course, but given the intellectual limitations constantly displayed by the Warren court, that’s understandable.
**TAP TAP**
alphie? alphie? Is that you?
Mea culpa. I meant
Eventually you guys will hit upon the perfect blend of hand waving, subject changing, and bile spewing that will PROVE without a doubt that no crimes were committed. Libby should have hired the PW regulars as his defense counsel! Or at least Darleen, she seems to have some super-special Google-fu.
I’m betting he didn’t win a lot of cases, did he? So shine, when do you get out? Time off for good behavior?
Oh good, the delivery truck is here with more hand-waving, subject-changing and bile-spewing. Heetie, sweetie, your timing is impeccable.
I thought there was a difference between guidelines and statutes. One having gone through the legislative process and the other not. Silly me for thinking the Rhenquist court would think the same.
I AM NOSTRADAMUS!!!
I write above:
And, like the 4:14 from Allentown, along comes the heet’ster:
Later today, the winning lottery numbers!
alphie? ALPHIE! It is you!
PARSED LOGIC AND SIMPLIFIED INANITY LIVES!!!
Oh Jaysus H Keeerist on a Pony.
shine, it might be nice if you actually put just the tiniest effort in at least appearing to argue in good faith.
Where “guidelines” are determinate, they act like statutes.
You know, the whole “walks like a duck, quacks like a duck” schtick?
In CA we have these things called “enhancements and allegations” to the original charge … such as a gang enhancement, or use of a weapon in the commission of the crime, et al.
Each of which have to be FOUND TRUE by a jury before it can be used at pj. Each enhancement will affect what range is appropriate for the charge.
A defendant convicted under PC211 robbery, is going to face different sentences depending on whether def used a weapon or not. A prosecuter can’t spend the length of the trial time referring to whether or not a weapon was used as “irrelevant” to the instance of robbery, then suddenly file before pj (and at odds with the pre-sentence Probation Report) a motion demanding a sentence based on a just discovered fact that, indeed, the def justed a handgun during the robbery.
Such a fact must be found by the jury. Period.
You’re on a roll, BJ. Email ‘em to me, I promise to split the winnings.
The evidence presented at your trial proved beyond a shadow of a doubt that you are a dimwit.
Shine, I hereby sentence you to 55 years hard labor for pedophilia.
There. Fixed it so as to conform to the truther fantasy scenario.
But once you’re determining how serious this obstruction / perjury really is, then of course the underlying situation will matter.
OK, but just for argument’s sake, isn’t the severity of Libby’s obstruction tempered a little bit by the fact that the investigators knew the actual leaker was someone else, more or less from the outset, but never prosecuted him?
I’m not excusing Libby’s behavior; it’s not nice to lie to investigators, grand juries, etc., and subjects and targets don’t get to decide what’s important. But if her alleged status is relevant for judging the severity of his obstruction, the timeline of what Fitz knew when strikes me—as a lay person—as just as relevant.
I didn’t know that. Now i do. Whats the bad faith?
Witheld? Dude, is that you?