{"id":9253,"date":"2007-06-03T21:41:00","date_gmt":"2007-06-04T04:41:00","guid":{"rendered":"http:\/\/proteinwisdom.com\/?p=9253"},"modified":"2007-06-03T21:41:00","modified_gmt":"2007-06-04T04:41:00","slug":"ostensibly-covertly-covert-dan-collins","status":"publish","type":"post","link":"https:\/\/proteinwisdom.com\/?p=9253","title":{"rendered":"Ostensibly Covertly Covert [Dan Collins]"},"content":{"rendered":"

Tom Maguire has a great post up about La Plame’s pension files<\/a> and the light they might shed on her “covert” status with respect to the legal definition under IIPA.\n<\/p>\n

\n

One key issue from the statutory definition of “covert agent” is whether Ms. Plame met the requirement for service abroad.  From Mr. Taranto:\n<\/p>\n

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.<\/p><\/blockquote>\n

\nVictoria Toensing noted the same “service abroad” issue in 2005.\n<\/p>\n

\nSo, 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.<\/p><\/blockquote>\n

\nSo that was all provided to the defense during discovery, right?\n<\/p>\n

\n

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?\n<\/p>\n

\nNot so fast.\n<\/p>\n

\nPatrick 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.<\/p>\n<\/blockquote>\n

\nWell, but . . .\n<\/p>\n

\n

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).\n<\/p>\n

\nThis 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.\n<\/p>\n

\nBut 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.<\/p>\n<\/blockquote>\n

\nThat’s kind of suspicious of you, Tom.  I mean,\n<\/p>\n

\n

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.\n<\/p>\n

\nFitzgerald 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.\n<\/p>\n

\nIt 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.\n<\/p>\n

\nAnd 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:\n<\/p>\n

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.”
\n\n<\/p><\/blockquote>\n

\nI 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.<\/p><\/blockquote>\n

\nStill, I mean it’s not as though he’s liable to . . .\n<\/p>\n

\n

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.\n<\/p>\n

\nOr 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 \u00c3\u00a2\u00e2\u201a\u00ac\u00c5\u201ccovert\u00c3\u00a2\u00e2\u201a\u00ac\u00c2\u009d CIA officer”.\n<\/p>\n

\nBut the defense response provided a bit of clarification which Fitzgerald had overlooked, or forgotten, or something:\n<\/p>\n

The summary described above was provided to the defense along with a companion summary that defined a \u00c3\u00a2\u00e2\u201a\u00ac\u00c5\u201ccovert\u00c3\u00a2\u00e2\u201a\u00ac\u00c2\u009d CIA employee as a \u00c3\u00a2\u00e2\u201a\u00ac\u00c5\u201cCIA employee whose employment is not publicly acknowledged by the CIA or the employee.\u00c3\u00a2\u00e2\u201a\u00ac\u00c2\u009d4 It is important to bear in mind that the IIPA defines \u00c3\u00a2\u00e2\u201a\u00ac\u00c5\u201ccovert agent\u00c3\u00a2\u00e2\u201a\u00ac\u00c2\u009d differently.<\/p><\/blockquote>\n

\nIndeed it does.<\/p><\/blockquote>\n

\nOh, well.  I mean, if you’re going to argue this as a matter of law<\/i>.\n<\/p>\n

<\/p>\n

For those who don’t understand why this is troublesome, here is Clarice Feldman’s excellent conspectus<\/a>:\n<\/p>\n

\n

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.\n<\/p>\n

\nWith 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.\n<\/p>\n

\nNo 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.\n<\/p>\n

\nIt 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.\n<\/p>\n

\n(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.)\n<\/p>\n

\nIn 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 .\n<\/p>\n

\nEqually 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.\n<\/p>\n

\nAt 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.\n<\/p>\n

\nFitzgrald’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?\n<\/p>\n

\nIndeed, 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 .\n<\/p>\n

\nAnd 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.\n<\/p>\n

\nTo 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.\n<\/p>\n

\nAnd 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.\n<\/p>\n

\nIn 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.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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<\/p>\n

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