Advanced Plameology: Deconstructing Byron York and Explaining the Significance of the Term "Covert"
There are a couple of Plame-related issues I've been meaning to comment on. One is the question that Tom Maguire has tirelessly explored over the last year: How "covert" was Valerie Plame? I submit that the reason Tom and many others have found the answer to this question so elusive is because it literally does not have an answer. But before I get to that, I want to take a second to address Byron York's National Review column from earlier this week about the prosecution of Scooter Libby. I want to do this because 1) the column has been cited widely by right-wing blogs over the last few days and 2) it's thoroughly disingenuous and misleading.
York's disingenuousness begins with his choice of titles: "A CIA Leak Trial Without a the CIA Leak." As anyone who's been following this prosecution knows, Libby is not being tried for leaking anything; he's being tried for lying to federal investigators, lying to a grand jury, and obstructing justice. York knows this, of course, but the truth doesn't make for as catchy a headline. But that's the least of the article's problems.
Patrick Fitzgerald and Libby's high-priced defense team have been been engaged recently in pre-trial motion practice over various discovery-related issues. York begins his article by quoting Fitzgerald out of context in an attempt to make it look as if he was somehow contradicting his own prior statements:
Fitzgerald was engaged in the very same sort of argument. His point was merely that his office has no obligation to turn over information that is not relevant. There is no reason whatsoever to infer from this that Fitzgerald's opinion about the seriousness of the underlying conduct has changed.
York goes on:
York also clearly insinuates in this paragraph that there is something unseemly or suspicious about Fitzgerald's position, that Fitzgerald is attempting to hold back something important or embarrassing to the prosecution. This is complete rubbish. Federal prosecutors never turn over discovery material they are not required by law to turn over. This is particularly true when that material is both classified and potentially very sensitive. Given that everyone (including York) acknowledges that Plame was at one time a CIA officer operating under non-official cover, doesn't it stand to reason that any damage assessments might contain highly sensitive and classified information? Why in the world would Fitzgerald just hand that material over to Libby's defense team when he has no obligation to do so? Wouldn't that be pretty careless? Moreover, Fitzgerald has a constitutional obligation to turn over any evidence that is even remotely exculpatory to Libby, and he could get in a lot of trouble if a judge were to find that he failed to do so. Why would Fitzgerald, a man with an impeccable reputation for integrity, choose this case, of all cases, to engage in blatant prosecutorial misconduct? Knowing--as I'm sure he does--that fire-breathing partisans are looking for any excuse to vilify him, I would think that Fitzgerald, if anything, is being even more careful than normal to play entirely by the book.
The remainder of York's column is devoted to the somewhat misconceived question of "how covert" Plame was at the time Bob Novak outed her. York suggests that her status was classified, but perhaps unnecessarily so. The endless confusion over whether or not Plame was covert stems from a misunderstanding of the term "covert." The term "covert" (at least as I understand it) is not a real world designation used by the CIA to describe its agents. Rather, it is a statutory term used by the Intelligence Identities Protection Act to describe the type of agents it is intended to cover, i.e., agents who have served in an undercover capacity within the last five years, etc. etc. In other words, there is no document that says whether or not Plame was a "covert agent." That's a matter of statutory interpretation which only a judge can determine. Plame's employment file will only indicate whether she worked under non-official cover and whether this fact was classified (the answer to both is yes). But that alone is not dispositive of the question. Taking his prior statements to the court at face value (and there's no reason not to), Fitzgerald has some evidence from which he can argue that Plame was "covert" within the meaning of the IIPA. Had Fitzgerald charged Libby with an IIPA violation, however, Libby's defense team would surely have litigated the issue of "covertness" by questioning whether Plame had worked undercover within the five year period and whether the CIA took sufficient steps to protect her identity. Given there have been few, if any, prosecutions under the IIPA, there is virtually no case law interpreting its various provisions. That means it would be very hard to predict how a judge would decide the issue. Long story short, the question of whether or not Plame was "covert" is a difficult legal question that will, most likely, never be decided by a court, and therefore, never have a definitive answer.
Needless to say, York showed no signs in his column that he understands any of these subtleties. He was too busy passively-aggressively questioning the integrity of the most respected prosecutor in the country.
York's disingenuousness begins with his choice of titles: "A CIA Leak Trial Without a the CIA Leak." As anyone who's been following this prosecution knows, Libby is not being tried for leaking anything; he's being tried for lying to federal investigators, lying to a grand jury, and obstructing justice. York knows this, of course, but the truth doesn't make for as catchy a headline. But that's the least of the article's problems.
Patrick Fitzgerald and Libby's high-priced defense team have been been engaged recently in pre-trial motion practice over various discovery-related issues. York begins his article by quoting Fitzgerald out of context in an attempt to make it look as if he was somehow contradicting his own prior statements:
"We're trying a perjury case," Fitzgerald toldYork's implication here is that Fitzgerald is somehow backtracking or retreating from his original statements about the case. This is, quite simply, total nonsense. In the quoted statement above, Fitzgerald is making a counterfactual argument, not stating his opinion about the facts of the case. Libby's lawyers had requested all sorts of information that has little to do with the crimes for which Libby has been charged. To illustrate just how irrelevant this material is to the charges Libby faces, Fitzgerald pointed out that no matter what these documents say, they couldn't possibly bear on Libby's guilt or innocence. Attorneys use this type of argument ALL THE TIME. For instance, defendants in civil litigation routinely file a motion called a demurrer, which asserts that, even if all allegations made by the plaintiff are true, the plaintiff has failed to state a legally cognizable claim and the case should be dismissed. The lawyers who argue such motion are not conceding that the allegations are true; they are merely assuming so for the sake of argument.
Judge Reggie Walton. Even if Plame had never
worked for the CIA at all, Fitzgerald continued
-- even if she had been simply mistaken for a
CIA agent -- the charges against Libby would
still stand. In addition, Fitzgerald said, he does
not intend to offer "any proof of actual damage"
caused by the disclosure of Wilson's identity.
Fitzgerald's comments mark the evolution of the
CIA leak case from a matter in which Fitzgerald
investigated allegations that members of the
Bush administration outed covert agent Wilson
as part of a plot to discredit her husband, Joseph
Wilson -- an alleged act about which Fitzgerald
once said, "the damage wasn't to one person. It
wasn't just Valerie Wilson. It was done to all of
us" -- into a case in which Valerie Wilson's job
status and any damage done by the disclosure
of her identity have become irrelevant, at least
in Fitzgerald's view.
Fitzgerald was engaged in the very same sort of argument. His point was merely that his office has no obligation to turn over information that is not relevant. There is no reason whatsoever to infer from this that Fitzgerald's opinion about the seriousness of the underlying conduct has changed.
York goes on:
Then came the question of Valerie Wilson'sThis paragraph is chocked full of baseless insinuations. First, York implies, falsely, that Fitzgerald has continuously changed his position on this issue. In fact, the various positions York describes in this paragraph are perfectly consistent with one another and have been maintained simultaneously by Fitzgerald from the very beginning. Fitzgerald has made it clear that there is no formal damage assessment and that any informal assessments are 1) irrelevant and 2) not in any way exculpatory to Libby. Therefore, Fitzgerald's office has no legal obligation to turn them over, regardless of what they might say. Where's the contradiction there?
status at the CIA and the damage, if any,
done by the disclosure of her identity. For
months now, Fitzgerald has resisted turning
over any documents that might show that
Wilson's status was classified, or any
assessment of the damage resulting from
disclosure. At times, Fitzgerald has argued
that he did not have the documents, that the
documents were none of Libby's business,
that the documents were irrelevant to the
charges against Libby, and that he did not
have any documents to show that Wilson's
status was not classified, so that therefore
Libby should assume that it was. Finally, in
court Friday, Fitzgerald argued that it just
does not matter one way or the other.
York also clearly insinuates in this paragraph that there is something unseemly or suspicious about Fitzgerald's position, that Fitzgerald is attempting to hold back something important or embarrassing to the prosecution. This is complete rubbish. Federal prosecutors never turn over discovery material they are not required by law to turn over. This is particularly true when that material is both classified and potentially very sensitive. Given that everyone (including York) acknowledges that Plame was at one time a CIA officer operating under non-official cover, doesn't it stand to reason that any damage assessments might contain highly sensitive and classified information? Why in the world would Fitzgerald just hand that material over to Libby's defense team when he has no obligation to do so? Wouldn't that be pretty careless? Moreover, Fitzgerald has a constitutional obligation to turn over any evidence that is even remotely exculpatory to Libby, and he could get in a lot of trouble if a judge were to find that he failed to do so. Why would Fitzgerald, a man with an impeccable reputation for integrity, choose this case, of all cases, to engage in blatant prosecutorial misconduct? Knowing--as I'm sure he does--that fire-breathing partisans are looking for any excuse to vilify him, I would think that Fitzgerald, if anything, is being even more careful than normal to play entirely by the book.
The remainder of York's column is devoted to the somewhat misconceived question of "how covert" Plame was at the time Bob Novak outed her. York suggests that her status was classified, but perhaps unnecessarily so. The endless confusion over whether or not Plame was covert stems from a misunderstanding of the term "covert." The term "covert" (at least as I understand it) is not a real world designation used by the CIA to describe its agents. Rather, it is a statutory term used by the Intelligence Identities Protection Act to describe the type of agents it is intended to cover, i.e., agents who have served in an undercover capacity within the last five years, etc. etc. In other words, there is no document that says whether or not Plame was a "covert agent." That's a matter of statutory interpretation which only a judge can determine. Plame's employment file will only indicate whether she worked under non-official cover and whether this fact was classified (the answer to both is yes). But that alone is not dispositive of the question. Taking his prior statements to the court at face value (and there's no reason not to), Fitzgerald has some evidence from which he can argue that Plame was "covert" within the meaning of the IIPA. Had Fitzgerald charged Libby with an IIPA violation, however, Libby's defense team would surely have litigated the issue of "covertness" by questioning whether Plame had worked undercover within the five year period and whether the CIA took sufficient steps to protect her identity. Given there have been few, if any, prosecutions under the IIPA, there is virtually no case law interpreting its various provisions. That means it would be very hard to predict how a judge would decide the issue. Long story short, the question of whether or not Plame was "covert" is a difficult legal question that will, most likely, never be decided by a court, and therefore, never have a definitive answer.
Needless to say, York showed no signs in his column that he understands any of these subtleties. He was too busy passively-aggressively questioning the integrity of the most respected prosecutor in the country.
posted by A.L. at 12:01 AM
9 Comments:
Thought you might be interested in this 2/28/06 NY Daily News article.
In the filing, Fitzgerald also revealed that his investigators also confiscated computers.
This is new information. It was not previously known that investigators had confiscated computers.
"A CIA employee assigned to provide daily intelligence briefs to the Vice President and Libby has handwritten notes indicating that Libby referred to 'Joe Wilson' and 'Valerie Wilson' by those names in conversation with the briefer on June 14, 2003," Fitzgerald wrote in a recently unsealed brief.
This information appears in the Libby indictment. What is new is that the information came to Fitz through the notes of the OVP CIA briefer.
Note: the quotes in the above citation are as they appear in the NY Daily news article and so look to be exactly what Fitz wrote in his filing. There must be a new filing from Fitz.
Pollyusa
AL - You are right that the definition of "covert" is statutory. You are also right when you say that the statutory language is such that we cannot know for sure whether Plame was covert without a ruling from a judge. However, if you are right on these points (which you are), than it is also true that Libby could NOT have known in advance that Plame was covert, either. Absent this knowledge, Libby could not have committed a crime in disclosing Plame's name because the statute requires the person making the illicit disclosure to KNOW the agent was covert. In fact, since no one could have known that Plame was covert, no one could have committed a crime in disclosing her name. This was obvious from the start. Therefore, the Special Prosecutor should have stopped his criminal investigation at that point.
Instead, he brought Administration staffers in for Grand Jury testimony. For what purpose? Since he could not hope to bring a criminal charge related to the disclosure of Plame's name, and since this was a criminal investigation, the ONLY purpose was to catch someone in what he could claim was a lie. Prosecutors simply should not be questioning people under threat of perjury if there is no crime to investigate. What Fitz has done is a greater abuse of power than anything Libby is believed to have done (perjury and obstruction of justice) and what he's doing is a great threat to our civil liberties. Prosecutors simply cannot be allowed to question anyone they'd like without at least a reasonable basis belief a law was violated. However, AL, as you've proven, Fitz could not have had a reasonable basis for believing Libby or anyone else violated the law in disclosing Plame's name.
Who's more the fool, the fool himself or those who follow him? A bit shortsighted of York to come out with this analysis as it may fly today for those desperate to stay uninformed but cannot fly in the face of Fitzgerald's well prepared case which expose the facts.
David, I think you misunderstood what I was saying. The language of the IIPA isn't so vague that in all cases it is impossible to tell whether it has been violated (if it was, it would be unconstitutional). It's easy to imagine very clear cut violations of the IIPA. But Plame's case may fall into a gray area that requires interpration of the 5 year limitation and the protective measures language of the statute. For that reason, even if Fitzgerald believes strongly that Libby violated the statute, he cannot be 100% certain that a judge will agree with his interpretation.
But that legal uncertainty does not mean that Libby could not have violated the IIPA. If Fitzgerald were prosecuting Libby under the IIPA, he would not have to prove that Libby knew he was violating the statute, only that he knew the various factual predicates described in the definition of "covert." Virtually no criminal statutes require a prosecuter to demonstrate that the defendant knew he was violating the specific law at issue.
Finally, your argument assumes that the IIPA is the only statute at play here. It's not. The Espionage Act has been at play since the very beginning, and comments Fitzgerald has made hint strongly that he believes the Espionage Act was violated. For tactical reasons, however, he feels he can vindicate the interests of justice by prosecuting Libby on the easier and clearer-cut charges of perjury, obstruction, etc.
Al - I may have misunderstood you. If I did, I apologize. However, I took the thrust of your argument to be that, in this case the question of covertness is not an easy call. This was in the context of critiquing York's column for not recognizing how difficult it might be for Fitzgerald to answer this question. Indeed, you seemed to say, the question might be impossible to resolve without resort to the courts. Therefore, York was being naive at best in demanding Fitzgerald answer the question. Is this not a reasonable summary of your critique of York? If it is, your explanation of how difficult this question is to answer demonstrates Libby could not have violated IIPA and that Fitzgerald should have known that from the outset. On the other hand, if the question is not nearly as murky as you argued in your critque, then York was not beyond the pale in asking for Fitzgerald's answer to the question.
David, I still think you are conflating two very different issues. The fact that Plame’s covert status, under the terms of the IIPA, might be legally murky does not mean Libby could not have had the necessary knowledge to have violated the IIPA. Libby’s knowledge of Plame’s employment status is what it is; he knew certain things about her and didn’t know others. His knowledge of the meaning of the law is irrelevant. If Fitzgerald were to try Libby under the IIPA, a judge would determine exactly what “covert” means. Fitzgerald would then present all of his evidence to a jury, and the jury would decide whether, based on the evidence, Libby’s had the requisite knowledge to have violated the statute.
Just because some provisions of criminal statute are not 100% clear as applied to every situation, does not mean a case cannot or should not be prosecuted. This is why we have trials. It is through the prosecution of these “gray area” cases that the law gets refined and clarified.
I admire your logical thinking and presentation and enjoy reading your posts. But I get the feeling that in this particular case you are pursuing logic for the sake logic alone and not for the sake of discovering the truth or producing justice.
Let me use an example. In the case of Al Capone, he was nailed for tax evasion and people were satisfied that he could be cornered for that crime because he could find ways to escape from the more serious charges against him. The legal teams probably presented highly refined argument regarding the tax issues without ever touching the other serious crimes. Yet the society’s primary interest must have been to put him behind the bars because of the threat he posed in these other crimes.
What you seem to be arguing in the present case is that the government should nail Libby for the technical charges because he has been cornered with regards to those charges, even though the prosecutor cannot find any evidence of actual harm done by his actions that were the subject of the investigation to begin with. You are arguing like the smart tax lawyers who argued in Capone’s case. But is Libby the equivalent of a Capone?
What you seem to be arguing in the present case is that the government should nail Libby for the technical charges because he has been cornered with regards to those charges, even though the prosecutor cannot find any evidence of actual harm done by his actions that were the subject of the investigation to begin with.
First, I wasn't trying to offer any normative assessment of how Libby should be prosecuted. I just don't know enough to comment intelligently on that. Only Fitzgerald knows what his investigation has uncovered. I think your suggestion that Fitzgerald "cannot find any evidence of actual harm" is a bit presumptuous. Fitzgerald, like most prosecutors, plays his cards very close to the vest. We have no idea what he knows.
Our system grants prosecutors a lot of discretion in deciding whether or not to bring charges, even when wrongdoing is manifest. This is particularly true of a special counsel like Fitzgerald, who really has no boss. I don't know Fitzgerald personally, but I do know a number of federal prosecutors, and they don't bring charges just to bring them. Fitzgerald is an incredibly busy man, and someone with a stellar prosecutorial record. I find it almost inconceivable that he would have brought these charges against Libby unless he felt he was vindicating an important public interest. I think he has either a solid reason to believe that Libby is guilty of further wrongdoing or he believes Libby is covering up for someone else and is trying to get him to flip. Do I know for sure that this is the case? No. Do Libby's defenders know for sure that there is nothing more to this than "mere perjury." Of course not.
It's possible that Fitzgerald is a rogue prosecutor who his pursuing charges that he should have used his discretion not to pursue. But given what I know about Fitzgerald and people like him, I'm willing to give him the benefit of the doubt for now and assume that Libby more than deserves this prosecution.
Significance. 'Deep prosecution.'
I think some became a little interested in Plame and the CIA when they began to understand what a 'lifer' covert agent really does, or 'appears' to do.
Some operations officers take on the lives of those they are using or have used. They end up in the same parts of the the world doing the same thing, etc.
The answers might be that a lot of CIA Operations Officers claim mental disablity to the end of their careers to avoid responsablity for what was done.
Plame may have been hired and placed based on previous experiences by the employer. A fool might think the employer is trustworthy and make some claims later when they find out other wise. There is little time to make a decision. The operations officer may find out five years later why she was placed, etc. and ten years later might find this disturbing and would want to 'get even' for misunderstanding what the committment by the employer was, not anyone else.
Coming into existence on the earth is committment enough.
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