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Thursday, February 22, 2007

Covert or Not in Purple Blogistan

    On February 17, Mark Kleiman composed a post entitled "Was Valerie Plame Wilson's employment classified information? - A challenge to Red Blogistan."

    His post threw down the gauntlet on the subject of the "covert" and/or "classified" status of Wilson's wife, Valerie Plame, and solicited rebuttals from "Glenn Reynolds, Tom Maguire, Victoria Toensing, Clarice Feldman, Byron York, and all their friends." Mr. Kleiman concluding that Mrs. Wilson had classified status, vs. the others claiming an absence of any protected status.

    The question of Mrs. Wilson's "status," and the interplay of "that status" with the ensuing investigation and indictment, is something I pondered a year ago. Given my strongly held belief that Mrs. Wilson had zero, none, nada protected status within the CIA, and that her "outing" was a political event with little or no security ramification, I tried to hypothesize a fact pattern that would account for the public players acting in more or less professional fashion.

    I disagree that the presence of the Libby indictment and prosecution is an unequivocal signal that Plame had some protected status. But I also disagree, rather strongly, with the position of the "Toensing, York, Feldman & Maguire camp" (for want of a better label), that Fitzgerald's conduct is unethical or an abuse of prosecutorial discretion, because Fitzgerald knew that Plame had no protected status. My exchange with Mr. Kleiman is an attempt to explain my rationale for holding what may appear to be conflicting positions.


From: cboldt
Date: Mon, 19 Feb 2007
To: Mark Kleiman
Subject: Re: Was Valerie Plame Wilson's employment classified information

-- Why not argue 'No leak of classified information' in open court? --

    There is a simple (in some ways) explanation for why Libby didn't use "she's not covert/classified" as a defense. That explanation is that Plame's status isn't relevant to the question of whether or not Libby lied to investigators. Well, not directly relevant -- relevant perhaps to motive to lie - for those who can find motive ONLY if the liar believes there is risk of criminal prosecution for telling the truth.

    The question of her status is often couched in the term "materiality." The logic goes that if there is no underlying crime (breaking an anti-leak statute), then false statements can't "mislead" the investigation. The investigation is forgone to conclude there was no classified leak. Hence a free pass for lying. Fitzgerald and Walton have (correctly) cut off this pseudo-defense. Toensing, Feldman and others persistently (and wrongly) assert it. It would be a wonderful defense if this was a criminal leak trial, but this isn't a criminal leak trial.

    Not that Libby wasn't persistent in trying to raise the defense. But as a matter of legal process, the status of Plame is IRRELEVANT to the question of whether or not Libby made deliberate and material misrepresentations to investigators.

    I doubt Plame had any kind of protected status within the CIA, wherein telling of her employment could possibly result in criminal liability. I think Fitzgerald "took the CIA report on its face" and didn't question the secrecy element - he didn't need to unless he was prosecuting a leak indictment. Look at this question in an "order of the investigation" analysis. Those who defend Libby say that the order of investigation should have been:

  1. Confirm with the CIA that Plame's status was such that an IIPA or Espionage Act indictment would not fail
  2. Only if a classified leak indictment could be made should the investigator look for the leaker

    Some of those who assert Plame was covert ALSO take the same order of investigation, but jump to the conclusion that the qualification in step "1" was made, simply based on the fact that the investigator looked for a leaker.

    My surmise is that the investigator skipped step "1." It was "assumed" by the investigator, to be visited later IF and ONLY IF leakers could be identified. The CIA kept (and is keeping) the status of Plame as an unknown.

    My surmise is that the FBI jumped right to "who's the leaker?" without challenging the CIA to prove or provide status of Plame - beyond the conclusory "there may have been a leak of classified information" report. Plame may have had some protected status, or maybe not - but that question is not illuminated by the Libby investigation and trial.

    There are many hints in the pleadings and filings that Fitzgerald was focused on false statements from his start, while entertaining the outside possibility that there may have been an IIPA or other classified leak violation.

    Another way to analyze the situation is using simplified "elements of a criminal leak."

  1. Was Libby a possible leaker? On this element, the investigator charges that Libby mislead investigators. Libby asserted (and asserts) that he had no recollection of Plame working at the CIA, other than playing in the reporters' rumor mill, until he read the Novak column (as an aside, that too is part of the reporters' rumor mill).
  2. Was the leak a criminal violation? On this element, there has been no test.

---===---

From: Mark Kleiman
Date: Mon, 19 Feb 2007
To: cboldt
Subject: Re: Was Valerie Plame Wilson's employment classified information

    I think we're in agreement.

    It now seems uncontroversial that VPW's employment status was classified information. (At least, Tom Maguire concedes it.) That being true, Fitzgerald had a potential crime to investigate under the Espionage Act, whether or not she was "covert" for purposes of IIPA. It was in the course of that investigation that Libby told the fibs he's charged with. Therefore Toensing, York, and Feldman are wrong when they criticize Fitzgerald for running a major investigation where no underlying crime had been committed; even if that were true, or if a crime had been committed but he couldn't prove it, he couldn't make those determinations without investigating. Therefore their sympathy for Libby, caught in a manufactured crime by an overzealous prosecutor, is unjustified.

---===---

From: cboldt
Date: Mon, 19 Feb 2007
To: Mark Kleiman
Subject: Re: Was Valerie Plame Wilson's employment classified information

-- I think we're in agreement. --

    Partially so.

-- It now seems uncontroversial that VPW's employment status was classified information. (At least, Tom Maguire concedes it.) That being true, Fitzgerald had a potential crime to investigate under the Espionage Act --

    Her "employment status was classified," whatever that means. At any rate, Fitzgerald acted as though there was sufficient basis to charge a leaking crime, if a leaker with appropriate mens rea could be identified, etc. My position is that Fitzgerald never TESTED this position (that Plame's position in fact had sufficient basis to charge a leaking crime), he took it as an article of faith, to be tested if and only if he identified a leaker with appropriate mens rea, etc.

-- It was in the course of that investigation that Libby told the fibs he's charged with. --

    Libby started lying to the FBI. By the time Fitz came up to speed (months later), he likely thought Libby had provided false statements. Fitzgerald decided to probe that false statements crime, which simultaneously probes the personal knowledge and mens rea elements necessary to prosecute a leak crime, assuming the secrecy and other elements would be filled in later.

-- Therefore Toensing, York, and Feldman are wrong when they criticize Fitzgerald for running a major investigation where no underlying crime had been committed --

    I disagree with their criticism, but my disagreement is predicated on a foundation that false statements is, on its own right, adequate grounds for the prosecutor to exercise his discretion.

    My support for Fitz's judgment is based on a willingness to prosecute false statements even if some other element of a crime is destined to come up unfounded. There is too much license to lie if the investigatory rule does not punish lying unless an underlying crime can in fact be made out.

    I disagree with your conclusion that Fitz had IN FACT established, to his own satisfaction, adequate "secrecy" grounds to charge a leaking crime.

-- Therefore their sympathy for Libby, caught in a manufactured crime by an overzealous prosecutor, is unjustified. --

    I think their sympathy is unjustified, but I arrive at that opinion via a slightly different route from the one you take.

    The crime of false statements wasn't manufactured by Fitz. The question of whether or not the investigation was warranted was made above his pay grade. An investigation there was (before he got there), and upon review of the witness statements, he saw what he thought were a few egregious liars.

    Feldman and Toensing would overlook false statements in THIS CASE, and their justification is that there was no [criminal] leak.

    Their logic bottoms out at "If there can be no [criminal] leaker, there can be no liar," or in a more nuanced phrasing, it's an abuse of prosecutorial discretion to pursue this liar.


Comments:
I don't make it a habit to go around mischaracterizing your arguments, and I wish you'd extend the same courtesy to me. I never believed Libby lied. Never.
I have said, however, that it is prosecutorial abuse in this case to continue w/ an investigation when it is apparent--or should with a logical inquiry have been--from the outset that there was no underlying crime and further that to prosecute on a process crime in the absence of prove that a real crime was committed is rare and was inappropriate here. In that I am backed by FBI correspondents and the public record.
 
Thank you, Cbolt.

Why Libby would tell Ari sbout Plame and say it was hush-hush, if he did not know he was revealing classified information?

If her identity was NOT protected, surely there was no reason for that cautionary statement.
 
1. I don't think that you are misconstruing CF (in general). While she is better than the cheerleader types and makes attempts to engage, she is also evasive at times in discussion and seems to want to confuse objective view of a situation with what she wants to be the case based on which party she likes better. She's also not as rocket smart (though no dummy, certainly) as I thought at first.

2. I'm pretty disappointed by the lack of logic and of objectivity from conservatives in general on this issue. Acting a lot like liberals. Wouldn't want these weak (in terms of intelectual honesty) types serving the midwatch on a ship with me...or in a POW camp. Or in a cirtical investigation of something. Or even as a referee of a game where they favored one NFL team. I just think the lack the smarts or the honesty to be dispassionate and objective. Sad.
 
Any mischaracterization I made of Feldman's position regarding whether or not Libby fibbed to investigators, that mischaracterization is immaterial to my process beef, because whether Libby lied or not CANNOT change the outcome of applying the prosecutorial process Feldman advocates.
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By holding that the indictment should be scuttled unless the "classified" or "covert" status is established as predicate for an underlying leak crime, the Feldman order of procedure avoids getting to the question of whether or not Libby was a liar. The question is avoided by first concluding that Plame had no protected status.
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What is Fitzgerald to do, IF, coming on scene in the middle of the play and reviewing investigator notes, what IF he comes to an honestly held belief that a witness lied? Feldman would have Fitz go back and check with the CIA, and when the CIA fails to provide evidence of covert or classified status to Plame (sufficient to make a criminal leak charge), Fitzgerald is (by applying the prosecutorial ethics proposed by Feldman) duty-bound to overlook any and all witness lies.
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Asserting in a conclusory fashion that Libby didn't lie is a way to avoid the "license to lie" outcome of the process that Feldman advocates.
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Interesting though, Joe DiGenova said, of Fitzgerald in the Libby investigation, "If he can prove real perjury and an effort to mislead the grand jury, then he should bring indictments."
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The jury is out on whether or not Fitzgerald can prove real perjury and an effort to mislead the grand jury.
 
-- Why Libby would tell Ari about Plame and say it was hush-hush, if he did not know he was revealing classified information? --
.
There is a range of "hush hush secret," most of which is well below the threshold of "classified" or "covert." Ari's perception was formed by hearing "hush hush" without all the formality that ALWAYS accompanies a "this is classified" disclosure, and subsequently overhearing Barlett's venting to himself. I presume the "hush hush short of classified" conclusion is what gave Fleischer enough comfort to spill the beans to some reporters.
.
Libby would use "hush hush secret" to discourage Ari from aggressively blabbing to reporters.
 
Now I'm confused. You say you can't make sense of the idea of classified employment status. But nothing could be simpler. Even if someone isn't a "covert agent" under IIPA, that person can be working under cover: that is, his or her employment by the CIA is a secret, is classified information. Revealing such information can be a crime under the Espionage Act.

In this case, the indictment recites that VPW's employment was classified information at all relevant times. The defense has not challenged that.

So I'm unable to imagine how you, or Clarice Feldman, or anyone else can say that Fitzgerald had no underlying substantive crime to investigate.

May I have an answer from you or her on this specific issue?

You make a good point, however: if Libby lied to the FBI, that itself was a crime worth investigating, whether he did so because he feared criminal prosecution or merely to cover his butt (or his boss's butt) politically.
 
-- Even if someone isn't a "covert agent" under IIPA, that person can be working under cover: that is, his or her employment by the CIA is a secret, is classified information. --
.
I agree with that in general. But I don't believe that Mrs. Wilson had (as of 2003) a sort of status within the CIA that would support a criminal leak prosecution under IIPA or the Espionage Act -- and probably not under some generic "leak of classified information" statute either.
.
The simple fact that she was employed by the CIA was not classified information. "Valerie Wilson's employment status was classified," according to Fitz. I believe him on that account, but I am wont to carefully parse the meaning of "employment status was classified."
.
While I personally have a very strong belief that Plame had absolutely no "protected against outing" status, I don't have access to what would constitute objective proof of that - at least no more than is obtained by noting she was outed as CIA by Agee, and accidentally outed as CIA to the Cubans. That her name fairly casually appeared in circulation beyond "need to know." That Harlow admitted to Novak, "she works here." I'm sure there is more.
.
My caution to the crowd that concludes disclosing "Mrs. Wilson works at the CIA" could be (depending on knowledge and mens rea) a criminal offense? That the Libby trial is equivocal basis for reaching that conclusion. And on balance, that there is more evidence to indicate she was not, than to indicate that she was. See, e.g., the odd phrase "employment status was classified." In pleadings full of careful legal phrasing, this phrase sticks out like a sore thumb.
 
Libby would use "hush hush secret" to discourage Ari from aggressively blabbing to reporters.

But, see, that's exactly what I don't understand. Why would it matter if Plame's role was blabbed? It could only help undermine Wilson's position in the public eye.

The more I read, the more I tend to agree with you, TCO, and you CBOLT. There is a rampant epidemic of wishful-thinking blindness among Libby partisans.

"If Plame was not covert no crime was committed." Well, jeez-oh-pete, if that's the case, why didn't Bush just say so, when he had the chance?
 
-- But, see, that's exactly what I don't understand. Why would it matter if Plame's role was blabbed? --
.
It doesn't matter IF it is blabbed, and the intention was probably to have it blabbed. The "matter" involves who is associated with precipitating the blabbing. If the story pops out from a lower level, even from Fleisher, or better yet, from an anonymous source, then the senior administration officials can act "above the fray," "adult," responsible," and "above the practice of political cheap shots."
.
Those contentions are still defended, albeit these days more by the vehicle of "no comment" than by overt denial.
 
I get it now! By saying it was hush-hush, he was giving Ari implicit permission to leak it, without saying who told him. Thank you for clearing that part of the puzzle up for me.
 
If her employment status was not protected can someone please explain to me why she used Brewster Jennings as emloyment on her tax returns?

Why would someone who's employment was overt say they worked for a cover company?
 
-- If her employment status was not protected can someone please explain to me why she used Brewster Jennings as emloyment on her tax returns? --
.
Who knows what the spooks had in mind - but that 1999 tax-return tidbit does not establish "identity as employee of an intelligence agency is classified information."
.
Not to say it is a meaningless piece of information, and it certainly does incline toward a front where any and all Plame association with the CIA is to be hidden from view - formally classified information.
.
If this was a criminal leak case, we'd get to see the evidence of protected status. As it is, the prosecutor (and the system) have a vested interest in maintaining the investigation itself as a "serious matter," and that means there has to be pretense that "protected status" wasn't laughably absurd on its face.
 
I think Fitzgerald "took the CIA report on its face" and didn't question the secrecy element - he didn't need to unless he was prosecuting a leak indictment.

So you think that Fitz is some flamingly incompetent that he didn't even bother to find out if a crime had been committed before beginning an "investigation" of that "crime"?

Wow, and I thought I had a low view of Fitz.

But you've got me beat.

Of course, this all leaves aside the fact that he found out early that Armitage was the one who leaked to Novak, but then kept on "investigating."

Or did I read that wrong?
 
I think Fitz was right to investigate other leaks. You investigate one SEC misstatevement and find several more, do you not check them all out? The people who would insist otherwise are either tendentious, self-biased without knowing it, or dumnb. NExt we'll hear the SAndy got away with it defense. WAit, we already are wrt Armitage.

Amazing how Bush defenders abandon logic and honor to defend "their guys". I'm glad the REpubs lost in 2006. Maybe we can get real conservatives in now, rather than the pharma drug, Iraq-screwing, losers we have now...who just want to get elected.
 
I gather that the difference between Armitage and Libby is that Armitage told the truth about his role in the leak. And maybe about more other things than we know.
 
I gather that the difference between Armitage and Libby is that Armitage told the truth about his role in the leak.

Fitz'es charge was to investigate that leak. Yes?

Given that, unless he had been "lied to" before he found out that Armitage did it, he should have shut down his investigation right then.

That is, assuming he's an honest prosecutor, rather than a power hunger / headline hungry / something else hungry sleazy ball willing to abuse his power.

So, did Libby "lie" to him before or after Armitage told him who leaked?
 
What I'm not clear about is how much the "leak" was pursued while Ashcroft was in charge of the case. Did the FBI begin interviews during that time and is it possible that there were red flags in those early transcripts that caused Fitzgerald to look beyond Armitage?
 
cboldt, I can't thank you enough for this blog and for your very thoughtful, very thorough approach to this trial.

I happen to think personally that the moral ramifications of the revelation of VPW's identity are far more concerning than the legal ones. But regardless of my view on the subject, it is very refreshing to see someone like yourself, who I think could be reasonably characterized as being substantially in agreement with the "right of center" position on Libby's indictment, take an honest, logical, intellectually probing look at this trial. It is *so* refreshing when compared to much of the rest of what you often seen written out there emerging from the keyboards of both the partisan left and right.

Thank You!

Epicurus
 
Epicurus: -- thank you ... for this blog and for your very thoughtful, very thorough approach to this trial. --
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I'll recount briefly why I developed the library of source documents. Opposing sides become entrenched and adopt an adversarial approach. Advocates chronically misrepresent the record, their opponents, and are skilled at (il)logic and rhetoric. The only, the ONLY way to understand an issue is to rely on source documents and an independent thought process.
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-- I think [you] could be reasonably characterized as being substantially in agreement with the "right of center" position on Libby's indictment --
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Negative. The "right" rejects my point of view on the indictment, and my point of view on Fitzgerald. I am a pariah on this subject in the eyes of the posters at FreeRepublic and JustOneMinute. If I challenged the advocacy of the left, I'd be a pariah with them too.
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At any rate, thank you for letting me know you found my effort useful.
 
cboldt:-- Negative. The "right" rejects my point of view on the indictment, and my point of view on Fitzgerald. I am a pariah on this subject in the eyes of the posters at FreeRepublic and JustOneMinute. If I challenged the advocacy of the left, I'd be a pariah with them too.


Fair enough. I stand corrected reagrding my ideological mischaracterization of your take on the trial.

I must admit, I'm not a frequent reader of FreeRepublic or JustOneMinute (though I probably should be to get a more complete understanding of all points of view) and regardless, it was probably silly of me to try to pigeon-hole you in any event. Thanks again.
 
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