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Whatever
Tom Maguire at Just One Minute has been covering the Valerie Plame story that the MSM has decided is old news. The truth appears to be that Valerie Plame's recollection of key events is no better than Scooter Libby's.
Yesterday, Tom discussed a key question, Was Valerie Plame Covert? Many people can't seem to fathom the difference between "covert" in routine CIA parlance (which is interchangeable with "classified," and "covert" as it is rigorously defined in the Intelligence Identities Protection Act. Tom sets them all straight and explains why, in the end, we just don't have enough facts, and probably never will, to make that determination. He also points out how the CIA, in Congressional testimony and elsewhere, has been very careful to never state definitively that she was "covert" under the terms of that Act.
Today, Tom walks us through Ms. Plame's various testimonies, often under oath, about just how her husband got send to Nigeria, and her role in that, in Valerie Plame, Telling Stories. Tom makes a nice layout of the 3 different versions of the story that Ms. Plame has told at different times. Check it out.
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The major definition of
The major definition of "covert" used by the CIA is "not overt." Which doesn't come close to meeting the statutory requirements for an IIPA violation.
Fitz is making a bald assertion without supporting evidence, after having fought to keep the supporting evidence to establish the assertion OUT of Libby's trial. Called "wanting it both ways."
Bingo. Here it is. Along
Bingo. Here it is. Along with some protesting from the defense.
IOW, "covert" in the summary claim asserted by Fitz does NOT mean "covert" in statutory terms for the purposes of the IIPA or the Espionage Act. Yep, looks like Fitz wants it both ways AND wants to insert a little wing-meme in the process.
Either Plame was "covert" for the statutory purposes of the alleged crime(s) being investigated, or she wasn't. If the latter, the summary is superfluous and irrelevant from any angle I can think of--other than to bolster Fitz's claim that crimes under the IIPA and EA had not been ruled out before Libby's testimony, and his dragging witnesses before the grand jury was still somehow reasonable, and not a witch hunt. If there was no underlying crime to investigate and Fitz knew it, we come back to witch hunt--there would be nothing to investigate, and the investigation should have ceased when the lack of the alleged underlying crime(s) was established.
Sounds like prosecutorial CYA, with a tinge of malice.
I think your somewhat
I think your somewhat missing the point, which is if Fitzgerald believed she was covert, he had reason to continue the investigation. The attacks against the investigation were of the "I read the statute and she isn't covert, so this is just a liberal attack on the President", which, in retrospect, were ridiculous.
Nope...
At the moment, Fitzgerald is using the cited summary to convince the judge that Libby was really guilty of the non-charged crime, too, and so his sentence should be enhanced accordingly. Fitzgerald is not defending himself in his sentencing brief, he's attacking Libby, explaining why he thinks the judge should throw the book at Libby.
And the question remains, because everybody involved has shown themselves very careless with the distinction between "covert" in general CIA parlance and "covert" in the strict definition of the IIPA, whether Fitzgerald had good reason to believe that Plame was covert under the strict definition, which is the only one relevant to his investigation. For example, did he have good reason to believe that she had been stationed overseas in the past five years? The facts which would establish whether or not she was "covert" under the IIPA should be easily available from the CIA. Did he obtain those first, in order to determine whether any crime had been committed at all?
At the moment, Fitzgerald is
Can you provide a link? (I'm not doubting you, just being lazy).
Try the links in my post, Justin...
The [pdf] sentencing guidelines calculations memo filed by Fitzgerald is linked to in one of the Just One Minute posts I linked to in my original post.
Reading the source document, I see that it's a bit of a mixed bag. For purely legal purposes, Fitzgerald asserts that the only relevant fact is that Libby knew that the investigation he was obstructing was in relation to violations of the IIPA and the Espionage Act.
However, in multiple places Fitzgerald states emphatically that Plame was in fact "covert" for purposes of the IIPA, citing as support the summary memo previously referred to.
As a legal matter, Fitzgerald's sentencing calculations memo appears correct; the sentence for perjury and obstruction does hinge on what crime the defendant believes is under investigation, and the crime of perjury or obstruction can occur even if the underlying crime did not happen at all.
Thus, when Fitzgerald alleges that Plame really was covert after all, and Fitzgerald really did disclose the identity of a covert agent, the only legal purpose for that is not to defend Fitzgerald's conduct, but to attack Libby for having actually committed the underlying, non-charged crime.
Echo Pat
I think your somewhat missing the point, which is if Fitzgerald believed she was covert, he had reason to continue the investigation.
I'm not the one missing the point here. Fitzgerald needed cause to believe that she was covert for the purposes of the relevant statutes, or there was simply no crime to investigate in the first place. That is the ONLY relevant definition of "covert" for the purposes of the investigation--and Fitzgerald fought tooth and nail to prevent Libby's defense team from showing that she was not "covert" under the statutory definitions, and that Fitz knew it.
Fitz's claim is a bald assertion that she WAS "covert" under the IIPA--but NO evidence has ever been offered in any court filing that such was the case, just Fitzgerald's bald assertion in THIS filing. The CIA 's attachment to Fitzgerald's summary which Fitzgerald did not include with his filing defined "covert" much differently than the statute does. As I highlighted above. And that definition does not support an IIPA investigation.
Throughout Libby's trial, Fitz succesfully prevented any exploration of Plame's "covert" status on the grounds that it was irrelevant to the crime charged to Libby. Now it's suddenly relevant--the perjury and obstruction laws allow sentencing of the convicted as an after-the-fact accessory to the crime being investigated. But no such crime has ever been shown! Fitz wants it both ways. So, Fitz is attempting to get Libby sentenced as an after-the-fact accessory to a crime never shown, that likely never occured, based solely on his own assertions offered without ANY supporting evidence, and after having prevented Libby from showing no such crime occured or producing ANY evidence in support.
Bottom line: Either she was a "covert agent" by the definitions of the statutes, or she wasn't. If not, the exact moment Fitz knew she wasn't covered under statutory definition, the only "crimes" he had left to prosecute were any "process" crimes that occured in the investigation itself before Fitz possessed the knowledge that there was no underlying crime. Absolutely everything after that point not directly pertinent to process crimes already evidenced becomes peripheral to the original investigation, and pertinent only to the ongoing "process crime" investigations. Diverging from that is a witch hunt. If Fitz knew Plame was not covered under IIPA at the time Libby was questioned in front of the grand jury, the only relevant crimes being investigated to charge to Libby's sentencing would be the process crimes of others--also NOT evidenced and never charged.
To sweeten it up, the CIA itself requested the initial investigation, yet has to date refused to evidence or assert in any fashion whatsoever that Plame was a "covert agent" as covered under the IIPA at the time of the leak--the single prime element of the original crime alleged. Instead they fall back on the definition of "covert" I highlighted above, as evidenced in their own summary addendum which Fitz did NOT inculde in his filing. Fitz alleges he knew from "early on" in the investigation that Plame was covered--yet has still not produced a single shred of evidence in support, nor has the CIA.
On Fitz's unsupported bald assertion of Plame's "covert" status under IIPA, and nothing else, he's demanding a sentence more than double the standard sentence using the after-the-fact accessory principle. Kafka would be proud.
No, you are entirely missing
No, you are entirely missing the point.
Why should that matter. Libby lied under oath, and that's was what he was convicted for.
Do you have any evidence Fitzgerald is doing this? [edit--just noticed Pat's link in answer to my question. I'll come back to this later after I read it]
Read the article about the assertion--you are wrong. You are basically accusing Fitzgerald of lying or at least not caring about the truth, and of prosecuting somebody for no reason, or for partisan reasons. Fitzgerald is one of the best positions to determine whether she was covert for purposes of the statute--he may be wrong, but to accuse him of just wildly shooting from the hip to lock someone up is a pretty wreckless charge on your part; a charge for which you have ZERO evidence.
Not at all....
Fitzgerald OUGHT to be in the best position to determine whether Plame was "covert," but the problem is that he has not provided any EVIDENCE to support that conclusion. His opinion on the matter is not terribly relevant. As a prosecutor, it is his job to establish the facts which would support that conclusion, if he wants to make use of it to further punish Mr. Libby. Thus, he needs to not say, in a conclusory manner, that she was covert. Rather, he needs to say that, according to the CIA, she was stationed abroad within the past 5 years and whatever other facts are necessary to meet the elements required for a violation of the IIPA to exist.
The fact that he opines that she was covert for the purposes of the IIPA based, explicitly, on the summary from the CIA which does not address those facts, and instead makes fairly clear that the CIA itself does not keep identify its employees, ever, in accordance with the IIPA provisions, is evidence that he's being very slipshod, at best, on this issue.
BS, Justin, and I'm sorry
BS, Justin, and I'm sorry you're too lazy to go check the Libby trial transcripts or the subsequent filings. Your bad.
Fitz actively fought during Libby's trial to prevent the introduction of the evidence that would have conclusively shown Plame's actual status beyond any scintilla of doubt. And succeeded. Now he wants to allege that status as FACT for sentencing enhancement--without any evidence of same having ever been introduced anywhere, because FITZ HIMSELF prevented it. If that allegation is not FACT, it casts doubt on what crime Fitz was actually investigating at the time Libby was summoned beforre the grand jury, which in turn affects the sentencing enhancement. Otherwise Fitz has to prove Libby's state of mind and intent as to exactly what Libby thought he was perjring and obstructing to conceal...a near-impossible task.
He didn't prosecute Libby for no reason--he prosecuted him for perjury and obstruction. Good enough--provided he had evidence in hand to justify the ongoing investigation. Even if it were only vague evidence of "process crimes" on the part of others produced before Libby's grand jury testimony, evidence that justified dragging Libby up to testify. But then the IIPA investigation is not the relevant reference for sentencing guidelines, the "process crimes" investigation is. But Fitz wants Libby sentenced as if he were an accessory to a crime that never happened, without any evidence of same, just Fitz's own unsupported allegation.
Fitzgerald is one of the best positions to determine whether she was covert for purposes of the statute
LMAO. A real Star Chamber fan! Under that standard, we don't even need judges, just prosecutors. They're in the best position to make such determinations, after all! But last I looked, COURTS made findings of fact, no? Juries, even? Like the one that wasn't permitted to hear the relevant evidence of said allegations during Libby's trial?
Fitz fought very hard indeed during Libby's trial to prevent the facts of Plame's actual status under IIPA and the Espionage Act from being established as a matter of factual record. Now he wants to "establish" them by allegation alone for sentencing purposes. He should've allowed that evidence at trial--his position did a 180-degree turn there.
Why he is doing so is your own mileage. I do not assert that Fitz has no reason--but he has certainly offered none, so what his reasons actually are is eminently debateable.
Well, if you are
Well, if you are uncomfortable with how are criminal justice system and sentencing process works, lobby the federal government to have them changed.
LMAO. A real Star Chamber fan! Under that standard, we don't even need judges, just prosecutors. They're in the best position to make such determinations, after all! But last I looked, COURTS made findings of fact, no? Juries, even? Like the one that wasn't permitted to hear the relevant evidence of said allegations during Libby's trial?
Are you being willfully obtuse? You have this strange belief that in order for an alleged crime to be investigated, it must first be proved beyond a reasonable doubt that it in fact occurred.
You have ZERO evidence to back up your statements, so you just deny any counter-evidence as being worthless. A CIA doc said Plame was covert, Plame testified she was covert, Fitzgerald believed she was covert--that does not establish that she was, in fact, covert for purposes of the statute, but your unwillingness to put give any weight to that evidence, while having zero counter-evidence, is, well, just strange.
No, you're the one being obtuse...
It might save some time, Justin, if you bother to go read the Tom Maguire posts I cited, which lay all this out in great detail. But here's one more try.
The word "covert" has an explicitly defined meaning in the context of the IIPA. 50 USC s. 426 provides, in relevant part:
As made clear by the copious links and citations provided by Tom Maguire(the ones you are too lazy to read), the CIA routinely uses the phrase "covert employee" as a synonym for the phrase "classified employee." The CIA has repeatedly told Congress that it doesn't categorize its employees under the structure set forth by the IIPA. There is no list of IIPA covert employees, there is no entry in their personnel records to that effect. The only way to determine whether an individual CIA employee is "covert" for the purposes of the IIPA is to check: (1) to see if their employment is classified, and (2) to see if they are serving, or have served, overseas in the past 5 years. Plame's employment was classified, so the crucial question as to whether there was every any violation of the IIPA at all requires a determination that she served overseas in the past 5 years before the disclosure of her name.
Yes, Plame testified she was "covert" in the common parlance of the CIA. I am not aware of any time that she has testified that she served overseas in the 5 years prior to the leak. Likewise, the CIA document only says that she was "covert" in accordance with the common usage of the CIA. No CIA document I've heard of has said that she served overseas in the 5 years prior to the leak. That is the FACT that Fitzgerald would need to establish or have evidence of in order to proceed, legitimately, with an investigation into whether the leak of her name was indeed a crime.
THAT is what Fitzgerald must establish if he wants to allege that Libby violated the IIPA. The disconnect between the IIPA definition of "covert" and the common usage of that word at CIA has been obvious to everybody from the beginning. If Fitzgerald knew that, or didn't bother to check that easily checkable fact before pursuing the matter of WHO leaked the information, then he acted improperly. He acted particularly improperly in light of Justice Department guidelines which require that reporters only be subpoenaed as a last resort, when their testimony is absolutely necessary. Plame's covert status depended solely on CIA personnel and travel records. He absolutely had an obligation to determine whether she was "covert" before investigating anybody for a violation of the IIPA.
He's too busy dismissing
He's too busy dismissing things out of hand without reviewing the proffered citations, and playing obtuse ad hominem for provocatory purposes.
I read the Maguire post and
I read the Maguire post and get the distinction between the statutory definition and the common definition (as you should have seen I distinguished the two in my commnet). Yes, we will never know for sure whether she was "covert" per the statute, but there is evidence that suggests she was, which is just dismissed by critics of the leak investigation as being meritless, with no real reason as to why it is meritless.
Again, if you do not believe Fitzgerald fine, but on what basis are you dismissing his assertion?
From the newsweek article:
The employment history indicates that while she was assigned to CPD, Plame, "engaged in temporary duty travel overseas on official business." The report says, "she traveled at least seven times to more than ten times." When overseas Plame traveled undercover, "sometimes in true name and sometimes in alias -- but always using cover -- whether official or non-official (NOC) -- with no ostensible relationship to the CIA.
When? For each seperate
When? For each seperate statement, mind you. Without a relevant timeline, the statements don't support anything.