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How To Betray America’s Spies

Toensing on CSPAN via C&L

CSPAN screen shot thanks to this C&L story.

During Friday’s hearing of the House Committee on Government Oversight and Reform, Valerie Plame Wilson calmly explained that her identity as a covert agent of the United States had been “carelessly and recklessly abused” by White House officials, including Dick Cheney, Scooter Libby, and Karl Rove. That action ended her covert career, exposed her classified cover operation and risked the lives of unknown others who were connected with that cover. With the personal clearance of the Director of the CIA, Committee Chairman Henry Waxman read a statement declaring that Plame had been a covert agent when the White House exposed her identity and employment, that her status had been classified and that the CIA had taken active steps to protect her classified identity and employment. Plame’s sworn testimony and responses to questions confirmed these facts and the fact that during the past five years, until the White House outed her, the CIA had sent her overseas on secret, covert missions, while she also held supervisory positions in the CIA’s Counter Proliferation Division, which deals with some of the most sensitive and critical issues in the US intelligence community.

Given the importance of this work and the obvious need to conceal the identities and secret covers of agents working in the field, you’d think that US laws would be written to protect covert agents like Valerie Plame, to encourage government officials to protect the identities of covert agents and to punish those who revealed their status and employment. But according to Republican attorney Victoria Toensing, who claims she is responsible for drafting the Intelligence Identities Protection Act, Valerie Wilson and other covert agents like her are not covered by the IIPA, even though protecting the identities of our covert agents would seem the obvious purpose of this statute. So let’s examine Toensing’s arguments, one by one.

Toensing first claimed without qualification that Plame was not in fact a covert agent, but when questioned by Committee Chairman Waxman, Toensing conceded that she had not discussed any of the relevant facts necessary to support her conclusion with the CIA or Plame. Instead, Toensing claimed she was making a legal argument: whatever Plame and the CIA thought about Plame’s covert status, Plame was not a covert agent “under the statute.” So what was missing?

According to Toensing, the CIA could not legally claim covert status for Plame, because Plame had not been “stationed” oversees within the requisite five-year period before she was outed by the White House. (Toensing made the same “not stationed abroad” argument in her WaPo op-ed.) However, the IIPA does not require that an agent be “stationed” overseas in the sense of residing there; it requires only that the agent be a person . . .

. . . who is serving outside the United States or has within the last five years served outside the United States.

Toensing is apparently claiming that the statute must be construed narrowly to exclude protecting covert agents with secret oversees assignments but whose residence/base is in the US. So if they were based/resided in the US, but served via frequent covert missions to Lebanon and Iran, they would not be covered; but if they were based in England, and had exactly the same assignments to Lebanon and Iran, they would be covered, under Toensing’s interpretation.

Of course, the IIPA does not make this distinction and there would be no logical reason for it to do so; indeed, it would make perfect sense for the CIA to have persons residing/based in the US under secret cover that allowed them to travel abroad from time to time on secret covert missions. So why would a reviewing court interpret the statute to cover some agents but not others when their assignments were identical and the reasons for protecting both were exactly the same? And why should a court conclude that Congress would intend such an illogical and dangerous result for America’s agents when there is no language or reason to suggest it?

IIPA in fact uses the term “resides” when it means living in a particular country, but uses “serving outside the United States” when it doesn’t mean “reside” there; this seems a clear indication that Congress did not mean the words “serving outside the United States” to mean “stationed,” as Toensing suggests. Larry Johnson explains this point further in this post.

Next, Toensing argued that the CIA was not actively protecting the secrecy of Plame’s covert status, so Plame can’t be considered “covert.” But according to the Waxman statement approved by the Director of the CIA, and confirmed by Plame’s sworn testimony, the CIA was protecting her covert status during the relevant period. Further, the creation of a cover story (Brewster-Jennings) and the CIA official’s unsuccessful effort to persuade Novak not to publish his article are further evidence of an active effort. But that isn’t enough for Toensing, because she is pushing a far more extreme view of the statutue.

Toensing argued, for example, that the CIA did not explicitly warn White House officials that Plame was a covert agent covered by the IIPA, implying that the CIA must effectively expose an agent to people who have no need to know such details in order to be deemed taking “active measures” to protect that agent. (But recall that the INR memo did list her employment as secret.) But that is not the only extreme argument Toensing made. She also argued that because DCI Tenet did not personally call Robert Novak to persuade Novak not to reveal Plame’s employment, that failure is evidence that the CIA was not effectively protecting her status. But is Toensing claiming that unless the DCI personally intervenes with a reporter to protect an agent, then that agent is not protected by the IIPA?

Or is Toensing implying that if the CIA fails to convince a reporter not to reveal classified information revealing a covert agent’s status, that fact alone can be used to remove the agent from protected status and bar (or be a defense to) a prosecution of the government official who revealed the information to the reporter? Followed to its logical extreme, that argument would mean that the IIPA applies only if the reporter agrees not to publish, but if he/she does publish, the IIPA can’t be applied, even though that is precisely when it should apply if it is to have a deterrent effect in protecting other agents from exposure. It is hard to imagine that a court would accept such extreme arguments and absurd outcomes that so clearly undermine the purpose of the statute.

Toensing did not say that Plame might be covered if all the facts were known, nor did she suggest that an evidentiary hearing would be necessary to determine the facts about the CIA protection. Instead, Toensing said, without qualification, that Plame wasn’t covered under the statute. So Toensing appears to be suggesting the extreme view that any laxity on the part of the CIA to protect an agent means that the agent is, as a matter of law, not covered by the IIPA.

Of course, the relevant sections of IIPA do not require that the CIA’s protection efforts be perfect. The statute requires only that . . .

. . . the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States

The protection the IIPA provides to the nation’s agents depends in no small part on a credible deterrent effect from the possible prosecution and imprisonment for those who expose covert agents. Yet Toensing is undermining that deterrent by arguing for an interpretation under which agents are not covered and no one can be prosecuted if there is any reason to believe the CIA was less than perfect in concealing their covert identity.

Just as the Republicans in the hearing tried to blame the CIA for Plame’s outing, what Toensing is attempting with her extreme and dangerous interpretations is to rewrite IIPA so that it is the quality and success of the CIA’s protective actions that are on trial, not the actions of the persons who leaked the classified information. If you can undermine prosecutions under the IIPA so easily, then no agent would ever be safe from exposure, because someone could always claim that the CIA had not done everything conceivable to protect the agent. And the disclosure itself would be proof of this failure.

Toensing’s interpretation of the statute is thus essentially circular and renders the statute virtually useless as a deterrent. If an agent is outed, that agent may not be covered by the statute, because the mere fact of the outing is evidence that the CIA was not sufficiently protecting the agent. Case closed. No prosecution; no protection for America’s covert agents.

Now lets apply Toensing’s interpretation to a hypothetical. Suppose that Karl Rove knew that Valerie Plame was a covert agent serving from time to time in Iran, and Rove was carelessly given that information because a CIA official gave the information to Dick Cheney/Libby when they asked for it but didn’t expressly tell Cheney/Libby to tell anyone else (Rove) not to reveal this. Then suppose Rove deliberately, knowingly leaked the agent’s identity. If all this happened, then no one could be prosecuted under the IIPA, and the Act’s deterrent value in protecting agents would be lost. That’s the logic of Toensing’s extreme interpretation.

The Republicans on the House Committee purposely invited Victoria Toensing, because they regard her as their national security “expert” on the laws that are supposed to protect our nation’s secret agents. But what Victoria Toensing proved Friday is that she has either egregiously misinterpreted the statute to render it unworkable or egregiously mis-drafted a statute that does not do what it purports to do. If her interpretations are wrong, as they most assuredly are because they are inconsistent with the statutory wording and lead to absurd results inconsistent with the statutory purpose, then she is not the kind of “expert” to whom anyone should be listening. If her interpretations are correct, the statute she claims she drafted does not protect the nation’s covert agents, even though everyone, including the Congress, the CIA, and the agents themselves thought it did protect the nation’s agents. Either way, why should anyone rely on lawyers like Toensing to explain the law or protect our spies?

And one last thing: Chairman Waxman asked Plame whether anyone from the White House had ever apologized to her or expressed any regret for outing her, destroying her cover and jeopardizing the lives and careers of others associated with her work and cover operation? “No, Mr Chairman,” she said. But we should ask the same question to Republican “legal expert” Victoria Toensing. Has Toensing apologized to Valerie Plame and all the nation’s covert agents for having written (or grossly misinterpreted) a statute whose purpose was to protect them from exposure but which, under Toensing’s interpretation, provides as much protection as Russian Roulette? Digby has the answer.

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley