cspan-toensing.jpgIn the run-up to the sentencing of Scooter Libby next week, there are four major stories around the case, beyond the issue of the public release of letters to Judge Walton about Libby Jane discussed below: the role of Dick Cheney in directing Libby's actions during the week of July 6-14, 2003; Fitzgerald's announcement that Valerie Plame Wilson was determined to be covert under the Intelligence Identities Protection Act early on in the investigation; Fitzgerald's argument for a relatively stiff sentence for Libby of 30-37 months; and Senator Bond's renewal of criticism of the Wilsons in his additional views in the newly released part of the Senate Select Intelligence Committee's report on prewar intelligence on Iraqi WMD.

(There's actually a fifth piece of news, which shockingly has not received as much attention: Murray Waas along with some guy with the same first name as me have edited the transcript of the Libby trial for publication, with a hefty introduction by Waas and extensive editorial apparatus. It will be published on June 5, the day Libby is sentenced. I have it on good authority that it's awesome and you should all buy it. End shameless plug masquerading as news.)

I want to talk about the disclosure that Plame was covert under the IIPA, according to Fitzgerald.

Conservatives have staked a good part of their criticism of Fitzgerald and their defense of Libby on the notion that Plame did not qualify as a "covert agent" under the relevant statute, the Intelligence Identities Protection Act, and Fitzgerald knew it, so the investigation should have been terminated before Libby even got a chance to commit the acts of obstruction and lying for which he has been convicted of crimes. Fred Thompson, incipient Republican presidential candidate and staunch defender of Scooter Libby, recently gave a nice précis of this argument in a speech delivered to the Council for National Policy on May 12, 2007:

[T]here was no violation of the law, by anyone, and everybody — the CIA, the Justice Department and the Special Counsel knew it. Ms. Plame was not a "covered person" under the statute and it was obvious from the outset.

The master purveyor of this argument, however, has been the Republican operative Victoria Toensing, who has claimed some authority because she had some role in the crafting of the IIPA. The key to her argument is not just the claim that Plame was not covert under the IIPA, but that everyone involved in the investigation knew this from early on. Toensing has changed her position slightly over time, offering contradictory characterizations of the position of the CIA and hedging slightly, but the central claim is that investigators either knew or should very easily have figured out that Plame did not qualify as a "covert agent" under the IIPA. Thus back in the fall, she argued on the Wall Street Journal editorial page:

Despite what some CIA good ol' boys might have told Mr. Fitzgerald, he knew from the day he took office that the facts did not support a violation of the Intelligence Identities Protection Act; therefore, there was no crime to investigate.

She argued slightly more carefully in the Washington Post on the weekend between when the two sides finished presenting their cases and when they did their closing arguments, staging a mock-indictment of all manner of people involved in the case outside the White House:

THIS GRAND JURY CHARGES PATRICK J. FITZERALD with ignoring the fact that there was no basis for a criminal investigation from the day he was appointed

and she explains:

On Dec. 30, 2003, the day Fitzgerald was appointed special counsel, he should have known (all he had to do was ask the CIA) that Plame was not covert, knowledge that should have stopped the investigation right there. The law prohibiting disclosure of a covert agent's identity requires that the person have a foreign assignment at the time or have had one within five years of the disclosure, that the government be taking affirmative steps to conceal the government relationship, and for the discloser to have actual knowledge of the covert status.

The key thing here is the bit about "foreign assignment," which is Toensing's gloss on the IIPA's definition of a "covert agent" as someone "who is serving outside the United States or has within the last five years served outside the United States." On the basis of that gloss, Toensing argues that Plame was not covert. And the reason it is important for Toensing to argue that Plame was not covert under the IIPA and that investigators did or should have known that is because if she is right, then she can argue that the entire investigation should never have gotten off the ground, since no conceivable violation of the IIPA could have taken place; and of course without an investigation, Libby would not have been in a position to commit the lies under oath for which he was convicted. (I leave aside, for the purposes of the discussion, the Espionage Act; but Toensing's argument about the Espionage Act has a parallel flaw to the one I identify here.)

However, Toensing is wrong. Fitzgerald has now said:

[I]t was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press.

That means that, whatever Toensing herself or anyone else thinks about Plame's covertness, those pursuing the investigation determined that she was covert under the statute. (And note that Fitzgerald told the Court of Appeals in August 2004 that his attorneys from the USA office in Illinois had participated in analyzing the relevant statutes.) And the basis for this judgment is no great mystery, now that Fitzgerald has released the unclassified summary of Plame's post-2001 CIA career and cover history. Fitzgerald prepared it in response to an order from Reggie Walton back in June 2006 to give to the defense, after Walton determined that the disclosure of the classified materials bearing on Plame's CIA employment would cause serious if not grave damage to national security, a substitution for that classified material. The summary explains that Plame, an operations officer in the Counterproliferation Division of the CIA, "engaged in temporary duty (TDY) travel overseas on official business. She traveled at least seven times to more than ten countries." And she always traveled under a cover identity of one kind of another. Clearly, investigators understood such overseas duty as qualifying as service abroad, and therefore – in conjunction with Plame meeting the other requirements for being a "covert agent" under IIPA – Plame was covert under the IIPA.

Tom Maguire, the best conservative Plameologist out there, has been quibbling furiously and as entertainingly as ever by raising all sorts of questions about how strong the good faith of this determination was, why Fitzgerald wasn't willing to submit the claim to proof in the adversarial context and so forth. But the issue is not the facts about Plame's career and cover anymore, it's about how to interpret the law, and more particularly the definition of a covert agent as someone who has served abroad in the five years before their outing.

Toensing glosses the service abroad requirement as meaning that someone has had a "foreign assignment" – and other glosses heard from the right include the notion that someone must be "stationed" abroad. Those interpretations carry no particular legal weight or authority, and they are glosses. Fitzgerald evidently has a different interpretation of the requirement that a "covert agent" have served abroad.

Undoubtedly, Toensing will continue to claim that the statute that she had some hand in crafting should be interpreted the way she suggests, and not the way Fitzgerald does (though one does have to wonder why she acquiesced in language that could be open to interpretation this way – if she meant "stationed abroad for some extended duration" by "service abroad", why not just say so?). This could only be settled by being adjudicated in court. But surely Fitzgerald's interpretation is a perfectly reasonable one, and one that there is simply no reason to doubt he made in good faith. As such, the investigation itself was on perfectly sound footing, and so it went forward, and so Libby was prosecuted and convicted for obstructing the investigation by lying egregiously and repeatedly under oath about matters at the heart of that investigation.

Jeff Lomonaco

Jeff Lomonaco