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One of the several issues that may spark fireworks and the disclosure of new information at Scooter Libby's sentencing tomorrow is the question of Valerie Plame Wilson's status as an undercover CIA officer. That she was covert in the real-world, CIA sense has now been established beyond any doubt. But since Patrick Fitzgerald is arguing that Libby's sentence should be enhanced because he obstructed an investigation of a serious potential crime, the violation of the Intelligence Identities Protection Act, there is likely to be dispute over whether Plame was a "covert agent" in the IIPA's peculiar definition of the term, which requires service abroad in the five years before the officer's cover was blown, as it was when at least four senior Bush administration officials disclosed Plame's CIA employment to reporters in June-July 2003. Fitzgerald has now made public his conclusion that Plame's covert work abroad qualified as service abroad and therefore she qualified as a "covert agent" under the IIPA. Not surprisingly, the defense is holding to the view that "service abroad" requires that the under cover officer be "stationed" abroad, and therefore that Plame did not qualify for protection under the IIPA.

Last week I showed how, regardless of the disposition of that issue, Fitzgerald's new disclosure that investigators concluded early on that Plame was covert under the IIPA demolished one of the main arguments of critics of his investigation and prosecution of Libby from the right. Because the meaning of "service overseas" in the IIPA definition of a covert agent has never been settled, people will continue to contest what it means and therefore whether the fact that Plame, as the unclassified summary of her career and cover history that Fitzgerald disclosed last week indicated, did intelligence work under cover overseas on seven occasions in the period before her outing qualifies. But what cannot be disputed is that investigators arrived at the conclusion that it did and therefore determined that a violation of IIPA could well have happened. And as I said, there's no reason to doubt that Fitzgerald and investigators came to that perfectly reasonable conclusion in good faith. Part of what I meant is that it's transparent that their understanding of the law was that "service abroad" meant that the relevant officer – Plame, here – had done covert work overseas, without the demand that it be of any lengthy duration in any given instance. Toensing had led the charge that the investigation proceeded without a basis because, Plame not counting as covert, the underlying statute could not conceivably have been violated and Fitzgerald knew it. But that turns out to be factually incorrect.

This seems to have sent the leading conservative commenter on the leak investigation, Tom Maguire, around the bend, and he has now summed up and modified his response to Fitzgerald's disclosures (and my argument) with the claim that Fitzgerald did not proceed in good faith because . . . the CIA did not include information about Plame's pension arrangement in the unclassified summary of her career and cover history they prepared and which Fitzgerald gave to the defense in June 2006, after having it approved by Judge Walton who had access both to the classified materials it was meant to summarize and the summary itself.

Let me explain.

To make a long story short, it turns out the CIA tracks employees' service abroad for the purposes of pension calculations. So, Maguire argues, Plame's personnel file should tell whether the travel abroad in the five years before her cover was blown by the Bush administration was counted by the CIA as "service abroad." The more appropriate question, of course, would be whether it should be included, regardless of whether it was or not – it could have been left out mistakenly. But fair enough.

Now, it may well be useful to consider whether the CIA's standard way of proceeding would be to include the kind of covert work abroad that Plame did in the five years before the Bush administration blew her cover in its pension calculations, though it's far from clear that this should be controlling in the interpretation of the IIPA, as Maguire seems to suggest (and I'll come back to this). And we don't know whether the CIA in fact recorded Plame's temporary travel duty abroad in the five years before her outing as service abroad for her pension calculations. But Maguire is not content to just raise the question. He wants to accuse Fitzgerald of impropriety for withholding that information from the defense:

IF Ms. Plame's formal dates for service abroad buttress the prosecution position, that should be disclosed to the defense so that they will not waste time pursuing a false trail, or so that the prosecution can prepare arguments that the CIA formal procedures do not comport with the language and intent of the IIPA. On the other hand, if her formal dates for service abroad support the defense position, that should be disclosed so that the defense can argue that this represents the best established practice and settles the issue.

But it is simply not appropriate for Fitzgerald to unilaterally conceal this from the defense, especially when it is a reasonable guess that it was concealed because it would aid the defense.

Now, it could well be that in the context of tomorrow's hearing, Fitzgerald has something to say about this. But the idea that Fitzgerald was nefariously withholding this crucial information from the defense is ludicrous. In defense of that accusation Maguire says,

it is safe to say that Fitzgerald was not eager to present Ms. Plame's employment background – maybe an embarrassment with her dates of service was part of the reason.

It couldn't possibly be that he was not eager to present her employment background because, well, it was classified information about work she did under cover, including overseas. But in reality, one need not think that Plame was the secretest of undercover officers to imagine that might explain Fitzgerald's reluctance. And let's recall what Judge Walton said in June 2006 after reviewing the classified information that the summary summarized:

Upon careful review of the government's requests, it supporting declarations from the intelligence community filed ex parte, in camera, and the original documents from which the summaries were created, the Court finds that the documents and information identified in the government's Section 4 CIPA filing are extremely sensitive and their disclosure could cause serious if not grave damage to the national security of the United States.

Walton also observed:

In addition, the proposed unclassified substitutions are more than sufficient to address any obligation the government might have to produce the underlying classified documents and information to the defense.

Now, Tom can rest his new defense on the notion that this was in a different legal context from the one we are considering now, and in fact it could be either that the judge smacks down Fitzgerald's efforts to introduce the notion of a possible underlying IIPA violation at this stage, or forces Fitzgerald to produce some proof of his assertion that Plame was covert under the IIPA. But by that very token, the notion that Fitzgerald proceeded in bad faith earlier falls apart, as does the notion that Fitzgerald did not reach the conclusion that Plame was covert in good faith.

But it is a notion we may hear about at tomorrow's hearing, since, though Maguire is not himself a part of the vast Libby defense empire, he asked one of his frequent commenters, Clarice Feldman, who is a lawyer and the "chief investigative correspondent" for the American Thinker, to convey the information to Libby's defense, which she is evidently advising or at least in touch with.

Or maybe not. Because in fact, in going around this bend and embracing the idea that Valerie Plame Wilson's pension calculations contain the key to determining whether she was covert or not, Maguire seems to have completely abandoned both the defense's position and the position held by Toensing, Thompson, the WSJ editorial page and many others. The defense position is that Plame would need to have been "stationed" abroad. Similarly, Toensing et al claim that Plame would have to have some kind of permanent assignment abroad. But now Tom is telling us that Valerie Plame's pension benefits track her service abroad.

We'll see tomorrow.

Update: Check out Marcy's excellent post on the likely role President Bush played in helping to start the chain of events that led to OVP's blowing of Plame's cover. Libby learned of Bush's interest in the 16 words and Nicholas Kristof's month-old column on the Niger story on June 9, in the wake of Condoleezza Rice's fairly disastrous appearance on the morning talk shows the day before. The day Bush expressed that interest, OVP undertook extensive research into the Niger story, and shortly thereafter Cheney and Libby learned that Wilson's wife worked on the clandestine side of the CIA, and, well, the rest is not yet quite history. This is Marcy's original insight, but rest assured it is reflected in the Libby trial book's extensive editorial apparatus.

Related posts:

  1. Cheney’s Betrayal Made an IIPA Charge for Libby Possible
  2. SCOTUS Denies Valerie Plame Wilson Her Day in Court
  3. The Secrets Novak Took to the Grave
  4. The Taxpayers Paid Dick Cheney’s Personal Defense Attorney to Obstruct Any Inquiries Into His Crimes
  5. Cities Rethinking Their July 4th Fireworks