Gee, and I provide a link to the statute and everything:

(2) The portion of the annuity relating to service abroad as described in subsection (a) of this section but that is actually performed at any time after the officer’s or employee’s first ten years of total service shall be computed as provided in section 8339(a)(3) of title 5; but, in addition, the officer or employee shall be deemed for annuity computation purposes to have actually performed an equivalent period of service abroad during his or her first ten years of total service, and in calculating the portion of the officer’s or employee’s annuity for his or her first ten years of total service, the computation rate and percent of average pay specified in paragraph (1) shall also be applied to the period of such deemed or equivalent service abroad.McGuire seems to think that Fitz violated the Libby defenses right by not examining these irrelevant pension records, rather taking the summary statement of her employment career (including missions abroad) and CIA request to investigate as sufficient evidence to pusue the prosecution.

No, Maguire seems to think that the DoJ claims to have had access to her file and should have had easy access to those service abroad dates, the most recent of which should have been disclosed to the defense to help pin down the five year rule.

Can any sane person think that Congress would withhold that protection from specialized agents who were exposed by a reporter while traveling abroad to kidnap Osama bin Laden in Waziristan, while offering that protection to an agent stationed in Canada who was working with the RCMP to transfer sensitive information?

I wonder what sanity has to do with gauging legislative language and Congressional intent. Or does c-ape think all of our laws are fully rational, and that none of our laws can be made to look inappropriate to extreme circumstances Possible! Maybe c-ape is insane!

From Jeff:

2)more importantly, that summary is not dedicated to making an argument that she’s covert, it’s offering a summary of her CIA career and cover history.

Hinet Injun – when the summary has passages like (I paraphrase) “the CIA was taking affirmative steps to conceal her identity” or “Ms. Plame was covert”, is it fair to guess they were addressing IIPA issues?

The idea that this summary was prepared in a vacuum in June 2006 with no regard to its IIPA implications is, hmm, not your strongest argument.

From bmaz at 164:

Crikey. I came back here just for grins and ran into this drivel. I actually read through your entire comment looking for some semblence of an intelligent response to this post and/or any of it’s comments. I should have known better. You could have used some kind of random word generator program and produced a more coherent response. Vacuous is an understatement.

Yet you repeated the whole thing! Well, artstunkeldern, hinkschlaffer! Go arsdklinke orkmorky, otchklot. If you can.

I have a couple of points.

1) The IAPA is not vague on “service abroad”. I one looks at the next section it refers quite clearly to others that the IAPA protects. In that section it refers to US Citizen non-employees of “intelligence agencies” who act as sources that are RESIDENT ABROAD as also being protected.

Thus the Act clearly distinguishes between “SERVICE ABROAD” by CIA agents (and this could include those based abroad, as well as those who are tasked on missions, but not STATIONED abroad).

The fact that the act uses different terminology indicates that there is a clear distinction that was intended to be drawn.

2) McGuire’s effort to use pension evidence as suggesting that the CIA id not consider Plame covert is absurd. The pension criteria the CIA utilizes is one where an individual who reaches a cut-off point of 5-years service abroad and 20-years total service qualifies for early retirement. Thus, once an agent had reached that cut-off the agency really has no need to monitor ADDITIONAL service abroad. Plame’s service in Greece, Belgium, Britain, and elsewhere cumulatively surpassed that 5-year point. Subsequent trips abroad would not need to be tallied. An likely Plame would not have felt a need to complain to have these missions recorded on her pension ordinations.

The standards for the IAPA and the CIA’s pension system are vastly different. On is interested in whether an agent has serve abroad within five years of the violation (and that could be one day, one week, or our years…none of which would even reach the CIA’s early retirement level).

3) McGuire seems to think that Fitz violated the Libby defenses right by not examining these irrelevant pension records, rather taking the summary statement of her employment career (including missions abroad) and CIA request to investigate as sufficient evidence to pusue the prosecution. Recall that all Fitz needed was a prima facie case that a violation of the IAPA could have occurred. Even if there ere legal disputes about the phrasing of the law that would have to be decide in court it was still his duty to pursue the investigation. And it was Mr Libby’s DUTY to cooperate and speak truthfully before the Grand Jury and investigators.

If Mr Libby (and McGuire) argue that Libby felt he could act because he KNEW that Plame was NOT COVERT, then Libby seems to have withheld even further information regarding his knowledge of Plame’s employment (her pension records). Thus he further perjures an obstructs justice.

4) All of this “debate” ignores that the fundamental purpose of the IAPA as to protect our agents who were in foreign lands and thus especially susceptible to being exposed while they could be on a mission or operation, or place in physical danger. Can any sane person think that Congress would withhold that protection from specialized agents who were exposed by a reporter while traveling abroad to kidnap Osama bin Laden in Waziristan, while offering that protection to an agent stationed in Canada who was working with the RCMP to transfer sensitive information?

If Fitzgerald filed anything with Judge Walton’s court that was not factually based and supported then I have no doubt that Judge Walton would come down on Fitzgerald like a ton of bricks.

Therefore, Fitzgerald’s statement that Valerie Plame was a covert CIA agent, whose secret identity was being actively protected by the CIA, must be a fact…or Fitzgerald is lying…which would mean that Judge Walton should throw the book at Fitzgerald…which Judge Walton hasn’t done…indicating beyond a reasonable doubt that Fitzgerald’s statement is true.

As far as “service abroad,” I am reminded of generals stationed at the Pentagon who occasionally go overseas, to visit NATO or some of our military bases (like in Iraq), generals who drop in for a short visit and then return to their permanent duty station at the Pentagon. They aren’t taking a vacation overseas, my friends.

They are serving our country by going abroad, as part of their mission function. Just as Valerie Plame did on her “service abroad” missions, no matter the duration of the mission.

In her case, though, divulging anything about her “service abroad” destinations including the dates of the trips abroad would further compromise our national security, which apparently is what Tom Maguire is advocating that Judge Walton and Patrick Fitzgerald do.

Unfortunately, I see the same blindly-partisan mentality in Tom Maguire that I see in George Bush, Dick Cheney, Scooter Libby, Tony Snow and so many others in the Bush admnistration, a blindly-partisan outlook that led to the treasonous act of outing Valerie Plame in the first place, one in which political partisanship trumps even our national security.

First, there’s the argument about whether the Toensing/Thompson claim that the investigation itself was improper because they knew all along that IIPA could not conceivably have been violated because Plame was not covert under IIPA can be sustained. I think it cannot, and I think I’ve won on that one.

I think I am bubbling under water (i.e., losing) and have been for quite some time on this one (I can dig up a post from Dec 2004 guessing that Ms. Toensing would not persuade the judges to quash the Miller subpoena and end the case). First, even if Fitzgerald simply was handed a perjury/obstruction investigation, so what – those are legitimate crimes. Maybe (Probably!) his Miller affidavit was overdone, but we haven’t even seen it.

I think the case can be made that the original investigators never really nailed down the viability of an IIPA charge in the fall of 2003, but I am also pretty sure it doesn’t matter too much. But if I think of something, I won’t be shy.

Because the more emphasis you put on the use of “service abroad” as per 50USC403r to interpret “service abroad” in the definition of a covert agent under IIPA, the more you are rejecting the entire premise of the Toensing/Thompson position, unless you’re claiming that service abroad under 50USC403r only means assignments of quite extended duration. Are you?

I’m arguing that if the DoJ didn’t even kick the tires of the pension rules, it is hard to take seriously the idea that they briefed the IIPA issues carefully. Whether they accept the “service abroad” definition there or not, they really should have addressed it, and given the defense a similar opportunity.

remember the caveat that the issue is not simply how Plame’s pension was actually calculated, but how it should have been calculated. It’s possible they made a mistake.

My open advice to Rep. Hoekstra is to ask when the latest revisions to that calculation were made – the CIA might well adjust her service abroad dates to better fit their goals here.

Second, there’s the issue of whether Fitzgerald was supposed to disclose information from Plame’s pension calculations to the defense at some point in the past. It seems to me the answer is pretty obviously no, given the way things played out with regard to her status, both before and during the trial.

Well, I am not helped by the fact that Walton claims to have reviewed this material. My current dodge – he had a file dump to review and overlooked this. Or, since the trial was perjury, not IIPA, her dates of service were not exculpatory or relevant. I’ve had stronger arguments, but weaker ones too. Maybe we’ll find out tomorrow (and if I moved the needle I will be insufferable. Again. Still.)

to the extent that there’s something to complain about about Fitzgerald – and this is borne out in virtually all of the instances that you and yours complain about – it’s that he is too good at being a conventional aggressive federal prosecutor.

I do occasionally and glumly note that aggressive prosecutors tend to prosecute aggressively.

Re my request to Clarice – she is an experienced Washington attorney, so I figured she was best positioned to know someone on Libby’s team. Whether she does, I have no idea, but here’s hoping.

As to whether it is timely – I don’t know how much back and forth occurs at a sentencing hearing. If the opposing briefs were meant to be the last word and Tuesday is everyone’s day to listen to Walton’s rulings, then this point is not timely at all. I figured as an attorney, Clarice would know better on that, as well.

I think you’re misunderstanding my point. I took you to be making a general accusation that Fitzgerald was unforthcoming about Plame’s employment history in part because he had something to hide, and then seeing the issue of the pension calculations through that lens. I think the general point is wrong, and that I provided the appropriate explanation for Fitzgerald’s reticence on that score. As for the specific absence of your suggested inclusion of the pension stuff from the June 2006 unclassified summary, note 1)it was prepared by CIA, not Fitzgerald, according to the defense; 2)more importantly, that summary is not dedicated to making an argument that she’s covert, it’s offering a summary of her CIA career and cover history. There’s no particular reason why the argument you suggest Fitzgerald should have included should in fact have been included in a history of her CIA employment and cover.

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…

I mean TOTALLY. Like, this was never established. Oh. Ma. Gawd. Fer shure. And anyway, how much time did she actually spend working over the water? I hope she had on some sun block. And which sea was it? She never mentioned it–like it TOTALLY slipped her mind or something.

GAWD!

I think there are two maybe three distinct arguments going on here. First, there’s the argument about whether the Toensing/Thompson claim that the investigation itself was improper because they knew all along that IIPA could not conceivably have been violated because Plame was not covert under IIPA can be sustained. I think it cannot, and I think I’ve won on that one. And I don’t think anything in your latest argument calls that into question. Because the more emphasis you put on the use of “service abroad” as per 50USC403r to interpret “service abroad” in the definition of a covert agent under IIPA, the more you are rejecting the entire premise of the Toensing/Thompson position, unless you’re claiming that service abroad under 50USC403r only means assignments of quite extended duration. Are you?

(And one side note: remember the caveat that the issue is not simply how Plame’s pension was actually calculated, but how it should have been calculated. It’s possible they made a mistake.)

Second, there’s the issue of whether Fitzgerald was supposed to disclose information from Plame’s pension calculations to the defense at some point in the past. It seems to me the answer is pretty obviously no, given the way things played out with regard to her status, both before and during the trial. Let me recall what I’m sure you know Walton said in his June 2, 2006 protective order:

the materials withheld pursuant to this Order are not discoverable under Rule 16, nor exculpatory within the meaning of Brady v Maryland, 373 U.S. 83 (1963). In addition, the proposed unclassified substitutions are more than sufficient to address any obligation might have to produce the underlying classified documents and information to the defense.

(I’m not quite sure how to square that with what Walton says in the concluding footnote to that protective order, but whatever, it’s not a problem for my argument here.) Now, some information relative to the CIA’s categorization for retirement of her service abroad either was or wasn’t in there, depending on whether Fitzgerald judged it responsive. If it was, then there’s just no problem – Walton ruled on it. If it wasn’t, then there should be some explanation from Fitzgerald as to why he judged it non-responsive, and the judge can rule on that – or at least the defense should have a chance to demand an explanation from Fitzgerald (and let’s hope they took clarice’s advice and read your post!).

I will add on that argument that your read on it is too motivated by your already-established conviction (which I think is frankly ungrounded) that Fitzgerald is prone to improper action. As I think I said, to the extent that there’s something to complain about about Fitzgerald – and this is borne out in virtually all of the instances that you and yours complain about – it’s that he is too good at being a conventional aggressive federal prosecutor. Your complaints are better directed to the criminal justice system. (And I am happy to join you in it. Let’s start with the lousy AIPAC prosecution, for which we can thank the dearly departing DAG and his boss.)

Then there is what Fitzgerald is up to now, which is where I think you’re on the strongest ground. That is, if Fitzgerald is going to be bringing in the issue of other potential crimes now, he has to be prepared to some proving of the relevant stuff, including Plame’s status. (To the degree that Fitzgerald is using her status to rebut the claim from Libby’s official defenders in the context of sentencing that the investigation was not really motivated, I think it’s a somewhat distinct issue, which is not to say he should be allowed to simply assert stuff about Plame’s status. But it is different from asking for cross-referencing and so forth for the purposes of an enhanced sentence. I think.)

In any case, following up on something Marcy mentioned above, I sort of suspect that Walton will want to stay away from this whole mess, and that will be additional incentive to rule against cross-referencing or otherwise evade getting into the business about Plame’s status.

One last thing: I see that clarice is now claiming “TM asked us all to get the word out..knowing the email of a friend of a friend is hardly being in their camp, Jeff.” And that is consistent with her previous denials of connection to Libby’s defense. But in fact, as far as I can tell, you were not asking all of them to get the word out. What you actually did, however, was address a comment to clarice and conclude it with:

Anyway, can you mention this to Libby’s team, and might it still be timely? I have the odd feeling that this is a relevant detail overlooked by all.

For the life of me, this looks to be addressed specifically to clarice, and strongly implies that she is in a position to mention your point to Libby’s team, and to know whether it is still timely. Care to clarify this?