Was Valerie Plame Wilson’s employment classified information?
    A challenge to Red Blogistan

If it wasn’t classified, why hasn’t the President said so? Or Libby’s lawyers? Can the fact that something wasn’t a secret be itself a secret?

[Maguire’s response at the jump.]

Look, I can’t blame the small band of remaining Bush supporters for being logic-challenged; that would be like blaming midgets for being short. Or maybe they’re just following Mark Twain’s advice: “Tell the truth, or trump. But take the trick.” Nonetheless, their ability to (pretend to) believe what transparently ain’t so, and to repeat it to one another, is sometimes nothing short of breathtaking.

Consider, for example, the proposition, “Valerie Plame Wilson’s employment with the CIA was not classified information at the time Armitage, Libby, and Rove told a bunch of reporters about it on deep background.” Stop giggling, dammit! This is serious.

Now if, just for the purposes of argument, that were true, then what would prevent George W. Bush, when asked whether any of his staff is under investigation about the disclosure of VPW’s identity, from simply saying, “No classified information was disclosed. Nothing to investigate. Next question.” instead of refusing to answer and making a joke of refusing to answer?

Or what would have prevented Libby’s attorneys from arguing in open court that, since no classified information was divulged, Libby couldn’t have been trying to cover up the disclosure of classified information?

Even assuming that somehow the unclassified status of VPW’s employment were itself classified information, what would have prevented Libby’s lawyers from making that case at a closed hearing, or in sealed pleadings? But Judge Reggie Walton said in open court that to this day he doesn’t know whether her employment status was classified or not.

The only logical inference to draw is that VPW’s status was classified, and that something about it remains classified, and that the CIA has refused to de-classify that information for trial purposes. Indeed, that’s one obvious explanation for why Patrick Fitzgerald hasn’t indicted anyone under the Intelligence Identities Protection Act or the Espionage Act; in either case, he would have to prove classification, and if he can’t prove an element of the offense in open court he can’t try his case.

(This is a little bit different from “graymail,” where it’s the defense that wants to introduce classified information; that problem can be finessed. But a defendant can’t get a “public trial” as required by the Fifth Amendment if evidence necessary to prove the charges can’t be made public.)

So that’s my challenge to Glenn Reynolds, Tom Maguire, Victoria Toensing, Clarice Feldman, Byron York, and all their friends: come up with a theory under which the non-classified nature of VPW’s employment status couldn’t be made public by Libby’s defenders. I will post verbatim any response to this from any of the named parties or those of similar standing, or any reasonably polite and coherent response from anyone.

Footnote I would also like to hear if others have made this point already. In that case, my apologies to whoever I’m failing to credit; I haven’t been following the trial very closely.

Footnote Someone’s employment status can be classified without having that person meet the test of “covert status” under IIPA. Whether VPW was “covert” seems to rest on the legal question about whether overseas travel counts for the “posting” element of the offense; it seems likely that she had traveled abroad, but not been stationed abroad, during the five-year window. But even if she didn’t meet the IIPA definition, the Espionage Act was still sitting there as a threat to whoever leaked her identity.

Update No response yet from Maguire or Reynolds (to whom I emailed a link) or the others challenged above, but a reader informs me that the prosecution has repeatedly asserted that VPW’s employment status was classified, including saying so in the indictment. If those assertions were false, I think we would have heard about that from the defense, don’t you?

Here’s the reader’s missive:

Patrick Fitzgerald has already explicitly said that Ms. Plame’s employment was classified on at least two occasions.

During his October 25, 2005, press conference, Fitzgerald said, “In

July 2003, the fact that Valerie Wilson was a CIA officer was

classified. Not only was it classified, but it was not widely known

outside the intelligence community.”

According to paragraph 1F of the Libby indictment [PDF], “At all relevant times from January 1, 2002 through July 2003, Valerie Wilson was employed by the CIA, and her employment status was classified.”

Ms. Plame’s identity was marked as Secret in the State Department

memo about Joseph Wilson’s trip to Niger; the memo as a whole was

classified as Top Secret.

In his September 6, 2006, article “What Valerie Plame Really Did at the CIA” on The Nation’s web site, David Corn wrote, “When the Novak column ran, Valerie Wilson was in the process of changing her clandestine status from NOC to official cover.” On his weblog, Corn wrote, “She was an undercover officer in charge of running critical covert operations.”

The most likely reason that Patrick Fitzgerald hasn’t indicted anyone

under the Intelligence Agencies Protection Act is that under the act

the person has to know that the agent’s identity was covert. That’s

hard to prove, especially when people are lying to the FBI and

perjuring themselves in front of the grand jury, and it’s possible

that Libby and Rove et al. didn’t know Ms. Plame was covert.

John Dean notes that the Libby indictment specifically mentions the

Espionage Act, but Libby’s perjury prevented Fitzgerald from

indicting Libby under the act.

Second Update

Tom Maguire responds, and concedes that VPW’s employment status was classified:

1. While on the subject of challenges, I am awaiting your update or further commentary on the absurd David Shuster story to which you linked on Jan 23.

To jog your memory, you wrote this:

(2) Patrick Fitzgerald has revealed that poor, confused Scooter Libby was so busy fighting the global battle to save civilization that he shredded notes from his conversations with Cheney (conversations in which Cheney told Libby precisely how to run the counteroffensive against Joseph Wilson) before the FBI could get to them.

Embedded was a link to a David Shuster story which was roundly criticized at the time. (Briefly, every other reporter thought Fitzgerald was speaking metaphorically).

The prosecution and defense have rested – do you recall any further mention of Libby shredding evidence, did the prosecutior forget to make that point, or was Shuster making stuff up? Before challenging others, maybe you would care to address this.

Your post

My evaluation at the time

2. I can not speak for the people on your list, but I certainly have not argued, since the indictment in October 2005, that Ms. Plame’s status was not *classified* – Special Counsel Fitzgerald said so, and I have no reason to doubt him.

However, as you note yourself, having classifed status is not sufficient to have “covert” status under the IIPA. If you take the troube to familiarize yourself with the arguments being offered by Toensing, York, myself, and others, it is issues such as the five year “service abroad” rule and the requirement that the US government be taking active steps to conceal her identity that arguably disqualify Ms. Plame.

As you also ought to know, the Espionage Act requires knowledge and intent – Fitzgerald has written that he has no direct evidence that Libby knew she was covert.

As to my theory about why her “non-classified” status has not been shared by Libby’s defensders – well, I think her status was classified in 2003 (her status was subsequently de-classified to allow Fitzgeradl to conduct his investigation), and I think that Fitzgerald has resisted all defense efforts to learn just how, when, and why the CIA classified her status.

So frankly, I think your challenge is to get up to speed on the arguments.

That said, if you are interested in a serious challenge in which we all might learn something new – the five year service abroad rule is bitterly controversial. Ms. Toensing, who helped draft the law back in 1982, says that “service abroad” refers to a specific posting abroad and that flying overseas for a few days or weeks on Agency business does not qualify; Wilson’s advocates insist that Ms. Plame went overseas on Ageney business (per “Hubris”, she went to Jordan to discuss aluminum tubes) and that should count as “service”.

Well – folks who take a few moments to research the history of the statute will side with Ms. Toensing. However, this specific point has not been litigated under this statute, so who knows?

But wait! CIA pensions are actually adjusted upwards for “service abroad”. So, a seemingly simple challenge to left blogistan (prominent members of which are chatty with Joe Wilson) – figure out a way to get Valerie Plame’s pension calculation released or reviewed so that we can all see whether she was credited for service abroad in the five years before July 2003.

I am not hopeful – presumably, at some level of detail her pension

calculation contains classified information, and not many righties will trust Joe Wilson to do the appropriate redactions.

Still, if the Wilson’s were interested in laying to rest the “service

abroad” issue, this is a road they could explore. I assume that if the answer does not meet their agenda, they will cite security concerns and say nothing, but hey – that makes it a “heads the Wilso-philes wins, tails they don’t play” situation – maybe this invitation will encourage them to play!

I apologize for inflicting on my readers this farrago of irrelevancies, half-truths, red herrings, and flat-out misstatements, but I promised to print any response from those I challenged verbatim. At least Maguire responded; the others have remained discreetly silent.

So let me take up his points in order:

1. Maguire, who follows this case obsessively, notes that, a month ago, I followed a reporter in missing a nuance (the difference between a metaphor and a factual claim). I have now updated that post, and written a new post acknowledging the error and pointing my readers to the original post. (That’s how a grown-up makes a correction.)

Maguire ignores the main point of the original post, which is unaffected by the error; we now know that Rove and Cheney deliberately revealed the identity of an undercover CIA operative, which the White House and all of its journalistic and bloggic followers vigorously denied at the time.

In any case, the charge that I made an error a month ago isn’t really much of a response to my claim that Maguire and his friends are spouting nonsense right now, is it?

2. Now to the substance. The charge made ad nauseum by Maguire and his friends is that the investigation during which Libby is charged with having lied never should have taken place, because the prosecutor was in a position to know from the beginning that no law was violated. That claim is false, and nothing in Maguire’s response supports it. Indeed, by conceding that VPW’s employment status was classified, he refutes it.

There were (at least) two statues that Libby’s conduct (and Cheney’s, and Rove’s, and Fleishcher’s, and Armitage’s) might have violated: the Intelligence Identities Protection Act and the Espionage Act. Maguire makes a big fuss about the difference between someone’s being “covert” under IIPA and someone’s employment by the CIA being classified, as if I hadn’t clearly explained that difference (see “Footnote” above).

To show a violation of IIPA, the prosecution would have to show that VPW as a “covert agent” as defined in that law at the time of the revelation, and that the government was taking active measures to keep her covert, and that Libby or one of the others knew all that. To show a violation of the Espionage Act, the prosecution would only have had to show that someone:

… (1) lawfully having possession of, access to, control over, or being entrusted with any … information relating to the national defense(2) which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation (3) willfully communicates … the same to any person not entitled to receive it.

If information is classified, it is reasonable to believe that it could be used to the injury of the United States. (Otherwise its classification would be improper.) So if VPW’s employment status was classified, which it was, then Libby might well have been vulnerable to prosecution under the Espionage Act.

[Maguire writes, “As you also ought to know, the Espionage Act requires knowledge and intent – Fitzgerald has written that he has no direct evidence that Libby knew she was covert.” Well, yes, I do know that. And it’s possible that Libby didn’t know that VPW was covert, or that in fact she wasn’t covert. So what? She didn’t have to be covert to make revealing her classified employment status a violation of the Espionage Act.]

Whether anyone’s conduct could be proven to meet all three elements of the offense (lawful possession of information, reason to believe it might be used to damage the United States, willful communication) could be determined only by an investigation. That’s what Fitzgerald was engaged in. Even had he known (what we still don’t know) that VPW didn’t meet the technical definition of a “covert agent,” he still had a job to do, and Victoria Toensing’s “indictment” of Fitzgerald “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,” is therefore based on a blatant falsehood. (Note that Toensing pretends to doubt what Maguire says was never in question: that VPW’s employment status was classified information.)

Moreover, even if in fact Libby and his accomplices had succeeded in skirting the law, or if they had violated it but in some way Fitzgerald couldn’t be confident of proving, or if a reasonable prosecutor would have concluded that the overbreadth of the Espionage Act made a prosecution inadvisable although all of its elements could be proven against someone, Libby couldn’t have known that when he testified, and therefore had an excellent motive for perjury: to protect himself, his boss, and Karl Rove.

The Toensing article simply elides the point: she argues that Fitzgerald should have known that VWP wasn’t covert, and pretends that’s the same as proving that there was no crime for Fitzgerald to investigate, as if the Espionage Act had never been passed. The York article goes back and forth, arguing that VPW’s covert status wasn’t clear and then tossing in the idea that her employment might not even have been classified.

Since Maguire concedes that VPW’s employment status was classified information when Scooter Libby started blabbing it all over town at the direction of Dick Cheney, his long disquistion on whether VPW was covert, however interesting it might be, is entirely irrelevant to the two questions at hand: whether Fitzgerald had possible crimes to investigate and whether Libby had possible criminal exposure to motivate his perjury. In each case the answer is a clear “Yes.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com