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Was Plame’s CIA Status A Secret?

Andrew McCarthy, one of the major authors who have been cited (including by me) arguing that Valerie Plame was not in fact a covert agent issues a retraction of sort:

The indictment charges the mere fact that Plame worked at the CIA was classified information. (“At all relevant times … Valerie Wilson was employed by the CIA, and her employment status was classified.”)

It is worth noting that many people, including me, have been wrong about this. I assumed that the fact that she was a CIA employee was well-known and not classified, but that some aspect of her relationship with CIA was covert and classified. The latter may be true (Fitzgerald, as he should have, declined to comment on it), but it turns out to be not so important because the very fact that she was a CIA employee was classified. It really doesn̢۪t matter whether we think it should have been classified or not. The fact is that it was. People privileged to handle classified information well know that they mustn̢۪t disclose it even if they personally think there is no good reason for it to be classified or that some higher purpose of theirs would be served by disclosing it.

A fair point. It seems to me that there are actually two questions related to this particular question that have been bandied about in the public debate: 1) Was Plame’s employment with the CIA a secret? and 2) Was Plame a covert agent under the meaning of the law?

The answer to the first question is Yes, at least officially. There is some evidence that her status was an “open” secret–that is, widely known by people who knew her–but it was nonetheless classified.

The answer to the second question seems to be No, however. She had been serving in a desk job at Langley for more than five years, which meant she was not “covert” under the meaning of the Intelligence Identities Protection Act.

(4) The term “covert agent” means—

(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—

(i) whose identity as such an officer, employee, or member is classified information, and

(ii) who is serving outside the United States or has within the last five years served outside the United States; […]

So, Plame was cover under (i) but not (ii). Note that an “and” joins the two subparagraphs.

Even Joe Wilson acknowledges that “My wife was not a clandestine officer the day that Bob Novak blew her identity.”

For whatever reason, McCarthy does not address that issue. He does go on to explain why Fitzgerald likely didn’t charge Libby under the Act:

Willfullness is a high mental state in the criminal law. Although the adage that “ignorance of the law is no excuse” generally does apply, a willfulness requirement in a statute comes close to making ignorance of the law a defense. The government must prove that the defendant was fully aware of the unlawfulness of his actions (not that he knew the statute number of the crime but that what he was doing was illegal) and that he performed those actions with a bad purpose.

There is basis in the indictment to suspect that Libby acted willfully – he is alleged to have done a lot to inform himself; to have asked Judith Miller not to source him as a senior administration official but as a Hill staffer (strongly suggesting that he knew what he was saying should not be said); and to have lied about what he said and how he knew what he knew (strongly suggesting he was worried about having said what he said, and worried about having it revealed that he came about the information officially rather than casually).

On the other hand, though, Libby also clearly was not trying to out Plame for the purpose of endangering her, punishing Wilson or harming the CIA. He was trying to do something that was legal and appropriate: to discredit Wilson and knock down Wilson̢۪s misleading story about why he was sent to Niger. He should not have done it the way he appears to have done it, but he surely was not doing what Wilson and the Left have been claiming.

So, while Libby may have had a bad purpose as far as the law is concerned, he did not have a purpose to do damage to the country or help an enemy. That is what the espionage act is most concerned about. Under the circumstances, he was given the benefit of the doubt on his state of mind. I think that was an appropriate exercise of restraint on Fitzgerald̢۪s part. The charges brought are serious ones. There was no reason to bring a questionable one just to rebut a talking point about how it̢۪s only a cover-up and not a crime.

Quite right.

The legal irony, though, is that Libby theoretically faces thirty years for perjury whereas the maximum for intentionally outing a covert agent is only ten years. Now, it strikes me as highly unlikely Libby will get much, if any, jail time. But it is odd that the incredibly serious crime that spawned the investigation carries such a light sentence–outing a covert agent in an overseas assignment could have disastrous consequences–whereas the comparatively minor offense of lying to a grand jury carries a higher sentence than most murderers receive.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. odograph says:

    I think you are going down the wrong road here.

    I watched CNN’s “Dead Wrong” last night and came away thinking the tide has turned. The show, slipped between “leak” coverages, made an open case that this Iraq war (Iraq II) was driven by Whitehouse policy overriding intelligence. It was very clear on when we were misled and how.

    The people know we are in a bad war, and we got there because we were lied to.

    My recommendation James, is that if you want to be a conservative blogger, is to get ahead of the curve. Claim the high ground against the liars. Don’t fight a war of retreat, finding wiggle room in legal language of what was secret and so on …

    Get out and talk about what you want America to be … unless you want it to be a future with not just Whitehouse leakers, but also a future of wars “sold” on “partial truth” or “outright lie,”

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  2. James Joyner says:

    Odo: You keep making the same point over and again. There’s little controversy over whether it is a good thing for public officials to lie to the public, let alone about a war.

    Writing the same thing over and over does not make for interesting reading, methinks, so I will for now retain my present course about writing about specific issues in the news in my quest to become a conservative blogger.

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  3. odograph says:

    As opposed to following minutia over and over again?

    Look, I scan the blogs and I see sterotypical “talking point bloggers” out there fighting what I call a “war of retreat.”

    As you say, they know that it is not a good thing for public officials to lie to the public, let alone about a war.

    But they will nonetheless post, every day, to minimize those actions in the public mind. It’s the sheer pattern of it that is maddening.

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  4. odograph says:

    Nutshell – when you minimize the impact of each lie, you obviously put the Whitehouse above truth in a democracy.

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  5. Boyd says:

    …I will for now retain my present course about writing about specific issues in the news in my quest to become a conservative blogger.

    Keep at it, James. You’ll get there sooner or later. :)

    Even with detractors who ignore what you write in order to make their point. Over and over again.

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  6. odograph says:

    Didn’t read Boyd?

    How about:

    So, while Libby may have had a bad purpose as far as the law is concerned, he did not have a purpose to do damage to the country or help an enemy.

    followed by:

    Quite right.

    What we see here is talking point logic. James (and the quoted author) break out just this moment from the Iraq timeline, give Mr. Libby “the benefit of the doubt on his state of mind” and base their argument on that “gift.”

    Of course I’m going to remind you of the war, and Libby’s role in it when you blandly assume “Libby may have had a bad purpose as far as the law is concerned, he did not have a purpose to do damage to the country”

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  7. James Joyner says:

    Odo: I presume that Libby and company thought going to war with Iraq was good for the nation’s security, even if they were rather desperate to make that case. That could be true regardless of whether the war actually turned out to be a good thing.

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  8. odograph says:

    Which is why I’ve asked you a few times if you defend the right of future Presidents to lie to you to take you to future wars?

    I don’t think you’ve answered me yet. I think you’ve just left the question hanging … and then openned a new article to minimize the indicted crimes of this gang.

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  9. Wilson: There Have Been Threats

    In his first interview since the indictment of I. Lewis Libby, Joe Wilson tells Ed Bradley that ther

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  10. That last question has a bit of “have you stopped beating your wife?” logic to it…

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  11. Herb says:

    It seems to me that Fitzgerld should have first established that a law had been broken, Then if he found that Plame did not fall into the criterion of being a “covert Agent”, then Fitzgerld should have stopped the entire investigation.

    It also seems to me that Fitzgerld kept the investigation going in his quest to “Find some sort of law violation” and eventually found it.

    That is why I classify Fitzgerld as “The typical Prosecutor” that conducts investigations to satisfy and further his own personal or political agenda.

    Prosecutors are lawyers that can not be trusted and will continue these witch hunts until they are held accountable and responsible for their actions.

    22 months and several million dollars and yet to get to the bottom of the Plame “outing” is ample proof that Fitzgerld is out to save face no matter who it hurts or destroys. If Fitzgerld does not fullfill his primary charge of indicting the one responsible or if there was a “outing” law broken, then he should be indicted and charged with “Failure to perform his charge”, or fraud and tried in a court of law.

    As you may tell, I just don’t trust or care for prosecutors, To me, they are the lowlife of our judical system

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  12. odograph says:

    I think the question of “future Presidents” (of any Party) and “future wars” (on any continent) is sufficiently abstract that it does not reduce to the wife-beating question.

    Instead it defines the working principles of a functioning democracy.

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  13. LR says:

    “Plame was cover under (i) but not (ii). Note that an “and” joins the two subparagraphs.”

    You know for a fact that Plame never “served outside the United States” in the period of 1998 to 2003? How in the world could you know that? And I’d assume that “served” does not require that she have been “posted” outside the U.S., merely that she have been abroad on CIA business–that would be enough to put her contacts in jeopardy if her status became known.

    Whether the disclosure was intended to punish Plame or merely to discredit her husband, it would seem to me to be a violation of the law as long as the intent TO DISCLOSE was there. That intent would require knowledge of Plame’s status. I think McCarthey’s right that the difficulty of proving that element is behind the lack of indictment on the leaking count.

    Personally, I’m pretty sure that both Cheney and Libby actually did know that Plame’s status was classified. Just like Fitzgerald, though, I can’t prove it. Do you honestly think that when Wilson went public with his op-ed piece that Cheney/Libby did not IMMEDIATELY obtain from the CIA a full file on the man? IMMEDIATELY?

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  14. spencer says:

    I read the Wilson quote “My wife was not a clandestine officer the day that Bob Novak blew her identity.” to mean that she had been a clandestine officer up until Novak blew her cover. The act of Novak blowing her cover is what ended her career as a spook.

    Why would you think the quote meant anything else?

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  15. James Joyner says:

    LR: Actually, the knowledge that Plame was Wilson’s wife predated the Wilson op-ed by a month. According to the indictment, Libby learned on 9 June and the op-ed came out on 6 July.

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  16. ken says:

    You know for a fact that Plame never “served outside the United States” in the period of 1998 to 2003? How in the world could you know that?

    Good question. Conservatives, like James, have a problem of conflating their own wishes with reality. Since all information regarding Plames actual job were, and still are classified, James of course knows nothing about whether she was in fact covert or not. It would serve his purposes is she wasn’t, so he makes the assumption, without a shred of evidence that she wasn’t.

    And the CIA is unlikely ever to let us know. Once a secret, always a secret. To many other people are involved in Valerie’s career to let people like James know the truth.

    So it is a conundrum really. On the one hand it suits the CIA’s interest to have people like Valerie thought of as not covert, that was the whole point of her cover, and on the other hand, at a time when national interest has been damaged by her outing they cannot confirm her work. Doing so would only further damage national interests.

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  17. Bithead says:

    I see an awful lot of people using this indictment as some justification for their asinine position against the Iraq war. Well, their problems with that.

    First, allow me to point out that an indictment is hardly a conviction. Further, I will point out that there is a large number of hoops to jump through before such a conviction can ever come to pass. Frankly, the level of proof will ever be achieved to obtain a conviction in this matter.

    Secondly, it seems clear with the number of people using this indictment as such an opportunity that this investigation had nothing whatever to do with justice for national security. Rather, it was always about supporting the laughs opposition to the war and to George W. Bush.

    It is time we asked ourselves a question; Joe Wilson’s trip to Niger, had to have been approved by somebody at the CIA above the level of the Valerie Plaime. Assuming the CIA actually did its homework, and get some decent background on Joe Wilson before sending him on such a mission, someone must have known what the outcome of such a mission would be, and what the political fallout would be, given his longstanding support of left wing causes and left wing politicians.

    The only other option would be, that the CIA did not do its homework, and that the CIA was used against the White House as a subversive tool.

    It comes down to this; Either the CIA was used as a subversive political tool with the CIA’s knowledge and approval or without it. Either way, national security is clearly involved, to say nothing of criminal activity, committed in support of Democrats.

    It does seem logical therefore to raise the question about why this angle is not being investigated.

    As to the question of Valerie Paime officially being undercover within the statutes at the time of the information getting out that would seem to have been answered by the lack of charges against any one. Indeed, as I read the indictment I notice that no mention is made of the act of passing that information as being a crime.

    Further, how many undercover CIA operatives do you find on the cover of Atlantic Monthly?

    In the end this is yet another example of the democrats looking to pin something anything on the Bush White House, in this case,using the CIA to do it. That abuse for political gain should leave a file taste in the mouths of all Americans.

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  18. Anderson says:

    It seems to me that there are actually two questions related to this particular question that have been bandied about in the public debate: 1) Was Plame’s employment with the CIA a secret? and 2) Was Plame a covert agent under the meaning of the law?

    JJ, I can only agree with you.

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  19. Mark says:

    “My wife was not a clandestine officer the day that Bob Novak blew her identity.”

    Replacing “not” with “no longer”, we get…

    “My wife was NO LONGER a clandestine officer the day that Bob Novak blew her identity.”

    There is quite a bit of discussion about the “real” meaning of Wilson’s words – I don’t think you can assume your interpretation is correct.

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  20. spencer says:

    Joe Wilson served as a career foreign service officer under Ronald Reagan, George Bush Sr., and
    Bill Clinton. He was acting US ambassador to Iraq at the time of the first Iraq war. For his outstanding service in Iraq, George Bush Sr. awarded him one of the highest medals a civilian can earn in the US.

    I presume that this is what you mean by his “left wing” activities.

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  21. spencer says:

    If you are going to argue that Plame was not under cover in the sense of the legislation you have to explain why:
    1. The Senior CIA officials that refered the case to the Justice Department thought so.
    2. The senior Justice Department officials who desiced to prosecute thought so.
    3. why the special prosecuter thought so.
    4. Three independent judges that worked on the case as part of grand jury thought so.

    What facts can you give to show that all of these people are wrong and you know more about her cover status then they do.

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  22. Just Me says:

    I think the fact that Fitzgerald didn’t clearly state whether or not she met the criteria for “covert” under the statute pretty much means she didn’t.

    There is nothing to stop him from saying “My investigation determined that Plame met the definition of covert as defined by the statute, but to date we are still trying to determine if the other elements of the crime have been met.”

    The problem with the charge for this crime, is that there are several well defined aspects-the hardest of course being proving whether or not one willfully committed the act to cause some harm.

    Answering whether or not she was covert is the easy part of the statute. I am bothered by his failure to state whether that section of the statute was met. I think he needs to do that.

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  23. Bithead says:

    The Senior CIA officials that refered the case to the Justice Department thought so.

    Did they indeed?

    Or was it simply that they saw this as a god chance to discredit Mr. Bush? You may recall there has been a history of bad blood between the Bush family and the CIA….

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  24. odograph says:

    I see an awful lot of people using this indictment as some justification for their asinine position against the Iraq war. Well, their problems with that.

    We live in a representative democracy, one in which Congress has the power to declare war. What should have happened, was that Congress should have debated the moral and strategic value of this war based upon all available (true) evidence.

    That did not happen. Instead, the Executive Branch, or possibly a Cabal within the Exuctive Branch decided to cook the evidence.

    Even if you believe in the true root causes of the war – expecially if you believe in the true root causes of the war – you should have confidence that Congress would have voted your way in a fair exercise of due process.

    If the true evidence was good, why fake it?

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  25. I think they should fire Valerie Plame.
    In the midst of all of this Karl Rove\Valerie Plame controversy I have heard Valerie Plame described as being involved in “WMD counter-proliferation”. That’s not entirely true however. She and her coworkers were also engaged in spying on Americans inside America. I know. She called me in spring of 2003 pretending to be with
    Brewster-Jennings. Following that I got a call from “Gail Heights” at University Services trying to get information. As you may remember, Gail Heights was the alias used by Gao Zhan the Chinese scholar who was convicted of exporting microprocessors to Communist China. This was just one of many attempts by Valerie Plame and her
    colleagues to get inside my life.
    For a lot more information, see my article at:
    http://www.tomchristianonline.com

    Tom Christian
    Weston, FL,USA

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  26. Bithead says:

    Joe Wilson served as a career foreign service officer under Ronald Reagan, George Bush Sr., and
    Bill Clinton. He was acting US ambassador to Iraq at the time of the first Iraq war. For his outstanding service in Iraq, George Bush Sr. awarded him one of the highest medals a civilian can earn in the US.

    I presume that this is what you mean by his “left wing” activities.

    You may want to dig a bit deeper than this.
    Like for example… his political contributions.

    I understand the MSM hasn’t been mentioning them much, but I think you’ll find the information both available and revealing.

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  27. Anderson says:

    Bithead, since you evidently know all about Wilson’s contributions, kindly share your info rather than sending us to do research.

    I’m curious when the “left-wing” contributions you imply began.

    I also note that, even under Reagan and Bush the elder, there was a residual sense that someone might be an American first and a Democrat or Republican second. That sense has been utterly extinguished by Bush the younger & Rove.

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  28. LR says:

    “I think the fact that Fitzgerald didn’t clearly state whether or not she met the criteria for “covert” under the statute pretty much means she didn’t.”

    You can think what you like, but your assumption simply isn’t warranted. Fitzgerald limited his statements to matters relevant to the indictment, and said so many times. He also specifically said he had made no determination whether Plame was a covert agent. And it would be foolish for him to make any such statement, for several reasons:

    (1) that’s a legal determination for a judge or jury, not a prosecutor; the best Fitzgeral could offer would be a personal opinion.

    (2) if Fitzgerald thinks Plame was a covert agent, he gains nothing by saying so, since that would end up as a distraction, shifting focus from the indictment to arguments about the validity of his own opinion on Plame’s status.

    (3) if Fitzgerald thinks she doesn’t meet the “covert” status, it remains to his benefit to keep that to himself, so that the possibility of indictment for leaking her name remains real for Libby, Rove, et. al.

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  29. John Robb says:

    I have been involved in a law suit as the lead plaintiff, against the Corps of Engineers. At trial and in depositions Corps witnesses openly gave testimony that they knew was not true nor scientifically possible. Case was filed in 1995 and has been a long hard battle. Finally getting to Court was a huge disapointment as the Judge obvisously knew the government witnesses were giving impossible testimony as the court room would erupt in snickering and open laughter.

    We thought the Judge would take appropriate action with sanctions against the DOJ attorneys and throw the book at the Corps, but instead she used all their testimony and completly ignored science and the plaintiff witnesses by ruling against the plaintiffs. The opinion is another taking of private property and another trashing of the Fifth Amendment.

    This court was not a court of laws, but a Kangaroo Court of tyrants. We have lost one appeal. So much for Judges being jealous for truth and hating lying.

    With a penalty of 30 years for lying to a Grand Jury it would seem that the Courts are very serious about lying under oath. What is the penalty for perjury in Federal Claims Court?

    J Robb

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  30. Bithead says:

    Bithead, since you evidently know all about Wilson’s contributions, kindly share your info rather than sending us to do research.

    And you’d trust my word?
    No.
    Go and look it up. You’ll be better convinced when you make the discovery yourself.

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  31. Bithead says:

    Oh, what the hell.
    I’m a nice guy… and since you can’t seem to need a clue rather badly, here’s some text for you to search for:

    Wilson was a supporter and donor to the Kerry/Edwards campaign for the presidency. In 2000, he donated to Vice President Gore’s campaign. In the mid-eighties, Wilson worked for Gore as a congressional staffer. He has made contributions to the campaigns of Democratic candidates such as Hillary Clinton and Ted Kennedy. He has in the recent past spoken to activist groups like Win Without War, which is a part of MoveOn.org.

    Have at it, and let us know when you finally accept the political purposes behind this scum.

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