Ask Professor Stotch
Below the fold is the transcript of an interview I did recently about my take on the investigation that led to the indictment of Lewis Libby.
Ok, there was no interview, but IÃ¢€™m tired of the comments IÃ¢€™m getting either ignoring or misconstruing what IÃ¢€™ve said. Honest disagreement is one thing, but ignoring whatÃ¢€™s actually written is another. So I thought IÃ¢€™d spell out what I think are the pertinent facts here, and why I believe that the Libby indictment is based on a failure by Patrick Fitzgerald to properly investigate the outing of Valerie Plame.
Q: At the time of the Robert Novak column, what was PlameÃ¢€™s employment status?
A: She worked a desk job at CIA headquarters in Langley, VA.
Q: Was her status covert?
Q: Is Ã¢€œcovertÃ¢€ the same as Ã¢€œclassifiedÃ¢€?
Q: Was her status classified?
A: Yes, as is the employment status of every single person who works for the CIA, including the janitors and food-service workers.
Q: Are you suggesting that there are levels of classification?
A: Precisely. Just as there are levels of classification of documents, there are levels of classification of employees.
Q: How do we know the level of classification that Plame fell under?
A: We donÃ¢€™t exactly, because of course thatÃ¢€™s classified. But we have a set of facts that guide us. First, Novak informed the CIA prior to the publication of his article that he was going to use her name; their response was a mild request that he not disclose her identity. Had her identity been an issue of national security, one can assume that the CIA would have prevented Novak from disclosing it and would have immediately begun an investigation into his source. Also, just as there are Ã¢€œknown secretsÃ¢€ (e.g. al QaedaÃ¢€™s planned attacks on the Golden Gate bridge) that are classified yet still widely known, there are Ã¢€œknown employees.Ã¢€ Anyone in DC will tell you this. That PlameÃ¢€™s identity was not Ã¢€œwidely knownÃ¢€ outside of the intelligence community means that it was known outside the intelligence community (purportedly including around the DC social scene).
Q: But what does this matter? IsnÃ¢€™t classified classified?
A: Yes, but when you are making a legal assertion that a breach of national security occurred, the degree to which both the CIA as well as Plame herself tried to conceal that identity is a vital issue. Neither did much at all, so the natural conclusion is that the world knowing that Plame worked a desk job at Langley does not threaten American national security.
Q: Why are you stuck on the term national security?
A: Because this is the standard required for her outing to be a violation of the Espionage Act.
Q: Which is was not?
A: Based on my answer to the previous question, no.
Q: IsnÃ¢€™t that a rather high standard, perhaps too high?
A: ItÃ¢€™s very high. If you think itÃ¢€™s too high, call your congressman and have them change the law or write a new one.
Q: Was her outing a violation of the Intelligence Identities Protection Act?
A: No, because she was not a covert agent. Not even Fitzgerald claims that.
Q: But he claims her status was classified?
A: Right, but printing classified information in and of itself is not a crime; doing so must constitute a willful attempt to threaten national security. There is absolutely no logical way to conclude that Libby had such intent, but I maintain that PlameÃ¢€™s job status was such that it was impossible for her outing to constitute a threat to national security, and thus LibbyÃ¢€™s intent is irrelevant because the more important clause in the statute had not been satisfied.
Q: What, then, is your problem with the way in which Fitzgerald conducted his investigation?
A: My problem is that he acted as a prosecutor looking for something to prosecute, rather than an investigator whose first duty was to determine whether the PlameÃ¢€™s outing constituted a crime. Had he perceived his job in the latter light, the early part of his investigation would have focused on a strict legal interpretation of PlameÃ¢€™s employment status, with an eye toward possible criminal violations if her status could be deemed either a) covert or b) a matter of national security. Neither can be said to be true. Instead, Fitzgerald went on a he-said, she-said fishing expedition, and ended up with an accusation of a crime that remains a product of the process (and to which Libby has pleaded innocent).
Q: Why do you care?
A: Frankly, I donÃ¢€™t know. For me this has all been a very academic exercise, wherein words like agent and covert have been thrown around carelessly, and in which media coverage of the investigation seemed to ignore the lack of a logical, systematic legal approach by Fitzgerald. Part of my job is to call people on such things, and so I guess itÃ¢€™s only natural that I do so in this situation.
Q: Will you continue to post on this subject?
A: No, I think IÃ¢€™m over it.