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 I̢۪m tired of the comments I̢۪m getting either ignoring or misconstruing what I̢۪ve said. Honest disagreement is one thing, but ignoring what̢۪s actually written is another. So I thought I̢۪d 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 Plame̢۪s employment status?
A: She worked a desk job at CIA headquarters in Langley, VA.

Q: Was her status covert?
A: No.

Q: Is “covert” the same as “classified”?
A: No.

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 don’t exactly, because of course that’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 “known secrets” (e.g. al Qaeda’s planned attacks on the Golden Gate bridge) that are classified yet still widely known, there are “known employees.” Anyone in DC will tell you this. That Plame’s identity was not “widely known” 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? Isn̢۪t 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: Isn̢۪t that a rather high standard, perhaps too high?
A: It̢۪s very high. If you think it̢۪s 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 Plame̢۪s job status was such that it was impossible for her outing to constitute a threat to national security, and thus Libby̢۪s 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 Plame̢۪s 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 Plame̢۪s 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 don̢۪t 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 it̢۪s only natural that I do so in this situation.

Q: Will you continue to post on this subject?
A: No, I think I̢۪m over it.

FILED UNDER: Law and the Courts, , , , ,
Leopold Stotch
About Leopold Stotch
“Dr. Leopold Stotch” was the pseudonym of political science professor then at a major research university inside the beltway. He has a PhD in International Relations. He contributed 165 pieces to OTB between November 2004 and February 2006.

Comments

  1. An Interested Party says:

    “Q: Will you continue to post on this subject?
    A: No, I think I’m over it.”

    Good, the spin is finally at an end…

  2. McGehee says:

    Interesting — a rundown of facts and an explanation of the legal realities of the Libby indictment and the Plame “outing” are dismissed as “spin.”

    The party may be interested, but apparently not enough to actually do any mental work.

  3. S says:

    Q: Was her status covert?
    A: No.

    Q: How do we know the level of classification that Plame fell under?
    A: We don’t exactly, because of course that’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.

    “Mild request that he not disclose her identity?” That may be an even milder version of Novak’s version of it–in a column he wrote to protect himself from legal jepardy. But the spokesman for the CIA testified under oath that she WAS covert.
    http://www.washingtonpost.com/wp-dyn/content/article/2005/07/26/AR2005072602069_pf.html

    Harlow said that after Novak’s call, he checked Plame’s status and confirmed that she was an undercover operative

    He also claims he told Novak in the “in the strongest terms he was permitted to use without revealing classified information” not to write about it and even called back again to reiterate.

    The CIA are the only people who can say authoritatively whether Valerie Plame was covert–they determine that classification. They have made only one official comment that we know about, attributed to a named person, who just happened to be the spokesman for the CIA and said it under oath: that she was undercover. Until you have anther named CIA official testifying under oath that she wasn’t, that trumps all your speculation.

    And Novak himself admitted that Harlow told him she was undercover. He admitted it on “Meet the press.”
    http://msnbc.msn.com/id/3131258/

    “The official spokesman at the CIA I talked to, most recently this week, said she operated undercover. That is not exactly a covert operative. What kind of cover it is, I don’t know. Whether it was in a fictitious firm or a real firm, a non-official cover, those things have not been disclosed in detail by the CIA.”

    Then he says, he hadn’t got the impression from the admin officials that she was “deep undercover” but that’s not a requirement of the law. .

    “Operating undercover” is exactly the same as “covert operative.” Novak’s main beef with Harlow’s version of events was that if the CIA were really “strong about it” they should have told him her life would be in danger.

    The part of the law that the CIA hasn’t confirmed is that she worked outside the US in the last five years. But, gee, I wonder why–maybe not to verify exactly what she was doing to our enemies?

  4. S: The first part of your comment is actually not what Harlow said; it’s a Washington Post article reporting on what Harlow said, offering no quotes whatsoever. But even still, what Harlow is reported to be saying is that he told Novak that Plame’s identity should not be revealed, but stopped short of preventing Novak from publishing her name because that would reveal that her status was classified. In other words, her status was so secret that the CIA would rather have Novak leak her name than to prevent him from doing so because that would blow her cover.

    That makes no sense. It’s possible, but if true, I would like the CIA to shut down tomorrow for institutionalized stupidity.

    As to your second point on the Meet the Press interview, I see nothing new there. In fact, it bolsters my point: without any information whatsoever, Russert uses the term covert, and Novak adamantly denies that and says he regrets using the term operative. And contrary to what you write, Novak is correct in asserting that “operating undercover” is not the same thing as being a “covert operative.”

  5. S says:

    Russert uses the term covert, and Novak adamantly denies that and says he regrets using the term operative.

    This is your idea of “adamantly denies that?”

    “If she is a covert operative and the person who gave me the name knew that, which I’m not sure, I’m not sure she’s a covert operative, Tim. I have one source at the CIA who says she was not a covert operative. I don’t know for a fact. The official spokesman at the CIA I talked to, most recently this week, said she operated undercover.”

    That doesn’t sound like a vehement denial to me. It sounds like an attempt to cast doubt without asserting anything that you may later have to take back later.

  6. Bill Bacon says:

    S, the CIA is most emphatically not “the only people who can say authoritiatively whether Valerie Plame was covert”, at least under the law.

    Sorry, the CIA doesn’t get to make determinations of fact in a case of criminal law – that’s the job of a jury and why the law gives a definition of what “covert” means. Otherwise, the law would read something like the definition of covert is “whatever the CIA determines, in its ultimate wisdom, is covert”.

    The argument that Plame was not “covert” under the law is, in my opinion, pretty damn strong. There seems to be no evidence whatsoever that Plame worked undercover outside the United States in the five years prior to her identity as an “operative” being published.

  7. odograph says:

    Come on keep posting! Every one helps with the good fight, keeps the Plame outing in the news, and brings forth the facts … well not so much in your posts, but in the responses.

  8. odograph says:

    P.S. – Isn’t it golden when you get some guy who basically says “what does the CIA know about covert?”

  9. Bill Bacon says:

    Isn’t it priceless when someone doesn’t even bother to read the comment before commenting on it?

    The initial request to investigate by the CIA was predicated on its opinion (just that, an opinion) that a violation of the law may have occurred. Whether a violation of the law, in fact, occurred isn’t determined by the CIA – this is a matter left up to a jury. Here ends the lesson in Criminal Law 101.

  10. odograph says:

    I’m reading, and you are saying things like “just an opinion.”

    I think we should just take all the “secret” and “top secret” stamps away from the CIA, what do they know? Pfft. It’s just “opinion.”

  11. Anderson says:

    I would like to see the statute quoted that says that you have to intend for the disclosure of classified info to harm the U.S.

    That means that I can disclose whatever the hell I want, as long as my intent is “show what a dork I am” or “impress my girlfriend.”

    I strongly suspect there’s an objective test: what a reasonable person would believe was harmful to the U.S.

    And blowing an undercover operative in CPD certainly qualifies.

    Incidentally, given the harsh things I’ve said about Stotch on the Plame issue, this post (& his last one) is much improved in taking account of the actual facts & arguments.

  12. Anderson says:

    Was Plame covert for IIPA purposes? Larry Johnson, ubiquitous ex-CIAer, suggests that she was:

    Then there is the claim that the law to protect intelligence identities could not have been violated because Valerie Wilson had not lived overseas for six years. Too bad this is not what the law stipulates. The law actually requires that a covered person “served” overseas in the last five years. Served does not mean lived. In the case of Valerie Wilson, energy consultant for Brewster-Jennings, she traveled overseas in 2003, 2002, and 2001, as part of her cover job. She met with folks who worked in the nuclear industry, cultivated sources, and managed spies. She was a national security asset until exposed by Karl Rove and Scooter Libby.

    Interesting if true. Besides personal shots at Johnson himself, anybody got anything to refute this?

  13. Leopold Stotch says:

    Anderson: you’re mixing up things there I think. Travelling overseas as part of a cover job is different than being stationed overseas as a covert agent (requirements in the IIPA).

    But back to S’s original citation of Harlow. The Post reported that Harlow said that Novak came to him and was told explicitly not to use her name, ostensibly because it was super secret and that would do irreperatble harm to the United States if divulged.

    Yet Harlow knew that what Novak was writing about was Wilson. Novak would have instead written an article wherein he said that Wilson’s unnamed wife worked at the CIA and got him the Niger gig. But we know that Wilson’s Middle East Institute’s web site listed Valerie Plame as his wife. So would Harlow have us believe that his demand that Novak not name Plame is evidence of her super-secret status? Are we to assume that the enemies of America don’t have access to Google?

  14. Anderson says:

    Au contraire, M. Stotch. 50 U.S.C. s 426:

    (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.

    “Serving” isn’t defined, but I would have to see some argument/authority why it’s got to be synonymous with “stationed.” If Plame did anything overseas, she “served” overseas for that time.

  15. spencer says:

    2+2 does not = 5.

    If you are going to continue with this stupid line of reasoning I would suggest you find an actual CIA employee and find out a few facts rather then making up your own.

    I was a CIA officer — both overt and under cover — in the 1960s-70s. I know what I am talking about and your arguments are just plain ignorant.

    The CIA said she was under cover. The Justice Department agreed, the Judge in the grand jury agreed. What factual evidence do you have that they are wrong besides making up your own definitions of terms. Even Novak does not make the claim that she was not under cover.

  16. Leopold Stotch says:

    Anderson: I don’t disagree with your comment, but the link in my last post to the IIPA authors clearly states that “serving” does not include simply having travelled overseas.

    Spencer: I haven’t disputed that her employment status was classified and that she had previously served under cover. What I dispute is that the prior does not rise to the level required by the Espionage Act to make her outing a crime, and her previous undercover assignment didn’t fall under the requirements of the IIPA. Before accusing me of ignorance, try reading what I’ve written and applying a bit of legal reasoning to the situation.

    And here’s a shocker: yes, I’ve consulted people in the intel community about this. They’re like flies in this town.

  17. Bill Bacon says:

    That’s right Spencer, 2 + 2 does not equal 5, regardless of how your experience might make you see it. The definition of “covert agent” is cited in Anderson’s comment just above yours. The CIA doesn’t get to decide, definitively, whether someone is a covert agent under the terms of the law or not. That will be a question of fact for a jury to decide.

    If you want to continue your stupid line of reasoning (your words, not mine), you might want to consult any attorney (or even a paralegal or first year law student), who has done any research in what “questions of fact versus questions of law” are. While the CIA can assert that someone is a “covert agent”, the ultimate judge is a jury of someone’s peers.

    By the way, ask yourself the same question, what factual evidence, besides the statement of the CIA, do you have as evidence that Plame was a “covert agent” within the meaning of 50 USC 426? That would have to be proven in order for there to be a violation.

    So far as Mr. Johnson’s assertion that Plame traveled outside the U.S., it may (or may not) be true. I have no knowledge of it, and one person’s assertion, without independent evidence, is worth the same as any one else’s opinion.

  18. odograph says:

    I’m astonished that you would use a sentence like:

    Travelling overseas as part of a cover job is different than being stationed overseas as a covert agent (requirements in the IIPA).

    That is, you are saying that even if you accept it, you’d be willing to blow such a person’s cover for party politics.

  19. Anderson says:

    but the link in my last post to the IIPA authors clearly states that “serving” does not include simply having travelled overseas.

    Okay, but their opinion is interesting mainly to them. The statute says what it says, and there is no reason to believe that the legislators who enacted it shared the authors’ (conveniently narrow) definition. Courts enforce statutes as written, not as “intended.” The intent of a statute is inferred from its words.

    Leaving aside the obvious political motives of Toensing etc.

    I’m sorry if that seems an academic way of looking at things, but it happens to be shared by Justice Scalia, who regularly refuses to join any portion of an opinion that attempts to decipher “legislative history.”

  20. Leopold Stotch says:

    odo: thanks for making that point — it’s something that came up in a comment in my last post that I never addressed.

    My argument is that Fitzgerald blew the investigation and that all evidence strongly suggests that the outing of Valerie Plame was not a crime.

    But it was not a good thing either. I’m not sure if I’d say it was immoral, but I believe very strongly that it was hardball politics that went too far. I have several friends who work in such positions, and while exposing their status would not be criminal, I think it would simply be wrong. Novak pretty much says the same thing in lamenting using Plame’s name.

    And I think a lot of the hostility to my points has been based on my not clarifying this legal/moral distinction. I think that I have proven the legal case here, but not the moral one. And while I’m still convinced that the power politics started with Wilson’s lies, and a hardball response was to be expected, you won’t hear me say that it was a good thing that it happened.

  21. Anderson says:

    Thanks for the clarification, LS. Anything as convoluted as the Plame case is prime forest/trees territory.

  22. odograph says:

    I’m just curious Leopold, if the morality is well defined for you, why do you even find the legal folds interesting?

  23. Leopold Stotch says:

    odo: Good question, and one that I’ve asked myself. I think it’s because in my estimation this all started because Joe Wilson misrepresented himself, his position, and his findings for political reasons. This was the seed that sowed the whole thing. From there the entire story has been one misrepresentation after another, mostly based on Wilson’s continued false statements and assumptions based on his bogus narrative.

    Now there are people calling for an investigation of Wilson himself (via Ace), which I’m inclined to think is appropriate. [*edit*: I mean something like a routine investigation, not a special prosecutor]

  24. odograph says:

    If Wilson’s charges were broadly true, then he broadly served the public interest, regardless of his motives.

    On the other hand, if Libbly allegations are broadly true, then the Whitehouse did not serve the public interest, regardless of their motives.

  25. spencer says:

    I’ll stick with my comments.

    You guys are like a bunch of barracks lawyers.

    You have no idea where Plame served or what she did.

    Yes, she was working at Langley at the time.
    But that is very common for people on that side of the house. Many spooks move back and forth between Langley and abroad both on a long term and short term basis. I had a friend who was a forger. He was stationed in Langley. But several times a year he traveled throughout South America to get the new official entry and exit stamps in his passports. So just because she was at Langley at one point in time does not mean anything.

    Moreover, she was under unofficial cover, not official cover. That is very rare, as the bulk of those under cover have official cover. Being under unofficial cover is much more dangerous then official cover. Under official cover the worse the host government can do is PNG you. But under unofficial cover you can be thrown in jail and there is not much the US government can do about it.

    You or giving your own weird interpretations of the law that essentially no one else supports or agrees with. I think I will stick with the Attorney Generals interpretation of the law rather than yours. Moreover, your entire case consist of pilling one asumption on top of another. But if a single one of your assumptions — and that is all they are because you do not have any facts — turn out to be false your whole house of cards collapses.

    odograph — you claim this is wrong. What facts not speculations do you have to support your claim.

  26. odograph says:

    I’m confused by the question. I think outing an agent, who is constructively working for the benefit of the American people is wrong. The conditions in which outing might seem right would probably be the ones when it is actually the lesser of two evils. I mean, choose your wicked-CIA movie plot …

    In this case though, and I’m enough of a cynic to be surprised by it, the CIA seems to be supporting the democratic interest more than, say, the Vice President.

  27. odograph says:

    (I hope you figured out which of my comments were facetious – taking away rubber stamps, etc.)

  28. Bill Bacon says:

    Then, Spencer, I can only assume that you don’t like the rule of law, prefering the rule of the CIA.

  29. Anderson says:

    Then, Spencer, I can only assume that you don’t like the rule of law, prefering the rule of the CIA.

    Well, in that case he & Dick Cheney are of one mind.