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Thursday, March 22, 2007

Hayden & Wilson v. Toensing & Elliot

Various apologists for the Bush administration have argued that Pat Fitzgerald never should have been appointed special prosecutor on the grounds that, said apologists claim, Valerie Wilson wasn't covered by the Intelligence Identiy Protection Act (IIPA). It's a required element of any crime charged under the IIPA that the agent whose cover is blown be "covert", not just classified. Covert status requires having been recently (I believe, within 5 years of any chargeable leak) involved in intelligence activities outside US borders.

Victoria Toensing, who helped write the IIPA as a Senate staffer in 1982 and has a history of working for Republicans (a fact I note simply to point out that she is not simply "a Washington lawyer", as some media outlets have taken to referring to her) wrote in a February, 2007, WaPo column that

On Dec. 30, 2003, the day Fitzgerald was appointed special counsel, he should have known (all he had to do was ask the CIA) that Plame was not covert, knowledge that should have stopped the investigation right there. The law prohibiting disclosure of a covert agent's identity requires that the person have a foreign assignment at the time or have had one within five years of the disclosure, that the government be taking affirmative steps to conceal the government relationship, and for the discloser to have actual knowledge of the covert status....

Plame was not covert. She worked at CIA headquarters and had not been stationed abroad within five years of the date of Novak's column.

Ms. Toensing recently testified to the House Oversight Committee to similar effect.

Equally informed on this matter appears to be PrawfsBlawg commenter Elliot, who recently wrote

I have read the requirement that such an employee would have been out of the country in the prior five years. On this, I don't think Plame qualified.

I admit to a certain amount of respect for the uncanny ability of folks like Toensing and Elliot to know the details not only of CIA personnel matters, but also the stamp contents of a (presumed, on my part) stranger's passport. I've always wondered how it is that such folks have managed to ascertain Valerie Wilson's travel history. I wonder, do they know where and when I travel? How about my dog---do they know when she gets her walks? Her treats? But I digress.

There certainly is decent circumstantial evidence that Wilson was covered--e.g., the fact that the CIA referred the case to DOJ in the first place, the fact that DOJ began an internal investigation, the fact that AG Ashcroft (a man not to my knowledge generally known as a water-carrier for either the CIA or Democrats) recused himself when Karl Rove's involvement became clear.

But hey, never mind all that. Here's an excerpt from last Friday's House Oversight Committee hearing, courtesy of ThinkProgress. "Cummings" is Rep. Elijah Cummings (D-MD), and "Wilson" is Valerie Wilson:

CUMMINGS: Ms. Wilson, first of all, thank you for your service. Ms. Wilson, even today your work for the CIA is so highly classified that we’re not permitted to discuss the details, but we can clarify one crucial point — whether you worked undercover for the CIA. You said your position was covert but I’ve heard others say you were not covert. In fact, one of the witnesses who will testify a little bit later, Victoria Toensing, is making that same argument. In an op-ed that appeared in the Washington Post on February 18, she says it quite bluntly. She says, “Plame was not covert. She worked at CIA headquarters and had not been stationed abroad within five years.” I know there are restrictions on what you can say today, but is Ms. Toensing’s statement correct?

WILSON: Congressman, thank you for the opportunity. I know I’m here under oath, and I am here to say I was a covert officer of the Central Intelligence Agency. Just like a general is a general whether he is in the field in Iraq or Afghanistan, when he comes back to the Pentagon, he is still a general. In the same way, covert operations officers who are serving in the field, when they rotate back to a temporary assignment in Washington, they, too, are still covert.

CUMMINGS: Is it possible that Ms. Toensing had more information than you do about your work or had access to secret document that you don’t?

WILSON: I would find that highly unlikely, congressman, because much of that information about my career is still classified.

CUMMINGS: On Wednesday night, I know that Mr. Waxman, our chair, and Congressman Reyes, the Chairman of the House Intelligence Committee, spoke personally with General Hayden, the head of the CIA. And Mr. Waxman told me that Gen. Hayden said clearly and directly, “Ms. Wilson was covert.” There was no doubt about it. By the way, the CIA has authorized us to be able to say that. In addition, I understand that Chairman Waxman sent his opening statement over to the CIA to be cleared and to make sure that it was accurate. In it, he said, “Ms. Wilson was a covert employee of the CIA.” “Ms. Wilson was undercover.” The CIA cleared these statements. I emphasize all of this because I know that there are people who are still trying to suggest that what seems absolutely clear isn’t really true and that you weren’t covert. And I think one of the things we need to do in this hearing is make sure there isn’t any ambiguity on this point. Just three more questions, did you hold this covert status at the time of the leak? Did you — the covert status at the time of the leak?

WILSON: Yes I did, congressman. Yes.

CUMMINGS: Number two, the Identities Protection Act refers to travel outside the United States within the last five years. Let me ask you this question. Again, we don’t want classified information, dates, locations, or any other details. During the past five years, Ms. Plame, from today, did you conduct secret missions overseas?

WILSON: Yes I did, congressman.

CUMMINGS: Finally, so as to be clear for the record, you were a covert CIA employee and within the past five years from today, you went on secret missions outside the United States. Is that correct?

WILSON: That is correct, congressman.

[The emphases are mine.]

I'll note one thing for the record: Cummings asks about "five years from today", which would start the window at March 16, 2002. Bob Novak's column blew Wilson's cover in July 2003. Elementary arithmetic operations suggest, therefore, that either Wilson is lying or mistaken on the one hand, or she had satisfied the foreign-mission requirement as of July 2003.

One last note for entertainment's value: Novak has a new column today, in which he writes:

[Waxman] is no fool who would misrepresent the director of central intelligence. Waxman was correctly quoting Hayden. But Hayden, in a conference with Hoekstra yesterday, still did not answer whether Plame was covert under the terms of the Intelligence Identities Protection Act....

Hayden's endorsement of Waxman's statement astounded Republicans whose queries about her had been rebuffed by the agency. That confirmed Republican suspicions that Hayden is too close to Democrats.


Posted by Jonah Gelbach on March 22, 2007 at 10:53 AM in Current Affairs | Permalink


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Read the Indentities law. Plame had only to have served overseas in a covert status within five years of being exposed. According to recent CIA statements she served overseas in a covert role many times in that time frame.

"It seems Joseph Wilson doesn't agree with his wife." Wilson has explained what he meant when he said she was not a covert agent on the date the op-ed piece was released. The article exposed her identity. She was no longer covert, as of that date.

"Armitage exposed her." So why did Novak first say in his 7/14/03 piece that two high-ranking White House officials had purposely revealed her CIA identity to him? Armitage is big, but he ain't two.

It's obvious that the White House originated the leak, in one way or another. Why, and is there evidence still available in email records that can fill in the missing pieces? The saying, "where there's smoke, there's fire," isn't one to be ignored when it applies to the present situation, and only a fool would deny that it does.

Posted by: Bill | Jul 11, 2007 12:55:35 AM


Okay, so let's move the discussion forward. Joseph Wilsin is undeniably a complete liar. He lied in his op-ed and he lied about his report to the CIA. The bipartisan Senate intelligence report from 2004 establishes that.

It's pretty hilarious that you say he is trying to "get the truth out." His claim that his trip to Niger showed there was no support for the 16 words is contradicted by both the CIA's own assesment of his report to them, the bipartisan Senate intelligence report, and the Butler report by the British. So, let's be honest, shall we?

Now, let's talk about this just-adjudicated criminal misconduct you are harping on. I'm sure you are aware of exactly what Libby was convicted of. His conviction had nothing to do with conduct that was otherwise crminal -- if he hadn't committed the technical perjury there would have been no case. There was no other crime.

Furthermore, the person who FIRST revealed her identity was Richard Armitage. He has long been recognized as an opponent to the Bush administration from within the State Department and hardly a tool of the Bush administration. Novak himself testified that Armitage told him first. Woodward as well said that Armitage was the first one to tell him. Armitage is the last person who would have revealed her name to defend the very administration he was so greatly as odds with.

You keep trying to hide behind a cloak of neutrality, but if it is more than a cloak, the information I've provided should cause a revision of your views.

Posted by: humblelawstudent | Mar 23, 2007 2:55:38 PM

Why does it matter? Everyone knows who leaked it, Richard Armitage. How come he wasn't prosecuted?

Posted by: pee | Mar 23, 2007 2:36:32 PM


Note your quote from Toensing: "The law prohibiting disclosure of a covert agent's identity requires that the person have a foreign assignment at the time or have had one within five years of the disclosure..."

The disclosure was in July 2003. The five year period in question is July 1998 to July 2003.

The congressman asked about the period March 2002 to March 2007.

Can you tell us if Plame was out of the country on a CIA mission at any time from July 1998 to July 2003?

So, where are you setting those goal posts? July 1998 to July 2003, or March 2002 to March 2007?

If you have made your points as completely as you can I accept that and note you have not addressed the five year period in question. That's not very complete. Perhaps we can look forward to a second grand, unifying post about Libbygate?

Posted by: Elliot | Mar 23, 2007 2:18:18 PM


Just to be clear, I don't regard anything I've written about this case to involve "support[ing]" the Wilsons per se (and if you do, that's your interpretation, not my intent). Rather my points have been about (i) the willingness of the Bush administration to (anonymously) expose a CIA agent's identity in the name of either political payback or attempts to discredit a critic (which it is is unimportant), and (ii) abuse of the legal process via perjury and obstruction.

I don't know the Wilsons personally and so have no knowledge of them past the facts that are publicly available. I do think that Joe Wilson has said some things that make me think his motives are as much about grandstanding and media coverage as getting the truth out (which is to say, he seems to be doing some of each, not always in a harmonious fashion). The public record regarding Valerie Wilson is much less extensive, and I do question why so much vitriol seems to have been directed her way.

Some Administration critics seem to feel a need to defend the Wilsons personally, just as many (all?) Administration defenders seem to believe that if only they can establish the demerits of one or both of the Wilsons, they will have excused the deplorable and recently-adjuticated-as-criminal behavior of Administration officials.

To me all that stuff is beside the point: one need not defend either of the Wilsons to observe certain facts about Bush administration officials' misconduct (criminal and otherwise). Need one attack the Wilsons to defend Administration officials' conduct?

Finally, I don't see any value in arguing further over Joe Wilson's choice of words in a TV interview. I've been around the block already on the five-years and "covert" points here at PrawfsBlawg and have made my points as completely as I intend to (at least, until some further information of relevance comes to light).


Posted by: jonah gelbach | Mar 23, 2007 1:27:49 PM


I understand the specific legal definition of "covert" in this case. It is a very technical term which, simply put, requires that Valerie Plame was abroad on a secret mission of some substantial length in the previous five years. Now, it is very difficult to imagine that the term "clandestine" could have an even more limited and specific definition than "covert." If anything, it is broader and over-inclusive in that it includes "covert" but is not limited to "covert." Especially, since we already know the very specific requirements for someone to be considered "covert." As such, "clandestine" undoubtedly includes "covert." And Joseph Wilson or Plame is lying. Either way, its another lie in a looooonnng string of lies -- some of which my sources explain.

I really wonder how much longer people can really support them. They have been exposed for the complete and utter frauds they are. I'm just doing my part in accordance with the mission statement of this blog.

Posted by: humblelawstudent | Mar 23, 2007 11:49:15 AM


much of the argument from the right of the claim regarding valerie wilson's concerns the difference between "covert" and "classified". toensing, for instance, has made a big deal out of the fact that the libby indictment refers to her status as "classified" rather than "covert".

as i understand the matter, both of those terms have precise legal meanings as regards the IIPA. i am unaware of any such precise meaning that the term "clandestine" has.

so, i don't accept your premise that "Its fair to assume that clandestine = covert/undercover," and thus I do not think you have made even a prima faciae case that "there is a direct contradiction."

finally, last i checked, interviews with wolf blitzer are not carried out under penalty of perjury, while sworn congressional testimony is. so even if i thought you had a point, if i had to choose, i'd believe valerie wilson's testimony over joe wilson's tv interview. (this, by the way, is one reason why many people seem to think sworn testimony by rove, miers, et al might be a tad more desirable than, say, shooting the breeze in a not-for-attribution-or-record-keeping sort of way.)

Posted by: jonah gelbach | Mar 23, 2007 10:18:21 AM


I'm not sure what argument you are trying to make then. Valerie is saying she was an undercover/covert agent at the time of the leak. Her husband said she wasn't a clandestine officer at the time of the leak. Its fair to assume that clandestine = covert/undercover. So, there is a direct contradiction.

Just one more lie in the whole string told by the Wilsons.

If you want to educate yourself further on this matter I recommend two sources which are hardly reboubts of the VAST right wing conspiracy.



Posted by: humblelawstudent | Mar 23, 2007 12:08:33 AM

First, in response to humblelawstudent: if you read the excerpt you provide and then read the testimony by Valerie Wilson that I excerpted in my post, you will find no contradiction whatsoever. So I'm not sure why you write "Oops..." (unless you mean it as an acknowledgment).

Second, in response to Elliot, I think at this point the only thing left to say is: Be careful you don't throw your back out, carting those goalposts around; there's something to be said for conceding points you've lost rather than changing the subject. It's not so hard, really.

Posted by: jonah gelbach | Mar 22, 2007 10:35:42 PM

Much as I appreciate the compliment, I am not nearly as well informed as Toensing on the Intelligence Identiy Protection Act. She drafted it; I merely read what she wrote.

I suggest we get more details about Plame's travel. HumbleLawStudent above provides reason to think Wilson disagreed with Plame about her travel and her status. Perhaps he didn't know the requirements of the law, or perhaps he wasn't acquainted with his wife's travel. Or perhaps she was simply keeping here eyes and ears open when on a recretainal trip abroad? The law requires a mission. Was she on one?

I also observe Fitzgerald referred to her status as classified rather than covert after the trial. Such distinctions are important in law, and I suspect Fitzgerald was using a carefully a chosen word.

That was a good column you cited from Novak. Here's another para from the same column that also deals with covert status.

"Waxman and Democratic colleagues did not ask these pertinent questions: Had not Plame been outed years ago by a Soviet agent? Was she not on an administrative, not operational, track at Langley? How could she be covert if, in public view, she drove to work each day at Langley? What about comments to me by then CIA spokesman Bill Harlow that Plame never would be given another foreign assignment? What about testimony to the FBI that her CIA employment was common knowledge in Washington?"

Posted by: Elliot | Mar 22, 2007 9:28:56 PM

It seems Joseph Wilson doesn't agree with his wife.

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

BLITZER: But she hadn't been a clandestine officer for some time before that?

WILSON: That's not anything that I can talk about. And, indeed, I'll go back to what I said earlier, the CIA believed that a possible crime had been committed, and that's why they referred it to the Justice Department.

She was not a clandestine officer at the time that that article in "Vanity Fair" appeared.



Posted by: humblelawstudent | Mar 22, 2007 7:06:44 PM

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