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.

Riiiiiiggggghhhhhtttttt.