Note:  TP stands for talking point in this case, though you may be forgiven if another image came to mind.

Amazing, but true.  The newest meme on the rightwing-o-sphere proudly asserts that no crime could have been committed by Rove and Libby because the CIA had already outed Plame back in the 90’s.  And what is more, they claim the “Liberal” mainstream media knows about it and is actively conspiring with CIA to hide this fact from the American Public!  (Gadzooks!  How low will the press go?)

Could this possibly be true?  A CIA/media conspiracy to take down an innocent Turdblossom?  Well, as the say, the devil is in the details and the details follow after the break . . .

First the SPIN cycle, in this case generously provided by Andrew McCarthy in an article dated July 21, 2005 in the National Review:

Have you heard that the CIA is actually the source responsible for exposing Plame’s covert status? Not Karl Rove, not Bob Novak, not the sinister administration cabal du jour of Fourth Estate fantasy, but the CIA itself? Had you heard that Plame’s cover has actually been blown for a decade — i.e., since about seven years before Novak ever wrote a syllable about her? Had you heard not only that no crime was committed in the communication of information between Bush administration officials and Novak, but that no crime could have been committed because the governing law gives a person a complete defense if an agent’s status has already been compromised by the government?

No I hadn’t heard, but then I don’t frequent NRO or Free Republic or Little Green Footballs much. I’m sure I miss out on a lot of interesting facts the media refuses to disclose. Pray tell, go on sir:

It turns out that the media believe Plame was outed long before either Novak or Corn took pen to paper. And not by an ambiguous confirmation from Rove or a nod-and-a-wink from Ambassador Hubby. No, the media think Plame was previously compromised by a disclosure from the intelligence community itself — although it may be questionable whether there was anything of her covert status left to salvage . . .

This CIA disclosure, moreover, is said to have been made not to Americans at large but to Fidel Castro’s anti-American regime in Cuba, whose palpable incentive would have been to “compromise[] every operation, every relationship, every network with which [Plame] had been associated in her entire career” . . .

Wow! That’s mind-blowing stuff. The CIA outed their own agent to Fidel? The man they once tried to assassinate? The same one who they attempted to overthrow in the CIA’s failed invasion operation known as the Bay of Pigs? I guess time really does heal all wounds, or maybe this was a kiss and make-up present from CIA to Fidel? Guess we’ll have to read more to find out, won’t we?

Just four months ago, 36 news organizations confederated to file a friend-of-the-court brief in the U.S. Court of Appeals in Washington . . .

The thrust of the brief was that reporters should not be held in contempt or forced to reveal their sources in the Plame investigation. Why? Because, the media organizations confidently asserted, no crime had been committed . . .

[T]he media . . . informed the court that long before the Novak revelation . . . Plame’s cover was blown not once but twice. The media based this contention on reporting by the indefatigable Bill Gertzan old-school, “let’s find out what really happened” kind of journalist.

An astounding tale, right? The media saying one thing in its reports to the public and another entirely to the Court of Appeals? How could that be? Well put that conundrum on hold for a bit, because I promise I’ll come back to it. And also remember the name of old “indefatigable” Bill Gertz, because he holds the key to this entire sordid story. Now back to Andy McCarthy and the Lies of the Lying Liberal Media: Episode V, The Plame Affair.

As the media alleged to the judges (in Footnote 7, page 8, of their brief), Plame’s identity as an undercover CIA officer was first disclosed to Russia in the mid-1990s by a spy in Moscow. . . .


Of greater moment to the criminal investigation is the second disclosure urged by the media organizations on the court. They don’t place a precise date on this one, but inform the judges that it was “more recent” than the Russian outing but “prior to Novak’s publication.”

. . . The press informs the judges that the CIA itself “inadvertently” compromised Plame by not taking appropriate measures to safeguard classified documents that the Agency routed to the Swiss embassy in Havana. In the Washington Times article . . . Gertz elaborates that “[t]he documents were supposed to be sealed from the Cuban government, but [unidentified U.S.] intelligence officials said the Cubans read the classified material and learned the secrets contained in them.”

Hmmm. Looks like the claim that Plame was outed to Russia had nothing to do with the CIA. And the claim that CIA outed Plame to Castro was done only inadvertently? Not quite as strong a case as McCarthy led us to believe, is it? Makes you wonder what else he might be exaggerating, or (heaven forbid) leaving out entirely.

I’m not going to delve any further into Andy’s story. You can read the rest for yourself if you like. But the whole thing hinges on two other writings: the media’s motion for permission to file an Amicus Curiae brief in the matter of the Judith Miller and Matt Cooper subpoenas to appear before the Fitzgerald Grand Jury, and the story that “Old Indefatigable” Bill Gertz wrote for that bastion of independent journalism the Washington Times back in 2004.

Since McCarthy is so keen on the media’s hypocrisy being exposed by their motion (not an Amicus Curiae brief itself as he implies), let’s take a look at that document first. You can find a link to it here, but FAIR WARNING: It’s a pdf file which requires Adobe Acrobat. If you have trouble opening pdf files for whatever reason, don’t bother. It’s fairly short, and the relevant portion of the motion to the claim CIA outed Plame is even shorter. In any event, I’ll summarize the document for you.

First things first: when examining legal documents I always look to see who are the attorneys representing the movants (in this case the infamous 36 media organizations, etc.). Here the name of the principle attorney jumps right out at you: Victoria Toensing of diGenova & Toensing, LLP, noted Fox News analyst, and wife of Joseph E. diGenova who is also, happily her law partner. Mr. diGenova is also a frequent expert analyst on cable news shows, and is most noted for his appointment as Special Prosecutor in the so-called Clinton Passport Office scandal, an investigation that regrettably led to no indictments despite lasting for three (3) years.

As for Ms. Toensing, her reputation is one of partisan apologist for the Bush administration. But don’t take my word for it. Check out the following stories about her bias at Media Matters. Not surprisingly, she is a frequent contributor to National Review Online and a Senior Fellow of the Right Wing, D.C. based think tank, The Foundation for the Defense of Democracies. So her ideological stance is hardly one of neutral observer. Indeed, she has been a fervent defender of her “good friend” Robert Novak’s actions in leaking Valerie Plame’s CIA identity as previously noted by Media Matters and others. So, a disinterested advocate, she is not.

Now some may harp that this is all merely an ad hominem attack on Ms. Toensing which should have nothing to do with the legitimacy of the allegations she asserted on behalf of her media clients. I, for one, would argue that the ideological bias of an advocate arguing a case with great political import is highly relevant, but I’ll put that aside for the moment. Indeed, we should examine the so-called “brief” under Ms. Toensing’s name very closely to see what support for these allegations it contains.

The substantive part of the “brief” (i.e., that which contains Ms. Toensing’s argument for why her clients should be allowed to intervene) is only 16 pages long. The actual sections of the brief which contains the allegations that CIA failed to keep Valerie Plame’s identity secret, are set out on pages 7-12. In brief (forgive me) her argument reads as follows:


CIA failed to keep Valerie Plame’s identity secret from the Russians and from Fidel Castro, all of which occurred before Robert Novak revealed her CIA status in his column. It is likely that CIA brought charges of an improper leak pursuant to the Defense Identities Protection Act of 1982 in bad faith, since they had previously failed to take affirmative steps to keep her identity secret. The Judiciary should first evaluate the merits of the Special Prosecutor’s case by questioning the relevant CIA officers under oath in an adversarial proceeding to ensure that a crime has been committed before enforcing the subpoenas against Miller and Cooper.

[Note]: Admittedly, this is a bit truncated, but you can read the full argument she makes in her motion by opening this pdf file if you wish. I believe this is a fair summation of her argument.

Remarkably, there are no affidavits which accompany Toensing’s motion in support of the factual allegations upon which her argument depends. I say remarkable, because it is common practice, when asserting facts in a judicial proceeding for which no evidence has been previously presented, to provide the Court, at a minimum, with affidavits from people setting forth their independent knowledge of those facts.

Why are affidavits important? Because they are sworn statements, made under penalty of perjury, stating that the someone knows and can establish the basis for, the facts needed to support the attorney’s argument. [A sample, showing typical language of verification by the person making the affidavit, can be found here.] Without an affidavit to establish these “facts” Toensing is essentially asking the Justices of the D.C Circuit Appeals Court to simply take her statements about these allegations on faith, without knowing whether anyone will ever offer testimony under oath to establish the veracity of these allegations.

So, what does form the basis for Toensing’s claims that the CIA is covering up its own failure to keep Plame’s identity secret. Well, perhaps not surprisingly, her principle source is the article that Old Indefatigable Bill Gertz wrote back in 2004.

Again, before examining the story Gertz wrote, lets first examine what ideological bias he might bring to the table. I think it’s hardly an open secret that the Washington Times, owned by the Rev. Sun Yung Moon, is fairly regarded as being heavily slanted to the right in its coverage of current events, and especially those which deal with the Republican party and the Bush administration. As for Gertz himself, here’s a link to a site containing an archive of various stories he has written for the Washington Times on defense issues. Regarding the Plame scandal specifically, here’s a report he made about the Wilsons in October, 2003. You can judge for yourselves whatever ideological slant he brings to his reporting:

Leak probe

FBI agents have conducted the first round of questioning at the White House, talking to senior officials who may have disclosed the identity of Valerie Plame, the CIA unofficial cover case officer whose identity was disclosed in a syndicated column in July.

A source close to the White House tells us that the FBI agents conducted casual questioning apparently to entrap any leakers. The agents did not take sworn statements from the staff members because lying to an FBI agent during questioning is a crime.

Officials also tell us that Mrs. Plame and her husband, former Ambassador Joseph C. Wilson, had a party at their house in early July that included several members of the press. The party has raised questions among some officials about whether Mrs. Plame may have given up her covert status under the Intelligence Identities Protection Act by mingling with reporters.
The FBI is not happy about hunting leakers in the White House. “We’ve got a lot of terrorists out there to look for,” one agent noted.

I like the fact that all his sources for this report are anonymous: either “a source close to the White House” or the even more obtuse “officials.” This will be a continuing pattern to his reporting as we can see in the article he wrote in 2004, in which the claims that CIA outed Plame first arose:

CIA officer named prior to column
By Bill Gertz
Washington Times

The identity of CIA officer Valerie Plame was compromised twice before her name appeared in a news column that triggered a federal illegal-disclosure investigation, U.S. officials say.

Mrs. Plame’s identity as an undercover CIA officer was first disclosed to Russia in the mid-1990s by a Moscow spy, said officials who spoke on the condition of anonymity.

In a second compromise, officials said a more recent inadvertent disclosure resulted in references to Mrs. Plame in confidential documents sent by the CIA to the U.S. Interests Section of the Swiss Embassy in Havana.

The documents were supposed to be sealed from the Cuban government, but intelligence officials said the Cubans read the classified material and learned the secrets contained in them, the officials said.

. . . Mrs. Plame’s identity first was revealed publicly by Chicago Sun-Times columnist Robert Novak in a July 14, 2003, column about Mr. Wilson’s trip to Niger to investigate reports that Iraq was trying to buy uranium ore for a nuclear-arms program.

The Justice Department then began an investigation of the disclosure under the 1982 Intelligence Identities Protection Act, which makes it a crime to knowingly disclose the name of a covert agent.

However, officials said the disclosure that Mrs. Plame’s cover was blown before the news column undermines the prosecution of the government official who might have revealed the name, officials said.

“The law says that to be covered by the act the intelligence community has to take steps to affirmatively protect someone’s cover,” one official said. “In this case, the CIA failed to do that.”

A second official, however, said the compromises before the news column were not publicized and thus should not affect the investigation of the Plame matter.

So what does Gertz’s story tell us? Not a whole lot. Everyone who talked to Gertz (and we have no way of knowing precisely how many sources he used in this report) is unnamed, and all spoke to him on condition of anonymity. Thus, there is no way to assess the credibility of the sources. They may be credible sources in the Pentagon or CIA, or they may be partisan White House hacks. We have no way of knowing.

The other thing to note is that, if true, information that her identity may have been compromised to the Russians and the Cubans would itself have been classified information, for which those talking to Gertz where themselves violating US laws prohibiting its transfer. See, e.g., 18 USC Section 641 and its applicability discussed in this front page story by Markos.

In the end, we do know that no other major media news outlet ran with this story at the time Gertz printed his article in the Washington Times. McCarthy and his fellow travelers on the right would have you believe that this is evidence of some vast liberal media conspiracy, but my guess is that no one else who was offered this story (an does anyone truly believe Gertz was offered an exclusive here?), was willing to publish it. My guess is that they couldn’t satisfactorily verify the accuracy of their sources with other independent reporting, or maybe they just smelled a frame job. Again, who really knows, but the belief that all these other news outlets, which are in competition with each other (including ones owned by Rupert Murdoch), conspired to bury this story strikes me as more than a little fanciful.

That some on the right are now bringing Gertz’s article back up a year later is evidence to me of nothing more than an attempt, through the sheer volume of noise in their echo chamber, to force other media outlets to cover a story that no one was willing to run with before, other than the perhaps the most blatantly partisan newspaper in the country.

As for Toensing’s “brief” it was filed back in March of this year, after the DC Circuit reissued it’s ruling requiring Miller and Cooper to comply with their subpoenas from the grand Jury, an opinion which you can read here. Subsequently, the full D.C. Circuit Court of Appeals (i.e., all the justices) denied the petition for a rehearing en banc in a very short opinion you can read here.

Clearly Toensing’s “brief” was accorded little weight by the DC Circuit, even if McCarthy and his NRO buddies feel it is the smoking gun that will kill Fitzgerald’s investigation. Frankly, I think they are in for a big surprise if they really believe that (which somehow, with the BIG LIE technique’s resurgence on the Right, I tend to doubt).

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