by Larry C. Johnson (bio below)

Valerie Plame was a covert intelligence officer covered by the Intelligence Officer’s Identity Protection Act and Lewis “Scooter” Libby lied to the Grand Jury. These two truths emerge from the opinion written by Judge Tatel, of the US Court of Appeals, and released in February 2005. Thanks to a FOIA request by the Wall Street we now have a more complete record, although key parts of his decision are still blacked out. Perhaps most of the media will now realize that they have been fed a pack of lies by the likes of Ken Mehlman, Victoria Toensing, Cliff May and others.

Tatel’s opinion also is relevant to the current furor over “domestic spying” and whether reporters will have any ability to protect their sources. It certainly appears that Tatel would uphold the right of the reporters to protect sources who told them about illegal spying. Tatel’s concludes his opinion that Judy Miller and Matt Cooper had to testify before the Grand Jury with the following:

In sum, based on an exhaustive investigation, the special counsel has established the need for Miller’s and Cooper’s testimony. Thus, considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas. . . .Here, two reporters and a news magazine, informants to the public, seek to keep a grand jury uninformed. Representing two equally fundamental principles—rule of law and free speech—the special counsel and the reporters both aim to facilitate fully informed and accurate decision-making by those they serve: the grand jury and the electorate. To this court falls the task of balancing the two sides’ concerns. . . .

. . . .Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury’s need for the reporters’ evidence, I might have supported the motion to quash. Because identifying appellants’ sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court’s orders compelling their testimony.

Tatel’s incisive opinion makes he clear that he understands the difference between someone who leaks information designed to hurt U.S. intelligence assets, as happened in Valerie’s case, and someone who leaks information about Government malfeasance, as happened with the leak to James Risen that the Bush Administration was spying on Americans. The key issue for Tatel was “harm” to the United States versus the public’s right to know. … continued below …

Speaking to the harm caused by the leak, Judge Tatel wrote:

As to the leaks’ harmfulness, although the record omits specifics about Plame’s work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as “a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years”—representations I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.)

Some of the Bush apologists, such as Byron York of the National Review, is still trying insisting that Plame’s covert status is in doubt and that no damage was done by seizing on a paragraph in a recent letter from Patrick Fitzgerald to Scooter Libby’s attorneys. In a December 14, 2005, letter to Fitzgerald, Libby’s lawyers asked for “Any assessment done of the damage (if any) caused by the disclosure of Valerie Wilson’s status as a CIA employee” in a December 14, 2005 letter to Fitzgerald. Fitzgerald’s response stated, “A formal assessment has not been done of the damage caused by the disclosure of Valerie Wilson’s status as a CIA employee, and thus we possess no such document.”

This much I do know. The CIA, as matter of standard operating procedure, conducted a prelimnary damage assessment once Valerie’s identity was publicly compromised. Human intelligence assets who had worked under Valerie’s direction were damaged. Their lives were put at risk (I don’t know if anyone died) and their ability to serve as clandestine assets reporting to the United States was destroyed. Remember, Valerie was working on projects to identify terrorists and criminals who were trying to procure weapons of mass destruction. Part of this information was the basis for the referral to the Justice Department in September 2003 to investigate this as a violation of the Intelligence Identities Protection Act. Although the CIA has not completed a formal written report that is available to outsiders, such as the House or Senate Intelligence Committees, it has done a damage assessment.

Other material contained in Tatel’s review of the case contains the following substantive nuggets:

Vice President Cheney told Scooter Libby that Valerie Plame worked at the CIA’s Counter Proliferation Division in mid-June 2003.

Both Cheney and Libby, by virtue of their longstanding work with CIA and on national security issues, knew that CPD was an intelligence collector and not an analytical shop. They also have had enough experience with intelligence matters to know that the vast majority of folks involved with intelligence collection are undercover.

Finally, Tatel made it clear why Miller and Cooper needed to testify and correctly predicted that Libby’s conduct justified a perjury indictment:

Given the evidence contradicting Libby’s testimony, the special counsel appears already to have at least circumstantial grounds for a perjury charge, if nothing else. Miller’s testimony, however, could settle the matter. If Libby mentioned Plame during the July 8 meeting—and Miller’s responses to the documentary subpoena suggest she has notes from that conversation (see 8/27/04 Aff. at 19-20)—then Libby’s version of events would be demonstrably false, since the conversation occurred before he spoke to Russert. Even if he first mentioned Plame on July 12, as he claims, inconsistencies between his recollection and Miller’s could reinforce suspicions of perjury. What’s more, if Libby mentioned Plame’s covert status in either conversation, charges under the Intelligence Identities Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become viable. Thus, because Miller may provide key corroboration or contradiction of Libby’s claims—evidence obviously available from no other source—the special counsel has made a compelling showing that the subpoenas directed at Miller are vital to an accurate assessment of Libby’s conduct.

Fitzgerald’s ability to prosecute under the Intelligence Identities Protection Act hinges on the cooperation of Libby, Rove, and Cheney, among others. Libby’s refusal to cooperate explains the perjury and obstruction of justice charges he faces. We will see what happens with Rove and the Vice President. Regardless of whether Fitzgerald can prosecute an Intelligence Identities Protection case, this much is clear–people who work for President Bush knowingly compromised an intelligence officer’s identity. What is truly shameful are the prominent Republicans who are raising funds for Libby’s defense fund. They are endorsing an act of treason and excusing it for political expediency. That may not be a crime, but it is wrong.


Larry C. Johnson is CEO and co-founder of BERG Associates, LLC, an international business-consulting firm that helps corporations and governments manage threats posed by terrorism and money laundering. Mr. Johnson, who worked previously with the Central Intelligence Agency and U.S. State Department’s Office of Counter Terrorism (as a Deputy Director), is a recognized expert in the fields of terrorism, aviation security, crisis and risk management. Mr. Johnson has analyzed terrorist incidents for a variety of media including the Jim Lehrer News Hour, National Public Radio, ABC’s Nightline, NBC’s Today Show, the New York Times, CNN, Fox News, and the BBC. Mr. Johnson has authored several articles for publications, including Security Management Magazine, the New York Times, and The Los Angeles Times. He has lectured on terrorism and aviation security around the world. Further bio details.

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