Victoria Toensing testified before the House Committee on Government Reform and Oversight today and said that Valerie Plame Wilson was not a ‘covert agent’ under the law she helped draft in 1982, called the Intelligence Identities Protection Act. She’s wrong. But it does involve some interpretation, so let’s look at the definition provided in the US Code.
(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; or(B) a United States citizen whose intelligence relationship to the United States is classified information, and—
(i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, or
(ii) who is at the time of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation; or(C) an individual, other than a United States citizen, whose past or present intelligence relationship to the United States is classified information and who is a present or former agent of, or a present or former informant or source of operational assistance to, an intelligence agency.
At the time of the Robert Novak column, Valerie Plame Wilson was ‘a present or retired officer or employee of an intelligence agency’, ‘whose identity as such an officer, employee, or member [was] classified information, ‘who is serving outside the United States or ha[d] within the last five years served outside the United States.’
For Toensing, it is the last part of this that creates a bone of contention. She is questioning what the meaning of ‘serving’ or ‘served’ is. In her interpretation, the only way an intelligence officer can ‘serve’ outside the United States is if they are stationed overseas in a more or less permanent status. If a CIA officer merely makes a trip to a foreign country to carry out a covert operation, they are not actually ‘serving outside the United States’. Toensing bases this interpretation on the original intent of the law, which she had a part in drafting. The law was created because a former CIA officer named Philip Agee had become disgruntled and started revealing the names of members of the CIA’s operations directorate. It also was a response to the assassination of the CIA’s Chief of Station in Athens, Greece, after a newspaper outed him. So, the context of the law was to protect members of the Directorate of Operations, and not, say, the Directorate of Intelligence. And, it should be obvious that members of the Directorate of Operations are most at risk when they are serving abroad.
So, the intent of the law can be said with some accuracy to be to protect intelligence officers and their agents that are serving or have recently served abroad. But let’s run this theory of Victoria Toensing to ground.
Let’s say that a CIA operations officer is not stationed in a foreign embassy, but in a special unit devoted to capturing Usama bin-Laden. Each day they report to their office in Langley and they look over reports from the field, wiretap transcripts, satellite intelligence, etc. And, then let’s say that they get a tip that bin-Laden is in a certain village in Pakistan. And then, let’s say that they pull together a team of paramilitary forces and they head off for that village in Pakistan under the cover of being religious pilgrims or skiing enthusiasts, or something. And let’s say that they recruit some locals, wittingly or unwittingly, to assist them in getting close to bin-Laden.
After this mission is over and our operations officer has returned to the United States, does Victoria Toensing think that the Intelligence Identities Protection Act would cover this officer? Would she say that that officer had not served outside the United States? Would revealing that officers’ identity not potentially result in the death of the Pakistani agents that they had recruited?
This is an admittedly extreme example that I am using. But, when Valerie Plame Wilson traveled abroad ‘undercover’ to look into weapons of mass destruction, she did so at great personal risk. And she recruited people to betray their country and give secrets to the United States. And those people are now under suspicion, or possibly in prison, or dead. In any case, they are no longer of any use to us. How could it possibly be, that the law was only intended to cover operations officers that are stationed overseas? That would be idiotic.
Ms. Toensing testified that she represents covert officers as an attorney. And she said that she asked them if they ever worked in a desk job in Langley, and that they laughed at the suggestion. Ms. Toensing is an idiot and she is lying. First of all, let’s look at the familiar case of Markos Moulitsas
“I applied to the CIA, spent six months interviewing, and got to the point where I was going to sign papers. It was at that point that the Howard Dean campaign took off. It was going to be a tough decision. Then the CIA insisted that my first duty assignment would be in Washington, D.C.. Six years before I could go overseas. I hate D.C.”
Amazing, isn’t it Ms. Toensing? Imagine training an operations officer and then insisting that they serve their first six years in Langley? The truth of the matter is that operations officers rotate in and out of the field all the time and there is plenty of work to do in Langley.
In Markos’ case, if he had taken the job with the CIA he would still be in Langley and he would probably not be protected under the IIPA because he would not yet have had any kind of foreign assignment. But, it would still be wrong to out him because it would destroy all the investment made in training him.
Outing Valerie Plame Wilson was a potential crime under the IIPA act. What Fitzgerald needed to prove was not that Plame was covert or had served overseas in the last five years…she had. What he needed to prove was the bolded part below:
Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.
Richard Armitage came forward and confessed to leaking the information and said it was the biggest mistake of his life. He claimed not to have realized that she was covert. That was stupid because Armitage learned of Plame from the INR memo, and the INR memo clearly marked Valerie Plame’s name as classified and not to be shared even with friendly intelligence agencies.
People make mistakes, and Fitzgerald couldn’t prove that Armitage knew she was covert, so he couldn’t charge him with violating the IIPA. However, Libby and Rove also leaked Plame’s name, and Fitzgerald had good reason to believe that they knew she was covert. Rove told Matt Cooper on ‘double secret deep background’ that Valerie worked at the CIA and then told Cooper, ‘I’ve already said too much.’ Libby talked to David Addington about Plame and told him to lower his voice. He told Ari Fleischer about Plame and told him it was ‘hush-hush and on the Q.T.’
They knew she was covert and they didn’t care. Proving that beyond a reasonable doubt was difficult, and Fitzgerald explained his motives for prosecuting Libby for perjury rather than for violating the IIPA.
When you do a criminal case, if you find a violation, it doesn’t really, in the end, matter what statute you use if you vindicate the interest.
If Mr. Libby is proven to have done what we’ve alleged — convicting him of obstruction of justice, perjury and false statements — very serious felonies — will vindicate the interest of the public in making sure he’s held accountable.
It’s not as if you say, “Well, this person was convicted but under the wrong statute.”
What he hasn’t explained is why he didn’t prosecute Karl Rove.
