It’s a good thing Special Prosecutor Patrick Fitzgerald never had to prove that former CIA agent Valerie Plame was “covert” or not before she outed herself with a full-page photo spread in Vanity Fair. Judging from her testimony on Capitol Hill last week she would bring Fitzgerald’s batting average down considerably.
The hearing, a media extravaganza produced and directed by Henry Waxman (D-Calif.) featured Plame in a well-guarded role. Citing security concerns, Waxman didn’t permit Republicans to ask or answer the questions Plame’s political adventures demand.
Now, almost four years after the Bush administration allegedly leaked her identity to news reporters to undermine her husband Ambassador Joe Wilson Plame still can’t give a straight answer when asked if she was a covert agent under the Intelligence Identities Protection Act when this happened.
Wilson had taken a CIA-sponsored trip to Niger and found evidence that he said refuted President Bush’s information on Iraq’s nuclear weapons programs. Consequently, he hawked this story at a forum sponsored by the Democratic Senatorial Policy Committee in May 2003, which Plame attended. The next day he had a breakfast meeting with reporters from the New York Times and Washington Post about his speech that Plame said she was at as well. He later wrote a nationally-published piece for the Times that said intelligence on weapons of mass destruction had been manipulated to go to war with Iraq. A week a later, on July 14, 2003 conservative journalist Bob Novak wrote a column about Wilson’s “findings” that mentioned his wife Valerie Plame was an “agency [CIA] operative on weapons of mass destruction.”
These events triggered a series of investigations that resulted in the pending imprisonment of Scooter Libby. Libby was eventually found guilty of obstructing justice and lying about how he learned of Valerie Plame’s identity.
Fitzgerald was unable to prove that Libby knew Plame was a “covert”, either in court or when he discussed her with reporters. Valerie Plame can’t prove it either.
In 1982, Congress passed the Intelligence Identities Protection Act. This law makes it a federal crime to knowingly reveal the identity of a CIA agent who has conducted covert roles overseas within five years of the disclosure. To violate this law, the person who disclosed the agent’s identity must have been aware that the agent was “covert” at the time of the disclosure.
Additionally, in order to prosecute anyone who discloses the identity of a covert agent it is imperative that the government prove she was indeed “covert.”
At this point, no one, least of all Fitzgerald, has done this.
When she testified to the House Committee on Government Oversight and Reform Ranking Member of the committee Rep. Tom Davis (R.-Va.) asked Plame, “The Intelligence Identities Protection Act makes it a crime to knowingly disclose the identity of a covert agent, which has a specific definition under the act. Did anyone ever tell you that you were so designated?”
Wilson didn’t give a straight answer. She told Davis, “I’m not a lawyer.”
To clarify, Davis asked, “What I'm asking is, for purposes of the act - and maybe this just never occurred to you or anybody else at the time - but did anybody say that you were so designated under the act or was this just after it came to pass?”
“No, no one told me that,” Plame replied.
Rep. John Yarmuth (D.-Ky.) asked her, “Without destroying or disclosing classified information, what does ‘covert’ mean?”
Wilson said, “I’m not lawyer, but my understanding is that the CIA is taking affirmative steps to ensure that there’s not links between the operations officer and the Central Intelligence Agency. It’s that simple.”
Washington lawyer Victoria Toensing, former chief counsel or the Senate Intelligence Committee and former deputy assistant attorney general in the Reagan administration testified to the committee shortly after Plame. Toensing said the definition of “covert” wasn’t as simple as Plame said it was.
Toensing helped write the 1982 Identities Protection Act legislation and insisted “She [Plame] was not a covert agent under the Act.”
“Nobody was ever charged with knowing that she was covert” Toensing explained. “Therefore she wasn’t covered by the statute.”
The act defines a “covert” agent as one whose undercover status is classified, has been assigned to foreign duties within the past five years, and which the government has made a concerted effort to conceal the identity. As Toensing explained in a January 2005 column, “This requirement does not mean jetting to Berlin or Taipei for a week's work. It means permanent assignment in a foreign country. Since Plame had been living in Washington for some time when the July 2003 column was published, and was working at a desk job in Langley (a no-no for a person with a need for cover), there is a serious legal question as to whether she qualifies as ‘covert.’”
Plame testified that she believed her covert status was more fluid. She said, “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's still a general,” she told the committee. “In the same way, covert operations officers who are serving in the field, when they rotate back for temporary assignment in Washington, they too are still covert.”
Chairman Henry Waxman told Toensing he was “stunned” with her assessment that Plame was not covert at the time of Novak’s disclosure. Waxman told Toensing, “General Hayden, the head of the CIA, told me personally that she was - that if I said that she was a covert agent, it wouldn't be an incorrect statement.”
Toensing asked him, “Does he want to swear that she was a covert agent under the Act?”
“I'm trying to say this as carefully as I can,” Waxman said. “He reviewed my statement. And my statement was that she was a covert agent.”
“So he didn't say it was under the Act,” Toensing clarified.
“Well, OK, so you're trying to define it exactly under the Act,” Waxman said.
“That's important,” she said. Waxman didn’t permit Toensing to explain further the definition of a covert agent under the Act.
He cut her off abruptly. “No, no, no. No, no, no” Waxman said. “I’m not giving you—I’m not yielding my time to you. So that’s your interpretation.” Then, Waxman changed the subject.
So far, neither Plame, nor Waxman, nor Hayden or anyone else has been able to show that by law Plame was a covert agent on July 14, 2003.
Valerie Plame isn’t a lawyer, but Patrick Fitzgerald and Victoria Toensing both are. And bottom line of this case is that Fitzgerald hasn’t been able to prosecute anyone under the law Toensing helped write and Plame and her Democrat allies continue to exploit.
Plame isn’t through, by any means. There will be more hearings and much more media coverage. Perhaps - in a closed session in which she testifies under oath – Republicans can start getting to the bottom of the Plame Game.
