The MSM is reporting that Valerie Plame’s status as a covert CIA agent has been confirmed (and the left blogosphere is howling in triumph), but all that has really happened is that Patrick Fitzgerald reiterated in his sentencing brief the same leap of logic he has been using all along to justify his meritless prosecution.

The relevant law is the Intelligence Identities Protection Act of 1982, which makes it a crime intentionally to reveal the identity of a US covert Intelligence agent.

US CODE TITLE 50 > CHAPTER 15 > SUBCHAPTER IV > § 426 defines the term “covert agent:”

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.

Fitzgerald’s summary says:

While assigned to CPD [Counterproliferation Division], Ms. Wilson engaged in Temporary Duty (TDY) travel overseas on official business. She traveled at least seven times to more than ten countries. When traveling overseas, Ms. Wilson always traveled under a cover identity–sometimes in true name and sometimes in alias–but always using cover–whether official or non-official cover (NOC)–with no ostensible relationship to the CIA.

Fitzgerald is attempting to conflate a business trip abroad with “serving outside the United States,” and conventional casual procedure with “affirmative measures to conceal her intelligence relationship to the United States.”

Victoria Toensing, who as Deputy Assistant Attorney General at the time helped draft the 1982 Act, has testified before Congress that Valerie Plame was not covert under the definition of the Act.

Pouting Spook Larry Johnson inadvertently reveals the pretext being employed by Fitzgerald:

Valerie Plame was undercover until the day she was identified in Robert Novak’s column. I entered on duty with Valerie in September of 1985. Every single member of our class–which was comprised of Case Officers, Analysts, Scientists, and Admin folks–were undercover.

Everybody employed by the CIA above the rank of janitor is supposed to make modest pro forma efforts to avoid disclosing the identity of his employer and the nature of his employment. That does not make every CIA-employed “Analyst, Scientist, or Administrator” a “covert agent” under the definition of the Intelligence Identities Protection Act. Nor should routine non-disclosure or pro forma use of cover, on the level of James Bond’s supposed employment at “Universal Export,” be considered to rise to the level of the “affirmative measures” meantioned in the Act.

Patrick Fitzgerald is employing a crucial leap of interpretation to get to where he wants to go, and he wants to go there for partisan political advantage, not for reasons having anything to do with National Security or Justice.

Brian Carney performs a useful postmortem on the Scooter Libby case in this month’s Commentary.

If a lesson about the Bush administration lies buried in this tale, it is close to the opposite of the accepted one. It is a lesson about an administration caught in an uncomfortable position as a result of one State Department official’s indiscreet remark to a skilled columnist, an administration straining to appear to be doing the right thing even at the expense of actually doing anything right. But the real lesson here has nothing to do with the Bush administration, any more than it has to do with prewar intelligence or with the First and Fifth Amendment rights of CIA officers.

The modern American government is a vast and largely self-sustaining bureaucracy. That bureaucracy acts, first and foremost, in its own interest, and not necessarily in the interests of its putative but temporary political bosses. The CIA, its intelligence having been challenged, sold out the White House on the sixteen words—even though that intelligence would later be upheld. The State Department, faced with the knowledge that one of its own was responsible for the Valerie Wilson leak, preferred keeping the White House in the dark to revealing what it knew. The Justice Department did what prosecutors do when ordered to investigate, which is to charge people with crimes.

In other words, the Republican party’s alleged “full control” of government prior to the 2006 midterm elections was more myth than reality. The Bush administration lost control of the Wilson story almost from the beginning, and while on a number of occasions it failed to exercise the control available to it, it was also denied the opportunity to control its fate by entrenched interests that no elected administration can ever fully master without the consent of the bureaucracy that supposedly serves it.

Whole article

Debra J. Saunders, at the San Francisco Chronicle, explains why conservatives will not be crying if democrats’ attacks force Alberto Gonzales to resign.

If Attorney General Alberto Gonzales resigns over the U.S. attorneys flap, many Republicans will not be sorry to see him go.

It’s not just that some believe Gonzales made a huge mistake in claiming that he asked for the resignations of eight U.S. attorneys for “performance-related” reasons — which was bad form. Or as Washington attorney Victoria Toensing, who worked in the Reagan administration, noted, “Replacing at-will employees should be Government 101. This is not a difficult process. They flunked smart.”

Forget the U.S. attorneys flap. Many on the right believe that Gonzales has been lax in enforcing immigration law, not been sufficiently partisan, and that he’s not particularly competent, either. They wonder: With friends like this, who needs enemies?

For example, some Republicans wonder why Gonzales did not include U.S. Attorney Johnny Sutton of the Western District of Texas on his got-to-go list. Sutton, you may recall, prosecuted two Border Patrol agents, Ignacio Ramos and Jose Compean, for shooting at a fleeing drug smuggler, covering up the incident and depriving the Mexican smuggler of his constitutional rights. Many voters are outraged that the two agents are now serving 11-year and 12-year sentences.

Rep. Dana Rohrabacher, R-Huntingdon Beach, is incensed that Gonzales did not stop Sutton from throwing the book at two good agents — strike one — while Sutton granted immunity to a man who was smuggling 743 pounds of marijuana into the country. Strike two.

Rohrabacher told me that his frustration with the Bushies had been mounting. “I kept quiet for a long time,” he said. “But when he put the lives of these two Border Patrol agents on the line and decided he was going to squash them like a bug, that was the end of it.”

The cherry on top: Gonzales failed to protect Ramos and Compean when they entered prisons filled with the sort of criminals they used to put away. One night, gang members at the Yazoo City Federal Correctional Complex in Mississippi beat up Ramos. Said Rohrabacher, “The attorney general knew and knows today that these two men’s lives are at risk. Instead of moving forward to try to send them to a minimum security prison or let them get out on bond (while they appeal), he has dug his heels in.” Strike three. …

Then there is former Clinton adviser Sandy Berger. It drives conservatives crazy that the feds prosecuted Scooter Libby for lying about leaking the identity of ex-CIA operative Valerie Wilson, when the feds cut a generous plea bargain with Berger for destroying classified documents.

Berger, who in 2003 destroyed classified National Archives documents relating to the Clinton administration’s terrorism policies, received no penalty: No jail time, just a fine, 100 hours of community service — and he even gets his security clearance back after three years.

Earlier this year, Rep. Tom Davis, R-Va., charged the Justice Department with giving Berger a “free pass.” …

As one conservative lawyer, who did not want to be named, told me, the right wants an attorney general who is a “pugilist.” As for Gonzales, he said, “All he does is walk backward and apologize.”

Read the whole thing.

Investors Business Daily points out that Valerie Plame Wilson’s recent Congressional testimony is contradicted by the facts, and adds another anecdote demonstrating that Joe Wilson had identified his wife’s job widely months before the appearance of the Novak column.

“I did not recommend him,” Plame claimed before the House panel last Friday. She was referring to her husband, Joseph Wilson, sent to Niger in early 2002 by the CIA to investigate reports that Saddam Hussein sought uranium there. “I did not suggest him,” she added.

But the Senate bipartisan report of July 2004 indicates otherwise:

The reports officer of the CIA’s Counterproliferation Division (CPD), where Plame worked, told committee staff that Plame “offered up his (Wilson’s) name.”

In a memo to the CPD deputy chief dated Feb. 12, 2002, Plame wrote, “My husband has good relations with both the PM (prime minister) and the former Minister of Mines (not to mention lots of French contacts), both of whom could possibly shed light on this sort of activity.” That’s not a recommendation?

The day after that memo, Plame’s CPD division sent a cable “requesting concurrence with CPD’s idea to send the former ambassador (Joseph Wilson) to Niger …”

Plame “told Committee staff that when CPD decided it would like to send the former ambassador to Niger, she approached her husband on behalf of the CIA and told him ‘there’s this crazy report’ on a purported deal for Niger to sell uranium to Iraq.”

A CIA analyst intent on discrediting what she calls a “crazy report” is indicative of a spy agency at war — or at least at odds — with the White House it is supposed to be serving. The actions of both Mr. and Mrs. Wilson suggest that is exactly what is at the heart of the Plame Affair.

Former Deputy Secretary of State Richard Armitage was the first person we know of to reveal Plame’s identity to the press — first to the Washington Post’s Bob Woodward, then to columnist Robert Novak. He was never indicted. Still, he had some very interesting things to say about Plame and Wilson.

On the tape of his conversation with Woodward, played at the Libby trial and apparently recorded a month before he spoke to Novak, Armitage said of Plame’s job at the CIA, “Everyone knows it,” immediately adding that “Joe Wilson’s been calling everybody.”

Read the whole thing.

Michael Barone wrote a column in US News, contrasting the seriousness of the offenses committed by Sandy Berger with the discrepancy between Lewis Libby’s memory and those of Tim Russert and Matt Cooper and noting the irony of Libby facing far more serious penalties than Berger received.

Sandy Berger responded with this defensive email.

“Michael: I screwed up. There was nothing sinister about it. I was under serious pressure to digest the entire Clinton record on terrorism for eight years so that we could testify fully to the 9-11 commission. I spent several arduous days at the Archives looking through the files. This document was interesting to me because I had commissioned it in 2000–a look at what we learned from the millennium terror threats that were avoided. Tired, stressed, I made a very stupid decision–to take the documents home with me so that I could review them in more detail and so that I could compare the apparent differences among versions. Since this document had been widely circulated to all the relevant agencies (State, Defense, CIA, Justice, etc.), I felt certain the commission would get it from one or more of these agencies.

There were no handwritten markings on the documents (which were copies) or anything else unusual. I took no other documents–originals or copies–besides the ones specified in my plea agreement.

The DOJ has stated unequivocally that there is no evidence that I took other documents and that the commission received everything.

That’s the long and short of it. I made a very stupid mistake. I deeply regret it. Top-level career Justice Department prosecutors investigated it aggressively for two years. We reached a plea agreement that they believed was fair. That was two years ago. Now I wish this thing would go away.

Best, Sandy”

John Hinderaker expresses some very appropriate skepticism of Berger’s veracity.

I don’t buy it. Berger didn’t make an impulsive decision–“tired, stressed”–to smuggle documents out of the National Archives. He stole documents on multiple occasions. On one occasion, he sneaked them out of the archives, went to a nearby construction site and hid the documents under a construction trailer, so he could come back later and pick them up. I simply don’t believe that Berger engaged in this kind of cloak and dagger behavior just because he found the documents “interesting” and wanted to study them at home.

Most of all, I don’t see how Berger’s explanation can be reconciled with his own admission that he didn’t just take the documents home; he cut some of them to pieces with a pair of scissors. Why did he destroy the documents if he wasn’t trying to prevent them from coming to light?

Nor am I impressed by Berger’s claim that the Department of Justice “has stated unequivocally that there is no evidence that I took other documents and that the commission received everything.” There is no evidence as to what documents Berger took because the Archives staff let him walk off with them and didn’t try to monitor what he was doing until it was too late. That being the case, the only evidence as to what documents were taken is Berger’s own confession.

Steve Gilbert provides a very illuminating timeline of the Plamegame and explains exactly what Joe Wilson was up to.

June 2003: According to the Washington Post’s Bob Woodward, the following interview with Richard Armitage at the State Department transpired about a month before Robert Novak’s column appeared on July 14, 2003.

Woodward: Well it was Joe Wilson who was sent by the agency, isn’t it?
Armitage: His wife works for the agency.
Woodward: Why doesn’t that come out? Why does that have to be a big secret?
Armitage: (over) Everybody knows it.
Woodward: Everyone knows?
Armitage: Yeah. And they know ’cause Joe Wilson’s been calling everybody. He’s pissed off ’cause he was designated as a low level guy went out to look at it. So he’s all pissed off.
Woodward: But why would they send him?
Armitage: Because his wife’s an analyst at the agency.
Woodward: It’s still weird.
Armitage: He — he’s perfect. She — she, this is what she does. She’s a WMD analyst out there.
Woodward: Oh, she is.
Armitage: (over) Yeah.
Woodward: Oh, I see. I didn’t think…
Armitage: (over) “I know who’ll look at it.” Yeah, see?
Woodward: Oh. She’s the chief WMD…?
Armitage: No. She’s not the…
Woodward: But high enough up that she could say, “oh, yeah, hubby will go.”
Armitage: Yeah. She knows [garbled].
Woodward: Was she out there with him, when he was…?
Armitage: (over) No, not to my knowledge. I don’t know if she was out there. But his wife’s in the agency as a WMD analyst. How about that?

Why would Richard Armitage have been talking about Wilson and Plame in June of 2003? This was still weeks before Joe Wilson wrote his New York Times editorial, and a month before Robert Novak published his column mentioning Valerie Plame.

Armitage brought this up because he is a gossip and it was already common knowledge because Joe Wilson had been calling all of the newspapers trying to get them to run his story about his mission to Niger.

Given the chronology and Mr. Armitage’s remarks, it seems quite obvious Mr. Wilson outed his wife when he spoke to the Senate Democratic Policy Committee and then to the subsequent reporters at the Times, the Post and elsewhere, when he was hawking his story about his trip to Niger.

Wilson’s motivation for bringing up his wife would have been exactly as Armitage suggested to Woodward. Wilson told the panelists and reporters about Plame’s work at the CIA to give his radically new and dangerous story more credibility.

It’s highly probable Wilson used his wife’s position as a WMD analyst at the CIA to bolster his outrageous (and we now know fallacious) claims against a then popular President in a time of war.

July 6, 2003: Frustrated that his trip to Niger story was still not getting enough attention, Mr. Wilson finally stepped out from behind the curtain and wrote his now notorious op-ed piece for the New York Times, What I Didn’t Find in Africa.

Sometime after July 6th and before July 8th 2003 Richard Armitage told Robert Novak about Wilson’s wife working at the CIA. Mr. Novak then published that information in his column on July 14, 2007.

But Valerie Plame’s work at the CIA had almost certainly long since been disclosed to anyone who would listen by Joe Wilson. And he probably disclosed this information to promote himself, his fantasy about his “mission to Niger,” and his new political career.

Remember, there was much talk within the Kerry camp that Joe Wilson might be the new administration’s Secretary Of State. The vainglorious Mr. Wilson surely had his eyes on that prize.

And any concern about the secrecy of his wife’s job at the CIA was a minor consideration compared to that lofty goal.

The disclosure of Valerie Wilson’s CIA employment by the Wilsons to Nicholas Kristof in early May of 2003 was previously reported here.

George W. Bush, who is not running for anything, neither blocked the Plamegame witch hunt nor pardoned its only victim, Lewis Libby. But Fred Thompson, who is considering running for the presidency in 2008, will be hosting fundraisers to help pay for Libby’s defense.

He’s definitely winning points in my book.

Charles McCarry, in his currently out-of-print 1991 thriller Second Sight describes the Washington ritual of trial by media.

In Late Twentieth Century Washington,.. a certain politicized segment of the news media exercised many of the functions belonging to the secret police in totalitarian countries. They maintained hidden networks of informers, carried out clandestine investigations, conducted interrogations on the basis of accusations made by anonymous witnesses and agents provocateurs, and staged dramatic show trials in which the guilt of the accused was assumed and no effective defense allowed. They had far greater powers of investigation than the government. The authority of the state to persecute the individual was defined and limited by the Constitution, whereas the media were restrained by nothing more than the rules of theater. Because their targets were usually thought by the best people to deserve the punishment they might otherwise have eluded, the media had no worry about the quality of its evidence; journalists were not concerned with truth in any case, only with “accuracy.” That consisted of verifying the existence of their sources and confirming that they had actually spoken the words quoted, or something close to those words; nothing beyond that was required. If one person denounced another, even if anonymously, that was reason enough to publish the charge. There was no requirement to question the evidence or the accuser’s motives, or even to identify the accuser; in fact the accuser usually spoke on the understanding that his anonymity would be preserved under all circumstances. Verdicts of “innocent” based on these rules of evidence were almost unknown. The sentence was degradation, shame, exile, and, usually a lifetime of impoverishment resulting from the attempt to pay lawyers’ fees incurred in the vain hope of self-defense. Conviction in the media was sometimes followed by conviction in the courts, but the punishment handed down by judges, a mere prison sentence or fine or condemnation to a stated number of hours of good works among the underclass, was regarded as the lesser penalty.”

J. Peter Mulhern suggests that, “more than halfway through his second term,” George W. Bush should give serious though to assuming control of his own government.

Scooter Libby is a convicted perjurer because the United States Department of Justice grossly abused its power and because politics short-circuited all the safeguards that are supposed to prevent such abuses. This is one of the most appalling perversions of a civilized judicial system since France sent Alfred Dreyfus to Devil’s Island because the ruling elite didn’t like Jews.

If the appellate and executive review processes fail as badly as the investigative and trial processes did in Libby’s case, Libby will go to a federal penitentiary because Democrats don’t like Republicans. There is enough shame in this outcome to go around.

Patrick Fitzgerald is a disgrace both to the legal profession and to the human race. His partisan allies, such as Senator Chuck Schumer and certain nameless bureaucrats at the CIA, are beneath contempt. The jury was unfit for its task, because it was apparently both prejudiced and intellectually incapable of noticing that the prosecution had no case. The trial judge lacked either the wit to see a gross miscarriage of justice unfolding before his eyes or the courage to stop it. But ultimate responsibility for Fitzgerald’s outrageous misconduct lies with his boss.

George W. Bush could have stopped Fitzgerald’s farce at any time. He could stop it today. He doesn’t even need to use the pardon power, at least not yet. Fitzgerald serves at the President’s pleasure Mr. Bush has every reason to be severely displeased. The President could simply fire him and, for good measure, order the DOJ to start an investigation into Fitzgerald’s misconduct in the Libby matter. President Bush could then instruct Fitzgerald’s replacement to join Libby’s defense in its motion for a new trial. If the court grants that motion the DOJ could then offer Libby its apologies and withdraw the prosecution. If it doesn’t the DOJ could join in Libby’s appeal. If that fails then the pardon power lies in reserve.

Of course, he won’t. He’ll just let the whole comedy proceed, then (at best) pardon Libby on the morning of Hillary’s inauguration.

Clarice Feldman responds to the appalling Libby verdict with a riff upon this week’s Rome episode:

In this week’s episode of Rome (a superb HBO series which increasingly reminds me of the Nation’s Capital), Servilia, whose son was killed in a power grab, knelt before the door of manipulative Attia, mother of Octavian and lover of Marc Anthony, the two men responsible, calling out in a haunting cry,

“Attia of the Julii, I call for justice.”

She did so because the unavailing legal system was broken, and curses (which were taken seriously in those days) were the one remaining way most people had to redress grave wrongs.

I call for justice for Scooter Libby because he has had none in this ridiculous matter…

This entire process has been an outrage from beginning to end.

How preposterous is it to watch Nancy Pelosi strutting about the forum today-her record filled with appointments like William Jefferson’s to head Homeland Security and John Conyers to head the Judiciary? A Speaker who has the chutzpah to say,

“Today’s guilty verdicts are not solely about the acts of one individual. The testimony unmistakably revealed — at the highest levels of the Bush Administration – a callous disregard in handling sensitive national security information and a disposition to smear critics of the war in Iraq.”

And I explode with laughter at the Cassius-like Kerry who sneered,

“This verdict brings accountability at last for official deception and the politics of smear and fear…. This trial revealed a no-holds barred White House attack machine aimed at anyone who stood in the way of their march to war with Iraq. It is time for President Bush to live up to his own promises and hold accountable anyone else who participated in this smear. It is also well past time for Vice President Cheney, who according to the testimony was protected by Scooter Libby’s lies, to finally acknowledge his role in this sordid episode.”

Sordid the episode is, but not because of anything Libby did. And “a troubling picture” of Washington it is-but not of this Administration. The Bush crowd is guilty only of terminal naiveté and the foolish idea that high standards of probity will ever beat the opposition’s utter unscrupulousness and willingness to misuse the legal system to their own partisan ends, even if it means the ruination of an innocent and capable man and enormous hardship to his family.

The Rome metaphor certainly fits the corruption of the political processes of today’s American Republic, and invites the question: how soon before our own Octavian arrives?

Joe Scarborough accurately describes the Libby verdict.

video

Victoria Toensing, who in 1982 as chief council to the Senate Intelligence Committee played a key role in the drafting of the Intelligence Identities Protection Act of 1982, believes the law was never violated in the case of Valerie Plame, and suggests a number of persons and entities she considers more worthy of charges in the Plame Affair than Scooter Libby.