Early in the Fitzgerald case I wrote an article on "The Wilson Gambit" in which I said,

"The Wilson Gambit was a stealth operation undertaken outside normal procedures and supervision, used as a political weapon, complete with lies spread by a cooperative media establishment interested in bringing down a leader and his policies which they detest" 

"I've been puzzling over the circumstances surrounding the referral letter that CIA sent to DoJ in what is commonly referred to as the Plame case. My puzzlement arises particularly in light of what Victoria Toensing wrote in the Washington Post on 02/18/2007. First, here are four statements relating to the referral:

Toensing in WaPo:

THIS GRAND JURY CHARGES THE CIA for making a boilerplate criminal referral to cover its derrierre.

The CIA is well aware of the requirements of the law protecting the identity of covert officers and agents. I know, because in 1982, as chief counsel to the Senate intelligence committee, I negotiated the terms of that legislation between the media and the intelligence community. Even if Plame's status were "classified"--Fitzgerald never introduced one piece of evidence to support such status -- no law would be violated.

There is no better evidence that the CIA was only covering its rear by requesting a Justice Department criminal investigation than the fact that it sent a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer's disclosure. [emphasis added]

Judge Reggie Walton to the trial jury:

Walton announced that not only did the jurors not know Mrs. Wilson's status but that he didn't know it, either. "I don't know, based on what has been presented to me in this case, what her status was," Walton said. "It's totally irrelevant to this case." Just so there was no mistake, on January 31 Walton said it again: "I to this day don't know what her actual status was." (From an article by Byron York, NR, 02/05/2007) [emphasis added]

Team Fitzgerald to Team Libby:

But in a letter to the Libby team last Tuesday, Fitzgerald's deputy, Kathleen Kedian, said the special prosecutor will not give up the referral and that Libby simply did not need to know what was in it. "After consultation with the CIA, we advise that we view any such documents in our possession as not discoverable," Kedian wrote. "The documents remain classified and contain information compiled for law enforcement purposes that is neither material to the preparation of the defense, nor exculpatory as to Mr. Libby." (From an article  by Byron York, NR, 02/27/2006) [emphasis added] 

Deputy AG Comey to Special Counsel Fitzgerald, 12/20/2003:

I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity...

What can we draw from these four statements?

1. I assume that Toensing doesn't just mouth off without knowing basic facts. She asserts as a fact that the referral was for "a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer's disclosure." I have to believe she has good information for that assertion, namely that the referral was general in nature and specifically did not address the elements of Plame's status that would allow a reader of the referral to come to preliminary opinion as to whether Plame was "covert" for purposes of the Intelligence Identities Protection Act (IIPA).

2. Judge Walton's statement to the jury would appear to confirm Toensing's assertion, because if the referral had addressed the question of Plame's covert status he would be unlikely to make such a statement to the jury, nor tell Libby's attorneys that there was no relevant information in the referral that would be of any use to them. It seems unlikely that the CIA could have sent a referral regarding the disclosure of a covert officer's identity without presenting prima facie evidence that that officer did in fact qualify as "covert" under the IIPA--the CIA could hardly have said, hey, we don't know whether our own employee was covert but we want DoJ and the FBI to investigate it. Therefore, again, the referral would seem not to have been based on the IIPA.

3. But, running counter to these indicators is Comey's delegation of "authority" (not of "function" as the statute reads) to Fitzgerald, which specifically states that it relates to "the alleged unauthorized disclosure of a CIA employee's identity..." What strikes me about this delegation is that it makes no reference to specific criminal statutes that may have been violated. It essentially states: here is a factual situation, investigate it. Now, there was in fact a very public allegation that a specific statute had been violated: the IIPA. Anyone who had followed the whole Plame kerfuffle in the newspapers and on the internet would have expected that the IIPA, which was referenced almost immediately after Robert Novak's article which referenced Plame appeared. Moreover, as Toensing knows better than anyone, that statute was written as a direct response to--as a solution to--the problem of unauthorized disclosures of covert officers' identity. What's going on here?

4. The answer may lie in the wording of Comey's delegation. Rather than referencing "the alleged unauthorized disclosure of a [covert] CIA [officer's] identity..." the delegation only makes a vague reference to an "alleged unauthorized disclosure of a CIA employee's identity..." Viewed through this prism, Comey's phrasing may constitute confirmation of Toensing's assertion: the referral makes no reference to covert status but only vaguely suggests that the disclosure of Plame's employment somehow violated a statute prohibiting unauthorized disclosure of classified information.

5. In the event, the investigation disclosed no violations of law whatsoever. Nevertheless, in his closing statement Fitzgerald made repeated references to the possibility that a covert officer's identity had been disclosed maliciously and that people might die as a result--in spite of the fact that the referral letter apparently never referenced covert status as an issue.

6. Beyond pointing up the essentially unethical nature of the Libby prosecution--long obvious--these factors suggest to me that there may have been a type of bait and switch at the heart of the entire investigation. The operation of this bait and switch relied on the public outcry in the MSM about the disclosure of a covert officer's identitity. The reality, if the above analysis is correct, is that the referral letter did not reference such a possibility because it was known that Plame was not "covert" for purposes of the IIPA. The relevant officials at CIA and DoJ knew that this public scenario, replete with images of Administration officials frog marching out of the White house, bore no relation to the reality of the situation--especially in light of what those officials had learned from Richard Armitage. So, the investigation was an open ended warrant to find a violation of any statute or, failing that, to induce a process violation in the course of the investigation. The bait and switch relied on the public hue and cry to provide cover for turning the White House inside out in search of a crime--any crime.

7. The real targets of the investigation (Cheney, Rove, Libby) would be told that they were not targets as such but merely witnesses. They would be required by the President to appear over and over before the Grand Jury, ostensibly to give evidence to assist the investigation of what publicly appeared to be the disclosure of a "covert" officer's identity. These targets would rely on the Special Counsel's representations because they had not committed the acts that appeared from public statements--including Comey's letter--to be the focus of the investigation. The Special Counsel had deniability in the form of Comey's letter, although all Fitzgerald's actions have revealed all too clearly that they were in fact targets and not merely witnesses. No doubt the Special Counsel hoped that the targets' sense of their own innocence of what was publicly alleged would lead them to reveal some factual situation that could be construed as a criminal violation--or, failing that, become involved in a process violation. Had the investigation in fact concerned the disclosure of a covert officer's identity, the true target would of course have been Armitage. The lack of prosecutorial interest in Armitage gives the game away.

8. Finally, the release of all 8 hours of Libby's testimony before the Grand Jury disclose the inordinate amount of time Fitzgerald spent grilling Libby about the declassification of the National Intelligence Estimate (NIE) and when Libby talked to reporters about that. This is a clear indication that Fitzgerald was fully aware that there was no hope for a violation of the IIPA, despite the outrageous statements he made to the trial jury. It is further apparent from the record that the CIA did not want the declassification of the NIE to take place quickly even though that left the Administration hanging out on a cliff, unable to respond to Wilson's charges. Moreover, when DCI Tenet made his July 11 mea culpa he refused to do what the Administration wanted him to do--state publicly that the CIA, not the Office of the Vice President (OVP) had sent Wilson to Niger.

From all the above, it is clear beyond dispute that this entire disgraceful episode was manufactured deceitfully as part of a campaign to undermine and even bring down the Bush Administration."

"The release of the intelligence estimate was a sensitive issue. Others in the administration had considered doing so that spring when Mr. Wilson's claim first surfaced, but faced resistance from the C.I.A. One investigator questioned in the trial testified that Mr. Libby's notes indicated that George J. Tenet, then director of central intelligence, was personally opposed to doing so.

Mr. Libby said he found a way around that resistance by getting backdoor approval from the president. In a hush-hush meeting described in testimony, Mr. Libby asked the vice president's chief counsel, David S. Addington, whether the president could declassify intelligence personally, effectively without C.I.A. knowledge or approval.

"Rutenberg is practically the only one who has ever suggested that the idea of declassifying the NIE originated with Libby. Everyone else has Libby checking with Addington because he was worried the VP might be asking him to do something wrong.

This version makes so much more sense. The OVP was not happy with Tenet's proposed public statement (or Tenet's CIA). If Libby (whether on his own or with Cheney) comes up with the declassifying scheme in order to make an end run around Tenet altogether, it's entirely logical that Libby would not only start by checking out the legalities with Addington but also tell Addington to keep his voice down. They certainly wouldn't want to advertise the fact that they were going to try cutting Tenet off at the knees.

George Tenet cut back big time with the referral. The NIE, not Valerie Wilson, was always the undisclosed center of this investigation. Or as Fitz ever so aptly put it, Valerie Plame was not a person, she was an argument -- on the prosecution/CIA side. "

Posted by: JM Hanes | February 22, 2007 at 11:36 AM  

 
"The money line, of course, is the last para:

Are we to believe that it was a routine matter for the CIA to forward to the Department of Justice a complaint about the leak of Valerie Plame's name and job? Are we to think that Tenet didn't know that the complaint was being forwarded? Or that Tenet couldn't have shortstopped it if he wanted to?

[N]ow that we know a lot more about the investigation we can quarrel with Fineman's spin on what he believes the facts to be, but his last para stands. Fineman thinks Tenet's motive was simple revenge. Stranger things have happened. When was Tenet forced out? Before or after the 2004 election? "

Posted by: azaghal | February 22, 2007 at 11:37 AM  

Update: Douglas Hanson writes:

I arrived at a comparable conclusion some time ago.  However, Clarice and the other bloggers do bring in an interesting twist to the plot concerning the release of the NIE, and the probable motivation for Tenet and the CIA to get revenge on Libby specifically.  I believe it is just one operation of many designed to bring down the administration in a time of war.  This entire issue needs to be examined further from an overarching perspective to reveal the depth of this intelligence cabal.

As Clarice shows, the CIA could not legally and reasonably make a referral under the IIPA for the reasons stated, and in my piece I noted that Judge Walton asked for, but did not receive from Fitzgerald any evidence the Plame's status was covert (unknown) since the only way Fitzgerald could do this was to present  an extract of the NOC list; a highly classified document, that logically would have to be disclosed to the judge in a very controlled manner.  No extract; no referral under the IIPA.

To sum up: Plame may at one time have been "covert" as some allege, but at the time of the so-called offense, she was a WINPAC analyst known to be as such by her peers and by some outside of her place of work.  Therefore, no violation of the IIPA could have possibly occurred.