February 06, 2006,
They are some of the most basic questions of the CIA leak investigation: Was Valerie Plame a covert agent when her identity was revealed in a column by Robert Novak on July 14, 2003? Had she been involved in covert work at any time in the previous five years, which could make revealing her status a crime under the Intelligence Identities Protection Act? Was the CIA taking affirmative measures to conceal her identity?
There's a new report today that suggests we finally have some answers. This week's edition of Newsweek says that "Lawyers for Libby, and White House allies, have repeatedly questioned whether Plame, the wife of White House critic Joe Wilson, really had covert status when she was outed to the media in July 2003. But special prosecutor Patrick Fitzgerald found that Plame had indeed done 'covert work overseas' on counterproliferation matters in the past five years, and the CIA 'was making specific efforts to conceal' her identity, according to newly released portions of a judge's opinion."
That seems to be the final word on those key questions. But the story might not be as clear-cut as it appears. The newly released portions of a judge's opinion to which Newsweek refers come from a February 15, 2005 opinion by Judge David Tatel of the United States Court of Appeals for the District of Columbia. In that opinion, 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.
While that appears to be a definitive statement end of story a look at another newly released document suggests that it is possible Tatel might have misunderstood something Fitzgerald wrote, taking it as a straightforward assertion when its actual meaning was less clear.
Given that "the record omits specifics about Plame's work," Tatel based his analysis on a footnote in an August 27, 2004, affidavit submitted to the court by Fitzgerald. That document, too, was released last week. In the footnote, Fitzgerald wrote:
If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 [the Espionage Act] if the information is considered "information respecting the national defense." In order to establish a violation of Title 50, United States Code, Section 421 [the Intelligence Identities Protection Act], it would be necessary to establish that Libby knew or believed that Plame was 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. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.
That is the entire text upon which Tatel based his conclusion. Was Fitzgerald saying that he knew in fact that the CIA was making specific efforts to conceal Plame's identity and that she had carried out covert work overseas within the last five years? Or was he simply reciting the requirements for prosecution under the Intelligence Identities Protection Act? It's not entirely clear. The only fully clear part of it is that Fitzgerald had no direct evidence that Libby knew Plame was covert.
Tatel also placed great emphasis on a statement by then-CIA spokesman Bill Harlow in which Harlow asked journalist Robert Novak not to publish Plame's name. Tatel pointed out that Harlow told Novak that, in Harlow's words, it was "very unlikely that she will ever be on another overseas mission...it might be embarrassing if she goes on foreign travel on her own." That statement, Tatel wrote, "strongly implies Plame was covert at least at some point."
Indeed it did at least at some point. Just when, though, is still not entirely clear. And Tatel himself hinted that he had some doubts about whether Plame's covert status had been fully established. But he wrote that he wanted Fitzgerald's investigation to go on, despite gaps in the record. "While another case might require more specific evidence that a leak harmed national security," Tatel wrote, "this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment."
While that part of the case remains a bit murky, it is clear that Fitzgerald has so far refused to give Libby's lawyers any evidence of Plame's CIA status. Last December, Libby's defense team asked Fitzgerald for "All documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003." (Those dates mark the period in which some Bush administration officials discussed Wilson with reporters.)
Fitzgerald said no. "We have neither sought, much less obtained, 'all documents, regardless of when created, relating to whether Valerie Wilson's status as a CIA employee, or any aspect of that status, was classified at any time between May 6, 2003 and July 14, 2003,'" Fitzgerald wrote to the Libby team on January 9, 2006. Fitzgerald told Libby's lawyers that he would look for any such documents, and "if we locate" them, he might turn them over. But he argued that he had no responsibility to do so, because they were not relevant to the perjury and obstruction of justice charges against Libby.
Later, in a letter dated January 23, 2006, Fitzgerald refused to say whether he knew if Plame had been an undercover agent during the five years preceding her exposure. Referring to a 1963 Supreme Court decision in Brady v. Maryland, which requires prosecutors to turn over evidence that might point toward the defendant's innocence, Fitzgerald wrote, "We do not agree that if there were any documents indicating that Ms. Wilson did not act in an undercover capacity or did not act covertly in the five years prior to July 2003 (which we neither confirm nor deny) that any such documents would constitute Brady material in a case where Mr. Libby is not charged with a violation of statutes prohibiting the disclosure of classified information."
At this point, with reams of evidence in the case still hidden from public view, it is impossible to say much of anything for sure. And there may in fact be irrefutable evidence that Valerie Wilson "was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last five years." But if there is, Patrick Fitzgerald hasn't shown it yet.
Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.