Posted by Curt on 29 May, 2007 at 11:10 pm. 13 comments already!

The Plame affair gets even more hilarious.  Now Fitzgerald released a lengthy 30 page file purporting to prove that Plame was covert.  Of course 27 of those pages are her testimony to the Waxman show trial.  The other 3 are details from the CIA about her travel.

On 1 January 2002, Valerie Wilson was working for the Central Intelligence Agency (CIA) as an operations officer in the Directorate of Operations (DO). She was assigned to the Counterproliferation Division (CPD) at CIA Headquarters, where she served as the Chief of a CPD component with responsibility for weapons proliferation issues related to Iraq.

While assigned to CPD, 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.

At the time of the initial unauthorized disclosure in the media of Ms. Wilson’s employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.

So basically what constitutes a "covert" agent within the CIA is that they travel overseas sometimes using an alias, sometimes using their true name.

Wow.

Just wow.

I mean a foreign country would never keep tabs on the real names of agents would they?  But hey, she was "covert".

Either way you look at it she was not a covert agent covered by the Intelligence Identities Protection Act of 1982, this is why ole Fitz’ never brought any charges against the leaker of her name (a leaker other then her husband who tended to talk alot at cocktail parties).

UPDATE

Great comment at Patterico’s Pontifications:

Here’s the prosecutorial “rub” from my perspective: I don’t think the CIA’s view of who it deems “covert” neatly translates into the definition of “covert” under the statute at issue. While its in the CIA’s interest to define “covert” as broadly as possible, thereby giving maximum coverage to its assets, the statute in question recognized tension between the rights of the press and the needs of the intelligence community, and defines the term “covert” in a very non-specific manner.

The “5 Year” provision is a clear example, as is the “affirmative steps” provision.

(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;

This language begs the question of what is to be the definition of “served”?

What Fitzgerald suggests in his Exhibit is that her personnel file only describes trips she took abroad on agency business during a 5 year period, not a period of time in which she was “posted” abroad. This is likely a key distinction. And, any trips she took using “official” cover — i.e., she passed herself off as a government official, just not an intelligence agent of the CIA — likely don’t count under the statute.

I found this excerpt from a USA Today article from 2005:

“The column’s date is important because the law against unmasking the identities of U.S. spies says a “covert agent” must have been on an overseas assignment “within the last five years.” The assignment also must be long-term, not a short trip or temporary post, two experts on the law say…. “Unless she was really stationed abroad sometime after their marriage,” she wasn’t a covert agent protected by the law, says Bruce Sanford, an attorney who helped write the 1982 act that protects covert agents’ identities.”

The second expert cited is Victoria Toensing. She obviously comes with an agenda, but it can’t be denied that she was at the table in 1982 when this statute was drafted, and she was advocating on behalf of the CIA’s position when it was drafted as a senior Justice Department official. She too has said that mere overseas travel in an undercover capacity is not enough to trigger the protections of the statute.

The “affirmative measures” provision of Sec. 421 is not defined in the statute, and this omission also presents some difficulties.

For example, is the taking of “affirmative measures” by the CIA negated by actions of the CIA which at the same time work to defeat those affirmative measures?

The CIA took affirmative measures in the sense that Plame had NOC cover through a front energy company which the agency created and for whom Plame ostensibly worked during her overseas postings in the 1990s.

But, when she returned to the United States in 1997, she didn’t continue to maintain the NOC cover by working at an office identified as the dummy front company. Rather, she drove through the gates of Langley every day for about 6 years on her way to a desk job at CIA HQ.

Does the fact that the CIA maintained her as “covert” on paper simply by not revealing her previous work and continuing to keep handy her NOC cover in case it might be of use (such as when need to for an occasional overseas trip for a discreet purpose) also mean that she still falls under the protections of the statute when anyone with a camera could stand on the road leading to Langley and take her picture driving in and out of the CIA?

I think these were the difficulties Fitzgerald faced in trying to determine whether he had a prosecutable case under the Intelligence Identities Act, in addition to the question of intent that you mentioned.

I think this difficulty is revealed by how much he danced around that question. He knew that the CIA wanted to assert that she was covert, but he also knew that the CIA took actions inconsistent with that assertion.

The IIPA definition of covert is much much different then the CIA’s definition, and yes….that makes a difference.

UPDATE II

Classic quote from Ed Morrissey:

Plame drove into the office in Langley. She traveled abroad under her own name. She helped arrange for her husband to do some fact-checking on a sensitive intelligence matter. Her husband, former Ambassador Joe Wilson, then came home and leaked his observations to two nationally-known journalists, and then wrote his own op-ed in the New York Times under his byline.

And her husband managed to list her in Who’s Who, where any journalist could look up the entry — and where Robert Novak did just that.

If that’s keeping an agent covert, it speaks volumes about the agency’s competence during the George Tenet years.

I think we know what the competence of the CIA was, and is.  Just look at the quality of people they churn out what with Plame, Larry Johnson and the rest of the ViPer’s.

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