Fitzgerald, Plame, CIA Director Hayden and Scooter Libby

Like the shape-shifting T-1000 cyborg of Terminator 2, Patrick Fitzgerald's claim that Valerie Plame was a covert agent, and that therefore Scooter Libby deserves a harsh sentence for supposedly outing her, not only won't die a proper death due to lack of proof, it keeps mutating into new forms. Of all the curious behavior associated with the Libby case, that of the CIA's director for the past one year, stands out for its puzzling obtuseness.

General Michael Hayden was sworn in as Director of the Central Intelligence Agency on May 30, 2006.  Thus far, he has distinguished himself mainly by
launching profane tirades in the direction of journalists who have incurred his wrath.  That may be about to change.

Among the documents that Special Counsel Patrick Fitzgerald filed in connection with the sentencing of Scooter Libby, VP Dick Cheney's former Chief of Staff, was a lengthy PDF file which purports to support the contention that Valerie Plame Wilson was a "covert" employee of the CIA for purposes of the Intelligence Identities Protection Act of 1982 (IIPA, 50 U.S.C. §§ 421-426 ). Of the 30 pages, all but three are a transcript of Plame's testimony before Rep. Henry Waxman's personal dog and pony show--the House Committee on Oversight and Government Reform.  The remaining three pages, however, are entitled UNCLASSIFIED SUMMARY OF VALERIE WILSON'S CIA EMPLOYMENT AND COVER HISTORY and contain some fascinating material.

The Summary begins with three remarkable paragraphs:

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.
Clearly Fitzgerald included this Summary in order to support his own contention in the Government's Sentencing Memorandum, that was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press.
Leave aside the fact that Fitzgerald now wants to sentence Libby as if Plame had been shown to be "covert" for purposes of the IIPA--without ever having presented any evidence for this very dubious assertion.  The fact is, if Fitzgerald had not been able to make that statement, that there was at least a possibility that Plame qualified or was covered by the provisions of the IIPA, it is questionable whether Fitzgerald's investigation could have continued.  It's unfortunate that the Summary is undated, so it's not possible to determine whether it was an attachment to the CIA's Referral Memo, which demanded an investigation of the supposed leak of Plame's "covert" status.  Fitzgerald has, not surprisingly, adamantly refused to release the actual Referral Memo, and has instead played a sly "hide the ball" game when it comes to the issue of Plame and the IIPA--seeming to equate "covert" and "classified," and so forth.

Be that as it may, Fitzgerald now cites the CIA's statement that "Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States" as evidence that his investigation was conducted in the good faith belief that a possible violation of criminal law had occurred.  But let's consider what those "affirmative measures" actually were. 

The portions of the Summary that follow the three cited paragraphs, above, contain no more than a listing of personnel actions affecting Plame.  Therefore, the "affirmative measures" that the CIA says it was taking "to conceal her intelligence relationship to the United States" can only be those set out in the preceding paragraph:
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.
In other words, this Summary states that "covert" CIA operatives, like Plame, travel on duty overseas using, at times, their true names, and they also utilize "official cover" during such travel, that is, they travel as officials of the US Government.   Just how "covert" can this really be?  Are we to suppose that foreign intelligence services don't keep tabs on US travelers -- especially those traveling as officials of the US government --  and don't try to establish a profile for "covert" operatives?  Such a scenario is no longer implausible, given the highly sophisticated nature of modern data tracking and mining technology.

Now, this information amounts to a revelation of CIA intelligence "tradecraft," albeit a revelation that is neither calculated to impress intelligence professionals nor to reassure those who are concerned that our intelligence agencies are not up to snuff.  Nevertheless, this revelation of tradecraft occurred on General Hayden's watch.  Ask yourself, would it be helpful to foreign intelligence services or terror organizations to know that the CIA uses "official cover" for its "covert" operatives and allows them to travel overseas under true name?  If you think that the answer to that question is "yes," you might also want to ask: how dumb is it to reveal this "tradecraft" to the world, as Fitzgerald has done?  For an answer to that question I refer you to General Hayden--but be prepared for a profane tirade.

But there's good and bad news in all of this.  The good news is this: there's no need to worry.  The fact of the matter is that, contrary to what the Summary states, Plame wasn't really "covert" for purposes of the IIPA when she was working at the CPD, nor was the CIA taking any particular measures to conceal her intelligence relationship to the United States.  That was just a story they made up to help Fitzgerald nail a high level neocon--so there's hope that the CIA's "tradecraft" isn't that bad.  As Andrea Mitchell stated, "everyone" knew that Plame was CIA.  And there's more.  Victoria Toensing is the attorney who drafted the IIPA.  She, too, testified before Waxman's committee, and she had handy the Senate Report on the IIPA, that spelled out what the Act was intended to cover.  Referring to page 16 of the Senate Report Toensing stated (under oath): "Notably, the legislation limited coverage of U.S. citizen informants or sources (agents) also to situations where they "reside and act outside the United States."  Toensing then quoted Joe Wilson's (self) absorbing autobiography to show that Plame had returned to the US in 1997 and had never "resided and acted" overseas again.

So, what's the bad news?  Well, the bad news is that some one is trying to pull the wool over your eyes.  If this information is so readily available, count on it, Fitzgerald and the CIA lawyers all knew it, too.  But they don't want you to know that there are people out there--people with real power and influence who are sworn to do justice and uphold the law--who are willing to frame a political opponent and send him to jail.  That's really bad news.

MSNBC has run an article entitled "Plame was 'covert' agent at time of name leak" that can only be termed fatuous.  The author, Joel Seidman, accepts without question the CIA's bald assertion that "Ms. Wilson was a covert CIA employee for who the CIA was taking affirmative measures to conceal her intelligence relationship to the United States."  Worse, he even quotes the key sentence from the Summary that states that, when overseas, Plame traveled undercover, "sometimes in true name and sometimes in alias -- but always using cover -- whether official or non-official (NOC) -- with no ostensible relationship to the CIA," and again raises no questions at all.

Intelligence services go to great lengths to establish plausible "covert" identities for especially sensitive operatives.  Traveling in true name, an identity that can easily be traced and verified by a hostile or merely curious intelligence service, defeats the whole rationale behind a "covert" identity--by definition it is not covert.  For a covert operative, as Plame supposedly was, to travel on official business in true name was to simply blow any pretense at maintaining a "covert" identity.  If anything worse was the fact that she traveled under "official cover."  Are we really supposed to believe that foreign intelligence services fail to do something so basic as tracking the identities and careers of US Government employees, especially those who travel overseas?  Plame's lack of a plausible career history would quickly become apparent if subjected to even routine scrutiny.

No, the CIA's contention that Plame was covert for the very specialized purposes of the IIPA (see Toensing's words above) is a bad joke--but one they're trying to use to frame Scooter Libby.

Al Johnson is a retired attorney.
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