by von
I’VE DISSENTED FROM Hilzoy’s post (and the Newsweek colum) declaring that Plame has been found to be a "covert agent" under the law: Perhaps she was, but a Court gets to decide that — not the executive branch (here represented by Patrick Fitzgerald and the General Counsel of the CIA). Moreover, we haven’t yet seen the defense filing.
But this debate over whether Plame meets the peculiar definition of "covert agent" within 50 USC 426(4) is well beside the point. Plame could be perfectly covert in the ordinary sense of the term, and therefore valuable to the US, without meeting Section 426(4)’s standard. Indeed, the evidence thus far suggests that she was covert under the dictionary definition — even if some knew about her status as a CIA agent, it certainly was "secret or hidden; not openly practiced". It’s also clear that outing Plame was not helpful from a national security standpoint regardless of whether the law was violated — although how "not helpful" it was will remain, quite properly, classified.
So it takes a special kind of blindness to take the absence of evidence on this matter as evidence of absence, as displayed by Glenn Reynolds’ insta-comment: "I’d just like to see this kind of outrage generated on behalf of leaks that actually hurt the war effort."*
In fact, we’ll never know what, where, or how it hurt. Just as we don’t know whether revelations regarding enhanced interrogation techniques, Abu Ghraib, the NSA eavesdropping program, and the rest ultimately help or hurt the war effort. Indeed, a needless and ineffective policy aggressively pursued is a outrageous waste, and policies that strike close to our national values demeans what we are fighting for. (See Hilzoy’s post here, for instance, which I endorse.) Better for the press to play the bad music so the tune can be changed; sometimes at least.
*Again, less "insta" and more "reflecta" please.
UPDATE: In which our readership loses it. Here is Gary Farber’s comment, which is picked up by others:
Von, unless you can quote the words Hilzoy used with which she allegedly "declar[ed]" that Plame has been "found to be a ‘covert agent’ under the law," you might want to consider how well you can support that claim, and whether you might wish to consider stepping back from it.
This is absolute nonsense. The premise for Hilzoy’s post was a filing by Patrick Fitzerald that Plame met the legal definition of being a covert agent. To see this, all you must do is:
-And-
Click through the supporting link.
What is the support for her assertion that "Well, Knock Me Over With A Feather! Valerie Plame Wilson was a covert agent all along"? A legal filing by Patrick Fitzgerald asserting that Ms. Plame met the legal definition of "covert agent" provided in the relevant statute. So, I will thank Mr. Farber for his concern but respectfully decline his invitation to go down the path of primrose stupidity.
Now. If you actually read Hilzoy’s piece, you see in that in the second paragraph she states that the law doesn’t necessarily matter here. (A thought that would be quite out of place, of course, if her first paragraph hadn’t been about the law.) I directly echo that sentiment — Hilzoy’s sentiment — in my post above.
That is, Hilzoy and I are in nearly complete agreement regarding Plame. I dissent only from her assertion — and, yes, it was her assertion, by both direct statement and adoption — that Plame met the definition of covert agent under the law. I make a point of my dissent because I sense a double standard being applied by lefty bloggers: An allegation by a member of the executive branch (Fitzgerald) is accepted uncritically as fact because it serves a particular political agenda.
It shouldn’t be so. Or the system will, inevitably, break down. See, e.g., Duke, Group of 88.
By the way, I’m certain that it’s not intentional on Hilzoy’s part, but that doesn’t make it any less worthy of pointing out.
UPDATE 2: Incidentally, the folks who will most benefit from such healthy skepticism will not ordinarily be crusty old (or privileged young) white dudes, but folks who are decidedly less advantaged. But if you apply your skepticism selectively, you cede the moral high ground.
“Ing” to you too.
To be less obscure, there seems to have been some sort of editing or input accident that left the text “ing” below the fold.
“I’VE DISSENTED FROM Hilzoy’s post (and the Newsweek colum) declaring that Plame has been found to be a ‘covert agent’ under the law”
Von, unless you can quote the words Hilzoy used with which she allegedly “declar[ed]” that Plame has been “found to be a ‘covert agent’ under the law,” you might want to consider how well you can support that claim, and whether you might wish to consider stepping back from it.
“But this debate over whether Plame meets the peculiar definition of “covert agent” within 50 USC 426(4) is well beside the point.”
Could you link to the blog, or blog comments, where people have been arguing about that, please?
Von, you seem to be seriously nitpicking here. Why?
What’s the point? She was covert. She says so. The CIA says so. No one has [i]disputed the fact in a legal setting[/i], so why are you so bound on whether it’s been found true by a court? [i]Why does it matter[/i]?
What possible use is that distinction to this conversation, or the one in which you dissented?
Because it seems to be that the only real reason to make that distinction — assuming you are not so highly pedantic and nitpicking that you probably should be medicated for it — is because certain people do not want to engage in reality, and are clutching tightly to themselves whatever scraps of cover they can find.
What confuses me is why you seem to be one of them. I can understand Maguire, or Toensing (however it’s spelled), or any of the myriad people who have tightly tied themselves to the belief that she wasn’t covert and who, stupidly, still take some measure of comfort in the belief that while [i]everyone with full access to the facts[/i] thinks she’s covert, that because a judge somewhere hasn’t made a finding of fact on that, that they still could be right.
In the meantime, I guess we need to inform the CIA to find a new term for it’s covert employees. Since it appears none of them have been determined to be ‘covert’ in a court of law, their covert status is stuck in some sort of Schrodinger indeterminacy and they should darn well NOT call themselves that, lest the poor stupid public become confused and come to the idiotic conclusion that the CIA has anything to do with that determination.
In fact, I think we should set up a new court — a sort of FISA — whose only job is to certify each year whether an agent is covert. I think it’s the only way the CIA can know if it can properly refer to it’s covert employees as ‘covert’.
Although, ironically, I suspect any court in the land would accept the CIA statement — with supporting docs — that a given person was covert as proof positive, as well as their documentation that she’d been out of the country in the last five years. But that rubberstamp seems horribly vital, since merely submitting that documentation doesn’t appear to be valid unless a court rules on it.
Gary’s point, per usual, is solid. This central point of this post seems to be based on a mistaken premise. Otherwise, I agree.
To add: The degree to which Plame’s outing was “not helpful” may be forever unknowable, but I’m fairly certain the collateral outing of Brewster Jennings was a disaster.
Compounding the damage, the front company, Brewster-Jennings & Associates, the name of which has been reported previously, apparently also was used by other CIA officers whose work now could be at risk, according to Vince Cannistraro, former CIA chief of counterterrorism operations and analysis. Now, Plame’s career as a covert operations officer in the CIA’s Directorate of Operations is over. Those she dealt with — on business or not — may be in danger. The directorate is conducting an extensive damage assessment. And Plame’s exposure may make it harder for American spies to persuade foreigners to share important secrets with them, U.S. intelligence officials said.
von: revelations regarding enhanced interrogation techniques??
You mean torture, I think; if so, please say so. Using those weasel words weakens the point I understand you to be making and puts you in the same camp with those who want to employ torture or make it a debatable issue.
If your position is that the use of torture is a policy that “strikes close to our values and demeans what we’re fighting for”, then call it torture.
The CIA supposedly conducts a comprehensive assessment of the harm which results from any outing of a covert operative.
The contents of this assessment are, obviously, highly classified. I can think of two people who claim to know the contents of this document: Larry Johnson, who says that very serious harm resulted from the outing, and Bob Woodward, who says that nothing really came of it. Of course, the outing itself was pretty frickin’ irresponsible even if there turned out to be no harm, no foul.
Oh, and in Fitzgerald’s closing argument at the Libby trial he seemed to imply that there were serious consequences, although it’s not clear if he was just making that up (in which case he kinda crossed a line) or if he was alluding to facts which are true but classified (in which case the defense was a tad disingenuous in their objection).
Anyway, this is a remarkably silly post, which causes me to wonder why we didn’t for a judicial finding that Saddam had WMD before invading Iraq, blah blah blah. In the real world, we’re all entitled to view the available evidence and draw conclusions from it, subject to the caveat that we might be wrong.
If you want the state to punish someone for violating the IIPA, then yes, proof of a violation must be established beyond a reasonable doubt in the court of law, and so forth. If you simply want to state your belief as to whether an element or elements of the statute have been satisfied, there is no such requirement.
To be fair to Von, the bulk of the post is about what a lousy, damaging thing it was to out her regardless of the legal issues. To be fair to everyone picking on the post, if you open with a nitpick, people are going to focus on the nitpick, not the rest of the post.
I wonder whether the “no big deal” report that Woodward supposedly saw took into account the damage to morale and recruiting efforts for covert operatives caused by the knowledge that the administration might casually out them at any time for political purposes.
von: revelations regarding enhanced interrogation techniques??
Remember, it sounds better in the original German.
Jebus, Von, you’re being exceptionally, stubbornly pin-headed here. First, the statement “Valerie Plame was covert” (Hilzoy’s word’s approximately) is a statement of empirical fact, not a legal conclusion, that intelligent people can answer based on the available evidence — all of which points one way, incidentally.
Second, the proposition “Valerie Plame met the definition of a covert agent under the IIPA,” although a legal conclusion, also is an empirical statement that people (especailly those of us with legal training and experience) can answer with a high degree of confidence, again based on the available evidence. The fact that a court has not had occasion to make a finding of fact to this effect does not alter the basic reality that we are entitled to make judgments on such questions as whether certain evidence meets a certain legal standard without the aid of a court. If all you’re saying is that a person could not be convicted for violating the IIPA unless a court finds that the person whose cover was blown was covert within the contemplation of the statute, then you’re really not saying much of anything.
Third, the proposition to which you take issue in your post — “Plame has been found to be a ‘covert agent’ under the law” — is an asinine passive-voice construction of your own making. And, because it is phrased in the passive voice it is, amusingly, demonstrably true. The CIA has found that Plame was covert within the meaning of the IIPA, as evidenced by, among other things, the declassified employment history attached to the Government’s sentencing memorandum as well as the testimony of CIA Director Hayden before Congress. And the Special Counsel also “found [Plame] to be a covert agent under the law” as evidenced by his filing. Does this mean that someone goes to jail for blowing Plame’s cover? Of course not. But it does mean that “Plame has been found to be a ‘covert agent’ under the law.” See what happens when you try to split hairs in an effort to be terribly, terribly clever but in so doing clumsily employ sloppy, passive-voice English?
Fourth: I repeat myself somewhat here, but let me recap. What you appear to be trying to say through your clumsily worded statement is that it is not true to say that a court has found that Plame was a covert agent within the intendment of the IIPA. If that is indeed what you are trying to say, then I answer “DUH! Why are you wasting everybody’s time here.” It is not true to say that. But nobody is saying that. What people are saying is that the available evidence seems to quite conclusively resovle the question whether Plame was covert within the meaning of the IIPA — which is an entirely defensible statement, seeing as the CIA, who should know, has so stated. And nobody has a lick of evidence to the contrary, although that did not prevent a phalanx of blowhards from pretending that they did. This is not a terribly complicated question of application of law to fact. The IIPA has a pretty straightforward set of criteria (the U.S. is taking affirmative measures to conceal the person’s intelligence relationship and the person has had a foreign posting in the past five years) and we have some pretty straightforward evidence (albeit lacking in detail). There are lots of exquisitely difficult issues of the application of law to fact. This doesn’t happen to be one of them.
All you are saying is that unless a jury convicts somebody for violating the IIPA (an event that has not happened in the history of the statute), then there has been no judicial finding that a particular person was covert within the meaning of the IIPA. In other words, you are stating what is basically a tautology. If you are were my lawyer and expending a lot of time making such an argument, I would definitely want a reduction fo my bill.
Sebastian Dangerfield, you’re probably on the way past the civility requirements of the posting rules.
S.D. could have confined himself to the last paragraph of his comment & done quite well, though.
Can you imagine the response if the Clinton administration outed a CIA agent for political advantage, and then tried to justify it by arguing about the definition of what covert is? The level of hypocrisy in the right wing outlets on this one is … is … is … standard.
Apologies. I do run off the mouth a bit. I’ll get this blog-brevity thing down one day, promise.
Also, Sebastian, you might want to throttle back a bit on the “pin-headed” stuff: von deserves better.
Although, to be honest, this post probably isn’t the best example of von’s work: as LizardBreath points out (@ 6:21) – when a short post leads off with a pointed nitpick, it tends to overshadow the rest (which doesn’t bring the point -von’s negative reaction to Plame’s outing – across very well).
SD: fwiw, von is not a pinhead.
well, my turn to be nitpicky and point out that SD said von was not a pinhead per se but “exceptionally, stubbornly pin-headed here”, implying that he’s not usually pinheaded, but rather driven by this issue to pinheaded behaviour – see, actually it’s a compliment 😉
Sebastian Dangerfield, you’re probably on the way past the civility requirements of the posting rules.
really?
i thought it fit in just fine. floridly insulting the intelligence of other commenters with a dismissive backhanded harrumph is pretty much SOP, here.
I agree with LB, though he opens with a quibble about hil’s post, von’s point is eminently sensible: regardless of the underlying legality, it was a stupid thing to do on both a tactical and strategic level (even ignoring that fact that it was in service of a strategic error of nth degree greater proportions, to whit, the Iraq War.)
But if you apply your skepticism selectively, you cede the moral high ground.
I’ll bear that in mind the next time I disagree with you that something clearly subject to opinion is, in your words, beyond dispute.
von: I guess we’ll just have to agree to disagree on this one. I think that whether something in fact meets a statutory definition is something that can often be ascertained without a court ruling. (If it couldn’t, it’s hard to see what court rulings would be about.) Moreover, as I read the Newsweek article, it’s saying that this was disclosed in a filing by Fitzgerald, but not that it was authored by him. I had supposed that he had at least consulted with the CIA on this, and that he had represented their views accurately.
If you buy that, then as far as I can tell, Valerie Plame met the definition of a “covert agent” under the statute. Her identity as a CIA employee was classified at the time of the leaks; and she had served outside the US within the past five years. Those are matters of fact, which Fitzgerald either lied about or conveyed accurately.
I am skeptical in a lot of cases. Lots of times when I don’t write about something, it’s because I don’t have time, or it doesn’t strike me the right way, or I can’t think of anything useful to say about it. In the Duke case, however, I didn’t write about it because when I had read up on it, I didn’t think it was at all clear what had happened, and I was not going to opine on the subject without much better evidence, since taking either side would have meant saying something really bad about someone on the basis of what I took to be plainly inadequate evidence.
In this case, Fitzgerald isn’t an unknown figure; he’s someone who strikes me as having been pretty close to exemplary throughout. And he’s not talking about things that are outside his competence: the elements of being a covert agent are factual, and he has access to those facts. It is of course possible to question the truth of the filing, just as it’s possible (for me) to question the very existence of Scooter Libby, whom I have never met. I just don’t think it would be particularly reasonable. I also don’t think it shows a lack of due skepticism, unless your standards are a lot closer to Descartes’ than mine are.
Von: Here is Gary Farber’s comment, which is picked up by others:
This is absolute nonsense. The premise for Hilzoy’s post was a filing by Patrick Fitzerald that Plame met the legal definition of being a covert agent. To see this, all you must do is:
Read her first sentence.
-And-
Click through the supporting link.
What is the support for her assertion that “Well, Knock Me Over With A Feather! Valerie Plame Wilson was a covert agent all along”? A legal filing by Patrick Fitzgerald asserting that Ms. Plame met the legal definition of “covert agent” provided in the relevant statute. So, I will thank Mr. Farber for his concern but respectfully decline his invitation to go down the path of primrose stupidity.
Let me get this straight. According to you, anyone who cites a document from a legal case is, ipso facto, making a claim about the law??????
No need to follow Gary down the primrose path to stupidity, Von. You’re there already.
(Along with others, by the way, who throw in gratuitous references to the so-called “Gang of 88” based solely on the obsessions of Dr. Johnson, who has a definite Bee In His Bonnet on the topic.)
Give me a break on update 2. Having seen the actual evidence on which Fitzgerald premises his claim, having made a judgment as to the believability of that evidence, and having made a judgment as to the credibility of Fitzgerald himself, we now must acknowledge that if we form the opinion that Fitzgerald is right on this legal issue, we cede the moral high ground to question the government’s conclusion as to the guilt of any criminal defendant, ever?
Like I said, give me a break. This is about as offensive an argument as claiming that if you opposed the war in Iraq, you don’t care about the Iraqi people, and it’s about as well-grounded.
the system will, inevitably, break down.
Hmmm. I thought that the system breaks down when we cede the definition making power to a small elite who then decide which usage is correct. There’s a free market argument buried here, but I let those so interested dig it up.
cleek: i thought it fit in just fine. floridly insulting the intelligence of other commenters with a dismissive backhanded harrumph is pretty much SOP, here.
That’s pretty much what I’d expect from someone of your caliber.
von: Ok, I’m seriously confused here. Consider the following analogous situation; you’re clearly going to disagree that this is analogous, but I’m curious as to where you think the analogy breaks down.
Hypo: I work for a large company. The fact that they cut my checks is not in dispute, but there is some dispute over whether I was a Competition Researcher, information about which both I and the company are reluctant to disclose. Eventually, after some lengthy legal proceedings have finished, internal documents are produced that confirm that I was, indeed, a Competition Researcher. My status was never ascertained at trial (or during any findings), only in the documents.
Under this scenario, I can see literally no way in which one could conclude that I wasn’t a Competition Researcher on the grounds that a court had not found me such. It strikes me that this situation is completely analogous to Valerie Plame’s employment by the CIA; whether or not a court finds her to be a covert agent is utterly immaterial if the CIA itself thought her to be a covert agent. It seems almost definitional to me, so much so that I can’t figure out what point you’re trying to make here. If it’s that a court didn’t explicitly declare her to be a covert agent, well, who cares? That point isn’t in dispute; it’s also not, AFAICT, remotely relevant.
[And your triumphalism about “I’m right and it’s not even close” in the previous thread? Seriously uncool, especially when you’re being obscure.]
Incidentally, the folks who will most benefit from such healthy skepticism will not ordinarily be crusty old (or privileged young) white dudes, but folks who are decidedly less advantaged. But if you apply your skepticism selectively, you cede the moral high ground.
Who, exactly, are “the folks” who you think will most benefit by establishing that a person’s employer is not to be considered a credible witness about their employment?
…though everything Von says would make sense if, instead of arguing that Valerie Plame’s status had to be established by a court, not by her employer, he was arguing that whether or not it was a crime to leak her status had to be established by a court, not by her employer.
Is that what you were trying to say, Von?
So, I will thank Mr. Farber for his concern but respectfully decline his invitation to go down the path of primrose stupidity.
So, it’s OK to insult people on ObWi now? What happened to the posting rules? Or do they only apply to commenters?
Must. Post. This. Link. to
“Dear Whoever The Hell Comes Up With These Things”
<http://www.dailykos.com/story/2005/10/10/213022/60>
That’s pretty much what I’d expect from someone of your caliber.
harrrrrrumph!
I’m sorry, the link dissappeared:
its entitled “Dear Whoever The Hell Comes Up With These Things”
However, despite that fact that its really, really, brutally funny its not precisely on point. What is on point is that the *only* thing the Toensing/right wing perspective had going for it was Toensing’s insistence that because she had something to do with the statute she was entitled to interpret it *and also* that she insisted that Ms. Plame had *not travelled outside the country* during the covered period as a covert CIA agent. The papers offered by Fitzgerald simply *put that argument to rest* since the CIA state’s that she *did* travel outside the US under various names and that she (and presumably they) were attempting to keep her identity secret.
The rest of the blather is just that, blather. As others have stated rather eloquently the function of the “was she or wasn’t she” covert is simply to distract us all from the fact that her identity as a CIA agent was exposed for partisan political purposes, with reckless disregard for her life and the lives of those she had worked with or might work with in the future. The far right commenters are very, very, clear on this point–anyone who crosses the president and vice president *deserves what happens to them.* They may argue as a matter of convenience that nothing that bad happened to her (or us) because she wasn’t covert at the time of the exposure (and that, in fact, is Toensing’s argument–its one of timing) but at base they are arguing that it was a form of les majeste for Wilson to write that op ed and that anyone who is served a lettre de cachet and imprisoned or injured in the white house’s attempt to suppress such les majeste *deserves it.*
That’s the argument from authority and for authority that Mr. Summa Assuma actually likes here. His arguments about Fitzgerald and why we should distrust his legal filings on this matter are absurd and even insulting given what we know about the bad faith of literally all the actors and apologists on the Libby side.
http://www.dailykos.com/story/2005/10/10/213022/60
Dr. Ngo, read the damn post.
Jes, of course that’s the point.
Von: Jes, of course that’s the point.
Then I suggest that you update your post acknowledging that you made a mis-statement and that you realise you have no cause to challenge Hilzoy.
von, Having read hilzoy’s post three times, and the linked article three times, I do not see where there is any assertation that Plame’s covert status is considered legally defined.
What is being described is a declassified document from the CIA. Fitzgerald is making no claim as to the legality of the status. It is merely an attachment to a brief. Nowhere does it state that Fitzgerald has made any declarations based upon the document, merely that he included it.
Was she covert? Well, apparently the only thing that will satisfy some people is if a court, somewhere somehow declares that to be the case. However, by all common sense declarations, she is was considered covert at the time of the outing.
Now, to be fair, the rest of your post is commendatory. But rather than people nitpicking on you, it is really a case of your nitpicking on something that was never declared or implied.
with your 8:34 admission to Jes, I think the whole house of cards just folded.
de minimis, dude.
I don’t have a problem with using ‘covert’ to mean ‘covert in the sense defined by statute.’ But I don’t see why this means that a court has to decide if it applies or not, since the statute states factual conditions that either applied or didn’t. Similarly, if I snuck into von’s house in the dead of night and made off with his TV without his consent, I would be fine with the claim that I had committed a “theft”, even a “burglary”, in the sense defined by statute, even if I were never prosecuted for that crime.
What is on point is that the *only* thing the Toensing/right wing perspective had going for it was Toensing’s insistence that because she had something to do with the statute she was entitled to interpret it
I was thinking about this in the shower today, pathetically enough, and what utter b.s. it is.
I wrote a few decisions for a state appellate court that were handed down verbatim as I wrote them. That’s b/c I was a clerk to one of the judges.
And guess what? My opinion about what one of those decisions means, is worth exactly as much as the next lawyer’s.
What Ms. Toensing thought “her” statute meant, plus $4, will get you a latte at Starbucks.
I am similarly perfectly comfortable stating that waterboarding & other ‘enhanced interrogation’ techniques meet the definition of torture, even though under the current DOJ we know damn well that no court will ever get a chance to say so.
Wow, Von’s 8:34 response to jesurgislac really puts the original post in perspective. Its really and truly a class A example of “keep throwing shit in the air” until it miraculously turns into sunshine. If anything could more perfectly encapsulate the bush apologists approach to politics, law and culture it would be this: just keep blathering until people stop paying attention and hope that the blatant illegalities and immoralities of the ruling party get lost in the confusion.
aimai
aimai: the posting rules forbid profanity (think workplace filters) and also incivility. Your post is actually a pretty good example of why it’s hard sometimes to draw the line between saying that someone’s argument is lousy and saying that that person is stupid, but nonetheless.
yeah, aimai, i hear you, but i think it’s not that so much as
when all you have is a lawyering hammer, everything looks like a legal nail.
Possibly von’s claim is that “Valerie Plame was covert so outing her was a crime” is more difficult to establish, even on an informal level, than “Taking a TV from someone’s house without their permission is theft.” So he thinks if we want to be sure about that we’d have to have heard from defense counsel arguing their case before we’d have all the facts we’d need to have a well-informed opinion. It’s like wanting to know what OJ’s defense team would say before feeling confident that OJ was the murderer. I doubt this myself–I don’t know what the defense could possibly say that would change our minds, but as someone who was always a little uneasy with lining up with the CIA (even if in this case they were the good guys) I can sympathize with his point a little.
I think von meant to nitpick on a point he thinks important, and offended everyone else because it sounds like he’s lining up ever so slightly with the far right talking point on something really trivial, though in fact he really isn’t in sympathy with them, as the rest of the post makes clear and as we all understand. But things got really heated anyway.
My suggestion–jump in a time machine and start this thread over, but just let hilzoy handle the anti-von side of the argument.
Now I’m off to invent a time machine. Will get back to you yesterday.
dj:
“it sounds like he’s lining up ever so slightly with the far right talking point on something really trivial, though in fact he really isn’t in sympathy with them”
yeah, he could have avoided that misimpression more handily if he had left out the scolding lectures about how us lefty bloggers are either foolish for swallowing whatever the Executive Branch tells us is true, or viciously inconsistent for swallowing it in this case and not in others.
whereas, in fact, i don’t think anyone was basing anything on a reliance on the Executive Branch. i myself relied on Fitzgerald’s own record of credibility and always underplaying his hand, plus the fact that he filed documentary evidence from the CIA, who are in a position to know.
It’s like I want to know whether my cousin is named “Calvin” after the theologian or the cartoon-figure. So I ask my saintly bespectacled uncle, the curate, who has never told a lie in his life. He tells me that he named him after the theologian.
And then von comes in and says “oh, so you mean you’re going to take the word of *everyone* who wears glasses? You’re *always* going to show deference to people with bad eyesight when factual questions are at stake? Or just now, because you like the answers? You lefty bloggers!”
no, actually, the spectacles were not the grounds of my confidence in the answer. that feature of the witness was irrelevant to my assessment of the testimony. it was the record of reliability, and the being in a position to know.
ditto
I also think the reaction to Von got heated because of the record of Fox News and their ilk since the scandal broke three years ago, claiming that Plame’s status wasn’t a close call — that she was nothing like covert, and that taking action on the basis that it was a plausible assumption that she was covert under the statute was self-evidently insane and wrongful. While this filing isn’t a court ruling that Plame was covert under the IIPA, it does establish that the facts are such that legal proceedings assuming that she was covert under the IIPA were perfectly reasonable; while it is conceivable that a court might have found a reason to rule that she was not covered, given these facts it looks a lot more likely that she was covered than that she wasn’t.
This filing, then, is a solid refutation of three years worth of baseless, fact-free rhetoric claiming that the whole scandal was a trumped-up tempest in a teapot; under the facts as they were known to the relevant actors all along, and are known to us now, pursuing the investigation actively was a very reasonable thing for Fitzgerald to have done.
I think the heated reaction to von comes from his having missed the point of Hilzoy’s post — not that Fitzgerald’s filing is legally determinative of Plame’s status, but that it establishes all the nonsense we’ve been listening to for the last three years about how she wasn’t really covert as nonsense.
I think the heated reaction to von was based upon his making an assertion that was not based in fact. And unfortunately, that assertion claimed most of the attention from an otherwise prraiseworthy post.
In terms of space, the non-fact based assertion was well less than the rest of the post. Too bad it was at the beginning which to some degree dictated the type of response.
it doesn’t help that he keeps adding insulting little updates to his already-insulting post.
Oh good heavens, I hadn’t noticed the updates.
Von, that’s idiotic. You’re accusing Hilzoy of finding the CIA credible on the facts pertaining to Plame’s employment purely because it suits her political goals, when the CIA is the only authoritative source of information about Plame’s employment. What better source of information do you expect Hilzoy to rely on? Taking an official statement by an Executive Branch agency about facts within its knowledge and area of professional responsibility as accurate in the absence of any reliable contradictory information (and if you talk about defense filings, do please point out what facts, rather than legal arguments, you imagine they might contain that would contradict the CIA’s statement) is not sliding down the slippery slope to dictatorship, or whatever you’re darkly warning us all against. On the point that the legal argument isn’t settled until a court settles it, sure, but that doesn’t mean that an outside lawyer, like you or I, or an intelligent and sophisticated non-lawyer like Hilzoy, can’t look at the facts and the law and make an educated and well supported statement about the legal argument.
I’m sorry Von, and to others if this has already been pointed out.
The Executive branch had nothing to do with Fitzgerald’s claim. Because under 28 CFR Sec. 600.1 he was in almost every way removed from the Executive branch and the DOJ.
That’s sort of the whole point of the statute.
Essentially the most annoying part of his claim is debunked in the first paragraph of the post.
Hilzoy and others,
I apologize for using profanity (the s*&t word) in a post. I don’t apologize for calling von’s post out for what it is, a bizarre and really very common form of right wing apologetics/attacks which combines nit picking, hostility, and factual inaccuracy. That is not, apparently, a minority view on von’s post so I don’t think my posts, however, intemperate, were that far off from obiwings normal debating style. Nevertheless, I apologize to the other posters for my harsh language.
aimai
Aimai, that’s all well and good, except that Von is not a Bush apologist — which makes his stubborn adherence to this line of argument all the more puzzling.
What is the support for her assertion that “Well, Knock Me Over With A Feather! Valerie Plame Wilson was a covert agent all along”? A legal filing by Patrick Fitzgerald asserting that Ms. Plame met the legal definition of “covert agent” provided in the relevant statute.
Im with Dr.Ngo- just because someone uses legal documents (which use a legal definition) as evidence of something doesn’t mean that the conclusion itself it necessarily legal in nature.
Let me try a paraphrase of hilzoy’s initial point: some people have claimed that Wilson wasn’t covert. Well, if she was covert enough that the CIA thinks that she was (as evidenced in a court document), that’s covert enough to conclude that outing her could’ve caused damage to national security. This is the case regardless of any court finding about her status in the future.
If you argued that the legal definition of ‘covert’ and the common understanding of the word diverged enough that relying on one to demonstrate the other wasn’t reliable- that’d make sense to me. But lacking that divergence it doesn’t make sense to insist that conclusions based on legal documents are necessarily *legal* conclusions.
So, are you saying that there is such a divergence, or just saying in principle that legal definitions ought to be presumed to map badly to common understanding unless otherwise demonstrated? Or is it something else?
KCinDC, obviously when you read the rest of the post von is not a Bush apologist. I think von is just a stickler for proper usage of the term “legal”. If, in fact, either hilzoy, or even Fitzgeerald had declared that Plame was covert under the legal definition, then he would have a point. His stubbornness is due to the fact that he believes they did, when in fact neither did.
I absolutely will apologize to von because, to my mind, calling someone a bush apologist is pretty much the worst thing you can call him or her. On the other hand, I’m not sure that writing an angry and insulting post to Hilzoy and to all other posters who disagree with von on what apprently (even to von) is a minor and possibly really badly thought out point of order is that much better. Pulling back from my feelings as a political partisan and yellow dog democrat let me assume my hat as a former professor and a sometime student of argument and legal reasoning and say that von’s argument as it stands, and with all its amendations and extra points, is really pretty dopey. In other words, its not just because his original post tends to fit into the bush apologist mode that I object to it–its also part of a super legalistic mode of argument that I associate more with teenagers and with first year law students than with mature legal minds. I don’ t know von and I wont be at all surprised to find that those who do correct me and let me know that he/she is, in fact, an elderly law professor, former judge, or teenage whiz kid. All of those are perfectly consonant with the kind of blind allegiance to missing the forest for the trees which I see in the original post and its enraged additions.
aimai
“His stubbornness is due to the fact that he believes they did, when in fact neither did.”
Von’s argument is that even though Hilzoy never used any actual words to declare “that Plame has been found to be a ‘covert agent’ under the law,” she made that “declaration” wordlessly, by the act of linking to an article which, as part of its discussion, contained quotes and facts that happen to come from a legal brief.
Let’s hear that again: if one simply links to a news article in a major popular news magazine, and that popular news article quotes a non-legal point (the CIA statements about Plame) in a legal brief, then, abracadabra, alakazam, any separate commentary making use of the quoted non-legal facts is a “declaration” of a “finding in law.”
This is such patent nonsense that it isn’t worth arguing with.
Von, you misread Hilzoy’s point, you misread the point of the comment thread in the other thread prior to your arrival, you made your initial denunciation of people coming to a legal conclusion that in fact no one had discussed, and now you’re just stubbornly sticking to your argument, because goldarn it, you put heat and effort into it, and got all annoyed, and it’s a pain in the ass to back away from that once so invested.
There hasn’t been a debate here about “over whether Plame meets the peculiar definition of ‘covert agent’ within 50 USC 426(4) is well beside the point.”
Stamping your foot and insisting that there so has isn’t going to get you anywhere. Not anywhere you want to be, at least.
On the other hand, if Hilzoy doesn’t disagree with your claim, that I doubt I should. Hilzoy, do you agree that you “declar[ed] that Plame has been found to be a ‘covert agent’ under the law,” or do you disagree, and were you instead discussing the ramifications of the CIA affirming as a matter of fact that they regard Valerie Plame as having been a covert officers?
“I don’ t know von and I wont be at all surprised to find that those who do correct me and let me know that he/she is, in fact, an elderly law professor, former judge, or teenage whiz kid.”
I’ve never met Von, but I’m not giving away any secrets if I say that he’s mentioned various times on the blog that he’s a thirtyish married male lawyer in a fair-sized Midwestern city, who has been known to be a corporate defendent’s lawyer in various suits. Did I get anything wrong, Von?
Do I violate the posting rules by saying that this whole thread is rather inane and pedantic?
well, no, pooh, you don’t violate the posting rules by saying that.
but you do hurt the thread’s feelings.
threads don’t like being called inane and pedantic, you know. i think you should apologize to the thread.
Von has fallen into the rhetrical hole that serves no purpose other than to minimize the wrong here. And that is true even though he adds the comment that something very wrong was done here with regard to Plame.
The game is to deny the use of the word “covert” in connection with Plame’s status, even though there is no logical justification for that distinction. As pointed out by others above, the only meaningful caveat is that there has not also been a judicial determination of “covert.” So what.
The Bush crowd has minimalized the heinous conduct here with this game of “not really covert.” Von is still a sucker for that rhetorical crime. Her covert status is for all appearances a fact with no counter evidence.
To make an analogy that helps bring this out, the Bushies love to say “enhanced interrogation techniques” instead of torture — as if using different rhetoric changes the reality that water boarding, stress positions, etc are forms of torture. The same is true as to Plame and covert — you don’t lessen the rhetorical crime by acknowledging that something bad was done, but we just can’t say “covert” in relation to Plame.
And it is indefensible. Sad to see von cling to this phony line.
Gary: Let’s break it down. I said that Valerie Plame was a covert agent all along. There are a bunch of points at which I might disagree with von’s take on what I said:
(a) There’s the distinction between using “covert agent” as defined by the statute, and using it as a term of ordinary language. I have no problem using it as defined by the statute, any more than I would mind using ‘murder’ to refer only to those killings that meet the legal definition of murder.
(b) There’s the part about ‘has been found to be’. This is not what I said, and insofar as it implies someone who made a finding that she was a covert agent, where finding has anything resembling its legal sense, I disavow it.
I cede (a) willingly because I think it is not true that only courts get to decide whether legal terms apply. Only courts get to make legal rulings, convict people of guilt, assess penalties, and so forth. But (according to me) I, hilzoy, private citizen, can claim that even though OJ Simpson was acquitted, he murdered his wife, using ‘murder’ in its legal sense.
That is: I take the claim that OJ murdered Nicole to be a statement of fact: he killed her, and he met certain (factual) conditions set out in the law. That is true or false independent of what a court finds. I mean, I take the questions whether I killed someone by some act of mine, whether I acted with the intention of killing someone, and whether I acted with premeditation to be true independent of what a court finds. If those are the elements of murder, then I murdered that person. If OJ Simpson met those conditions vis a vis Nicole, then he murdered her. And that is so whether or not he is convicted.
To further tie that into what Von said, it is possible (and in fact it is what I understand you to have done here; it’s certainly what I did), to use your own judgment as to the legal import of the text of the law, and how the law applies to the facts, rather than accepting a prosecutor’s version at face value. Von’s warning that it is wrong to unquestioningly accept a prosacutor’s version of the facts and the law just because it’s politically convenient is therefore inapplicable, because no one did that. You, I think, and I, I know, accepted the CIA’s version of the facts of Plame’s employment, because the CIA is the only reliable source for those facts, and used my own judgment for how the definition of ‘covert’ in the IIPA applied to those facts.
And that is so whether or not he is convicted.
And hence we find people “not guilty” rather than “innocent.”
Thanks muchly, Hilzoy. I was feeling a bit out on a limb, given that the entire point rests on Von’s misinterpretation of both what you asserted, and what was then subsequently discussed in the “Well, Knock Me Over With A Feather!” thread.
I can well understand that the legal question has been upper-most in Von’s mind, and that since it’s been much discussed, and much discussed elsewhere in the past week, that he came to your post with those legal issues the only topic on his mind, and so it was not unreasonable that a hasty reading could overlook the fact that this discussion wasn’t about legal issues at all, but about the underlying facts, and rights and wrongs.
I can understand that perfectly well. And I can understand the lack of interest in backtracking and reconsidering, as well.
But I like to think that Von can do better.
One wins more respect by admitting a trivial error (which is all his misreading was, of course — we’ve all done that sort of thing at times, after all), then by resenting or fearing losing face, and clinging to a foolish position of maintaining that I Was Right All Along, Damnit!
After all, who cares if Von make a minor misreading of a blog post? It’s only his insistence that, darn it, he didn’t!, that causes anyone to point out that, yeah, he did, and made some (trivial, save to the actual argument) false claims on top of that.
And, yes, it’s a boring argument about a trivial point; no one would care to respond, save that Von went and wrote an angry post about it (to which he appended some views about the Plame scandal, leaving no one interested in talking about said appendage, given the absurdity of the point he gave primacy to), and commenting on posts is what folks do in blog threads.
But since Plame had been outed years before, it is a moot point anyway:
First Outing of Valerie Plame
AP:
Despite Ambassador Joe Wilson’s proclamations to the contrary, the Washington Post editorial by Robert Novak in June, 2003, was not the first public disclosure of his wife’s role in undercover operations.While allegations of Wilson’s own loose lips in the Foxnews green room to two retired military officers has also made headlines, AP has learned that Ms. Plame played a key role in the first outing of both herself and the “cover” corporation that she worked for.
Ms. Plame wrote a screen play that was turned into a movie in the early 1980’s under the psuedonym “Emmit Fitzhume.” The movie included disclosure of CIA insertion operations, selection of operatives, and the name of an until then CIA run agency called the “Ace Tomato Corporation.” However, the credits to the movie include her name as the “CIA technical advisor,” and her actual role was played by Donna Dixon, a role that used her name.
While Ms. Plame had her lead character use her pseudonym for the screenplay, her part in the operation used the cover of a Red Cross Nurse working in the mountains of Pakistan along the Afghanistan border. Red Cross officials launched an investigation and broke ties with the CIA after the movie to prevent the appearance of impartiality. Plame also drew criticism from the CIA for releasing information about common sexual practices of agents on assignment.
Ms. Plame has said that the screenplay was vetted by the CIA prior to her submission to Warner Brothers films.
The movie, which was titled Spies like Us, nearly ended the presidency of Ronald Reagan in 1985 due to the disclosure of rogue military officers trying to launch a nuclear war with the Soviet Union. Additionally, the CIA was forced to changed the name of the under cover corporation to the “Acme Tomato Corporation.”
Special Prosecutor Fitzgerald has indicated that he was aware of this disclosure, and it was the primary reason that he did not indict any current officials for violations of the Undercover Agent Act.
Neither Chevy Chase nor Dan Akroyd, the producers and lead actors in the film would comment, citing “national security.”
Pardon? Donna Dixon’s role in the movie is Karen Boyer.
It was funny, but I do kind of hate straightfaced misinformation in the middle of a substantive conversation.
You mean it is not true? Can’t even trust AP anymore I guess…
I was just trying to lighten it up a little.
It’s a spoof of some kind, although it reads to me as having the form of something that might be funny, and is intended to be funny, but which seems to be entirely lacking anything funny — but that’s a subjective opinion. More relevant is that Google doesn’t seem to show any trace of it existing anywhere else.
Is that an original attempt at humor, jrudkis? If so, apologies that it didn’t make me laugh at all.
But, then, Spies Like Us was pretty unfunny in the first place.
jrudkis–
you want to give a cite for that article, other than “AP”?
how could one hunt up the original source, if desired?
I just googled “emmit fitzhume”, “ace”, and “acme”, for instance, and found no links back to this article.
so wherever the original of this article lives, it does not seem to be googleable.
help?
“I was just trying to lighten it up a little.”
Ah. Well, I appreciate the effort and intent.
I like to consider it performance-art deadpan 🙂
oh dear. i have been convicted of humorlessness.
i wonder why, after three years of reading various implausible and dishonest attempts to deny that her cover was blown, i would have mistaken this for anything but scintillating wit.
Similarly, if I snuck into von’s house in the dead of night and made off with his TV without his consent, I would be fine with the claim that I had committed a “theft”, even a “burglary”, in the sense defined by statute, even if I were never prosecuted for that crime.
Based solely on a prosecutor’s filing? Or a policeman’s notes? I hope you wouldn’t.
I have seen several — perhaps more than a dozen — briefs that read at first glance as slam-dunk winners. They have facts and evidence and arguments just like Fitzgerald’s does. And then you see the opposition brief, and it becomes crystal clear that, that what at first glance looked like a slam dunk really isn’t.
None of this is to say that that Fitzgerald’s arguments aren’t wholly correct here. But it’s naive to say that a fact has been established because it’s in a prosecutor’s filing. Worse: It’s wrong, and clearly so.
A boring argument indeed (spoken as one who participated), but trivial I’m not so sure. What Von seems to be saying now is that we gullible lefties are uncritically taking the Executive Branch’s assertion that Plame was a covert agent as gospel truth merely because it suits our political agenda and that that way lies tryanny and many associated badnesses. No, no, sez Von, someone is not covert until a court says she’s covert. To which I say: Bollocks! Bollocks on many levels!
I hate to belabor this, but the principle point is that we citizens are most certainly entitled — and indeed should — make judgments about whether certain facts add up to a criminal offense without courts telling us. That’s the whole idea behind having a penal code that puts people on notice ahead of time of what’s legal and what’s not legal. And without the ability to independently assess the legal consequences that flow from a particular collection of facts, we lawyers could not presume to give our clients legal advice (and charge them for it, too). I think my career might have been very short-lived if, upon meeting with a client and investigating the facts, I said, “you know, maybe what you did is a crime, but I really can’t say for sure unless a court says so. So why don’t we just try the case and find out.”
Relying on the unclassified summary of Plame’s employment — which gives us a history from 2002 through to her retirement — to make a judgment as to whether Plame met the definition of a “covert agent” in the IIPA is not submission to tyranny. It’s just using one’s noodle.
One of the amusing ironies here is that Von’s really quite outlandish theory — that no-one can make a sound legal conclusion other than a court of law — itself shows a slavish devotion to authority.
Thanks muchly, Hilzoy. I was feeling a bit out on a limb, given that the entire point rests on Von’s misinterpretation of both what you asserted, and what was then subsequently discussed in the “Well, Knock Me Over With A Feather!” thread.
Gary, I keep reading Hilzoy‘s original post, as well as her additional statements in this thread, and I still have no idea why you’re claiming that I misinterpreted it. Here’s how she explained it in her comment on this thread:
Hilzoy may be “be fine with the claim that I had committed a ‘theft’, even a ‘burglary’, in the sense defined by statute,” but no news organization would. Every single one of them would use the phrase “alleged theft” or “alleged burglar”, because they know that whether someone has commited a crime (or met the elements of a statute) is a legal determination — and it’s made solely by a Court. (Indeed, it’s theoretically libel to state that someone committed a crime when there has been no court finding to that effect, even if the underlying facts are true.)
You, I think, and I, I know, accepted the CIA’s version of the facts of Plame’s employment, because the CIA is the only reliable source for those facts, and used my own judgment for how the definition of ‘covert’ in the IIPA applied to those facts.
Lizardbreath: The CIA is the arbiter of truth? The CIA has no self-interest in extending the reach of the IIPA to the maximum extent? The CIA determines what the law is?
Von: It isn’t just an argument from Fitzgerald. It’s a piece of evidence: a summary of Plame’s CIA employment — with the relevant details — from the CIA itself, which is uniquely in a position to speak about Plame’s CIA employment. This is just in addition to the circumstantial evidence, including but not limited to the fact that the CIA considered the leak serious enough to warrant a referral to the Justice Department, that Hayden testified to Congress (contra the interests of the Administration) that “Wilson was covert”, etc.
One of the amusing ironies here is that Von’s really quite outlandish theory — that no-one can make a sound legal conclusion other than a court of law — itself shows a slavish devotion to authority.
SD, that’s not my position, is it? I stated that it was a mistake to rely on a Court filing by a prosecutor to establish that someone is — or is not — covert within the meaning of the IIPA. That’s what Hilzoy’s post did: It essentially said, “case closed, because Fitzgerald and the CIA say so.”
I didn’t say a don’t try to apply law to fact. I didn’t say, don’t reach legal conclusions. I certainly didn’t propose the “really quite outlandish theory” that you set down. I simply said, don’t take the word of the executive (here, Fitzgerald) as gospel truth.
Really, I think that a lot of folks here are getting blinded by who I am — a putative right-wing commentator — and failing to read what I’m saying.
I didn’t really mean for anyone to take it seriously. I thought for sure when the CIA changed the name from “Ace Tomato” to “Acme tomato,” it would be clearly a farce. Plus Chevy Chase and Dan Akroyd citing “national security..”
But I can see the point that with this issue, it may be hard to tell.
I’ll try to make sure it is clear and funny if I get the bug again.
von, i’m watching you self-destruct here, and wishing you wouldn’t.
just cut your losses, go for a good long bike ride, and enjoy the rain.
If I state the following facts (Von entered Hilzoy’s house at night without her permission and, also without her permission, removed her TV set, took it home with him, and used it as his own), and those facts are true, then I do not even theoretically commit libel by saying “Von burglarized Hilzoy’s house.”
And no the CIA is not the “arbiter of truth”. Put your straw man away. Nobody is saying anything close to that. But the CIA is pretty good authoirty for the employment history of a CIA employee.
And, again, Fitzgerald made no claim on Plame’s covertness as it applies to the statute.
Clip, I thank you for your concern.
SD:
(1) I realize that a summary from the CIA — which, again, has an institutional and rational bias to extend the reach of the IIPA as far as possible — has convinced you. I still think it’s profoundly silly to decide the matter without even seeing the opposition brief.
(2) If you say that someone is guilty of burglary when they haven’t been convicted of it, you have stated an untruth regardless of whether the facts would support a burglary conviction.
And, again, Fitzgerald made no claim on Plame’s covertness as it applies to the statute.
Miller, of course Fitzgerald made exactly that claim — that’s one of his bases for arguing that Libby’s sentence should be significant.
Von,
I don’t see how, given your position, you could fail to accept Ed Meese’s argument that reversals of conviction on appeal only help the guilty, since everybody appealing a conviction is guilty (having been found so by a court).
I trust that you *do* want to disown his reasoning…
None of this is to say that that Fitzgerald’s arguments aren’t wholly correct here. But it’s naive to say that a fact has been established because it’s in a prosecutor’s filing. Worse: It’s wrong, and clearly so.
I know it’s been said before, but the important face here is that that the CIA made the determination that Wilson was undercover. That this fact was revealed via a prosecutor’s filing is completely beside the point.
This seems pretty clear from hilzoy’s post (which only mentions the filing as the method of disclosure, not as resolving the issue itself).
So, a fact has been established- the CIA’s viewpoint on Wilson’s status.
I don’t see how, given your position, you could fail to accept Ed Meese’s argument that reversals of conviction on appeal only help the guilty, since everybody appealing a conviction is guilty (having been found so by a court).
Ed Meese’s statement is literally true, JDKBrown: If you are found guilty in a final judgement at the trial level, you are (for all intents and purposes) guilty regardless of truth, law, or justice. You are treated as guilty unless and until an appellate court reverses or the trial court reconsiders.
If you say that someone is guilty of burglary when they haven’t been convicted of it, you have stated an untruth regardless of whether the facts would support a burglary conviction.
Perhaps this is true if the words are interpreted in technical jargon, but I would strongly dispute this if we’re talking about non-lawyerese English. (ie guilty = Responsible for or chargeable with a reprehensible act; deserving of blame; culpable).
You cannot reasonably claim that the technical legal term trumps the common one, or that laypeople should adhere to it.
Me: Von’s really quite outlandish theory [is] that no-one can make a sound legal conclusion other than a court of law
Von: that’s not my position, is it?
Von previously: I’VE DISSENTED FROM Hilzoy’s post (and the Newsweek colum) declaring that Plame has been found to be a “covert agent” under the law: Perhaps she was, but a Court gets to decide that
Hilzoy may be “be fine with the claim that I had committed a ‘theft’, even a ‘burglary’, in the sense defined by statute,” but no news organization would. Every single one of them would use the phrase “alleged theft” or “alleged burglar”, because they know that whether someone has commited a crime (or met the elements of a statute) is a legal determination — and it’s made solely by a Court.
You are indeed saying that, in the absence of a court finding, it is irresponsible to say that Plame was a covert agent and base that statement on the CIA employment history that Fitzgerald submitted with his sentencing memo. And you even go so far as to say that it’s “theoretically libel” to do so.
For the record, I do not think that you are a right-wing anything (and I know what it’s like to be accused of being a troll or shill for merely stating a viewpoint that is not in lock-step with a particular groupthink). I just think that you opened your post, quite unecessarily, with an absurd and poorly thought-through “gotcha” point. The problems with that point were legion and have been documented ad nauseum — misrepresenting what Hilzoy said, ambiguous passive-voice construction where rigor is called for, questionable embedded premises. It’s the kind of thing that can really screw up, say, an oral argument in court. I see it frequently: lawyer opens with attempt at being very clever, buys a whole lot of trouble, gets his or her good points lost in a deconstruction of the as-it-turns-out not very clever point.
But it’s naive to say that a fact has been established because it’s in a prosecutor’s filing. Worse: It’s wrong, and clearly so.
How is it that after all this time and all these comments, you’re still maintaining that the only evidence is Fitzgerald’s own assertion, when Fitzgerald included the source document in his filing so we could see for ourselves?
If Patrick Fitzgerald files a document claiming that hilzoy stole von’s TV, maybe we shouldn’t take his word for it.
If Patrick Fitzgerald files a document claiming that hilzoy stole von’s TV, attaching as an exhibit security camera footage which shows hilzoy making off with von’s TV, I’m sorry, but we’re perfectly entitled to conclude that that’s what happened. The fact that the camera footage is part of a prosecutor’s filing doesn’t change what it is.
If von’s point is that the defense might have a response that would change our minds, that’s a fair point. I don’t think anyone is saying that their conclusion is fixed and immutable regardless of what new information we might get. But I think the error lies in assuming that there is a binary choice – either “this issue has been conclusively established” or “this issue is unresolved.” Clearly, we all have lots and lots of beliefs that are subject to revision based on new information, but which we’re pretty convinced of in the meantime.
Maybe hilzoy will come forward with proof that that wasn’t her on the film stealing von’s TV, or that she was simply moving it to another room, or somesuch. But unless and until that occurs, we’re entitled to go by what we saw on the tape. We’re not simply taking the word of Alberto Gonzales at a press conference that Jose Padilla is a dirty bomber; we’ve seen actual evidence, that we deem pretty compelling, and we’re not required to pretend that it remains a 50/50 issue until the other side responds.
Carleton Wu:
In some ways, this statement is even more disturbing than simply taking Fitzgerald’s word for itpresumes that (1) the CIA decides whether Plame was covert as a legal matter (it doesn’t); (2) the CIA is a neutral arbiter of the facts (it isn’t, indeed, it has an understandable and clear institutional bias to help Fitzgerald show that Plame was legally covert*); and (3) a declassified CIA summary is complete in all material respects.
*It’s in the CIA’s interest to show that as many agents as possible are covert, thereby discouraging others from leaking info. This is perfectly understandable and may even be for the good, but it is foolish to read the CIA’s declassified summary without realizing its agenda.
“theoretically libel to state that someone committed a crime when there has been no court finding to that effect, even if the underlying facts are true.)”
No, it really isn’t. Whether someone committed a crime is a separate question from whether they have been convicted of a crime. We sometimes use the phrase “X is guilty of crime Y” to say that X has been convicted of crime Y, but it’s equally common to use the phrase to say “X actually committed crime Y.”
Newspapers tend to be extremely cautious & make liberal use of “allegedly”–sometimes for good reason, sometimes out of the same cowardice that leads them to uncritically use the phrase “enhanced interrogation” or “tough interrogation”–but there’s a whole lot of daylight between what a newspaper does to avoid any possibility of being sued & actual, legal, libel.
Ironically, your view of the law is the one that gives entirely too much power to executive officials. It allows prosecutors to magically disappear crimes by choosing not to prosecute them.
As far as I can tell, Valerie Plame was a covert agent, though she was never adjudicated one. OJ Simpson was acquitted, but he murdered his wife. Members of the Bush administration violated FISA.
Does your rule apply internationally too? Is it inaccurate and libelous to say that Augusto Pincohet is responsible for thousands of Chileans’ torture and disappearance, since he hasn’t been convicted of those crimes? How about Slobodan Milosevic, who died before his tribunal finished its work?
SD, my point becomes clear if you merely provide the complete quote, rather than cutting me off in mid-sentence. Here is how you quote my position:
Here is what I actually said [note the sentence that you cut off above]:
As for this:
You are indeed saying that, in the absence of a court finding, it is irresponsible to say that Plame was a covert agent and base that statement on the CIA employment history that Fitzgerald submitted with his sentencing memo. And you even go so far as to say that it’s “theoretically libel” to do so.
No, I said that Hilzoy’s hypothetical (above) about a burglary was “theoretically libel”. I presume you concede that point, because you’re trying to change the subject (and misleadingly so) rather than offer a further response.
The problems with that point were legion and have been documented ad nauseum — misrepresenting what Hilzoy said, ambiguous passive-voice construction where rigor is called for, questionable embedded premises.
To which I respond, huh?
It’s the kind of thing that can really screw up, say, an oral argument in court. I see it frequently: lawyer opens with attempt at being very clever, buys a whole lot of trouble, gets his or her good points lost in a deconstruction of the as-it-turns-out not very clever point.
An insight that you might consider applying to yourself.
Odear odear odear, von, you are digging yourself into a deeper hole, most unnecessarily:
1) I realize that a summary from the CIA — which, again, has an institutional and rational bias to extend the reach of the IIPA as far as possible — has convinced you. I still think it’s profoundly silly to decide the matter without even seeing the opposition brief.
No, that is profoundly silly. The CIA may well have a bias toward a broad reading of the statute (I don’t think that’s a given, but I’ll assume it for the dake of argument). The problem is that the CIA’s rundown of Plame’s employment history is not a reading of the statute; it is a statement as to certain facts. Unless you are trying to say that the CIA is lying about the facts of Plame’s employment history so as to fit the statutory definition (and who knows, you might say that given your penchant for rearrangement of the goal posts), the supposed “institutional and rational bias” toward a broad reading of the statute is entirely beside the point.
(2) If you say that someone is guilty of burglary when they haven’t been convicted of it, you have stated an untruth regardless of whether the facts would support a burglary conviction.
Wrong again. This is really quite flabbergasting. In your world, I can state all the facts that support a conclusion but cannot state the conclusion that follows from the facts. So I can truthfully recount facts that all add up to the conclusion that you committed burglarly, but I can’t say you committed burglary unless you were convicted. Indeed, you say, I would be committing libel! Oh my! (Oh, but, hey, can you say that if a court hasn’t found me liable for libel?) That is ridiculous, and I would certainly urge you to look into libel law more closely if you ever decide to branch out in that direction. I would state an untruth only if I said that the person was convited of burglary when he was not.
Katherine, if I say that Bob has been convicted of murder when he hasn’t been, I haven’t stated an untruth? Does not a theoretical claim for libel lie? (Note that I never said a good claim or a winning one; a theoretical one.) Because that’s the hypothetical at hand.
“But it’s naive to say that a fact has been established because it’s in a prosecutor’s filing.”
Von: We’re. Not. Doing. That.
We’re saying that the CIA affirming that Plame was a covert officer is evidence that the CIA believes that Plame was a covert officer, and we’ve been discussing the implications of that fact.
You’re the one who keeps going on about the prosecutor’s filing, and the law, and legal findings.
A fair number of people seem to feel that the CIA is competent to speak to the issue of how they regard their personnel. YMMV.
This is not a legal determination. It is not a legal issue. I don’t know why you keep insisting that people are talking about legal issues when they aren’t, and they deny doing so; I find the spectacle of you insisting that you know better than they do what their point is to be rather odd.
Specifically, Hilzoy denies that she made the claims you attribute to her. Her words do not support the claim you attributed to her. Various people here have attested that they understood Hilzoy to be saying what she said, not what you rewrote her and claimed she really meant, or said.
Are you really going to continue to insist that you are more correct about what Hilzoy said than she is?
Just to cover it one last time: you assert that Hilzoy declared “that Plame has been found to be a ‘covert agent’ under the law.”
But Hilzoy did not claim that Plame had been “found… under the law.”
Hilzoy did not make any claim about a finding — she made a claim about what the CIA said (which happened to be quoted in a legal brief, which is irrelevant).
Hilzoy did not make any claim about something being “found” under the law. She made a claim of fact, based on the information provided by the CIA. The legal context of that is irrelevant.
This is the point you completely misunderstood, and that you still seem to have not yet have seen. All the convoluted reasoning in the world won’t change this.
“Lizardbreath: The CIA is the arbiter of truth?”
They’re the arbiter of what their views of who a CIA covert agent is.
Similarly, the foremost expert in the world as to what Von’s views are is Von. That doesn’t make you an “arbiter of truth” in all things, but it means that it’s not unreasonable to, assuming there’s no reason to think you may be being dishonest for some reason, regard you as being a fairly definitive arbiter on the topic of “what does Von think of that?”
“The CIA has no self-interest in extending the reach of the IIPA to the maximum extent?”
That’s a valid point for discussion, if we were discussing the IIPA. But we’re not.
“if I say that Bob has been convicted of murder when he hasn’t been, I haven’t stated an untruth? Does not a theoretical claim for libel lie? (Note that I never said a good claim or a winning one; a theoretical one.) Because that’s the hypothetical at hand.”
Umm, no. The issue at hand is a statement whether Bob has committed a murder, not been convicted of one. Can you honestly not see this, von?
In some ways, this statement is even more disturbing than simply taking Fitzgerald’s word for itpresumes that (1) the CIA decides whether Plame was covert as a legal matter (it doesn’t); (2) the CIA is a neutral arbiter of the facts (it isn’t, indeed, it has an understandable and clear institutional bias to help Fitzgerald show that Plame was legally covert*); and (3) a declassified CIA summary is complete in all material respects.
Let’s quit pretending that the legal definition of “covert” is some arcane matter.
What are the legal requirements for a CIA employee to be “covert” under the IIPA?
1) her identity as an employee must be classified information; and
2) she must have served outside the United States at some point during the last five years.
That’s it. Period.
Of course the CIA has an incentive to argue that Plame is covert. But there are no gray areas here. The only two possibilities are that Plame was covert, or that the CIA document in Fitzgerald’s filing totally makes stuff up.
The latter is theoretically possible, of course, but it’s normal human behavior to discount such possibilities unless someone makes a convincing case to that effect. Otherwise, if we must always reserve judgment because of the possibility that every document just might be a complete work of fiction, it’s hard for us to ever conclude anything about anything.
“Katherine, if I say that Bob has been convicted of murder when he hasn’t been, I haven’t stated an untruth”
Of course you have. What you said above, though, was: “Indeed, it’s theoretically libel to state that someone committed a crime when there has been no court finding to that effect, even if the underlying facts are true”
“Convicted of” just isn’t synonymous with “committed”. How many brutal dictators were never convicted of anything?
It wasn’t Hilzoy on the security camera. It was Sideshow Bob!
Colonel Mustard in the conservatory with a candlestick.
“It was Sideshow Bob!”
With the lead pipe, in the Conservatory!
Sebastian D,
Great minds think alike, and apparently ours do, too.
“She made a claim of fact, based on the information provided by the CIA. The legal context of that is irrelevant.”
I take it that von simply disputes hilzoy‘s position that there is a truth of the matter outside the legal context. This seems very odd to you and me, but I guess in an absolutist sense it’s reasonable. Let’s chalk this up to a failure of language, which has overloaded many terms like “covert” and “murder”. von wants sentences to end in four dots, not three; hilzoy notes that everybody perfectly well understands what this means …
“That’s what Hilzoy’s post did: It essentially said, ‘case closed, because Fitzgerald and the CIA say so.'”
No, it didn’t. Von, you’re imagining this, plain and simple. It’s pure projection.
She wrote:
Etc. There is not one g-ddamned word there about the IIPA, or the law, or courts, or a legal case.
You’re simply so damn fascinated with the legal case that you don’t notice that she said nothing about it!
I’m tempted to put this in caps. This insistence that she made a legal claim and was talking about the Libby trial is purely a projection from inside your head.
No, that is profoundly silly. The CIA may well have a bias toward a broad reading of the statute (I don’t think that’s a given, but I’ll assume it for the dake of argument). The problem is that the CIA’s rundown of Plame’s employment history is not a reading of the statute; it is a statement as to certain facts. Unless you are trying to say that the CIA is lying about the facts of Plame’s employment history so as to fit the statutory definition (and who knows, you might say that given your penchant for rearrangement of the goal posts), the supposed “institutional and rational bias” toward a broad reading of the statute is entirely beside the point.
SD, the CIA summary states, in a conclusory fashion, that Plame working at CIA headquarters but traveled “at least 7 times to more than 10 countries” in 2002. She traveled under cover, but sometimes traveled under her own name. The CIA also states, again in conclusory fashion, that Plame’s employment with the CIA was classified. This is certainly enough to make a prima facie case, but it hardly brooks no possibility that the defense will be able to point to countervailing facts. Plame was driving to CIA headquarters most days, based in the US, and traveling under her own name when on CIA business. Can you tell me that it’s inconceivable that the defense will not be able to identify a time when Plame or the Agency expressly identified her as a CIA employee during the relevant period? Or that every one of the trips overseas was a daytrip to Montreal? Because either fact may be enough to deprive her of protection under the IIPA.
Also, it’s not convincing to accuse someone of moving the goalposts when, y’know, they haven’t.
“If you say that someone is guilty of burglary when they haven’t been convicted of it, you have stated an untruth regardless of whether the facts would support a burglary conviction.”
Von, maybe you’ve been a lawyer too long. The word “guilty” exists outside the legal dictionary, and still has meaning. You’re guilty of writing as if this were an untruth.
In other words, you’re wrong. People are guilty of endless things, and they are “guilty” in English without having been found legally so in the court of law.
“Legally” is not a word that is invisibly appended before all nouns. “Guilty” does not mean “legally guilty.” Jeepers.
Rilkefan:
I take it that von simply disputes hilzoy’s position that there is a truth of the matter outside the legal context.
No. Again: I dispute the contention that because Fitzgerald (or the CIA) says X in a court filing, it’s true, particularly since the defense has not yet responded. Here’s what I wrote (first paragraph, above):
I’VE DISSENTED FROM Hilzoy’s post (and the Newsweek colum) declaring that Plame has been found to be a “covert agent” under the law: Perhaps she was, but a Court gets to decide that — not the executive branch (here represented by Patrick Fitzgerald and the General Counsel of the CIA). Moreover, we haven’t yet seen the defense filing.
Lizardbreath: The CIA is the arbiter of truth? The CIA has no self-interest in extending the reach of the IIPA to the maximum extent? The CIA determines what the law is?
No to all of your questions. On the other hand, the CIA is the only authoritative source for the terms under which Plame worked for them. If I accepted your law firm’s statement as to your employment history with them, that wouldn’t mean I had any exaggerated view of their credibility generally. All it would mean is that, as your employer, they had first hand knowledge of the manner in which you worked for them.
If someone in a position to have similar first hand knowledge of Plame’s employment were prepared to testify that the CIA’s account was inaccurate, I’d start weighing credibility of one source against the other. In the absence of any such well-supported testimony, I’m prepared to accept the CIA’s statement as accurate.
The CIA determines what the law is?
No. For the purpose of forming my own opinions, I do. I read the statutes, apply them to the facts, and come to conclusions. This must be a process you’re acquainted with.
Gary, this is very tedious.
Von, maybe you’ve been a lawyer too long. The word “guilty” exists outside the legal dictionary, and still has meaning. You’re guilty of writing as if this were an untruth.
….
“Legally” is not a word that is invisibly appended before all nouns. “Guilty” does not mean “legally guilty.” Jeepers.
I admit that I live in a insular legal word, but no one with whom I’m familiar with uses the term “legally guilty.” We say “guilty.” Now, you’re right that I should have used the “convicted” rather than “guilty” in the passage below:
“If you say that someone is [convicted] of burglary when they haven’t been convicted of it, you have stated an untruth regardless of whether the facts would support a burglary conviction.”
“”Legally” is not a word that is invisibly appended before all nouns. “Guilty” does not mean “legally guilty.””
Or even appended before all adjectives.
“In some ways, this statement is even more disturbing than simply taking Fitzgerald’s word for itpresumes that (1) the CIA decides whether Plame was covert as a legal matter”
No, it doesn’t. Once again, Von, that you interpolate the words “as a legal matter” there doesn’t mean that those words are there. They’re not. You’re literally making this up. (And not realizing it. It would be one thing if you were correctly interpolating words and meanings that the author of your quotes intended, but you’re not: you’re imagining them.)
“[…] (2) the CIA is a neutral arbiter of the facts (it isn’t, indeed, it has an understandable and clear institutional bias to help Fitzgerald show that Plame was legally covert*)”
That’s a perfectly debatable and legitimate point, on the other hand, which is actually responsive to the relevant issue of fact (not law).
In some ways, this statement is even more disturbing than simply taking Fitzgerald’s word for itpresumes that (1) the CIA decides whether Plame was covert as a legal matter (it doesn’t)
The fact that you must include the caveat “as a legal matter” means that we are talking past each other. No one has made this claim. Several people, myself included, have specifically disavowed it.
I don’t know why you’re misinterpreting this, but it’s becoming silly. Could you maybe quote someone arguing explicitly that the CIA’s determination is legally binding? And then maybe argue the point with that poaceous individual?
if I say that Bob has been convicted of murder when he hasn’t been, I haven’t stated an untruth?
Guilty=convicted in legal jargon. But there are non-jargon definitions of ‘guilty’. Jargon definitions do not trump non-jargon ones. Notice, for example, that in normal usage one can be guilty of things that aren’t even crimes (eg guilty of violating the posting rules).
Meese’s statement was a good example of the fallacy of equivocation. He used the emotional appeal of condemning the ‘guilty’ (ie those who have actually committed crimes) while he preserves the technical truth value by referring to those who had been found guilty by a court.
____
Im also curious about this little thought experiment: let’s say that the Wilson issue is never decided by a court. Are you saying that no one should come to any non-legal conclusions or have any non-legal opinions about her status because no court decision would have been reached?
Can we safely conclude that the Miami Heat won the NBA last year? It’s not been heard in court, after all. There is plenty of documentation on their side, but should we withhold judgement until a lawyer for the Hawks has a chance to present his counterargument?
“Convicted of” just isn’t synonymous with “committed”. How many brutal dictators were never convicted of anything?
I agree with that, Katherine.
On the other hand, the CIA is the only authoritative source for the terms under which Plame worked for them. If I accepted your law firm’s statement as to your employment history with them, that wouldn’t mean I had any exaggerated view of their credibility generally. All it would mean is that, as your employer, they had first hand knowledge of the manner in which you worked for them.
Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response? Because that’s very close to the issue here.
Oh now you have fallen into repeating a lot of very dull, shopworn talking points. Quickly: “Her own name”. uess what. It’s not her name that was classified and secret. It was her intelligence relationship with the United States.
She drove to work: Guess what, lots of people who work for the CIA — covert and otherwise — drive to Langley. Does not mean that they’re not under cover. Incidentally, not just anyone can do that. Have you ever tried to get off at the CIA exit at Langley? Try it and tell us about the experience. It won’t be pleasant.
“Based in the U.S.” The statue only requires that she have “served outside the U.S.” in the five years preceding the leak. Unless the CIA is lying, she did. Period. I can also pretty confiddently tell you that “every one of the trips overseas” is not going to turn out to be “a daytrip to Montreal,” inasmuch as Montreal is, last time I looked, on the same continent as the U.S. But guess what, the statute doesn’t say “overseas”, it says “outside the U.S.”
The question is not whether there is some outside possibility that someone could credibly dispute the CIA’s rundown. that’s once again moving the goalposts around. the question is whether someone can legitimately conclude, based on the abvailable evidence, that Plame was covert within the meaning of the IIPA. The available evidence points one way and one way only. the likelihood of contrary evidence coming to light — given that this non-covert talking point was flogged endlessly and has never had a shred of support, despite Cliff May’s claiming that “everyone knew” — is very very slight, not enough to impugn hilzoy’s post or the Newsweek article.
Gary and Carleton, I accept that you think I’m wrong for thinking that Fitzgerald and the CIA are asserting that Plame was covert “as a legal matter.” But, if I’m wrong, would you please tell me why they put it in a court filing asking for a higher sentence for Libby because he was, allegedly, trying to cover up a crime?
Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response?
This case has been discussed in the media for three years now, and no information from anyone in a position to know has appeared that contradicts the CIA’s factual claims about the terms of Plame’s employment. Seriously, what sort of contrary factual testimony are you visualizing here? A CIA insider saying the CIA’s lying and Plame never left the country? It’s possible, in the ‘anything’s possible’ sense, but seems awfully unlikely at this point. Do you have any concrete expectation that the CIA’s facts will be contradicted, or are you just being skeptical on general principles?
(Now, if some contrary testimony from someone with first hand knowledge shows up, I’ll certainly consider it. But given the circumstances, I strongly expect that no such testimony will appear.)
von: “the CIA is a neutral arbiter of the facts (it isn’t, indeed, it has an understandable and clear institutional bias to help Fitzgerald show that Plame was legally covert*)”
Thanks, that helps. If you had started out by saying “I don’t trust the CIA to say whether Plame was listed as covert in the classified employee database” etc. then I might have responded more usefully (or shut up more usefully).
SD, It’s not encouraging that you needn’t even wait to see what Libby may say in response to the Government’s filing before pronouncing judgment. I also don’t agree with your claim that the CIA must be untruthful, rather than simply wrong, for Libby to prevail.
The question is not whether there is some outside possibility that someone could credibly dispute the CIA’s rundown. that’s once again moving the goalposts around.
SD, as you know, I haven’t moved the goalposts one iota. Why do you keep saying this?
But thanks for the implicit concession, i.e., that “there is some outside possibility that someone could credibly dispute the CIA’s rundown.”
“Katherine, if I say that Bob has been convicted of murder when he hasn’t been, I haven’t stated an untruth? Does not a theoretical claim for libel lie? (Note that I never said a good claim or a winning one; a theoretical one.) Because that’s the hypothetical at hand.”
No, it isn’t. You seem to be missing the distinction in meaning (in English; not in legal terminology — we actually speak English in America, and Legal is only used in legal dealings) between “guilty” and “convicted.”
“Guilty” is a matter of fact, whether known or unknown, provable or unprovable, legally charged or uncharged, legally addressed in any way, or unaddressed in any way.
“Convicted” is a matter of fact as to whether a duly consituted court made such a finding.
These are Two. Different. Things.
Katherine stated: “‘Convicted of’ just isn’t synonymous with ‘committed.'”
This is correct. You can’t change someone else’s words, substitute your own, claim they mean the same thing, and that claim that therefore the other person didn’t say what they said, but what you say they meant. (Since you first introduced “committed,” you can certainly withdraw that word, and ask the same question about “convicted,” but you can’t maintain that one word is identical in meaning to the other, because that isn’t true.)
This what you consistently keep doing here, starting with Hilzoy in your post, and on down through the thread, with more people than I’ve kept track of at this point: insisting that phrases and words are what people wrote, when they didn’t.
Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response? Because that’s very close to the issue here.
Even if you think that this is a mistake (ie there may be other evidence that hasn’t been examined yet) , that does not mean that I have explicitly or implicitly made a legal finding, or that I believe that one has been made.
You said that hilzoy had made a “direct statement… that Plame met the definition of covert agent under the law”. You did *not* say that she was mistaken to trust the CIA in forming a non-legal opinion. You said that she said that the CIA was making a binding legal finding.
This is still not true.
Do you have any concrete expectation that the CIA’s facts will be contradicted, or are you just being skeptical on general principles?
(Now, if some contrary testimony from someone with first hand knowledge shows up, I’ll certainly consider it. But given the circumstances, I strongly expect that no such testimony will appear.)
No, I don’t have a concrete expectation: Indeed, were I to bet on it, I’d bet on the facts being as Fitzgerald and the CIA state. But, as I said in the original post, and have repeated throughout,* you don’t simply accept the statement of a prosecutor and an interest at face value. The defense also gets a chance to have it’s say and, hey, maybe it will surprise us.
*In the bizarro-world of SD, maintaining this consistency is called “moving the goalpost.”
I also don’t agree with your claim that the CIA must be untruthful, rather than simply wrong, for Libby to prevail.
They have to be untruthful for their factual statements to be false (barring ridiculously unlikely errors). The court might interpret the law differently from the way that appears obvious to me, and so find that the CIA’s facts do not support Fitzgerald’s position that Plame was covert under the terms of the IIPA. But there isn’t any real room at all for the CIA to be honestly mistaken about the facts of Plame’s employment.
Carleton, I think that what I said is clear from what I actually said, rather than your reformulation of it.
Gary, since I’ve already responded on the convicted –> guilty point, I presume you must have simply missed it.
They have to be untruthful for their factual statements to be false (barring ridiculously unlikely errors).
LB, the CIA’s filing states conclusions, not, generally, facts. It’s possible that it’s simply incomplete, not false.
But, as I said in the original post, and have repeated throughout,* you don’t simply accept the statement of a prosecutor and an interest at face value.
Ergo, things that aren’t court decisions just aren’t facts like those real, court-decided facts- because they haven’t gone through the adversarial process.
I can see now why hilzoy’s statement was confusing to you. She asserted a fact, and you naturally assumed that she meant a court-tested fact, since that’s the bestest kind of fact.
But no, us non-lawyers must often satisfy ourselves with facts of the inferior kind. Sometimes we gather them from court documents; it’s kinda like dumpster diving at the steakhouse after the lawyers have had their tasty dinners, doncha know.
So, on the factual issue, your gripe with Hilzoy is that it’s unacceptably hasty to accept the testimony of one party on a point of fact, even where it appears overwhelmingly likely that they’re the only source with knowledge of that fact. On the legal issue, your gripe is that it’s unacceptably hasty to draw one’s own legal conclusions from a statute where a court has not yet opined.
You know, Von, we here on the blog don’t actually have the power to sentence Libby. In a courtroom, I’d want the judge to be just as restrained as you’re being. In a blog post, I think your standards of restraint are wildly exaggerated.
Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response?
Contested by whom? No one has contested that Plame’s employment with the CIA was classified. No one has contested that she served outside the country during the last five years. Various people with no personal knowledge one way or the other have speculated, but that counts for nothing. If and when Libby’s lawyers contest either of these points, I’m confident hilzoy and other open-minded sorts will consider what they have to say, but one shouldn’t assume that they have any basis to contest either point.
But, if I’m wrong, would you please tell me why they put it in a court filing asking for a higher sentence for Libby because he was, allegedly, trying to cover up a crime?
Is that why Fitzgerald included the information in his sentencing memorandum? Absolutely not. He made the point in order to rebut the defense’s argument that Fitzgerald’s investigation should have been terminated at an early stage because Plame was clearly not covert as defined by the IIPA.
Let’s pretend Libby had been charged under the IIPA. He would be entitled to assert all legal defenses, including the argument that Plame’s various trips overseas didn’t really count as “serving overseas” within the meaning of the statute. The court would then make a ruling, and maybe Libby would win and maybe he’d lose.
But the topic is not whether Libby would have been convicted of violating the IIPA, but whether the investigation should have been terminated since Libby obviously couldn’t have been guilty of an IIPA violation. And it’s obvious that Fitzgerald is right on this point; at best, Libby had a plausible legal argument, but it certainly didn’t provide a basis for terminating the investigation altogether.
So again, if the defense intends to “contest” this issue, they’re going to have to show that the CIA was simply lying about Plame’s employment being classified, or about her having traveled overseas on business within the last five years. And assuming there was such a lie, the argument would go, Fitzgerald should have investigated further and found out about the lie, at which point he would have terminated the investigation since the IIPA would be out of the picture. It’s unlikely they have any basis to make such an argument.
Fitzgerald is not contending that Libby violated the IIPA; indeed, he continues to take the position that there is not a sufficient basis to bring charges under that statute. He’s merely rebutting the argument that he should have stopped the investigation on day one because Plame obviously wasn’t covered by the IIPA. Whether Libby might have a plausible legal argument in response to a hypothetical IIPA charge is completely irrelevant.
Gary and Carleton, let’s try this one more time. Let’s go in small steps.
As I understand it, you think I’m in error — indeed, per at least Gary, must issue an apology and retraction — for making the following statement:
I’VE DISSENTED FROM Hilzoy’s post (and the Newsweek colum) declaring that Plame has been found to be a “covert agent” under the law
Have I got that much right?
Carleton, I think that what I said is clear from what I actually said, rather than your reformulation of it.
Sometimes I restate things to see if I understand them clearly.
Of course, being non-responsive does help you avoid the gulf between what you claimed hilzoy said, and what she actually said…
You know, Von, we here on the blog don’t actually have the power to sentence Libby. In a courtroom, I’d want the judge to be just as restrained as you’re being. In a blog post, I think your standards of restraint are wildly exaggerated.
That may be, LB.
I can see now why hilzoy’s statement was confusing to you. She asserted a fact, and you naturally assumed that she meant a court-tested fact, since that’s the bestest kind of fact.
Y’know, having seen the sausage being made, I wouldn’t necessarily call a court-tested fact “the bestest kind of fact.”
What I object to is precisely as LizardBreath states in his/her* post above.
*My apologies for not remembering if it is a he or she.
She asserted a fact, and you naturally assumed that she meant a court-tested fact, since that’s the bestest kind of fact.
I refuse to accept the statement that court-tested facts are the bestest kind of fact. That is all.
Contested by whom? No one has contested that Plame’s employment with the CIA was classified. No one has contested that she served outside the country during the last five years. Various people with no personal knowledge one way or the other have speculated, but that counts for nothing. If and when Libby’s lawyers contest either of these points, I’m confident hilzoy and other open-minded sorts will consider what they have to say, but one shouldn’t assume that they have any basis to contest either point.
No one has contested it (in a court of law) because it has never before been asserted (in a court of law). Moreover, it may be significant that the first time the assertion is made is during the sentencing phase, when the burden of proof (for the government) is much lower. The timing is at least suggestive of one or more problems with the claim.
LB, the CIA’s filing states conclusions, not, generally, facts. It’s possible that it’s simply incomplete, not false.
Have you read it? Aside from use of the word ‘covert’, which I suppose could be characterized as a conclusion, it’s all claims of fact.
Moreover, it may be significant that the first time the assertion is made is during the sentencing phase, when the burden of proof (for the government) is much lower.
Erm, Plame’s covertness or otherwise wasn’t an element of the case against Libby. It’s been publically stated that Fitzgerald didn’t bring a case under the IIPA (where her covertness would have been an element) because he didn’t think he could prove intent. What significance do you see in not proving a fact that isn’t relevant to the case being prosecuted?
Moreover, it may be significant that the first time the assertion is made is during the sentencing phase, when the burden of proof (for the government) is much lower. The timing is at least suggestive of one or more problems with the claim.
It is not. It is suggestive of the fact that Libby wasn’t charged with anything that would required proving this. In fact, introducing this might well be prejudicial- it’s not relevant to the crime, but it might make the jury want to punish someone…
Anf, as has been pointed out to you several times, Fitzgerald very likely had other problems with charging Libby under that statute.
if (A & B) => C, then -C doesn’t tell us anything about the individual truth values of A or B. It only tells us -(A & B). That is, if it’s raining and you’re outside then you’re wet. If you’re not wet, does that suggest anything about your location? Not really. Unless you live in Seattle.
Is it not a common practice during sentencing hearing for eg the children of the murder victim to say what a great dad he was, how much they miss him, etc? Do we then conclude that those ‘facts’ weren’t introduced at trial because they are flimsy? Or do we properly conclude that they weren’t introduced at trial because they weren’t relevant to determining guilt?
Von: Yes, but if my employment history with them was contested, would you accept their word for it without waiting for my response?
Wrong analogy. If *Von* says “my employment history was thus,” and his employer *agrees* … *that* would be the analogy.
Unless Valerie Plame has been arguing she’s *not* covert under the IIPA?
Von (paraphrased): it’s not true just because the CIA said it
Well, of course not. But if what they say is (1) not implausible, (2) pretty easily contradicted if false, and (3) consistent with the other facts, then we are justified in deciding it’s probably true, i.e., “true.”
Have you read it? Aside from use of the word ‘covert’, which I suppose could be characterized as a conclusion, it’s all claims of fact.
Not at all, LB. For example, the report refers to Valerie Wilson as “she”, when no judge has examined her hoo-ha to determine her gender. We probably need a jury trial before we can sanction this as a real, court-tested fact. Until then, it’s just an opinion, and a flimsy one at that- who knows what sort of counter-evidence could be brought against this so-called fact?
“Erm, Plame’s covertness or otherwise wasn’t an element of the case against Libby.”
Ignorant question – why is this info coming out now? (Or coming back out – I thought Corn or Isikoff had more or less said the same thing a while ago.)
Not without potential relevance to the thread, Plame is suing the CIA b/c they won’t let her publish a memoir that includes the exact dates she served … even tho the same info has been published in the Congressional Record.
This is the latest in a series of fed efforts to “classify” stuff that’s been made public.
“(2) pretty easily contradicted if false”
How? Maguire wants to see Plame’s paystubs, which would supposedly demonstrate she got some sort of covert-five-year duty raise – beyond that, I don’t see how to convince a skeptic here.
von: But thanks for the implicit concession, i.e., that “there is some outside possibility that someone could credibly dispute the CIA’s rundown.”
I take it you’re familiar with the expression “reasonable doubt”?
Also, would you mind responding to my hypo above?
No one has contested it (in a court of law) because it has never before been asserted (in a court of law).
Really? Fitzgerald has been taking the position that Plame was covert as defined by the IIPA for at least a year.
How? Maguire wants to see Plame’s paystubs, which would supposedly demonstrate she got some sort of covert-five-year duty raise – beyond that, I don’t see how to convince a skeptic here.
Well, if her employment with the CIA really were common knowledge before she was outed, then it should be trivial to find witnesses who would testify that “Sure, back in 2002 I knew that Val was CIA.” That hasn’t happened. The fact that she was publically known to be employed by Brewster Whatever before she was outed, and that that organization is now known to be a CIA front, establishes that the CIA was taking action to protect her identity — that could be refuted by testimony that Brewster whatever wasn’t a CIA front (that is, from its real owners saying that it was a legit business), or that she didn’t work for them. That hasn’t happened. I suppose it might be hard to refute the CIA’s assertions about the overseas travel.
This sort of thing is never pretty.
Von, stop digging. You’re not convincing anyone, and the most charitable interpretation here is that you got misread Hilzoy and then got a bad case of the stubborns when people stared at you in shocked awe that you could someone read Hilzoy’s post and come to that conclusion.
You’re being hyper-technical to try to walk back the cat, and it’s not making you look good.
Here’s a hint: We’re using the “Reasonable person” standard of judgement. In short, given the evidence we have to date, the context of the story, and the fact that other than assuming gross malfeasance on the part of Fitzgerald or the CIA, along with a conspiracy of supporting liars, it’s quite reasonable to conclude that Plame’s status was covert, she was covered under the IIPA, and someone probably broke the law.
No court has found that to be true, to be sure.
So what? We’re quite familiar with the facts, and I can’t imagine a response from Libby’s lawyers that could even call the relevent facts into question. They’ve been confirmed from too many sources, too many times, by people with no real reason to lie and who had the relevent experience, access, or personal knowledge to actually make the case.
You’re digging yourself a pit for what appears to be no reason.
Hilzoy — and Gary, and myself, and tons of other people — have done nothing more remarkable than draw a conclusion based on widely available evidence and determined that, barring something truly surprising, it’s unlikely that conclusion is wrong.
How horrifyingly wrong of us.
Actually, it’s been at least 3 years since Fitzgerald first took the position in court papers that Plame was covert under the IIPA. Judge Tatel’s concurring opinion from the Judy Miller subpoena appeal (370 U.S. App. D.C. 4) says:
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 [*127] I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.)
This is not a judicial finding, of course, since the judge openly says he’s taking Fitzgerald’s word for it. But it’s a recognition that Fitzgerald took the position, way back in 2004, that the CIA had been making specific efforts to conceal Plame’s employment and that she had worked overseas within the previous 5 years. These are the only two requirements to be “covert” under the IIPA.
Three years after the fact, with Libby still having said nothing to contest either allegation of fact, can we at least start to presume that he’s got nothing? Otherwise, we have to believe that not only has Libby kept his rebuttal under his hat for three long years, but that he hasn’t even leaked it to one of the many friendly conservatives who’ve been writing op-eds arguing that Plame wasn’t covert.
“I admit that I live in a insular legal word, but no one with whom I’m familiar with uses the term ‘legally guilty.’ We say ‘guilty.'”
Yes, whether it means “legally guilty” depends on whether the speaker/writer means that, or simply means “factually guilty.” The distinction remains crucial: “guilty” doesn’t, outside legal proceedings, necessarily mean “legally found guilty” in English. It just doesn’t.
“Guilty” does mean “legally guilty” in a legal context, but most of us don’t communicate only in a legal context, and we don’t only speak in legal terminology. English actually has meaning not limited to legal terminology.
Do you disagree?
“Now, you’re right that I should have used the ‘convicted’ rather than ‘guilty’ in the passage below….”
Comity!
“Gary and Carleton, I accept that you think I’m wrong for thinking that Fitzgerald and the CIA are asserting that Plame was covert ‘as a legal matter.'”
Von, I haven’t addressed, or said a word, about what Fitzgerald or the CIA have asserted about anything “as a legal matter.”
I’m at a loss as to how you know what I “think” abut a subject that I’ve never addressed.
rilkefan: “If you had started out by saying ‘I don’t trust the CIA to say whether Plame was listed as covert in the classified employee database’ etc. then I might have responded more usefully (or shut up more usefully).”
This would be an entirely sensible separate point, and a legitimate topic for discussion and debate.
But in point of fact, I’m doubtful that the CIA has a database tag for “covert” or “non-covert” “in the classified employee database.”
If anyone wanted to discuss a question of fact about the CIA’s use of “covert,” I’d start off by saying that it’s extremely unclear to me that they ever use that term at all in regard to formal binary labeling of employees as one or the other. It may be the case that they do, but I don’t recall noticing a distinction marked by those words, in all my decades of reading about the CIA.
It’s absolutely possible that I simply have missed it. But it’s a topic I’d be curious to establish more facts about.
The Agency makes a major distinction between who is and isn’t under official cover versus non-official cover (NOC). And they distintinguish between how classified a document or fact is. And they distinguish between what used to be the Directorate of Operations, which has now largely morphed into the Clandestine Service (though it also encompasses other IC employees involved in humint) and the Directorate of Intelligence — although nowadays the lines can be quite blurred, given all the joint task forces and Centers, and the fact that there’s no wall, theoretical or otherwise, between these Directorates, and people from one often work on a daily basis with those from another.
There are different levels of classification for the information that someone is employed by CIA, depending on their job, I think (I’m not entirely sure, though, off the top of my head).
But I’m not aware of anything that would lead me to believe that one could walk down a hall at Langley and theoretically label people “covert, covert, covert, non-covert, covert, non-covert, non-covert,” and so on. This may certainly simply mean that I’m unaware of it.
On the other hand, there’s a clear distinction between someone who is an overt analyst for the Directorate of Analysis, and somone who is working covertly for the Clandestine Service, under a cover.
So I, at least, remain a trifle unsure precisely what the CIA does and doesn’t mean in this case of saying Plame was “covert.”
Fitzgerald’s court filing is here; it took a bit of searching to turn up the attach ed exhibits.
We already knew that she worked for the Counter-Proliferation Division of the Department of Operations (now the Clandestine Service), and to some extent, every employee of the former DDO, or now Clandestine Service, is covert, though not necessarily under cover. For that matter, generally speaking, everyone at in the former DDO, or now Clandestine Service, is encouraged to either dissemble about their employer, or outright lie about it.
The CIA statement emphasizes that Plame always used cover when traveling, and that at all times the CIA was “taking affirmative measures to conceal her intelligence relationship with the United States.”
What I remain a bit unclear about is whether that’s all they mean when they say she was “covert,” or if there’s more, and whether they actually use the term “covert” as an adjective about employees to distinguish one category from another. I’m not entirely clear that they do — which may simply be ignorance on my part — or whether they’re simply trying to respond as accurately as possible, given that the law in question isn’t directly relevant to how the CIA deals with its employees.
My impression, frankly, is that “covert” in this context simply describes people who use cover, and who at all times when dealing with uncleared civilians, engage in the practice of concealing their true employer (CIA).
Which would make it a perfectly accurate description, insofar as the CIA is concerned, and make their statement the best faith effort to respond queries relevant to the IIPA statute, while still not necessarily (though it may!) meaning that the CIA has a binary category for all personnel of “covert” or “non-covert.”
Or not. I’m simply not entirely sure, as I said, about this detail.
Now, it seems to me that if the above were the case, and it does represent the CIA’s best-faith response, then the question isn’t actually all that fascinating, but, hey, if I were trying to poke holes around here, that’s the direction I’d poke a bit more in, myself.
So here is the tedious version of why I said “Valerie Plame Wilson was a covert agent all along”.
(1) I did not say, nor did I mean, that she had been determined by a court of law to be a covert agent. I said that she was one. This means: as a matter of fact, she met the definition of ‘covert’.
(2) I don’t think I was clear in my own mind whether I was using ‘covert’ in its legal or colloquial sense, since I thought she was covert in both senses (and had read the statute, so knew what it involved.) However, let’s take the legal one. Here’s the definition (the part I take it she falls under):
(3) I believe Valerie Plame to have been, at the time of the leak(s), an employee of an intelligence agency; specifically, the CIA. I believed this before I saw the present court filing, which reiterates it. I do not believe that I am being unduly gullible for thinking that she was a CIA employee, but I’m open to arguments.
(4) I believe that Valerie Plame’s employment with the CIA was classified. The filing asserts this, and I do not believe that the CIA lied about this fact, if for no other reason than that classification, as I understand it, is normally documented, and had her employment been declassified prior to the leak(s), there would be evidence of that. This strikes me as a straightforward matter of fact; it is because it is so straightforward that I think it is unlikely that the CIA would lie about it in a case involving someone with extensive government connections.
(5) I believe that Valerie Plame has served outside the US during the past 5 years. Again, the CIA asserts that she has, and as it is a straightforward matter of fact, on which evidence would presumably be available to people in the government, I think it unlikely that they are lying.
(6) I see no complicated legal questions yet. The only point debatable legal point, I think, is whether travelling overseas to do CIA work counts as “serving” overseas. I think that it does, and I think so not based on anything the CIA said, but on the fact that in the next section of the definition, the statute discusses people who “reside and act” outside the US, which would be an odd thing to do if, by ‘served’, it meant something like ‘resides’. This, however, is my own judgment about what the statute means.
(7) I also do not see the relevance of questions like: were her trips all to Montreal? Montreal is outside the US. A trip to Montreal thus meets the requirements of the statute. Likewise, I do not see that the fact that she worked out of Langley would make it false that her employment status was classified; those seem to me two quite different things. Again, however, I am open to argument.
(8) So: I seem to myself to have relied on the CIA for two pieces of information: that Plame’s employment status was classified, and that she had gone outside the US on CIA business. Neither is a point of legal interpretation, and so the CIA’s desire (or lack of it) to stretch the requirements of the IIPA does not seem to me to be relevant. What is relevant is whether or not they would lie about straightforward matters of fact, in a very high-profile case in which the other party has access to government documents.
(9) I am also relying on my sense of Fitzgerald’s trustworthiness. I assume he would have checked this out. I do not trust him because I always trust prosecutors (see earlier comment about Duke.) I trust him because I have observed his conduct and concluded that I can trust him. I am, as always, prepared to admit that I was wrong to do so, given evidence; but I do not believe that the fact that I trust him is evidence of some more general gullibility. It is certainly not evidence that I always trust what one side says in a court battle. Again, see Duke.
So, von: which part, exactly, was I wrong about?
Oh, but one thing I should have said is that so far as I can tell — which is pretty limited, mind — it seems fair, from what information we have from the CIA, to conclude that if any CIA personnel are considered “covert,” that Plame fit under that label, in my judgment — which isn’t legally binding, as it happens.
Aside from all the dopey spy-novel silly ideas all these rightwing bloggers/commenters keep putting forward, about how real covert officers don’t work at headquarters, and don’t ever use their real names at any time, I don’t know of any form of deeper covertness used by an actual CIA officer (rather than a foreign source they’re running) than the sort of regime Plame lived under.
All the claims I’ve seen in this regard from the rightwing bloggers, as mentioned above, have been utter fantasy notions of the CIA, completely unconnected from actual CIA practice.
I’m perfectly willing to consider new such claims, though.
‘So I, at least, remain a trifle unsure precisely what the CIA does and doesn’t mean in this case of saying Plame was “covert.”‘
Right, this (to my 0-actual-knowledge view) is what Maguire is getting at with “covert/classified”, and what I was saying last night about clashing criteria. _However_, he also claims there’s a paystub test, so I thought that there is in fact a database column or virtual equivalent with a check mark or not by Plame.
“The CIA statement emphasizes that Plame always used cover”
That is, non-official cover, right?
I’ve heard this sort of thing happens all the time. OTOH Larry Johnson has stated publicly that Valerie and he were in the same training camp together, so that ought to bracket her employment period rather neatly.
“As I understand it, you think I’m in error — indeed, per at least Gary, must issue an apology and retraction….”
I’ve said nothing whatever, Von, to indicate a belief on my part that you “must” do anything.
I did say this: “…you might want to consider how well you can support that claim, and whether you might wish to consider stepping back from it.”
That doesn’t mean that modifying that suggestion/invitation into an imperative — “per at least Gary, must issue an apology and retraction” — leaving me suggestion that you, ah, consider withdrawing this assertion, too.
“Have I got that much right?”
No.
“*My apologies for not remembering if it is a he or she.”
Let’s issue a program!
To start, before the Gender Police arrest anyone: Von is male; Dutchmarbel is female; Lizardbreath, a name a little sister might use instead of “Elizabeth,” is female.
“But I’m not aware of anything that would lead me to believe that one could walk down a hall at Langley and theoretically label people ‘covert, covert, covert, non-covert, covert, non-covert, non-covert,’ and so on. This may certainly simply mean that I’m unaware of it.”
The comment I wrote this in, in context, was quite rambling, more so than it should have been.
I should at least have gone back and noted that if what’s meant by “covert” is, as I suggested later in the comment, whether or not one is living with a formal cover story, than one actually wouldn’t have any problem walking down that hall, and binarily distinguishing between the two types of employees (if one had that knowledge, that is).
I might note that my suggestion about “covert” meaning, in essence, “living under formal cover” comes also to a fair degree from the circumstances under which the Intelligence Identities Protection Act came about in 1982, which was the spate of reveals of CIA officials working under cover overseas; basically it was the Get Philip Agee Act.
Protecting those under cover people, some of whom were then murdered by terrorist groups, was the goal behind the Act. Mind, all the ones I can think of were under official cover, working out of an embassy, and — the horror — using their own names, and even driving to work.
“That is, non-official cover, right?”
Nope. The CIA statement specifically says in regard to her travel that she “always traveled under cover […] whether using official cover or non-official cover (NOC)–with no ostensible relationship to the CIA.”
Re Maguire: “_However_, he also claims there’s a paystub test, so I thought that there is in fact a database column or virtual equivalent with a check mark or not by Plame.”
I’ve not read Maguire religiously, or remotely, so I’ve missed his exposition on this. Pointer?
In any case, while, as I’ve said, I’m unclear on some details of CIA procedures in this regard, I’m doubtful that there’s a significant dichotomy between the CIA’s hypothetical regarding of “people living under cover” as synonymous with “covert” (and then taken with the rest of the IIPA’s requirements), and the meaning of the IIPA.
Certainly while an understanding of Congressional intent, insofar as one can be derived, is not dispositive to the interpretation of a law, for a variety of reasons, including the varying ambiguity of such “intent,” the intent of Congress here was, overall, quite straightforward: protecting the lives of serving intelligence officers and informants who are under cover from having their CIA relationship revealed, which could endanger their lives and end the usefulness of their work.
As I said, understanding that isn’t remotely legally dispositive, but it does satisfy me on a personal level that Plame was the type of person Congress intended to cover. I don’t see any significant distinction between her employement and that of the people Agee revealed, a few of whom were killed.
Throw me the pay-stubs argument, if you like.
well, von, you are in error in that you mischaracterize what Hilzoy wrote. Whether you apologize is up to you.
this and the previous thread are two of the weirdest threads I’ve ever read on this blog. If Von’s argument is only that we collectively should hear from the defense before accepting the CIA’s factual statements as the uncontested truth, then i’m really not sure what the fuss is about. but it seems that there is something else going on and i really have no idea what it is.
Gary, here’s Maguire. It seems pretty clear to me that he’s often a hack, but maybe he has an occasional point. Note that his failings are nothing compared to his regular commenters
In particular.
Once more with preview: in particular.
Von wrote–
“No, I don’t have a concrete expectation: Indeed, were I to bet on it, I’d bet on the facts being as Fitzgerald and the CIA state. But, as I said in the original post, and have repeated throughout,* you don’t simply accept the statement of a prosecutor and an interest at face value. The defense also gets a chance to have it’s say and, hey, maybe it will surprise us.”
This was my understanding of von’s position this morning when I posted earlier. It seems to me to make much of the thread unnecessary. What people should be arguing about (and some are) is whether there is any realistic chance that the defense could have refuted what the CIA and the prosecutor claimed. Most of us think no (I’m insufficiently interested to have an informed opinion). I’m guessing that if there was a way to disprove Plame’s covert status along the lines that von hypothesized somewhere above, it probably would have been leaked a long time ago.
But I’m not 100 percent sure. Maybe 95-99 percent. BTW, what would “reasonable doubt” mean, if you translated it into a probability?
“Once more with preview: in particular.”
Thanks. I had read his recent posts, but not that one.
The core point seems to be: “…per this law, CIA officers get an upward adjustment in their pension for service abroad.”
This seems to me to speak very narrowly to a pay policy, and nothing else. I don’t see that it necessarily logically would remotely follow that there’s any relationship at all between what a legal ruling on who precisely is covered by IIPA would show, and who the CIA chooses to give a pay bonus to.
The assumption that the same criteria would be used strikes me as no more than a possibility, at best. Why that would be dispositive information therefore, I can’t see.
We know why the IIPA was written. I can’t see any connection behind its intent, and the U.S. Code provision on how the CIA awards an annuity. I have no idea why Congress would intend to specifically use the same criteria for both: Congress isn’t famed for making sure that it’s generally consistent, for the sake of abstract consistency, in its multitude of laws.
So I don’t see why it would be necessarily relevant to IIPA that this annuity provision exists. A court might find otherwise, but why assume it?
In other words, I don’t see any merit to the notion, although if the courts should sometime rule otherwise, I’ll change my mind. Points for effort, though.
Of course, being insufficiently interested also makes my personal estimate of the probabilities basically useless. Thought I’d hurriedly admit that in case anyone else notices and bothers to point it out.
“BTW, what would ‘reasonable doubt’ mean, if you translated it into a probability?”
My purely subjective standard would be “at least 1% of doubt remaining.”
I wouldn’t want to authorize punishing someone if there was more than that amount of doubt as to their guilt, loosely speaking.
But since I don’t know of a precise objective metric for doubt, this doesn’t do anything to clarify what “reasonable doubt” would mean in any kind of objective way.
I’m not sure why the defense’s argument is considered particularly weighty.
I have a hard time imagining what evidence Libby’s defense could bring to the judge to counter CIA-provided information about Plame’s employment history.
It’s more like a defense lawyer arguing against a victim’s phone records showing a thousand harrassing calls from the defendent, than a defense lawyer arguing against a prosecutor’s asserted theory of the case.
That’s true, Gary, in most cases. But what does “reasonable doubt” mean anyway, sticking to subjective interpretations? I’m not at all sure. It’d make it tough for me if I were ever on a jury (hasn’t happened yet and I’m safe now for another 4 years).
This isn’t entirely a threadjack, since it seems to me to be what von’s post is about.
“But what does ‘reasonable doubt’ mean anyway, sticking to subjective interpretations? I’m not at all sure.”
I agree that it seems that there’s considerable room for subjectivity and that it’s ambiguous on its face. Would any of our criminal lawyers like to speak to any citations on how the law has spoken to this more definitively?
I know that the concept of the “reasonable man/person” goes way back in the common law. I don’t know exactly what one is taught in law school about exactly what “reasonable doubt” means, beyond that it means whatever a given jury thinks it means.
The typical standard for “reasonable doubt” that I recall from law school was from Blackstone, and said it was better to let twenty guilty men free than have one innocent covicted, which would translate to 95% certainty.
We used to talk about whether you could put a number on the concept of reasonable doubt in Civil Procedure class. The short answer is, no you can’t. The law intentionally leaves the concept of reasonableness up to the jury; in fact, if the jury asks the judge for a better explanation of reasonable doubt, the judge generally isn’t allowed to do any more than read the definition to them again.
Hilzoy wrote: So, von: which part, exactly, was I wrong about?
I see Von has neither answered Hilzoy’s question nor updated his post to admit error.
Libby has filed its response to the gov’t sentencing memorandum, linked to here.
And from reading the defense response, it offers no evidence that the CIA’s factual assertions about Ms. Plame’s employment are false — it complains about not having had full discovery on them, and raises questions about the legal import of those factual assertions, but doesn’t offer any contradictory factual evidence.
thanks, LB.
now can we, von? NOW?
or shouldn’t the answer be:
no, you still cannot count on anything said in a prosecutor’s brief (even if it merely quotes something that, in another context, would be perfectly adequate).
Cause, look–before this, we couldn’t trust it because the defense response might contain some KILLER REBUTTAL!
and I’m a real lawyer so I’ve seen it happen!
well, okay, the actual defense response doesn’t contain anything like that.
But it MIGHT HAVE! In fact, the KILLER REBUTTAL could still be lurking out there, and just didn’t get included in because the defense attorney ran out of time and fell asleep, and his partner was too drunk to finish up.
(and I’m a real lawyer and I’ve seen it happen).
So, if the merely possible existence of a KILLER REBUTTAL!! should keep us from believing anything in the prosecutor’s filing *before* the defense files their response, why shouldn’t the continued, possible existence of a KR prevent us from believing it now?
I mean, what’s happened now–a bunch of fallible agents working on a budget and a time-line tried to cobble together their best shot, and it was lousy.
But the truth is out there!
So we have to keep suspending judgement!
But the topic is not whether Libby would have been convicted of violating the IIPA, but whether the investigation should have been terminated since Libby obviously couldn’t have been guilty of an IIPA violation. And it’s obvious that Fitzgerald is right on this point; at best, Libby had a plausible legal argument, but it certainly didn’t provide a basis for terminating the investigation altogether.
I have greatly enjoyed this particular debate, but this is the paragraph that clarified things nicely for me. I have to agree with von that hilzoy probably overreached, at least a bit: the CIA has provided testimony as to Plame’s status that a reasonable person would likely agree made her covert, in the common-sense use of the term; but the question of whether she would be found to be covert under the meaning in the IIPA is unresolved. OTOH, von is definitely guilty — but not convicted :^) — of nit-picking, since whether she was covert under the IIPA is not material to the current stage of the legal proceedings.
The defense contends that the prosecutor had no plausible reason to believe that a crime had been committed, so should never have brought Libby before the grand jury; Fitzgerald responds with the CIA statement regarding Plame’s status, and contends that it supports the view that a crime could have been committed; the judge will decide (even if no findings of fact or law are ever written) which argument is more convincing, and whether the penalty for lying should be light or heavy.
Grand juries routinely hear things that have not, and may not be, subject to a legal finding of their truthfulness. I don’t think I’ve seen von answer the specific question of whether he believes the CIA’s statement is a sufficient basis to continue an investigation into whether a crime occurred (apoligies if he has answered that question, and I’ve just missed it).
I have greatly enjoyed this particular debate, but this is the paragraph that clarified things nicely for me.
Thanks for the compliment; I tend to go on, and sometimes I worry that I bring more obfuscation than clarity to the party.
The other salient point, it seems to me, is what I said in my 7:00pm from last night: Fitzgerald has been claiming in court papers that Plame was covert under the IIPA for more than three years, presumably giving Libby’s lawyers more than enough time to offer whatever response they might have. I admire the creativity of folks like Tom Maguire who maintain that it’s all up in the air until we see the paystubs; but for some reason, I get the feeling that even if we saw the paystubs, they would always come up with some other reason to claim that the issue is still undecided.
the CIA has provided testimony as to Plame’s status that a reasonable person would likely agree made her covert, in the common-sense use of the term; but the question of whether she would be found to be covert under the meaning in the IIPA is unresolved.
Well, since Von is no longer responding to inquiries about why he feels this is not yet shown to be so, will you do so?
Hilzoy explained in some detail upthread what had led her to the conclusion that Von challenged and that you claim you think was “overreached”. So, you should be able to respond to her comment (May 31, 2007 at 07:13 PM) and show which of 1-9 you assert that Hilzoy “got wrong” or “overreached”.
Von ought to be able to do that, but he has fallen curiously silent.
I think that issue is also addressed in my 7:00pm. There are only two requirements for a CIA employee to be legally covert as defined by the IIPA: (1) the CIA must be making specific efforts to conceal your employment and (2) you must have served overseas within the last 5 years. The CIA document addresses both these legal elements; the document certainly isn’t katy-bar-the-door conclusive, but it’s a mistake to say that the document is relevant only to the everyday sense of “covert.” It directly addresses the legal elements of covert status under the IIPA.
Well, now that Team Libby has filed (days late) its magnum opus on Scooter’s sentence, we now know that they’ve come up with a goose-egg as far as factually challenging Plame’s status. (Of course, anyone who has followed this case has known this for a good long time, seeing as they shook every bushin town — including interviewing her neighbors — ina futile effort to come up with a single person who knew that Plame worked for the CIA prior to the Novak story). I assume now that we have Von’s permission to continue to adhere to our entrely reasonable conclusion that Plame was covert — in the legal sense as well as in the ordinary sense. I, for one will sleep much easier knowing that the “profoundly silly” position I foolishly took an the basis of credible evidence may now be taken without fear of being branded “silly” by an inferior intellect.
Regarding Team Libby’s response:
Aside from pointing out that Fitzgerald’s claims regarding an IIPA violation were not previously disclosed (“These assertions represent an attempt to reinject into the case an issue the government could have raised earlier, but chose not to”*), Libby’s response casts some doubt on whether Plame was a covert agent under the law. For instance:
When a CIA spokesperson is confirming Ms. Wilson’s CIA employment to a journalist — even if merely in response to a journalist’s questions — it is (i)questionable whether Ms. Plame was a covert agent and (ii) highly questionable whether Plame continued to be a covert agent.
Regarding whether Hilzoy was commenting on Plame’s legal status: It seemed to me she was from the context, but if she says she wasn’t — and a lot of others thought she wasn’t — it’s easy for me to concede that I misunderstood.
von
*Also consider the following statements, revealed in the defense memoradum:
Well, now that Team Libby has filed (days late) its magnum opus on Scooter’s sentence, we now know that they’ve come up with a goose-egg as far as factually challenging Plame’s status.
Funny, SD. I’ve excerpted certain relevant portions of Team Libby’s “goose egg” above. Leave aside the predictable legal argument that there isn’t a basis to find Plame covert because the Government aggressively (and successfully) fought the disclosure of evidence relating to the charge, introducing only a CIA statement after the trial, during sentencing. Focus instead on the fact that Plame’s CIA employment was confirmed to Novak by a CIA spokesperson, which does cast some doubt on whether she was (or continued to be) covert.
I still think Fitzgerald likely would have had the better of the argument — if all the evidence was released. But it wasn’t, and there’s enough here to make your “goose egg” statement transparently weak.
and that CIA spokesperson Bill Harlow also confirmed information about Ms. Wilson’s CIA employment to Mr. Novak.”
I think that’s misleading:
Harlow, the former CIA spokesman, said in an interview yesterday that he testified last year before a grand jury about conversations he had with Novak at least three days before the column was published. He said he warned Novak, in the strongest terms he was permitted to use without revealing classified information, that Wilson’s wife had not authorized the mission and that if he did write about it, her name should not be revealed.
Harlow said that after Novak’s call, he checked Plame’s status and confirmed that she was an undercover operative. He said he called Novak back to repeat that the story Novak had related to him was wrong and that Plame’s name should not be used. But he did not tell Novak directly that she was undercover because that was classified.
Jim Henley’s wholly speculative scenario (offered in the spirit of ‘sometimes smart people with no ax to grind are able to employ their powers of imagination to intriguing effect’).
In response to a Brady request for information regarding Plame’s covert status, Fitzgerald argued that the issue was irrelevant, but he also made an affirmative representation that the government had no documents or information in its possession that would tend to rebut the government’s position. This was at a very early stage of the case. So it’s not just that, gee, there might be a ton of exculpatory stuff out there, but poor Scooter wasn’t permitted to get any discovery.
It’s also worth remembering the reason WHY the court wouldn’t give Libby discovery on this issue: because any documents he never saw couldn’t possibly be relevant to his conduct or state of mind in relation to the crimes alleged. In other words, at best, what Libby did was leak Plame’s name all over the place without even inquiring into whether she was covert. (At worst, of course, he knew she was covert and did it anyway.) In that scenario, he’s equally culpable whether or not it turns out that some document in the bowels of CIA headquarters reveals that she technically wasn’t covert. Of course, this is just another way of making the same point von makes in the non-objectionable portion of the post.
Von, with regard to Karl Rove and Richard Armitage, yes, they were undoubtedly told that Plame worked for the CIA by someone who should not have so told them. (Armitage seems to have been an innocent sock-puppet: Rove, not so much.) We already know there was a leak: asserting that because we know who the primary recipients of the leak were, that means Plame wasn’t covert is absurd. Obviously once Plame’s identity as a CIA employee had been leaked, she couldn’t be covert any longer, but that says nothing about whether she was covert before her identity was leaked.
Spartikus has dealt with the Harlow issue.
Von, you don’t normally keep repeating Republican talking-points like this. What is wrong with you?
Libby’s sentencing memorandum also contains a big whopper:
The government has refused for years to take a position regarding whether Ms. Wilson was a covert agent as defined under the IIPA. For example, in his October 28, 2005 press conference, in response to a reporter’s question, the Special Counsel stated: “I am not speaking to whether or not Valerie Wilson was covert.” Special Counsel Patrick J. Fitzgerald’s Press Conference, Oct. 28, 2005 Tr. at 8.
In fact, as I documented yesterday, Fitzgerald quite clearly took the position way back in 2004 that Plame met the requirements to be “covert” under the IIPA.
However, he had made that argument in a sealed affidavit, and the portion of the D.C. Circuit’s opinion referring to that argument was redacted from public view until February 2006.
Thus, when Fitzgerald gave his press conference in October 2005, he quite properly refrained from revealing the contents of sealed court documents. That doesn’t change the fact that he had, in fact, taken the position that Plame was covert way back in 2004. And for Libby to now point to that press conference as evidence that Fitzgerald never took a position on Plame’s status is stunningly dishonest.
I find it odd that, according to the logic I’m seeing here, a covert agent whose employment is leaked can somehow retroactively lose her covert status.
“The defense contends that the prosecutor had no plausible reason to believe that a crime had been committed, so should never have brought Libby before the grand jury”
Here is a timeline of events (here is another). Some notable events:
Fitzgerald is appointed:
Fitzgerald explained at length at this press conference how the FBI had interviewed Libby in October 2003, at which time he committed his perjuries.
Let’s mark this again: The investigation was launched 30 September 2003. Libby committed his perjury in October, 2003. Fitzgerald wasn’t appointed until 3 months later, on December 30, 2003.
So the claim is that Fitzgerald had no reason to believe a crime had been committed, after the FBI had decided a crime had been committed, months before Fitzgerald was appointed.
This seems problematic.
Von: “Regarding whether Hilzoy was commenting on Plame’s legal status: It seemed to me she was from the context, but if she says she wasn’t — and a lot of others thought she wasn’t — it’s easy for me to concede that I misunderstood.”
I’m not sure this word, “easy,” means what you think it means.
“Von: “Regarding whether Hilzoy was commenting on Plame’s legal status: It seemed to me she was from the context, but if she says she wasn’t — and a lot of others thought she wasn’t — it’s easy for me to concede that I misunderstood.”
Your post still explains at length that “our readership loses it.” And that:
Since it’s “it’s easy for me to concede that [you] misunderstood,” perhaps you’d like to address this in your post, given your fondness for updates.
“So, I will thank Mr. Farber for his concern but respectfully decline his invitation to go down the path of primrose stupidity.”
Where did you end up arriving?
And since you now say that “it’s easy for me to concede that I misunderstood,” do you still assert that I invited you to “go down the path of primrose stupidity”?
I’m sure you’ll be able to graciously address these queries.
Slarti: I’ve heard this sort of thing happens all the time.
With CIA memoirs, sure. The novel part is that the info is (allegedly) in the public record already, so they’re trying to re-insert the feline into the bag.
Jes and Spartikus, to be (or remain) a covert agent under the relevant statute, Plame’s “identity as an employee [of, here, the CIA] must be classified information.” Harlow clearly revealed that Plame was a CIA employee. Whether he also warned/begged/pleaded with Novak not to release Plame’s name is legally irrelevant to whether Plame was covert under the statute. It’s her employment with the agency that is important.
From the point of Harlow’s disclosure forward, it is very arguable whether Plame continued to be a covert agent under the terms of the statute and at least raises a question whether she was a covert agent previously.
Steve, you’re conflating two separate points. The government’s position regarding whether Plame is covert is not “under seal”; it’s brief is. The Defense is correct to point out that the government’s pronouncements are, at best, all over the map on this one.
And since you now say that “it’s easy for me to concede that I misunderstood,” do you still assert that I invited you to “go down the path of primrose stupidity”?
Yes, Gary. For the reasons stated in the original post, the logical way to read Hilzoy’s statement in context was that she was making a legal assertion, and then she again repeated her position in terms that suggested that she was taking a legal position in comments to this post.
Harlow clearly revealed that Plame was a CIA employee.
That’s not how I read that: he said she did not authorise her husband’s trip and her name should not be used. This is not confirmation of employment with a particular organization.
Von: “For the reasons stated in the original post, the logical way to read Hilzoy’s statement in context was that she was making a legal assertion, and then she again repeated her position in terms that suggested that she was taking a legal position in comments to this post.”
Good to know. Almost all the people who have commented on the topic, and Hilzoy, are illogical. Only you correctly perceive logic.
So it’s “it’s easy for [you] to concede that [you] misunderstood,” but only if we understand that you were the only logical person, that it was logical to misunderstand, and that almost everyone else who read both you and Hilzoy are illogical.
So you’re still claiming of your readership that “our readership loses it,” and while “it’s easy for [you] to concede that [you] misunderstood,” you still “respectfully decline [Farber’s] invitation to go down the path of primrose stupidity” to conceding that you misunderstood.
So you were wrong, but you were right to be wrong, and although you’ve wound up agreeing with me that you were wrong, I was “stupid” to invite you to consider that possibility.
Gracious, indeed.
And good also to know in the context of Charles conniption that I said that Randy Paul “actually knows what he’s talking about.”
Clearly I should have, rather than discussing someone else’s words, thanked Charles and declined his invitation go down the path of primrose stupidity.
How do you know Harlow revealed that she was an employee? Nothing in what spartikus quoted would indicate that. Do you have another source?
Let me propose a few points on which I’d like to think we can form a consensus.
1) Exposing the identities of undercover CIA employees is a very bad thing.
2) Exposing the identities of non-undercover CIA employees, on the other hand, is not particularly troublesome.
3) Some right-wing commentators have taken the position that Plame was not undercover in the slightest, that she was a desk jockey and everyone in the world knew where she worked; but there’s not a lot of evidence to back that up, and none of us around here take that position.
4) Outing a CIA employee who is undercover, but is technically not “covert” as defined by the legal language of the IIPA, is still a Very Bad Thing.
5) Thus, the important issue is whether Plame was undercover in the everyday sense, and we all agree that she was.
6) Whether Plame was “covert” under the IIPA definition is a technical matter, involving trivia like how recently she worked outside the country.
7) The evidence we’ve seen sure seems to point to the fact that Plame was “covert” as defined by the IIPA, but if charges were actually brought under the IIPA and the defendant were permitted to investigate the CIA’s claims more deeply, it’s possible some new fact could come to light.
7) Right-wing operatives like Victoria Toensing have tried to distract from the evident truth of proposition #4, above, by obsessing over the question of whether Plame was “covert” under the IIPA, acting as though this was the only issue that truly mattered.
8) The more time we spend arguing over the “legally covert” question, the more we’re doing exactly what those people wanted us to do when they started laying the smokescreen in the first place.
9) Let’s just agree that Libby did a Very Bad Thing, and got convicted of lying about it, and leave it at that.
Can we stipulate to all this?
The enumeration in your post, of certain points, shall not be construed to deny or disparage others made by the people.
Steve,
I am not going to stpulate to 2. Not that it changes much of what follows.
von: Jes and Spartikus, to be (or remain) a covert agent under the relevant statute, Plame’s “identity as an employee [of, here, the CIA] must be classified information.” Harlow clearly revealed that Plame was a CIA employee.
Well, (1) you haven’t actually quoted any direct testimony to show that Harlow told Novak that Plame worked for the CIA: you’ve only cited that Libby claimed this was the case. But, if for the sake of argument your (1) is true, then (2) you’re arguing backwards, as Anarch points out: you’re saying that because she wasn’t treated as covert after her identity was leaked, she could never have been covert at all.
And you have still not responded to Hilzoy’s points, 1-9, to let her know what you claim she got wrong.
So you were wrong, but you were right to be wrong, and although you’ve wound up agreeing with me that you were wrong, I was “stupid” to invite you to consider that possibility.
Gracious, indeed.
I wasn’t trying to be gracious. Hilzoy’s comment that Plame was, indeed, covert was promoted and based on a legal filing by Fitzgerald. It was reasonable to assume that she was placing stock in Fitzgerald’s legal conclusion, rather than simply the facts (which she then used to reach a nonlegal conclusion identical to the legal one). She says, however, that she didn’t intend to comment on the legal issue, and I believe here. Case closed; but it doesn’t make my read of what she said wrong.
the CIA has provided testimony as to Plame’s status that a reasonable person would likely agree made her covert, in the common-sense use of the term; but the question of whether she would be found to be covert under the meaning in the IIPA is unresolved.
==========
Well, since Von is no longer responding to inquiries about why he feels this is not yet shown to be so, will you do so?
What I meant (and I certainly don’t speak for von) is that there are plenty of examples of a court ruling that a statute does not mean what I think it says, and even that a statute does not mean what the legislature thought they were saying when they passed it. If there were a body of case law that provided examples of what the courts thought the statute says (e.g., that pay stubs are indeed required as evidence, or that the person must reside outside the country rather than just travel there, or that 30 days of travel per year is sufficient but three are not) I would be more confident that I knew whether or not Plame was covered. I think that she should be, but I don’t know that she is.
Until a few weeks ago, the issue of whether carbon dioxide is a pollutant which can be regulated under the Clean Air Act (and indeed, must be regulated) was “unresolved.” Reasonable people could and did argue both side of that. Now we know that, in general, the statute requires such regulation. I anticipate that future case law will clarify the situation further: e.g., a coal-fired power plant must be regulated, a charcoal-fired backyard barbecue need not be.
She says, however, that she didn’t intend to comment on the legal issue, and I believe here.
Sorry, that’s an error. In fact, Hilzoy said that she did intend to comment on the legal issue — to reach a legal conclusion — but didn’t mean to imply that the matter had been determined by a Court.
So, again, how was my interpretation that Hilzoy was making a legal argument wrong?
Jes,
(1) you haven’t actually quoted any direct testimony to show that Harlow told Novak that Plame worked for the CIA: you’ve only cited that Libby claimed this was the case.
That’s because it’s been admitted.
But, if for the sake of argument your (1) is true, then (2) you’re arguing backwards, as Anarch points out: you’re saying that because she wasn’t treated as covert after her identity was leaked, she could never have been covert at all.
The relevant question for sentencing Libby is whether she was covert during the period that Libby was trying to obstruct justice. It’s not clear that she was.
And you have still not responded to Hilzoy’s points, 1-9, to let her know what you claim she got wrong.
I’ve explained, repeatedly, why one should (1) reserve judgment until you here both sides of an argument and (2) the importance of the defendant being able to test the facts asserted against him (which didn’t happen here, because the evidence was not produced).
The relevant question for sentencing Libby is whether she was covert during the period that Libby was trying to obstruct justice.
Pardon? How does that make sense? Libby was attempting to obstruct justice in relation to the events that led up to her being outed. There was no investigation for him to obstruct until the initial crime (if her outing was such) was committed, and after that point her identity was public. How would Libby’s legal position have changed if immediately after Novak’s column, the CIA had publicly stated “Ms Plame was covert until the column was published, but is no longer so” and the rest of the investigation, including Libby’s misconduct, had proceded as it did in the real world?
“I wasn’t trying to be gracious.”
Success!
“Hilzoy’s comment that Plame was, indeed, covert was promoted and based on a legal filing by Fitzgerald.”
No, it was based on a CIA document.
“It was reasonable to assume that she was placing stock in Fitzgerald’s legal conclusion, rather than simply the facts”
No, it wasn’t; it was a pure hallucination, not reached reasonably or otherwise by almost anyone else. It certainly wasn’t so compelling that after many people pointed out the misreading, and after Hilzoy repeatedly addressed your misreading, you should have been so gripped by the unbearable power of the almost infinite reasonableness of the misreading, as to render you incapable of considering whether or not anyone might actually be correct in noting that you’ve been consistently misreading, including tens of comments after tens of comments after tens of comments, and endless explications of the precise nature and specifics of your misreading.
But, sure, perhaps you’re right, and we’re all wrong, and Hilzoy took an entirely unreasonable interpretation of what she wrote, and yours was actually the most reasonable, and, indeed, the only logical reading, given how illogical any other reading was, including Hilzoy’s.
Without doubt it seemed reasonable to you, of course, since tautologically all our own misreadings initially do.
We all misread things, at times. Goodness knows I do.
It’s your subsequent responses to people suggesting you might reconsider that I regretfully think you could have done better on. But you stand by it all, and thus mileages vary.
“…(which she then used to reach a nonlegal conclusion identical to the legal one). She says, however, that she didn’t intend to comment on the legal issue, and I believe here. Case closed; but it doesn’t make my read of what she said wrong.”
With such a convincing close, I’m content to let you have the last word, and to have people come to their own conclusions, based upon your reasoning.
Von: That’s because it’s been admitted.
Wait, Von. You refuse to accept as evidence direct testimony that contradicts your cherished belief that Plame wasn’t really covert. Yet you provide indirect testimony from a known perjurer, and you say that’s proof enough? Come off it. Cite Harlow’s direct testimony, not Libby’s self-serving spin on what Harlow said.
The relevant question for sentencing Libby is whether she was covert during the period that Libby was trying to obstruct justice. It’s not clear that she was.
No: the relevant question for sentencing Libby is whether she was covert when her identity was leaked. Libby was obstructing justice and perjuring himself during the investigation into the crime, and the crime was making a covert CIA agent not-covert. This is not just backwards logic, it’s silly. It’s like arguing that you can’t sentence a man for murder unless you can show that the victim was alive during the murder investigation.
I’ve explained, repeatedly
No, you have not. Hilzoy laid out points 1 to 9. You are claiming she got some or all of them wrong, or was at least wrong to come to the conclusion she did. Where, then, did she get them wrong?
Michael Cain: What I meant (and I certainly don’t speak for von) is that there are plenty of examples of a court ruling that a statute does not mean what I think it says, and even that a statute does not mean what the legislature thought they were saying when they passed it. If there were a body of case law that provided examples of what the courts thought the statute says (e.g., that pay stubs are indeed required as evidence, or that the person must reside outside the country rather than just travel there, or that 30 days of travel per year is sufficient but three are not) I would be more confident that I knew whether or not Plame was covered. I think that she should be, but I don’t know that she is.
Oh. Yeah, that actually makes sense. Thank you for responding with such clarity: I hope Von takes you as a good example.
…but I see he has no intention of either explaining where he thinks Hilzoy “got it wrong”, or withdrawing his misleading claims in either post or update.
…Von?
For Jes:
Here are Hilzoy’s points 1-9, and my brief responses thereto:
(1) I did not say, nor did I mean, that she had been determined by a court of law to be a covert agent. I said that she was one. This means: as a matter of fact, she met the definition of ‘covert’.
There are two statements here: “I did not say, nor did I mean, that she had been determined by a court of law to be a covert agent.” Fine. It doesn’t affect the analysis, and I’m perfectly happy to acknowledge that.
“I said that she was one. This means: as a matter of fact, she met the definition of ‘covert’.”
Hilzoy’s perfectly entitled to think that Plame met the definition of covert, of course, which includes the legal definition of covert, as she concedes in the next paragraph (reprinted below).
(2) I don’t think I was clear in my own mind whether I was using ‘covert’ in its legal or colloquial sense, since I thought she was covert in both senses (and had read the statute, so knew what it involved.) However, let’s take the legal one. Here’s the definition (the part I take it she falls under):
Well, if Hilzoy thinks that Plame is covert in both senses — including the legal ssense — and recognizes her prior statement could communicate as much, the argument by Gary and others that I somehow misread Hilzoy and have been misportraying her words is incorrect. Hilzoy may be allowing that Plame was covert in the dictionary sense, but she also acknowledges that she both wrote and intended that Plame was covert in the legal sense. For this reason, I continue to see no reason whatsoever to apologize to Gary, nor do I understand why he believes himself vindicated by this post by Hilzoy.
(3) I believe Valerie Plame to have been, at the time of the leak(s), an employee of an intelligence agency; specifically, the CIA. I believed this before I saw the present court filing, which reiterates it. I do not believe that I am being unduly gullible for thinking that she was a CIA employee, but I’m open to arguments.
I don’t think that this point is disputed.
(4) I believe that Valerie Plame’s employment with the CIA was classified. The filing asserts this, and I do not believe that the CIA lied about this fact, if for no other reason than that classification, as I understand it, is normally documented, and had her employment been declassified prior to the leak(s), there would be evidence of that. This strikes me as a straightforward matter of fact; it is because it is so straightforward that I think it is unlikely that the CIA would lie about it in a case involving someone with extensive government connections.
There are two questions here: (1) was she ever covert? (“Classified” is insufficient.) (2) Was she covert when others committed the underlying acts that later resulted in Libbty’s perjury conviction)? I don’t know if anyone much cares about (1) as a legal matter (“was she ever covert”), so the debate is really about (2).
Given the CIA’s confirming, pre-publication statement to Novak regarding Plame’s employment with the CIA, I think there is some doubt as to (2). There may have been an initial crime committed (by the initial leaker), but once the CIA confirmed her status as an employee, subsequent disclosures could not have violated the IIPA.
(5) I believe that Valerie Plame has served outside the US during the past 5 years. Again, the CIA asserts that she has, and as it is a straightforward matter of fact, on which evidence would presumably be available to people in the government, I think it unlikely that they are lying.
The CIA asserts that she traveled outside the US within the last 5 years on CIA business, but what it means to “serve” outside the US has never been defined by a Court of law. Lying has nothing to do with it, incidentally. The CIA has the facts and has taken a legal position on them; it’s possible to take a different legal position on those same facts. (Of course, the facts haven’t been shared with Libby or us – i.e., what trips, where, how long, for what reasons – only the CIA’s conclusions. There are perfectly sound reasons for this, of course, but it does make legal argument more difficult.)
(6) I see no complicated legal questions yet. The only point debatable legal point, I think, is whether travelling overseas to do CIA work counts as “serving” overseas. I think that it does, and I think so not based on anything the CIA said, but on the fact that in the next section of the definition, the statute discusses people who “reside and act” outside the US, which would be an odd thing to do if, by ‘served’, it meant something like ‘resides’. This, however, is my own judgment about what the statute means.
Obviously, I disagree that there are no “complicated legal questions” yet. Assume that Plame was covert at the time her name and status were leaked to Novak. Assume that she ceased to be covert, however, as soon as a CIA spokesperson said “Plame is a CIA employee” to Novak. Disclosures prior to the CIA’s confirmation of Plame’s employment status are potential violations of the IIPA; disclosures after, however, are not.
Why does this matter to Libby’s case? Fitzgerald’s argument is that Libby’s sentence should be enhanced because he lied to cover up a crime (viz., a violation of the IIPA). But if all of Libby’s lies occurred with respect to acts after the CIA’s disclosure of Plame’s status, this element of the enhancement statute is not met.
(7) I also do not see the relevance of questions like: were her trips all to Montreal? Montreal is outside the US. A trip to Montreal thus meets the requirements of the statute. Likewise, I do not see that the fact that she worked out of Langley would make it false that her employment status was classified; those seem to me two quite different things. Again, however, I am open to argument.
Again, and leaving aside the above, “served” has never been defined by a court of law. “Served” could mean exactly what Hilzoy says it means. But it very well be defined to mean place of employment — which would exclude Plame — rather than places where your employment may take you. I also appreciate that Hilzoy is confident that her view of the law is correct, but have been around long enough to realize that confidence in your view of the law is not the same as being ultimately found right by a Court of law.
By the way, Kevin Drum adopted a much narrower definition of “served” in this post, which tentatively concludes that outline Plame was not a violation of the IIPA: http://www.washingtonmonthly.com/archives/individual/2005_10/007450.php (not know if he changed is mind). At a minimum, this is evidence that reasonable (lay) minds can differ on the statute.
(I offer no legal opinion myself regarding the meaning of “served” because it would require an analysis that I have not undertaken.)
(8) So: I seem to myself to have relied on the CIA for two pieces of information: that Plame’s employment status was classified, and that she had gone outside the US on CIA business. Neither is a point of legal interpretation, and so the CIA’s desire (or lack of it) to stretch the requirements of the IIPA does not seem to me to be relevant. What is relevant is whether or not they would lie about straightforward matters of fact, in a very high-profile case in which the other party has access to government documents.
I think it’s quite obvious that I disagree with this statement.
As a tangent, I also note that an essential element of the IIPA is scienter — that the disclore knew of Plame’s status as a covert agent (if she was one). Even if Hilzoy and the CIA are correct that Plame was covert at the time of the relevant disclosures, that does not mean that the IIPA was violated and Libby’s sentence thereby enhanced.
(9) I am also relying on my sense of Fitzgerald’s trustworthiness. I assume he would have checked this out. I do not trust him because I always trust prosecutors (see earlier comment about Duke.) I trust him because I have observed his conduct and concluded that I can trust him. I am, as always, prepared to admit that I was wrong to do so, given evidence; but I do not believe that the fact that I trust him is evidence of some more general gullibility. It is certainly not evidence that I always trust what one side says in a court battle. Again, see Duke.
All prosecutors — all attorneys — are advocates. They are required to be candid with the Court, but they are asked to be representatives of their cause and even the best prosecutor loses cases — not because he lies, but because he gets the facts or law wrong. Hilzoy’s appeal to Fitzgerald’s authority is wholly misplaced given our adversarial system and the fact that the underlying evidence regarding the trips has not been produced, no one has been prosecuted (much less convicted) under the IIPA, and key terms in the IIPA have not been defined by any Court of law.
I sincerely hope that the above is helpful to Jes (and others), and that lack of time to write it has not led to a lack of clarity.
Gary, thanks for letting me have the last word, although I continue to find your confidence in your position re: “what Hilzoy meant” somewhat surprising, given that Hilzoy’s point #2 (above) is to the contrary. But why take Hilzoy’s word on what she meant? (“I don’t think I was clear in my own mind whether I was using ‘covert’ in its legal or colloquial sense, since I thought she was covert in both senses (and had read the statute, so knew what it involved.)”)
For Jes:
Thank you. I feel this thread has kind of died, and won’t wake it again (especially as, presumably, Libby’s sentencing on June 5 will wake another round of blog posts) but I note and appreciate your full response.
“Gary, thanks for letting me have the last word”
Still.
However, I will read with interest any reply Hilzoy makes, when she returns, to your long comment of June 03, 2007 at 12:33 PM, Von.
Point of order: you seem to have intended to provide a link to Kevin Drum, which you might or might not want to fix if that’s still your intention.)
I would note that von misreads Drum’s post, which does not address the question of whether overseas travel while based in the US constitutes service overseas for the purpose of the IIPA.
I concur in LB’s 5:37pm, not that that means anything.
And von, as far as I’m concerned (which again means very little), unless you have regulations or explicit legislative history to the contrary, the idea that (absent lying by the CIA) Plame “traveled outside the US within the last 5 years on CIA business” and yet somehow did not meet the definition of “served” is laughable.
And this:
Given the CIA’s confirming, pre-publication statement to Novak regarding Plame’s employment with the CIA, I think there is some doubt as to (2). There may have been an initial crime committed (by the initial leaker), but once the CIA confirmed her status as an employee, subsequent disclosures could not have violated the IIPA.
Unless a CIA spokesperson can declassify information at will, this is incorrect. Also, it seems that Libby leaked before Novak’s column (IIRC) and lied after. Assuming that’s right, there’s no sentencing enhancement for covering up a crime via lies even though said crime later became a non-crime? E.g., I speed on May 3rd, on May 5th speeding is no longer a crime and on May 7th I lie about my speeding on May 3rd, under the sentencing enhancments my lie is a nothing? Actually, that might be plausible.
Von seems to be relying very heavily on his belief that the cia spokesman confirmed her employment. Can anyone verify this?
Yes, mostly. I believe the head of the CIA can declassify, but I also believe there’s a proper way to do that other than just blurting the information out over the phone.
Again, I could be wrong, there, but your point stands: disclosure doesn’t equate to declassification.
I’m guessing you haven’t encountered very many classification guides.
I would note that von misreads Drum’s post, which does not address the question of whether overseas travel while based in the US constitutes service overseas for the purpose of the IIPA.
It doesn’t address that question specifically, no, but it does suggest that the question is irrelevant because of where Plame was based.
Again, however, I don’t pretend to speak for Drum today: indeed, I located a passage in which he suggests that travel outside the US is relevant, and therefore rescinds his prior judgment (http://www.washingtonmonthly.com/archives/individual/2007_05/011399.php).
Unless a CIA spokesperson can declassify information at will, this is incorrect.
A CIA spokesperson may not be authorized to declassify information, but this does not mean that his or her actions may not declassify information as a de facto matter by making the information public. It certainly seems to be enough to derail a prosecution under the IIPA.
But even if you think the question is debatable, it still admits the existence of a disputable legal question.
von, I am confused. You keep referring to the CIA spokesman as verifying her employee status and therefore derailing prosecution. If the leaking (and for the sake of argument agree that she was covert at the time of the leak) occured prior to the CIA spokesman getting involved, how does that negate the crime (if it was, and covertness is not the only requirement for it to be a crime.)?
If I am aware of certain classified information, I tell that information to someone, that someone asks someone else to confimr something I said, doe sthat mean I am no longer in the wrong form a legal point of view? Quite honestly, that makes no sense to me.
Also, Libby’s lying, as Fitzgerald pointed out repeatedly, prevented him from being able to determine if a crime was actually committed. He was not charged with lying about a crime being committed but lying about things that prevented sufficient information to determine if a crime was committed. It doesn’t really matter if a crime was committed or not.
It certainly seems to be enough to derail a prosecution under the IIPA.
Based on what? Can you identify any prosecution under the IIPA that has ever been derailed because of disclosure of the agent’s status by the CIA (note that the Plame situation does not qualify — first, it is arguable whether a CIA request not to publish a story identifying Plame as CIA constitutes confirming her status, and second, there is no indication that that request is what prevented Fitzgerald from bringing a prosecution under the IIPA)? I doubt that you can.
You appear to be switching back and forth between saying that any judgment about how a law is likely to be interpreted is inappropriate until a court speaks to the issue, a position with which I disagree, and making such unsupported judgments yourself. While there’s nothing wrong with exercising your own judgment as to how a court would be likely to interpret the IIPA, in this particular instance, I think your judgment is difficult to support — the idea that an injudicious statement by a CIA spokesperson, in the absence of an official decision to declassify an agent’s identity, would be sufficient to remove that agent from covert status under the IIPA seems, while not impossible, very unlikely as a matter of statutory interpretation. The analogy that comes to mind is arguments about privileged documents accidentally produced in discovery — while nothing’s privileged unless it’s kept confidental, accidentally produced documents will generally still be treated as privileged in court.
Even assuming for the sake of argument that the CIA spokesman’s conversation magically outed Plame for all time and for all purposes, Plame’s name had already been leaked five times prior to that conversation (by Rove, Libby, and Armitage), so I think it’s pretty meaningless to argue about whether the jury is still out regarding leaks 6, 7, and 8.
You appear to be switching back and forth between saying that any judgment about how a law is likely to be interpreted is inappropriate until a court speaks to the issue, a position with which I disagree, and making such unsupported judgments yourself.
LB, as I think I’ve said repeatedly above, I have nothing against folks making judgments regarding unsettled law. I do have a problem with citing a prosecutor’s statement on an unsettled question of fact and law and stating, essentially, “case closed.”
Based on what? Can you identify any prosecution under the IIPA that has ever been derailed because of disclosure of the agent’s status by the CIA (note that the Plame situation does not qualify — first, it is arguable whether a CIA request not to publish a story identifying Plame as CIA constitutes confirming her status, and second, there is no indication that that request is what prevented Fitzgerald from bringing a prosecution under the IIPA)? I doubt that you can.
Given that there have been somewhere between few and no prosecutions under the IIPA, there are no examples to be had. But having the CIA spokesperson confirm someone’s employment status with the CIA does seems to me to be enough to derail a prosecution under the IIPA. Would such a prosecution nonetheless succeed in some circumstances? I have no idea, given the dearth of caselaw. Would it have succeeded here? Again, we just don’t know because it was never tried.
John, under the analysis I posit, the first statement would be a potential IIPA violation, but after confirmation by the CIA futher disclosures would not be. Note that the CIA could simply have said, “no comment” regarding Plame’s employment with it (or issued a standard “the CIA does not comment on employment matters”), which “strongly urging” Novak not to run the story. Instead, as I understand from the Court filings, the CIA spokesperson actually said, “Plame’s a CIA agent. Please don’t run the story.”
But having the CIA spokesperson confirm someone’s employment status with the CIA does seems to me to be enough to derail a prosecution under the IIPA.
So, basically, in your view, one mistake by one CIA employee after a covert agent covered by IIPA has been leaked, is enough, in and of itself, to mean that the leak which occurred before the CIA employee made a mistake can’t be considered illegal, because the CIA employee’s mistake automatically makes legal all leaks that occurred prior to that mistake?
This seems extremely odd to me. Can you explain how this “declassification in reverse” works?
In UK law, a person who leaks classified information has committed a crime even when that information becomes declassified. You’re saying that in the US, this is not so, and that leaking the information effectively makes the leak legal?
“John, under the analysis I posit, the first statement would be a potential IIPA violation, but after confirmation by the CIA futher disclosures would not be.”
Von, how many cases of the government maintaining in court that classified information is still classified, no matter that it’s been disclosed in the press, or the Congressional Record, or in a book, or on the web, or otherwise has entered the public domain, would you like me to provide?
Contrawise, how many cases can you cite to back your personal theory that a private conversation, whose contents you haven’t even presented a transcript of, and presumably don’t actually know, other than through filtered, non-objective, accounts, can declassify classified information?
You present this “analysis I posit,” but where is the legal grounding for it, exactly? So far as I can tell, it’s wholly pure imagination for now. But if I’m wrong, I’d like to know.
“Note that the CIA could simply have said, ‘no comment”‘regarding Plame’s employment with it (or issued a standard ‘the CIA does not comment on employment matters’), which ‘strongly urging’ Novak not to run the story.”
Which would have brought us Tom Maguire, and perhaps you, and others, forward to explain that this would mean that the CIA hadn’t “taken affirmative measures” to keep Plame’s CIA affiliation covert, and thus she wasn’t covert. Win-win for the administration!
von: as I said, I’m fine with taking my original statement to refer to the legal definition of covert. I do not agree with this, though: “It was reasonable to assume that she was placing stock in Fitzgerald’s legal conclusion, rather than simply the facts”. The legal definition of ‘covert’ is not all that complicated. I took the CIA document to be evidence of certain facts, e.g. of Plame’s having travelled overseas during the last 5 years. I then drew a (legal) conclusion. That is all.
Specifically, I did not mean to imply that a violation of the IIPA had occurred. As others have noted, the IIPA has more elements than: disclosing the name of a covert agent; so my saying that Plame was covert (plus the obvious addition: and someone disclosed it) do not amount to saying that the IIPA was violated.
It seems to me possible that you took me not just to be saying that Plame was covert, which is what I said, but to be agreeing with Fitzgerald’s conclusion here: ” Fitzgerald’s argument is that Libby’s sentence should be enhanced because he lied to cover up a crime (viz., a violation of the IIPA). But if all of Libby’s lies occurred with respect to acts after the CIA’s disclosure of Plame’s status, this element of the enhancement statute is not met.” I was not taking a position on that at all.
About your response to point (4), specifically the part where you say: “classified is insufficient”: I was attempting to take the elements of being covert, under the law, one by one. Those elements (the ones relevant to Plame) are: someone is (a) an employee of an intelligence agency, (b) whose identity as an employee is classified, and (c) who has served outside the US within the past five years. That’s why I was talking about ‘classified’, not ‘covert’ in point 4.
For this reason, I don’t agree with this: “Given the CIA’s confirming, pre-publication statement to Novak regarding Plame’s employment with the CIA, I think there is some doubt as to (2).” — where (2) is whether she was covert, under the legal definition. As I just said, that definition (as it applies to Plame) has three elements. The relevant one here is: being classified. Unless what a CIA officer said to Novak actually declassified (rather than merely disclosing) her identity, then I do not think that it is relevant.
About (5) and (6): I’m not sure that the CIA was taking a position on ‘served’. I was, but meant it to be based on my own reading of the statute.
About your reply to (6) more generally: as I noted above, I don’t see that it makes sense to argue that Plame ceased to be ‘covert’ once a CIA employee disclosed her employment, given the statute, which talks about whether an agent’s employment is classified. Unless disclosure automatically declassifies something, I don’t see how the CIA’s disclosure (assuming arguendo that it exists, I haven’t checked) affects her covert status.
The relevance to Fitzgerald’s case is irrelevant to the point I was trying to make, which was just that she was covert, not about anything involving the enhancement statute.
About your reply to (7): I recognize the difference between presenting an interpretation and that interpretation’s being found right by a court of law. I was claiming only to do the first. I think that you have to believe that this sort of activity makes sense; otherwise, I don’t see how to interpret this statement: “I offer no legal opinion myself regarding the meaning of “served” because it would require an analysis that I have not undertaken.” — given that you are not yourself a court of law. Whatever it is that you might do but haven’t, I suspect it’s what I took myself to have done.
About your reply to (8): I’m puzzled about what you disagree with me on here. Is it my report about what I took myself to rely on? Why would you doubt that? Is it what you think I would have needed to rely on to come up with a good analysis? That would be more likely. I continue to believe, however, that all I needed to rely on the CIA for was two pieces of factual information, plus my own reading of the statute.