A Case of Malicious Prosecution
Good grief - before printing the column in which Wilson's wife was revealed as a CIA employee, Novak called the CIA and they CONFIRMED to him that she was.
Any credible defense of Scooter Libby must begin with this concession: if he perjured himself, he is subject to the customary penalties for that offense. Reasonable people may ask whether his trial was conducted fairly, but a jury has declared itself satisfied with the evidence against him and we must accept their verdict.
There is no need, however, for us to meekly accept Patrick Fitzgerald's shocking argument that Mr. Libby be given a sentence commensurate with the commission of a crime of which neither he, nor anyone else, was ever accused or convicted. Such a sentence would, in the usual order of things, first require proving a crime had occurred. But having neatly dispensed with both the customary rules of evidence and the right to a fair trial, Mr. Fitzgerald breezily proceeds directly to the sentencing phase. Do not pass Go. Do not collect $200. And above all, no “Get out of jail free” card for those whose memory is less than perfect… that is, if they are not named Tim Russert or Judy Miller:
Throughout Mr. Libby's prosecution, Mr. Fitzgerald insisted it made no difference to the case whether CIA officer Valerie Plame Wilson was undercover. At one pre-trial hearing, he went so far as to argue it would make no difference to the case "if [Ms. Wilson] turned out to be a postal driver mistaken for a CIA employee." He also objected to defense requests for documents concerning her status, insisting this was a perjury trial, not a trial about leaking classified information.
His stonewalling on this point before the trial led the defense to seek an instruction from the judge barring the prosecution from discussing the nature of Ms. Wilson's job at the CIA. But now that the time for sentencing has come, Mr. Fitzgerald has decided that Ms. Wilson's role is relevant after all.
Having previously dismissed attempts by the defense to clarify Ms. Wilson's status with the CIA as 'irrelevant, on what grounds can Mr. Fitzgerald introduce documents previously withheld from the defense? The answer is simple. The meaning of "irrelevant" is subject to change without notice.
So, too, is the meaning of the word "covert":
...the government relies on a terse two-and-a-half page summary of Valerie Wilson’s employment history that was generated by the CIA, which purports to establish that “Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.” We have never been granted an opportunity to challenge this conclusory assertions or any of the other unsubstantiated claims in this document, nor permitted to investigate how it was created. If nothing else, the fact that the CIA’s spokesperson confirmed Ms. Wilson’s CIA employment to Mr. Novak calls into question whether the government was taking affirmative measures to conceal her identity.
The summary described above was provided to the defense along with a companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important to bear in mind that the IIPA defines “covert agent” differently. It states: “The term ‘covert agent’ means—
(A) a present or retired officer or employee of an intelligence agency . . .
(i) whose identity as such an officer, employee, or member is classified information, and
(ii) who is serving outside the United States or has within the last five years served outside the United States.”
The CIA summary of Ms. Wilson’s employment history claims that she “engaged in temporary duty (TDY) travel overseas on official business,” though it does not say whether such travel in fact occurred within the last five years. Further, it is not clear that engaging in temporary duty travel overseas would make a CIA employee who is based in Washington eligible for protection under the IIPA. In fact, it seems more likely that the CIA employee would have to have been stationed outside the United States to trigger the protection of the statute. To our knowledge, the meaning of the phrase “served outside the United States” in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA remains very much in doubt, especially given the sparse nature of the record.
As Tom Maguire notes, Val Plame's pension records would also shed considerable light on her overseas service. This ought to be an easy enough matter to clear up, yet even the CIA seems to be having trouble determining her status:
And from another direction, Rep. Peter Hoekstra has tried to get the CIA Counsel to opine on Ms. Plame's covert status. Per Robert Novak, as of April 2007 they were still mystified:
On March 21, Hoekstra again requested the CIA to define Mrs. Wilson's status. A written reply April 5 from Christopher J. Walker, the CIA's director of congressional affairs, said only that "it is taking longer than expected" to reply because of "the considerable legal complexity required for this tasking."
I have a suggestion for Mr. Hoekstra - perhaps he can ask the CIA Counsel some simpler questions, to wit, what is the last date on which Ms. Plame received credit on her pension (under Title 50, Section 403r) for service abroad, and what is the CIA definition of "service abroad" in that context. That should be easy enough for the CIA Counsel to address in this lifetime.
It is perhaps not too much to ask, considering that both the CIA and Mr. Fitzgerald have had several YEARS to answer this very simple question, that if he plans to sentence a man based on evidence never admitted at trial on the basis of having committed a crime of which he was neither accused nor convicted, that this very straightforward determination be made?
During the long years this travesty of a case has dragged on, the editorial staff has scratched its head in puzzlement over the prosecutorial standard brought to bear by Mr. Fitzgerald.
Was he interested in punishing whoever leaked Val Plame's identity to Robert Novak? Apparently not. As we learned recently, Richard Armitage did so, and yet he was not a target of the investigation.
Did he want to punish those who make false statements to the grand jury? Apparently not.
Tim Russert filed a false affadavit (one, moreover, that Patrick Fitzgerald knew to be false and yet accepted), yet he was not indicted. What about inconsistent statements? Judy Miller’s memory was awfully bad. Seems she “forgot” an important meeting with Scooter until 85 days in the Alexandria detention center led to the miraculous discovery of a notebook hidden in plain sight right under her desk.
Was it obstruction of justice? Apparently this, too, is not a crime. Judy Miller flatly refused to cooperate with the grand jury. Mr. Fitzgerald argued that her testimony was absolutely essential to proving his case - so essential that he sent her to jail for 85 days. And then he let her go without complying with the original request that was 'absolutely essential to proving his case'.
L'Affaire Plame, from the very start, has been a case rife with hypocrisy. The media, long known for protecting their sources, called for a special prosecutor when Val Plame was 'outed'; a move that could only result in Novak being forced to do what had always been anathema to them: reveal a source.
The real irony of their call for enforcement of the IIPA is revealed by the NY Times' vehement opposition to the passage of that very law in 1982:
Ridiculing this catchall attitude, the Times went on to say that: "In no case can the Senate responsibly follow the House's reckless example and make it a crime to identify an agent without even requiring proof of criminal intent."
Almost three weeks later, on March 22, 1982, the New York Times editorialist was back on the subject. "What happens?" the editorial demanded to know, "when Congress thus ignores the Constitution?"
Two decades later the Times was demanding this unconstitutional law be used to force a conservative reporter to reveal his source. This courageous stance lasted until the media figured out what had been plain to anyone with a pulse:
their own reporters would be caught up in the investigation. Norman Pearlstein, former editor in chief of Time Magazine wonders after the fact:
Was it all worth it?
The investigation followed allegations that Libby and Karl Rove, responding to criticism of the President and his rationale for waging war with Iraq by Plame's husband, former diplomat Joseph Wilson, had compromised her identity as an undercover agent. While the Administration's behavior was tawdry, there was no proof that intelligence laws had been broken or that an investigation was necessary. Nonetheless, once convinced that Libby (but not Rove) had lied under oath, the prosecutor argued that he had no choice but to indict, charging Libby with perjury, making false statements and obstruction of justice.
It seems a bit late to be asking that question, Mr. Pearlstein.
Let's not forget why all of this happened.
From the very beginning, this has been a case of malicious prosecution. Joe Wilson's lies were picked up and relentlessly flogged by the media. It was the media, and the New York Times and Time Magazine in particular, who hyped and sensationalized his charges against the White House. To this day, those charges have never been proven.
It was you who demanded an investigation into L'Affaire Plame.
It was you who refused to let this story die a natural death.
It was you who insisted on a special prosecutor, and then in a stunningly cynical and hypocritical about face, obstructed the very investigation you were demanding on the pages of your own periodicals.
And now you have the nerve to ask whether it was 'worth it'?
Unbelievable.
Posted by Cassandra at 08:00 AM
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