Friday, November 04, 2005

Fools and Knaves

Most bad actors are fools rather than knaves, so some assumed the special prosecutor who charged Lewis Libby was a fool. Turns out he's a knave running his own cover-up.
The crime he was hired to investigate did not take place, as was obvious from the start of his investigation. WSJ (subscription):

The law at issue here is the 1982 Intelligence Identities Protection Act (IIPA), which makes it a federal crime, in certain circumstances, to reveal the identity of a covert agent...under the act, criminal sanctions can be imposed only if the identity revealed is (1) of someone whose status is classified and who is serving, or has served within five years, outside the U.S.; and (2) where the alleged leaker knows that the U.S. is "taking affirmative measures to conceal such covert agent's intelligence relationship to the United States.

Ms. Plame simply did not meet the IIPA's demanding test. She was not undercover overseas, and had not evidently been posted abroad since at least 1997. She was living under her own name and working a desk job at headquarters.

To the extent that her job status was "not common knowledge outside the intelligence community" as asserted by Mr. Fitzgerald, this is irrelevant. Leaving aside the coy nature of this claim, which begs the question whether her affiliation was known only in the U.S. intelligence community, or the global intelligence community (including both friendly and hostile foreign intelligence services), IIPA's legislative history makes clear that this is insufficient to merit protected status. Merely because the U.S. has not publicly acknowledged or revealed the relationship does not by itself satisfy the "affirmative measures" required for liability under the IIPA.

Moreover, whatever value Ms. Plame may have had as a viable covert agent was surely eliminated years before the alleged "leak," when she married a U.S. diplomat who himself published her name in his biographical materials. The fact that her husband chose to become a public figure in a debate about the very discipline she pursued at the CIA -- WMDs -- eliminated whatever shreds of anonymity that remained.

The reason Mr. Fitzgerald did not charge anyone with leaking Ms. Plame's name...was not because, as he implied at his Oct. 28 press conference, there was insufficient evidence. It was, rather, because there was in fact no crime as a matter of law. The true scandal here is that, despite Ms. Plame's non-covert status, Mr. Fitzgerald pressed ahead, forcing numerous journalists to testify and actually jailing Judith Miller.

In view of this history, and precisely because the CIA was skeptical of the Niger claims, sending an outside expert to assess them was absolutely correct. The fact that the expert chosen by the CIA was so closely connected to its own bureaucracy was indispensable in assessing the value of that expert's work -- especially after he had openly waded into the debate. In short, the revelation of Ms. Plame's connection to the CIA was a public service, neither criminal nor unethical.

Which makes Fitzgerald a knave for knowingly imprisoning an innocent without cause and persecuting an administration employee for doing his job.

In true knavish manner, Fitzgerald is trying to cover his sins up, but the WSJ is hot on his trail (subscription):

Dow Jones & Co., this newspaper's parent company, filed a motion late Wednesday requesting that the federal district court unseal eight pages of redacted information that Mr. Fitzgerald used to justify throwing Judith Miller of the New York Times in the slammer.

The pages were part of Judge David Tatel's concurring opinion in the ruling against Ms. Miller and Time magazine's Matthew Cooper. Judge Tatel said the eight pages showed that, with his "voluminous classified filings," Mr. Fitzgerald had "met his burden of demonstrating that the information [sought from the reporters] is both critical and unobtainable from any other source."

The pages remain sealed, but now that Mr. Fitzgerald has indicted Mr. Libby and said "the substantial bulk" of his probe is "completed," there's no reason to keep those pages secret. The indictment itself discloses the nature and "major focus" of Mr. Fitzgerald's grand jury probe, including the fact that Valerie Plame worked for the CIA. The special counsel's own extensive public discussion of the facts in the case should also have vitiated any protection from disclosure under grand jury rule of evidence 6(e).

Since jailing the reporter was only justifiable if she was refusing to shed light on a crime, it follows that these redacted pages must be the evidence Fitzgerald offered to support his claim that a crime was committed.

Fools can be forgiven, but knaves can expect no mercy. It will be fun to watch Fitzgerald twist.

UPDATE: 11/5 - corrected misnaming of the unfortunate Mr Libby