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 I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.)http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.pdf
Freerepublic/.../f-news/1571203/posts < Unredacted portion
Judge Tatel, in the same opinion, also wrote this:
What's more, if Libby mentioned Plame's covert status in either [page 34] conversation, charges under the Intelligence Identities Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become viable. Thus, because Miller may provide key corroboration or contradiction of Libby's claims -- evidence obviously available from no other source -- the special counsel has made a compelling showing that the subpoenas directed at Miller are vital to an accurate assessment of Libby's conduct.
Both comments cite a Fitzgerald Affidavit of August 27, 2004. Portions of that affidavit are available, including "n.15" on page 28. Any transcription errors below are mine.
81. The testimony of reporter Miller is central to the resolution of that part of the criminal investigation concerning Libby. Her testimony is essential to determining whether Libby is guilty of crimes, including perjury, false statements and the improper disclosure of national defense information.15 The grand jury needs to know when Libby advised Miller about Wilson's wife -- during their private meeting outside the White House on July 8 or during the three minute telephone call on July 12 -- and whether Libby qualified his disclosure to Miller by stating that he had heard it only from a reporter and did not know if it were true. Miller's testimony is essential to determine whether Libby fabricated his claim that he only told reporters what he claimed he had heard from Russert without a belief that the information he was passing on was either true or classified.---
15 If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 if the information is considered "information respecting national defense." In order to establish a violation of Title 50, United States Code 421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who has carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work. [emphasis added]http://online.wsj.com/.../libby-fitzgerald-affidavit-20060203.pdf
Footnote 15 is what Tatel relies on when he states "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 I trust the special counsel would not make without support."
Did Fitzgerald represent that Plame was 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?
At footnote 15, Fitzgerald doesn't refer 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." As an aside, I found no such reference in any unredacted portion of Fitzgerald's August 27, 2004 affidavit.
Footnote 15 (reproduced in its entirety above) refers to the "outing the covert agent" statute, 50 USC 421. The reason Fitzgerald gives in footnote 15 for likely failure to find a violation is that there is no evidence Libby would meet the "knowing disclosure" aspect in the statute. In order to find a violation, Fitzgerald would have to prove "[Libby knew] that the information disclosed so identifies such covert agent," and that "[Libby knew] that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States.
In a sort of "reverse bootstrap," Judge Tatel is construing Fitzgerald's reference to 50 USC 421 and assertion of "absence of evidence that Libby knew," as affirming the covert status of Plame. Tatel never really got to the question "was the United States taking affirmative measures to conceal the intelligence relationship of a covert agent who has carried out covert work overseas within the last 5 years," he jumped to that conclusion.
It's likely that NOBODY knew the United States was taking affirmative measures to conceal the intelligence relationship of Plame, and/or that Plame had carried out covert work overseas within the last 5 years. Why is that? Because the United States WASN'T taking affirmative measures to conceal the intelligence relationship of Plame, and/or that Plame HADN'T carried out covert work overseas within the last 5 years.
Excellent post. Let's hope that Libby's lawyers are as acute as you are.
What’s more, because the charges contemplated here relate to false denials of responsibility for Plame’s exposure, prosecuting perjury or false statements would be tantamount to punishing the leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose—at least at this stage of his investigation—is to shore up perjury charges against leading suspects such as Libby
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Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury’s need for the reporters’ evidence, I might have supported the motion to quash. Because identifying appellants’ sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court’s orders compelling their testimony.This part of the first passage should at least give Libby's attorneys access to her job status "tantamount to punishing the leak" . And if Mr. Fitzgerald presented to the court that there was harm to national security, and it appears that was the partial basis for at least one Justice's ruling for compelling testimony, how can he now claim that it not relevant to the perjury charge?
Honest, I just now found his article and didn't take the idea from his article. Granted, I'm a bit slower on the draw - he had the analysis covered a week before I did.