Andrew McCarthy, one of the major authors who have been cited (including by me) arguing that Valerie Plame was not in fact a covert agent issues a retraction of sort:
The indictment charges the mere fact that Plame worked at the CIA was classified information. (“At all relevant times … Valerie Wilson was employed by the CIA, and her employment status was classified.â€)
It is worth noting that many people, including me, have been wrong about this. I assumed that the fact that she was a CIA employee was well-known and not classified, but that some aspect of her relationship with CIA was covert and classified. The latter may be true (Fitzgerald, as he should have, declined to comment on it), but it turns out to be not so important because the very fact that she was a CIA employee was classified. It really doesn̢۪t matter whether we think it should have been classified or not. The fact is that it was. People privileged to handle classified information well know that they mustn̢۪t disclose it even if they personally think there is no good reason for it to be classified or that some higher purpose of theirs would be served by disclosing it.
A fair point. It seems to me that there are actually two questions related to this particular question that have been bandied about in the public debate: 1) Was Plame’s employment with the CIA a secret? and 2) Was Plame a covert agent under the meaning of the law?
The answer to the first question is Yes, at least officially. There is some evidence that her status was an “open” secret–that is, widely known by people who knew her–but it was nonetheless classified.
The answer to the second question seems to be No, however. She had been serving in a desk job at Langley for more than five years, which meant she was not “covert” under the meaning of the Intelligence Identities Protection Act.
(4) The term “covert agent” means—
(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with 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; […]
So, Plame was cover under (i) but not (ii). Note that an “and” joins the two subparagraphs.
Even Joe Wilson acknowledges that “My wife was not a clandestine officer the day that Bob Novak blew her identity.”
For whatever reason, McCarthy does not address that issue. He does go on to explain why Fitzgerald likely didn’t charge Libby under the Act:
Willfullness is a high mental state in the criminal law. Although the adage that “ignorance of the law is no excuse†generally does apply, a willfulness requirement in a statute comes close to making ignorance of the law a defense. The government must prove that the defendant was fully aware of the unlawfulness of his actions (not that he knew the statute number of the crime but that what he was doing was illegal) and that he performed those actions with a bad purpose.
There is basis in the indictment to suspect that Libby acted willfully — he is alleged to have done a lot to inform himself; to have asked Judith Miller not to source him as a senior administration official but as a Hill staffer (strongly suggesting that he knew what he was saying should not be said); and to have lied about what he said and how he knew what he knew (strongly suggesting he was worried about having said what he said, and worried about having it revealed that he came about the information officially rather than casually).
On the other hand, though, Libby also clearly was not trying to out Plame for the purpose of endangering her, punishing Wilson or harming the CIA. He was trying to do something that was legal and appropriate: to discredit Wilson and knock down Wilson̢۪s misleading story about why he was sent to Niger. He should not have done it the way he appears to have done it, but he surely was not doing what Wilson and the Left have been claiming.
So, while Libby may have had a bad purpose as far as the law is concerned, he did not have a purpose to do damage to the country or help an enemy. That is what the espionage act is most concerned about. Under the circumstances, he was given the benefit of the doubt on his state of mind. I think that was an appropriate exercise of restraint on Fitzgerald̢۪s part. The charges brought are serious ones. There was no reason to bring a questionable one just to rebut a talking point about how it̢۪s only a cover-up and not a crime.
Quite right.
The legal irony, though, is that Libby theoretically faces thirty years for perjury whereas the maximum for intentionally outing a covert agent is only ten years. Now, it strikes me as highly unlikely Libby will get much, if any, jail time. But it is odd that the incredibly serious crime that spawned the investigation carries such a light sentence–outing a covert agent in an overseas assignment could have disastrous consequences–whereas the comparatively minor offense of lying to a grand jury carries a higher sentence than most murderers receive.
