Home > Political Ranting > Plame, Libby, and the Intelligence Identities Protection Act

Plame, Libby, and the Intelligence Identities Protection Act

October 29th, 2005

I’m assuming you know about the Plame case to date, and about the indictments (PDF file) that were handed down in Libby’s case and the ones not handed down in Rove’s case. Republicans are putting the best spin on this they know how, including the standard blame-everyone-else defense (for example, anyone and everyone aside from Bush administration officials outed Plame multiple times before Rove and Libby got around to doing it), but also used a lack-of-the-negative defense. They pointed out that Libby was indicted for lying about the Plame event, but not for the original charge of violating the Intelligence Identities Protection Act (IIPA) of 1982, which makes illegal the outing of an intelligence operative whose identity is classified.

Right-wingers are arguing that because of this, Libby is really innocent and the charges against him now are just a “gotcha,” nothing more than penny-ante made-up crimes (never mind that under such a paradigm, Clinton’s perjury and subsequent impeachment were the ultimate “gotcha”). Of course, that also raises the question of why Libby clearly lied, committed perjury and obstructed justice if he was innocent.

The general explanation why Libby wasn’t charged for outing Plame is that the IIPA is so hard to prosecute that neither Rove nor Libby were ever in any danger of being indicted under that statute–in fact, no one ever has been. Again, conservatives argue that “people” have been, but that’s not really true: only one person has pleaded guilty under the law, but was not indicted–they pled guilty as part of a plea agreement, avoiding 18 counts of espionage. No one has ever been prosecuted or indicted under that law. That makes you wonder why Libby lied so much if he was never in danger–was they lying necessary? Or did Libby simply not know the law was unprosecutable? That’s hard to believe–one would think he’d have studied that particular law carefully right from the beginning.

So, why is the law so hard to prosecute? Reading the law, it seems pretty clear: if you know that someone’s intelligence identity is classified and you release it, you’re guilty–and from what I can gather, that’s the out Libby has: he can argue that he did not definitively know that Plame’s identity was covert or classified. Fitzgerald said in his press conference,

I will confirm that her association with the CIA was classified at that time through July 2003. And all I’ll say is that, look, we have not made any allegation that Mr. Libby knowingly, intentionally outed a covert agent. We have not charged that. And so I’m not making that assertion.

Although one can note that Fitzgerald did not say there was no proof to this effect, it seems to be the message he’s conveying.

However, there is the fact that Cheney told Libby on June 12, 2003, that Valerie Plame worked for the counterproliferation division at the CIA. So the question becomes, did Libby know that the counterproliferation division was part of the Operations Directorate of the CIA, which would make it covert and classified? Here’s where the question of “proof” comes into the picture: Libby is and was highly conversant in intelligence matters, and for someone in that position, it strains credulity that he would not be aware of the nature of the counterproliferation division:

Vincent Cannistraro, a former operations officer who also worked at the National Security Council during the Reagan administration, concurred, saying, “There’s no way they wouldn’t know.” (source)

But so long as Libby can play the idiot and say that he didn’t know, he can do an ultra-limbo back-bend under the law and escape indictment under that charge–which is why the IIPA is so hard to prosecute. This also explains Fitzgerald’s wording, in that he did not say Libby didn’t know Plame’s position was covert, rather that he’s not making that allegation. In his press conference, he also put the matter in slightly different terms, using a baseball analogy to explain how it is impossible to know a person’s internal motives and knowledge, and that Libby’s obstruction made it difficult to go any further.

Of course, the fact remains that it is as clear as it can get without Libby confessing he knew and intentionally outed Plame’s covert status that this is in fact the case. Of course Libby knew her status was classified. Of course the motive was base and political. But cowards like Libby and Rove and so many in the Bush administration have always and will always hide behind these kinds of loopholes. That doesn’t make them innocent, and if all we can convict them of is lying, then that’s the least they deserve, literally.

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  1. Andre
    October 30th, 2005 at 01:21 | #1

    This could get to be very interesting if Libby rolls and doesn’t want to be impovrished or go to jail for five years.

  2. ykw
    October 30th, 2005 at 03:26 | #2

    According to this

    http://en.wikipedia.org/wiki/Lewis_Libby#Plame_affair

    Libby sent Plame a wierd memo where he asked her to talk openly to investigators, yet he then winked, which I think is cute.

  3. Luis
    October 30th, 2005 at 03:29 | #3

    Actually, that bizarre missive was sent to Judith Miller.

  4. October 30th, 2005 at 03:57 | #4

    Joseph over at Martini Republic points out that:
    Itís not like Libby is some loose cannon somewhere in an immense bureaucracy. Bush, in fact, is Libbyís two-up, his bossís boss. And as Libby is at this late date not cooperating, the originators of the leak can only be: Libby himself, Rove, or Cheney. And Bush isnít concerned about that?
    This suggests to me that maybe Libby wasn’t lying to conceal his own violation of the Intelligence Identities Protection Act (or another law). Maybe he (and quite possibly Rove as well) were lying to protect his bosses.
    The investigation is ongoing and more indictments are possible (probable?). What we’ve seen so far is just the first indictment of someone who is alleged to have been obstructing that investigation. The final result of that investigation, which presumably will determine whether or not the Intelligence Identities Protection Act was violated, remains to be seen. That result may end up being that it wasn’t violated, though as you ask, why would the lying have been necessary if the Act (or another law) wasn’t violated?

  5. Paul
    October 30th, 2005 at 11:43 | #5

    They’re just all to a point where they had to find a fall guy. The White House is no doubt praying that Libby will be it and that nobody left any proof that Rove (or, heaven forbid, Cheney or Bush) were the ones who told Libby what to do, or told Libby of Plame’s identity specifically so that he’d go out and leak it to the press.

    That this happened, I have no doubt; I’m positive that it did. I doubt Bush did it himself; I don’t think he’s smart enough, or into the details enough. But I’m about 90% sure that Rove had something to do with it, and Cheney probably knew the score as well.

    The problem is PROVING it. At best, we’ll see Rove go down on perjury charges like Libby. At worst, what we have now is it- and Libby will either skate with a mistrial or not guilty verdict, or he’ll be pardoned by Bush.

    The whole loyalty thing means that Bush won’t let Libby serve much time, if any, as long as Libby is a stand-up guy and doesn’t take Rove down with him.

    But in a way, what we have now is about the best we could hope for; had Rove been indicted, then he would have probably had to resign and the White House gotten some house-cleaning done.

    Now, instead, Rove is still worried since the investigation appears to be looking further at him. I think that I’d rather have a weakened, distracted Rove hunkered down in the West Wing than someone new. Of course, the worst would be Rove exonerated and told he won’t be indicted and has nothing to worry about; then he’d be out for vengence and trying to get things going again.

    What’s really sad is how political this whole thing is. I mean, I just did a bunch of political analysis myself… and what really matters is that these guys blew a CIA agent’s cover for POLITICAL GAIN.

    I don’t care what party you’re in, that’s just wrong, wrong, wrong. Even loyal Republicans should be upset and angry and dismayed about this.

    The comparisons to the Clinton era go on, and get worse and worse for the Republicans. Clinton and his cronies lied about stuff like oral sex from interns and gain for money; Bush’s cronies are caught lying about national security, about faked evidence to whip the nation into a war, and so forth. Sigh.

    Paul
    Seattle, WA

  6. cc
    October 30th, 2005 at 14:28 | #6

    This doesn’t appear to involve the president or the vice-president. It wouldn’t make sense anyway. I doubt that they would have deliberately had someone out a CIA operative if they knew she was covert just to “get back” at Joe Wilson for his half-baked conclusions concerning the Niger claims. They had other things on their minds. I can see them trying to find ways to hush a story that was hurting their cause, but I don’t think they would have done it this way.

    In other words, there’s a good chance Libby made this mess himself. His alleged crimes all involve lying about his own cover-up about something he needn’t have lied about in the first place. He could have just fessed up to talking to people about a CIA agent, not about any classified info. It is curious that he acted so clumsily, but perhaps the pressure was too much for him if it turns out to be true.

    If Fitzgerald sees it this way, there won’t be a trial. Libby will likely make a deal. This means that Democrats and Bush-opposers will not get to salivate over an impeachment procedure against President Bush, since this indictment indicates absolutely nothing about lying to get us to war. (which I don’t believe anyway). Fitzgerald was very clear on this. He said it is NOT about the over-all picture of the War on Terror or WMD, but about a leaked CIA operative and who did the leaking. That is all.

    It also seems unlikely at this point that Karl Rove will be indicted at all, although not completely out of the question. He appeared four times before the grand jury and this investigation has been on-going for two years. With the expiration of this grand jury, it is uncertain whether the investigation of Rove will just be allowed to fade, as nothing has yet been found on him. Having watched several hours of coverage, I learned that the consensus seems to be that this could very well have been an isolated series of missteps. I think this sounds plausible, mainly because I can’t conceive of Karl Rove making these kinds of blunders in this case. He is too politicaly savvy to not be more careful about what he talks about with press people and who he talks to.

    Interestingly, it was brought about a long time ago that Wilson came back from his trip initially saying there was some sign the claim of Niger-uranium deals were approached was true, but then came out in an article saying it wasn’t true. This is confusing, but I read it a while ago and heard it again on Friday on MSNBC. So Libby might have done all this for nothing.

  7. Luis
    October 30th, 2005 at 17:21 | #7

    Links, please. Otherwise it can’t be taken seriously.

  8. gq
    November 2nd, 2005 at 13:42 | #8

    Like all othe predators, federal prosecutors often hunt by separating their prey from the rest of the herd.

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