Scooter Libby was sentenced Tuesday to 30 months of imprisonment, but one very old question in the case remains: Was Valerie Plame, the former CIA officer whose mention in a 2003 column by conservative reporter Robert Novak sparked the investigation that led to Libby's trial, covert? Special counsel Patrick Fitzgerald thinks so, saying in a recent court filing that she qualified as covert under the Intelligence Identities Protection Act, the law that criminalizes the intentional disclosure of a covert officer's identity. He later released an unclassified summary of her employment with the CIA as evidence. And Judge Reggie Walton, the presiding judge in the Libby case, seemed to buy that argument at sentencing.
But over the past three and a half years, dozens of commentators on the right have said, at one time or another, that Plame was not covert: Weekly Standard editor Fred Barnes, Fox News host Sean Hannity, the editorial boards of the Washington Times and the National Review, Wall Street Journal columnist James Taranto, syndicated columnist Ann Coulter, radio hosts Mark Levin and Laura Ingraham and bloggers Glenn Reynolds (Instapundit) and the anonymous Ace of Spades, to name just a few. Contacted by Salon last week, most did not respond to requests for comment or declined to comment. Those who did respond are largely sticking to their guns, albeit with some caveats.
In July of 2005, Reynolds wrote that "nobody ever said that [Plame] wasn't working for the CIA -- the question is whether she was a covert spy or a paperpusher, and the answer seems pretty clearly to be the latter." Asked by Salon whether he intended to correct or retract that post, Reynolds said that "normally one retracts original reporting, and I haven't done any original reporting ... My position on this has always been that this is a non-scandal and a non-story, and I'm certainly not going to retract that. I'd like to see investigation of leaks that have damaged national security." And asked if, as a post of his seemed to indicate, he believed Fitzgerald was at fault for some people's mistaken belief that Plame was not covert, he said he did. After the interview, Reynolds e-mailed this reporter, saying, "You might ask Richard Armitage for a reaction!" (Armitage, the former deputy to Colin Powell, has acknowledged that he is the original leaker, but as the IIPA requires intent, he was never charged.) Reynolds later updated a post on his site to reflect much of this conversation, as well as the e-mail.
One person who has not changed her mind about Plame's status is Victoria Toensing. Toensing was, as chief counsel to the Senate Intelligence Committee during the 1980s, involved with the drafting of the IIPA. She has consistently asserted -- in an Op-Ed for the Washington Post, for instance -- that Plame was not covered by the IIPA. A Republican, Toensing sent, along with her husband and law partner, Joseph DiGenova, a letter to Judge Reggie Walton arguing for clemency for Libby. Their letter said that Libby is "honorable and caring ... a man of deep commitment to those who depend upon him."
Toensing says that when the IIPA was originally drafted, it was intended to cover operatives serving overseas and that a provision that covered those who had served overseas within the previous five years was intended to protect the sources of operatives who had returned. According to the unclassified CIA summary, which only covers the years after Jan. 1, 2002, Plame was stationed in the United States. "We never, ever envisioned someone in the United States being covered," she said, adding, "Travel to Taiwan for a weekend was never [supposed to be covered]."
Despite Fitzgerald's assertions, and Judge Walton's seeming acceptance of that argument, Toensing has a decent, if not airtight, case. The plain language of the statute -- "The term 'covert agent' means ... a present or retired officer or employee of an intelligence agency ... who is serving outside the United States or has within the last five years served outside the United States" -- doesn't define what "serving" and "served" mean. Neither does a Senate Judiciary Committee report on the legislative history of the IIPA, though it does say, "The committee has carefully considered the definition of 'covert agent' and has included only those identities which it has determined to be absolutely necessary to protect for reasons of imminent danger to life or significant interference with vital intelligence activities," adding later that it is undercover officers and employees overseas who are in particular danger when their identity is revealed.
The exact meanings of "serving" and "served" have never been litigated. There is, as such, no way of saying how a court would interpret the statute and thus no way to truly and definitively refute Toensing's argument, or the arguments of those who are careful to echo Toensing and stick to contesting Plame's status not in general but as it relates to the IIPA.
People associated with or writing for the National Review often, in supporting Libby, denied that Plame was covert. Mostly, they trod the safe line, discussing the statutory definition. However, there were a few instances in which they slipped and said outright that Plame was not covert: In a July 2005 article, for example, Levin wrote, "Despite all the hype, it appears that Plame works a desk job at the CIA. That's an admirable and important line of work. But it doesn't make her a covert operative, and it didn't make her a covert operative when Bob Novak mentioned her in his July 14, 2003, column." Levin did not respond to an e-mailed request for comment. There was also a March editorial, which said that "the [CIA] certainly knew that there had been no criminal violation since Plame wasn't 'covert.'" In an interview with Salon last Friday, Rich Lowry, the magazine's editor, said National Review staff would return to the issue of Plame's status this week, and that -- at the time of the interview -- they had not decided what, if anything, needed to be clarified. On Tuesday, Lowry posted at the Corner, the magazine's group blog, writing,
"This is a murky matter with lots of conflicting interpretations, but we were too categorical in how we put it in that editorial."
MSNBC host Tucker Carlson, whose father, Richard Carlson, is on the advisory committee for the fund set up to help pay for Libby's defense, told Salon that he believes the CIA was defining Plame as covert at the time of Novak's column, but questioned the definition.
"If it is in fact true that she had served under nonofficial cover and was then working at Langley, the story is why was CIA calling her covert? ... I'm covert too, how does that sound? What does that mean?" Carlson said. "CIA clearly didn't really give a shit about keeping her identity secret if she's going to work at fucking Langley."
Carlson also challenged the assertion made in the unclassified summary released by Fitzgerald that Plame had continued to travel under nonofficial cover while working from Langley.
"I call bullshit on that, I don't care what they say. ... That cannot happen, that does not happen, you cannot work there every day and then pretend that you are a businessman or that you are an investment banker. That's too dangerous, that's crazy, they wouldn't do that. That's just not true."
John Hinderaker, a blogger at Powerline, echoed some of Carlson's concerns.
"If you want to talk about the word covert in its popular meaning, there's nothing covert about someone who drives in to Langley every day and sits at a desk. That does not fit anybody's popular definition of what covert means," Hinderaker said. "The context of [Powerline's] discussion of that issue has always been the statute, and the indications have always seemed to me to be reasonably strong that she was not covert, because she had been working at a desk at Langley for years. If that turns out to be wrong, I'll say so."