What Is Fitzgerald Hiding, and Why Is He Hiding It?

Monday, February 27, 2006
National Review’s Byron York reports today on the court hearing held Friday in the Lewis “Scooter” Libby case. According to York, Prosecutor Patrick Fitzgerald told the court that it doesn’t matter whether or not Valerie Plame was a covert CIA agent when she was mentioned in the famous Robert Novak column.

The court hearing was concerning discovery, a legal term meaning the production of information so that the parties to a lawsuit will be fully informed before the trial begins. In any federal court proceeding, discovery generally tends to be expansive so that the parties are not unfairly surprised at the time of trial.

Libby’s defense attorney, Ted Wells, argued that Plame’s status and whether she was a covert agent mattered a great deal to the defense. Wells appeared to question the covertness of Plame, asking whether she was "classified based on a piece of paper."

Wells asked for a copy of the CIA’s referral to the Department of Justice, but Fitzgerald refused this request, saying that he would file a sealed document with the court. U.S. District Judge Reggie Walton reserved decision on this request until he has a chance to review this sealed filing.

Why is Fitzgerald refusing to produce information concerning the status of Plame? Wasn’t this his original charge when he was appointed? The first thing Fitzgerald should have established in his investigation was whether Plame was covert or not. What is he hiding? And why is he hiding it?


RogerA said...

hmmm--vewy vewy interesting! one would have thought that, and one would assume her employment status was the basic issue in the case. The Plame kerfuffle will continue sometime into the next decade, I suspect--Its already approaching grass knoll status!

flenser said...

The CIA should have been eliminated a long time ago, by 2003 at the latest. It's a failure on the part of the Bush administration that this was not done. At first it was not his fault, but at this stage the buck stops in the Oval Office.

It's pretty damming that things which should not be classified, (Plame's name, the referral) are considered ultra-classified by the CIA, and cannot be divulged to the American people. Meanwhile the CIA seems to have zero problem with leaking information which really should be classified and has military significance.

Wipe the slate clean and start from scratch, hiring new employees based on need and merit. That would probably be a good tack to take in a few other places also. Like State.

But for some reason the WH continues to refuse to take control of entities which are theoretically under its command.

Knucklehead said...

Wow, Fitzgerald seems a bit, ummm..., zealous here: (From Yorks NRO piece)

Even if Plame had never worked for the CIA at all, Fitzgerald continued — even if she had been simply mistaken for a CIA agent — the charges against Libby would still stand.

Leaving aside the (seemingly obvious) matter that if Novak had simply been mistaken about Plame's status as a CIA employee Fitzgerald would never have been sent off to investigate (how could a mistaken "outing" of a CIA employee be a crime so why would we have a special prosecutor at all?) the "discovery" issue seems fairly solid. If Fitzgerald was looking for a crime, even though there was no crime, you can't lie to him.

In addition, Fitzgerald said, he does not intend to offer "any proof of actual damage" caused by the disclosure of Wilson's identity.

This strikes me as patently absurd. I suppose, ultimately, that it really isn't a different statement than the first one but it sounds much worse. We have a Special Prosecutor appointed to investigate the federal government to see if a crime was committed by illegally divulging the status of a CIA employee, finds no such crime and no harm, and yet comes away with an indictment against the chief of staff of the VPOTUS for perjury.

Does anybody see the witch scene from Monty Python's Holy Grail here?

terrye said...

It seems he is persuing the case on obstruction of justice charges. Seems a bit odd to me.

flenser, I have often thought that where the CIA is concerned it should either be done away with or they should fire everyone and start over. But I am not sure the president could do this if he wanted.

I really do not know what it would take, an act of Congress maybe.

Rick Ballard said...


The Kafka manual on running a Star Chamber proceeding does not require ought but the grim determination exhibited by Inspector Clouvert. Be careful in what you write - he reports to no one and has unlimited authority. You could be next.


"First thing" supposes that Fitzgerald is bound by procedural guidelines. Part of the motion for dismissal on the grounds of improper appointment alleges that he has acted without regard to certain procedures. I agree fully with your point but it would be interesting (to me, at any rate) to understand what rules of conduct Fitz has decided to ignore. He sure seems to be a fine example of why the IC statute was allowed to lapse.

flenser said...


The CIA was created by Congress in 1947, so they would have to abolish it also. But they are not going to do it without some signal from the WH.

The agency itself is (supposedly) an arm of the executive branch and is (also supposedly) run by the President.

It is now an independent entity which answers seemingly to nobody and makes and implements its own foreign policy.

Somebody needs to bring it to heel. I hoped that Goss would be the one to do so, but the fact is that things don't seem to have improved since he took over.

He could start to demonstrate some control over there by releasing the Plame referral, and a good deal of other information surrounding that case, all of which seems to be "classified" solely as a stratagem in domestic politics.

I'd be a lot more impressed with Just One Minute if TM paid more attention to these sorts of questions and spent less time pouring over the minutiae of the latest leak. But maybe thats simply a weakness of blogs in general.

Skookumchuk said...


The CIA should have been eliminated a long time ago, by 2003 at the latest.

Probably, especially in the case of most of the policy analysis types. Ah, yes. We will run out of copper by 1980. By 2000, India will be an ungovernable, teeming mass of starving humanity with no future. The Soviet New Man will inherit the earth. Islamic fundamentalism? What's that? So you take some academics out of their little intellectual hothouses, give them mid-level security clearances, and have them analyze the world.

The wonder is that they ever get anything right. I remember an interview where Nixon said he would take the morning CIA briefing and throw it away unread.

I knnow a woman who says working there was horrible - a combination of graduate school and the Post Office.

terrye said...


I think the CIA has become the crazy uncle. Everbody [including Goss] thinks they can handle the old boy until they actually have to be alone with him.

I think everyone is afraid of them.

RogerA said...

The whole CIA imbroglio is interesting--I think those, particularly on the left, whose faith is in government, tend so the bureaucracy as subservient to every whim of the President--I suspect, however, that the same spirit of federalism that pervades our system and dilutes governmental power, exists in spades--Bureaucracies do pretty much what that damn well want to--even worse in the case of bureaucracies with heavy duty security clearances--

I suspect there is a net positive to that from the standpoint of our personal liberties; but boy, does that system ever cover the bureaucracy's respective kiesters--

Max Weber really had them pegged! What he said nearly a century ago, still stands the test of time.

Rick Ballard said...


That's been my impression of the analysis side for some time - analysis was totally screwed up when the Church committee made Congress a client equal in status to the Executive. From that point on, Operations and Analysis went very separate ways with Analysis beginning to resemble State (and probably getting every second rater Operations could identify).

It is silly to ignore, however, the fact that we had decent Humint sources on the ground in Afghanistan in sufficient numbers to make that invasion a real cakewalk. That's why Tenet received the medal, btw, and not for anything else. CIA operations did not have anywhere near the Afghani level of Humint resources in Iraq - and that is very understandable. The Iraqis had a very good internal intelligence system and the very real potential for going through a plastic shredder feet first probly increased the difficulty of recruitment rather drastically.

We don't really know how much or how well Goss is doing in his cleanup - except for the fact that a number of squawking heads were publiclly chopped in his early days. Bureaucratic wars are not less brutal for their relative silence and we are simply not going to be privy to the number of people now sitting at desks without access to either phones or computers. Just as we will not be privy to the number of State clowns taking early retirement rather than reassignment to Togo.

It might cheer some people up if Goss were to arrange for public executions on a weekly basis but it simply isn't going to happen. Nor is public disclosure of Plame's actual status by Goss going to occur. That type of overtly political act - no matter how just it may seem - would be disastrous for moral among folks whose lives really do depend on people keeping their mouths shut.

flenser said...


I have a hard time seeing how anything of genuine importance would be affected if Goss made some public comment as to what Plame's status really was. Can you elaborate on that?

Would that constitute "playing politics" on his part? Perhaps, but the CIA crossed that bridge a very long time ago, and burnt it after them. The entire Plame mess is nothing but an extended excercise in politics, with the CIA seemingly abusing it's position in order to run sting operations against the WH.

If that is what is actually happening then getting to the bottom of it overrides a great many other considerations. I'm not suggesting that any agents lives be placed in danger, but if some of them opt to leave, well, good. I'm already arguing for the agencies complete destruction, so a few more people leaving is not going to worry me.

Rick Ballard said...


I just can't get there. I acknowledge the probability of a group within the CIA working to the detriment of the administration. That is something different than "the CIA" engaging in political behavor. Tu quoque is an inadequate rationale for what would be a totally political response on the part of Goss.

Plame is out and the guys she reported to are out. Neither you nor I know how many others were sent ungently into that good night, nor do we know how many have small notes in their personnel files which will effectively end any hopes of advancement.

AFAIAC the political crew responsible lost when Kerry lost - the size and type of payback is irrelevant.

flenser said...

Well, I still don't see any justification for the referral being classified, and I suspect I'm not going to see one. It's classified to cover the CIA's butt. I don't find that a convincing reason. At the end of the day these people work for us, the taxpayers. I think I speak for a lot of people in saying that I don't think I'm getting my money's worth.

If we are going to apply this principle to the teachers, for example (and we are, right?) then I see no reason to be extra generous to CIA analysts.

We contine to see leaks even after Goss took charge, as with the secret prisions in Europe. Meanwhile information which has no justification for being secret is kept firmly under wraps.

Don't call it playing politics if that makes you feel better. Call it declassifying information which had no business being classified in the first place.

vnjagvet said...

This whole caper is going to keep the historical fiction whodunnit gang in business for years.

It's got everything. Politics, war, sex (there's got to be sex), legal machinations, intrigue, betrayal, sex (did I say that already?), etc., etc.

And it's all top secret.

If we could just get the CIA functional as well after sixty years, wouldn't that just be a bonus?

I wonder if that old CIA hand Poppy Bush has anything to do with his son's reluctance to shake up the thing. OTH, maybe his son knows a whole bunch that we don't because Dad knows so much.

Conspiracy theorists -- have at it.

Rick Ballard said...


Wrt the prisons and the NSA - the intelligence community's client leaked - aided in the NSA matter by a former employee who appears to have a reasonable dim cap defense. He was terminated because of a mental illness - which made him a perfect source for the NYT.

What will you say if Durbin's and Rockefeller's staffers share cells with Risen and Keller of the Time's? The DoJ says that they are going to move fairly quickly on this so we could see Durbin and Rockefeller booted from their committee seats fairly quickly - possibly before summer. Rockefeller's memo will be getting a lot of play as that sordid mess unfolds.

As I said intitially - Frank Church's damned committee screwed intelligence analysis up big time in '78. He was carrying water for his Marxist pals then and the "liberal" wing of the Dems have just kept increasing the amount of water they are willing to carry for a dead philosophy.

If the Bush administration politicizes the DoJ and other agencies to the extent that the Clinton's did, then there really is no difference between the two parties - anything goes. Not my cup of tea, at all.

Syl said...

Whoever leaked to Novak who actually 'outed' Valery is under no threat of indictment. In fact his identity is being protected to honor his privacy.

You see, he is a good leaker. It was just idle gossip you know.

Libby would be a bad leaker. Because fitz is convinced that Libby leaked (well he never leaked her name) to retaliate against a whistleblower.

But since fitz can't prove Libby's motivation, he has indicted him for obstruction.

Fitz doesn't give a flying fig whether Valery was actually covert or not. It's only the whistleblower that matters.

If Valery was not covert within the parameters of the only statute that applies, the IIPA, then fitz is criminalizing politics.

Fitz is afraid retaliation against whistleblowers will chill future ones and eliminate the needed dialog the citizenry requires to make informed decisions.

However, the result of this investigation and indictments will be to chill back and forth between the government and the press.

And the press already wonders why the Bush administration is so 'secretive'.

They ain't seen nothing yet.

If we want a back and fotth between the press and the government, it's not just protecting whistleblowers and anonymous sources that is required, it's also protecting the government's right to set the record straight against false charges.

Without that everybody loses in the end.

Seneca the Younger said...

RogerA, did you follow Clarice's post on the material? It depends on some technical legal points I can't really evaluate (IANALTG), she seems to be making a pretty strong case that if Plame wasn't covert in the sense not of the Espionage Act, but of the Intelliject Identities Protection Act, that none of the charges against Libby can stand up to examination.

It kind of sounds like Fitzgerald is resisting releasing the material that would allow Libby's defense to establish whether there was any material offense. Hard to imagine they'd be resisting this hard if they didn't have something to resist about.

Seneca the Younger said...

Re the CIA, when I used to work with NSA, they had, in my not particularly humble opinion, about one person in 20 who was any good (and, to be fair, some folks, especially in the Computer Security Center, who impressed the hell outta me.)

Then I worked with CIA, and I realized that the reason NSA was as high as 1 in 20 was because if they caught you being useful at CIA they made you transfer.