Libby and sentencing

"In the world you will find tribulation, but be of good cheer, for I have overcome the world."

John 16:33

First, thanks for the compliment in coming here to avoid the flamewars... ;-)

I haven't said that Fitzgerald knew there was no crime committed before investigating. I'm saying I have a substantial question as to whether leaking Plame's name would in fact be a violation of the IIPA, and I see no evidence in the record that Fitzgerald actually examined that issue closely before embarking on his quest to find who leaked the name. And not to speak for Tully, but I don't understand him to be accusing Fitzgerald of lying about anything. Both of these are closely related points.

For a CIA employee's identity to be protected from disclosure under the IIPA, they must meet 2 criteria. First, they must be a classified employee. Plame undoubtedly meets that criteria. Second, they must have "served overseas" in the 5 years preceding the leak. Let's call a person meeting both of these criteria "IIPA covert."

The problem comes in because the CIA does not actually use this particular categorization scheme in its day-to-day work. It does not mark someone's personnel jacket as being "IIPA covert" or not. Instead, the CIA just considers whether someone is classified or not. The confusion arises because the CIA refers to all of its classified employees with the word "covert," whether they've ever served overseas or not. Thus, whenever someone at CIA says, in the regular course of business, that someone is "covert," they just mean "classified." Use of that word says nothing about whether the person is IIPA covert. Let's call this conventional use of the term "CIA covert."

If you wish to establish that leaking Plame's name would violate the IIPA, you must establish not that she is "CIA covert" but that she is "IIPA covert." If you simply ask the CIA, "is Valerie Plame covert," they would tell you yes, even if she had never once traveled overseas, so long as she was a classified employee. From all the evidence I've seen, Fitzgerald never asked the CIA "is Valerie Plame a classified employee, AND has she served overseas in the 5 years before Scooter Libby's first leak of her name?".

Even in the most recent employment summary document from the CIA, the CIA never said that she "served" overseas in the preceding 5 years. It said she traveled overseas without official cover, which may or may not mean anything (and they're fuzzy on the time frame, too, if I recall correctly).

What Tom Maguire, Tully, I, and many others have stated is that the CIA is required by law to pay an extra stipend to people during their service overseas. Thus, Plame's pay records should show whether she had gotten the overseas service payment at any point during the preceding 5 years. It's not a difficult thing to determine at all. Just go look at their pay records for Ms. Plame.

If the CIA were to provide an affidavit that they had reviewed Plame's personnel records and found that she had been paid for overseas service after 1998 (about), that would absolutely settle the matter. With such an affidavit, I would join the chorus stating that Libby should indeed be sentenced based on obstructing an investigation into that crime. But if the CIA is unable to provide such an affidavit, then that means that Plame was NOT "IIPA covert," and thus leaking her name was not a violation of the IIPA. Because Fitzgerald could have, and should have, made that determination first, before proceeding with looking at who leaked the name, it would be inappropriate to change him with impairing an investigation into a crime which could not have, by definition, occurred.

Nope, I'm saying that unevidenced allegations and assertions from a prosecutor shouldn't be considered as established facts in considering sentencing enhancements. Especially when the prosecutor actively prevented the acquisition and presentation by the defense of the evidence that could have established the facts of the point.

Note: If not for the defense's frustrated attempts to obtain such evidence for trial, I wouldn't think Libby should be allowed to use such claims either. There has been NO substantive evidence presented one way or another of Plame's actual status under IIPA. So, to me, both Libby's allegation that there was no underlying crime made as a sentence mitigator, and Fitzgerald's unevidenced assertion in rejoinder that Plame was "covert" under IIPA made as a sentence enhancer, using ONLY Fitzgerald's own summary of a CIA summary that itself appears to have been insufficient to establish that, are nullities that the court should ignore. The ONLY consideration I can see there is a subjective one on the part of the judge, who sided with Fitz in barring obtaining said evidence for defense use at trial.

Fitzgerald's assertion that he was actually actively pursuing investigation of possible IIPA and EA violations is another issue, one well-evidenced in the record, and supports that part of his motion for sentence enhancement. The separate "pro-Libby" argument there is that Fitz knew (or should have known) at the time Libby was questioned, that there was no violation, and the investigation should have ended at the point Fitz knew there was no violation, is a side issue. I'd call it nit-picking, in light of the verdict, difficult to prove, but somewhat valid as a counter-argument if true. However I doubt it could ever be shown by the defense, and thereby dismiss the argument as speculative.