The Lewis Libby defense team has just filed its response to CIA leak prosecutor Patrick Fitzgerald’s argument that Libby should be sentenced to a fairly stiff 30-37 months in jail for his conviction on perjury and obstruction of justice charges. Fitzgerald has essentially argued that Libby should be sentenced as if Libby had violated the Intelligence Identities Act. Libby’s response is that Fitzgerald is seeking to punish Libby for misdeeds that Libby wasn’t accused of, much less convicted:
Mr. Libby did not commit an underlying offense relating to unauthorized disclosure of national defense information. Just as significantly for purposes of the Guidelines, neither did anyone else. These facts were unmistakably clear from early in the government’s investigation, and certainly cannot be disputed now, in light of the evidence adduced at trial. The government has used the sentencing process to reinject into the case, unconstrained by the rules of evidence, issues long since ruled irrelevant. It seeks to have Mr. Libby sentenced on the basis of the case it could have sought to try — but chose not to.
The Libby brief also disputes Fitzgerald’s assertion that CIA agent Valerie Plame was a covert agent — not covert at all, but covert as precisely defined by the Intelligence Identities Protection Act (IIPA):
The government has refused for years to take a position regarding whether Ms. Wilson was a covert agent as defined under the IIPA. For example, in his October 28, 2005 press conference, in response to a reporter’s question, the Special Counsel stated: “I am not speaking to whether or not Valerie Wilson was covert.” Early in discovery, Mr. Libby sought discovery of documents relating to whether Ms. Wilson’s status as a CIA employee was classified. The government refused to provide the requested discovery on the ground that it was irrelevant. It noted (correctly) that Ms. Wilson’s CIA status was “not an element of any of the three statutory violations charged.” In fact, according to the government, it was “irrelevant whether Mr. Wilson’s wife actually did work at the CIA” at all.
On June 2, 2006, the Court issued a discovery order “set[ting] forth what this case is and is not about.” After noting that Mr. Libby had not been charged with illegally disclosing Ms. Wilson’s affiliation with the CIA, the Court explained that “the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied” to the grand jury and the FBI about his conversations with three news reporters. The Court made clear that the actual status of Ms. Wilson’s CIA employment had nothing to do with answering that question. Denying Mr. Libby’s discovery requests, the Court held that “Ms. Wilson’s documented status as an employee of the CIA, unless viewed by the defendant or the content of the documentation was made known to him or a potential government witness, is simply immaterial to the preparation of the defense and thus not discoverable.”
Now, however, Libby notes that Fitzgerald has provided a statement from the CIA to the effect that Mrs. Wilson was covert — but Libby questions whether that definition fully fits the IIPA (which Libby wasn’t accused of violating anyway):
First, the government claims that its “investigators were given access to Ms. Wilson’s classified file.” This is tantamount to asking the Court and Mr. Libby to take the government’s word on Ms. Wilson’s status, based on secret evidence, without affording Mr. Libby an opportunity to rebut it. Such a request offends traditional notions of fairness and due process.
Second, the government relies on a terse two-and-a-half page summary of Valerie Wilson’s employment history that was generated by the CIA, which purports to establish that “Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.” We have never been granted an opportunity to challenge this conclusory assertions or any of the other unsubstantiated claims in this document, nor permitted to investigate how it was created. If nothing else, the fact that the CIA’s spokesperson confirmed Ms. Wilson’s CIA employment to Mr. Novak calls into question whether the government was taking affirmative measures to conceal her identity.
The summary described above was provided to the defense along with a companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important to bear in mind that the IIPA defines “covert agent” differently. It states: “The term ‘covert agent’ means— (A) a present or retired officer or employee of 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.” The CIA summary of Ms. Wilson’s employment history claims that she “engaged in temporary duty (TDY) travel overseas on official business,” though it does not say whether such travel in fact occurred within the last five years. Further, it is not clear that engaging in temporary duty travel overseas would make a CIA employee who is based in Washington eligible for protection under the IIPA. In fact, it seems more likely that the CIA employee would have to have been stationed outside the United States to trigger the protection of the statute. To our knowledge, the meaning of the phrase “served outside the United States” in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA remains very much in doubt, especially given the sparse nature of the record.