Per Newsweak's Michael Isokoff (the CIA fly on the wall):

"Newly released court papers could put holes in the defense of Dick Cheney's former chief of staff, I. Lewis (Scooter) Libby, in the Valerie Plame leak case. Lawyers for Libby, and White House allies, have repeatedly questioned whether Plame, the wife of White House critic Joe Wilson, really had covert status when she was outed to the media in July 2003. But special prosecutor Patrick Fitzgerald found that Plame had indeed done "covert work overseas" on counterproliferation matters in the past five years, and the CIA "was making specific efforts to conceal" her identity, according to newly released portions of a judge's opinion."

Oh yeah? And she was where? Was it Niger about, oh, say about 1999? And what "specific efforts". Was that when Harlow called back to Novak after "he checked" Plame's 'status'?

If so, were these 'efforts' so "specific" that they outside of the way that that the Agency normally protects a covert agent's identity. But "just for Plame" they did it differently this time?

Byron York, in a January 6th, 2006, take on these documents wrote:

"The newly released portions of a judge's opinion to which Newsweek refers come from a February 15, 2005 opinion by Judge David Tatel of the United States Court of Appeals for the District of Columbia. In that opinion, Tatel wrote:

As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years" — representations I trust the special counsel would not make without support."

So Judge Tate doesn't actually "know" anything, except that he trusts Fitzgerald. The only problem with that is Fitzgerald case is beginning to appear more jumpy than a frog in a asphalt parking lot on a hot summer day. Byron asks the obvious:

"Given that "the record omits specifics about Plame's work," Tatel based his analysis on a footnote in an August 27, 2004, affidavit submitted to the court by Fitzgerald. That document, too, was released last week. In the footnote, Fitzgerald wrote:

If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 [the Espionage Act] if the information is considered "information respecting the national defense." In order to establish a violation of Title 50, United States Code, Section 421 [the Intelligence Identities Protection Act], it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

That is the entire text upon which Tatel based his conclusion. Was Fitzgerald saying that he knew in fact that the CIA was making specific efforts to conceal Plame's identity and that she had carried out covert work overseas within the last five years? Or was he simply reciting the requirements for prosecution under the Intelligence Identities Protection Act? It's not entirely clear. The only fully clear part of it is that Fitzgerald had no direct evidence that Libby knew Plame was covert.

Tatel also placed great emphasis on a statement by then-CIA spokesman Bill Harlow in which Harlow asked journalist Robert Novak not to publish Plame's name. Tatel pointed out that Harlow told Novak that, in Harlow's words, it was "very unlikely that she will ever be on another overseas might be embarrassing if she goes on foreign travel on her own." That statement, Tatel wrote, "strongly implies Plame was covert at least at some point."

What the hell! So this "definitive proof" is based on "feelings" and "beliefs"? Swell. Let's just call it the "Ophra Prosecution of Scooter Libby", and we know how trustworth those "feelings" are don't we Oprah?

Fact is that IF she was covert the CIA could produce and Fitzgerald would have included in his affidavit the evidence the agency used to establish protection. The fact is that there isn't any.

But then that begs the question. Is Fitzgerald the bad guy - the dupe? Is he on the take? Or was he take for a long ride?

This article from Albert Eisele in the The Hill from last year again answers the question, at what is at the Heartof the Plame Game:

"Joe DiGenova, who served as an independent counsel investigating alleged misuse of passport information by the Clinton administration and now is in private practice with his wife, former Justice Department official Victoria Toensing, lays most of the blame for this explosive controversy on the CIA.

“I believe the agency didn’t properly protect [Plame’s] identify because they didn’t want to and clearly didn’t try,” he said. “To think that journalists are being put through this is crazy. Where we are now is absolutely absurd.”

DiGenova says he hasn’t changed his mind from what he told me in March, when we had a long conversation just before I left for a reporting trip to Iraq. He pointed out that the statute that protects the identity of covert agents “has a very high standard for prosecution.

“The only way an investigation can begin is if the agency swears — swears — that it took every conceivable step to protect this person’s identity.”

For example, the CIA had to answer 11 specific questions about what steps it took to protect the identity of a covert agent. But diGenova questions whether some of the information the CIA provided the Justice Department on those 11 questions “was materially false.”

In addition, he pointed out that the CIA paid for Wilson’s trip, didn’t ask him to sign a confidentiality agreement, didn’t object to his writing the op-ed article in the Times and allowed him to conduct TV interviews and to appear in a photo with his wife in Vanity Fair, he noted.

“The CIA isn’t stupid,” he said. “They wanted this story out. I’m raising the question: Did the CIA mislead Fitzgerald?”

That might just be the case.

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