Does "hush, hush, this is on the QT" equal "classified information"?... This diary may seem passé or premature, either one, since much of this was covered in 2005 and who knows where it goes after Libby's perjury trial. But with the testimony of Ari Fleischer today, we now have an official court record that strongly, strongly states that Libby knew Plame was covert - AND that Libby outed her in full knowledge of that. That will provide legal grist for further indictments of Libby, possibly Cheney, too.
Summer of 2005: the furor on the blogosphere was whether or not Plame was actually covered under the Intelligence Identities Protection Act (IIPA) and whether it was provable in court that any of the outers (intentionally plural) knew she was covert. Both legal requirements now seem to have been met.
Fleischer seems to have opened that latter door today, and in the same statement (as it was worded in what I read) seems to have confirmed that Plame was covert, too. In addition, there also may be sufficient evidence to show conspiracy and more that includes Cheney as well, since Cathy Martin earlier testified that Cheney wrote the leak to Matt Cooper that was to be attributed to Libby. More below the fold...
Raw story reports Former White House spokesman says Libby told him about Plame earlier than admitted, as reported on air by David Schuster thusly:
As Ari Fleischer started describing a crucial lunch with Libby, he was looking at the jury with all his responses, and the jury seemed to be hanging on every word, writing down everything that he said.
The crucial testimony from Ari Fleischer is that on Monday, July 7, 2003, he was asked to go to a lunch with Scooter Libby and they were talking about Fleischer leaving the White House, and Ari Fleischer started to talk about how he was stating to get questions about the criticism from Joe Wilson.
Fleischer testified that [Libby] then told him Ambassador Wilson was sent to Niger by his wife. She, Valerie Plame works at the counter-proliferation division and, by the way, this is hush, hush, this is on the QT. That was Fleischer's testimony.
Schuster went on to say that the importance of it is in regards to the present perjury trial, and it is indeed. But it also is important in establishing - if the testimony is not overturned on cross-examination - that Libby satisfied the requirements of the IIPA.
Here is Section 421 about the Outing of Covert Agents, with the requirements listed as
TITLE 50,
CHAPTER 15,
SUBCHAPTER IV - PROTECTION OF CERTAIN NATIONAL SECURITY INFORMATION
Section 421. Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources
(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent
Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.
(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information
Whoever, as a result of having authorized access to classified information, learns the identity of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both.
Libby was certainly one who had "authorized access to classified information that identifies a covert agent", as it was (as the current trial is in the process of showing) Cheney who informed Libby of Plame's status. If that is indeed shown to be the case, the fact that Cheney told him de facto made it "authorized".
That Libby told Fleischer that "Valerie Plame works at the counter-proliferation division and, by the way, this is hush, hush, this is on the QT," [Schuster's words, not a direct quote from Fleischer] is important in more than one way. Libby, like anyone else in the White House, had to be educated in the handling of classified information and to swear to abide by the laws governing such handling. Had he not been so educated, and so sworn, he would not have been allowed to remain in his position with Cheney. In the course of his earlier jobs in the Defense Department with Paul Wolfowitz, the State Department, the House of representatives and more, he would clearly have known what the Counter-Proliferation Division was, and that people who worked there were in all likelihood - if not required - to be covert. If in any doubt at all, he had an obligation to check.
The entire Plame case began because the CIA complained that her outing had injured their activities, and that her employment with the CIA was classified. That alone should answer any critics of that argument.
That he then told Fleischer that it was "hush, hush, this is on the QT" - could it BE any clearer that he knew he was not supposed to confide it to anyone without a clearance and a "need to know"? He certainly could not have thought that reporters were people "authorized to receive classified information".
Now, Fleischer was certainly authorized to receive classified information, so telling Fleischer in itself was not a beach of the IIPA. No foul there. But when he then disclosed this to reporters, that crossed the line.
Arguments that she was not covert are shown to be wrong by:
- The CIA's complaint
- Libby's knowledge that she worked at the counter-intelligence division
- Libby's telling Fleischer it was "hush, hush, this is on the QT".
Arguments that Libby did or did not tell reporters will be determined in the course of this trial. The facts ascertained in this trial then become the foundation of prosecution under IIPA. I believe
As I noted in the Intro, Cheney is severely at risk here, too, since he authored the leak. Knowing Fitzgerald's propensity to use Conspiracy charges, Cheney is doubly at risk, IMHO.
I am not a lawyer (as you can all see), but this is all pretty clear it seems.
P.S. Paragraph (c) of Section 421 seems possibly to apply now, too. It reads
(c) Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents
Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual's classified intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than three years, or both.
With Libby's seeming widespread divulgences to reporters (not to mention his alleged blabbermouthed activities within the administration), the only clause within (c) that is in doubt is whether it can be shown that Libby had "reason to believe that such activities would impair or impede the foreign intelligence activities of the United States."
But how could he NOT know that?
Plame worked in counter-proliferation. How could outing her not impair the foreign intelligence activities she was working on - if not an even broader swathe of impairment? The paragraph does not mention some minimum standard of impairment, so is one to conclude it means ANY impairment? How could Libby (and Cheney) not know they were putting a CIA activity at risk?