10/25/2005 01:04 am ET Updated May 25, 2011

Whom Should I Believe? Victoria Toensing or My Own Lying Eyes?

"'There is not one fact that I have seen that there could be a violation of the agent identity act,' said Victoria Toensing, a lawyer who helped draft the 1982 act." The Washington Times, October 10, 2005

"[T]he interesting thing is all this started from the supposed violation of a 1982 statute that has nothing to do with this case, people are now agreed on that." George Will on This Week October 16, 2005

Did anyone else read the Foreign Intelligence and Identities Act? I did, and it appears to fit Scooter Libby like a glove. Here, step-by-step, is why I think Toensing may be, shall we say, embellishing.

There are several ways to violate the Act, but 50 U.S.C. 421 (a) seems to apply:

"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, United States Code, or imprisoned not more than ten years, or both."

Going through the elements, one by one:

1. Did Libby have authorized access to classified information that identifies a covert agent?

a. Libby certainly had authorized access to classified information.

  • The statute doesn't require that Libby read any classified memo. If someone else with top secret clearance told Libby the information, the requirement is met.

b. The information was classified.

c. Did the information identify Plame as a "covert agent"? Or was Plame a "covert agent"?

Under the statutory definition, a "covert agent" under 50 U.S.C. 426(4)(A) includes someone:

  • Who is an employee of an intelligence agency,
  • Whose identity as an employee of the intelligence agency is classified, and
  • "Who is serving outside the United States or has with the last five years served outside the United States"

Here's how Toensing, with compatriot Bruce Sanford of Baker & Hotstetler, construed the statutory definition of a "covert agent":

"At the threshold, the agent must truly be covert. Her status as undercover must be classified, and she must have been assigned to duty outside the United States currently or in the past five years. This requirement does not mean jetting to Berlin or Taipei for a week's work. It means permanent assignment in a foreign country. Since Plame had been living in Washington for some time when the July 2003 column was published, and was working at a desk job in Langley (a no-no for a person with a need for cover), there is a serious legal question as to whether she qualifies as 'covert.'" "The Plame Game: Was This a Crime?" Washington Post January 12, 2005

But look at the literal text above. The statute says nothing about being "assigned to duty outside the United States" or "permanent assignment in a foreign country." Plame must have merely "served" the CIA outside the United States. This wording was no oversight, since an alternate definition of "covert agent" under 50 U.S.C. 426(4)(B) specifies someone who "resides and acts outside the United States." You "reside" in the country where you have a permanent assignment, but you can "serve" the agency outside the United States in the manner described by Plame's former C.I.A. colleague, Larry Johnson:

"I can tell by virtue of how that [CIA from] company was set up. She was traveling overseas as a consultant in order to meet individuals who would have access, could be either agents of access, could be possible recruits to become spies for the United States in the area of about chemical, biological or nuclear weapons." Testimony before the Senate Democratic Policy Committee on July 22, 2005 [PDF]

In fact "serving outside the United States" can mean something very temporary. A grunt who spent two months in Tikrit "served" in Iraq. Condoleezza Rice travels to the Middle East in the service of the United States.

If Plame regularly traveled outside the U.S. for C.I.A business during the past five years, she was a "covert agent."

2. Did Libby intentionally disclose any information identifying such covert agent to any individual not authorized to receive classified information?

a. Libby told Judith Miller that Joe Wilson's wife worked for the CIA, three times. That establishes "intent" and it "identifies" the covert agent, Plame.

  • Again, specifying Plame's employment at the CIA, when she received her W-2 from front organization Brewster-Jennings, & Associates, identifies Plame as a covert agent. In this case, using her name makes no legal difference.

b. Miller was not authorized to receive the information, which was classified.

3. Did Libby know that the information disclosed so identifies Plame as a covert agent and that the United States is taking affirmative measures to conceal such Plame's intelligence relationship to the United States?

a. Libby knew he identified Plame, but did he:

  • "know" that her status as a CIA employee was classified?
  • "know" that revealing her employment would identify Plame as a covert agent?
  • "know" he U.S. was taking affirmative measure to conceal her identity?

If Libby read the notorious State Department memo that was the basis for the claim that Plame set up the trip, he knew all of the above. If Libby were obsessed with finding out all he could about Joe Wilson, he would have inevitably come across such information.

Toensing defines "affirmative measures" in her own unique way: "Just giving someone a false identity and a front does not meet the legal standard of affirmative measures especially when she has a desk job at Langley and is driving in and out every day." Washington Post -- Live Online, January 12, 2005

Oh really? Says who? Toensing's standard is nowhere to be found in the statute or legislative history.

Her analysis published on the Washington Post op-ed page goes further:

"There are ways of perceiving whether the government was actually taking the required necessary affirmative measures to conceal its relationship with Plame. We can look, for example, at how the CIA reacted when Novak informed the press office that he was going to publish her name. Did the general counsel call to threaten prosecution, as we know has been done to other reporters under similar circumstances? No. Did then-Director George Tenet or his deputy pick up the phone to tell Novak that the publication of her name would threaten national security and her safety, as we know is done when the CIA is serious about prohibiting publication? No. Did some high-ranking government official ask to visit Novak or the president of his newspaper syndicate to talk him out of publishing - - another common strategy to prevent a story? No.

"Novak has written that the CIA person designated to talk with him replied that although Plame was probably not getting another foreign assignment, exposure "might cause difficulties if she were to travel abroad." He certainly never told Novak that Plame would be endangered. Such a meager response falls far legally shy of 'affirmative measures.'" "The Plame Game: Was This a Crime?" Washington Post January 12, 2005

Toensing needs a refresher course in reading comprehension. She confused her tenses. The leaker must be aware of affirmative measures when he made the leak. Any CIA actions or inactions after the leak are irrelevant to this statute.

When Dan Abrams called Toensing's bluff, she threw a little hissy fit:

TOENSING: Any good reporter knows that when the agency doesn't want you to report something, they threaten you with prosecution or they get the number one or number two person to call you. Bob Novak has been on the record as saying, if they'd done that, I would not have published it. I've been there.

ABRAMS: Yes, but that's a - that's a defense of Robert Novak. I mean that's - and, look, and I've had - I have a lot of problems with how Novak is handling this. I've said it many times. But that's just a defense of . . .

TOENSING: No, it's not, it's an element. You have to understand that. It's the affirmative measures of hiding her identity.

ABRAMS: No, no. No, no. It's not an element that whether the CIA . . .

TOENSING: Yes, it is.

ABRAMS: Would call someone and tell them not to publish it.

TOENSING: Sure it is.

ABRAMS: That's not - what element of the crime involves the CIA calling the reporter and warning them ahead of time?

TOENSING: Because the CIA has to take affirmative measures to hide her identity. And if when told that it's going to be published and they shrug . . .

ABRAMS: But it doesn't have to be - but it doesn't have to be that. The affirmative measures can be anything, Victoria. They . . .

TOENSING: No, they can't, Dan. Come on, I know what it's like. I had . . . I was chief counsel over the intelligence committee.

ABRAMS: I don't care. That's irrelevant. But you're still misstating the law.

TOENSING: Yes, but I - no, I'm not.

ABRAMS: I mean it's - of course you are.

TOENSING: No, I'm not.

ABRAMS: You're suggesting to me that the only way that the Robert Novak could get this information . . .

TOENSING: I didn't say it's the only way.

ABRAMS: You just said - you said that if the CIA didn't call him and warn him ahead of time, that's an element of the crime.

TOENSING: I said that's indicia, Dan.


TOENSING: Of not taking - no, I say that's a factor. I could go on but I bet you, you won't let me go on for all the things that they did, all the things that they did that allowed her identity to be revealed. Including - yes, I mean, she donated to Al Gore in her, you know, in her own name.

Abrams Report, July 12, 2005


Again, the statute doesn't say the "affirmative measures" must be airtight or comprehensive. As Abrams said, "affirmative measures" can mean anything.

The only defense Libby might assert is if, at the time of his leak, the United States had publicly acknowledged or revealed: "the intelligence relationship to the United States of the individual the disclosure of whose intelligence relationship to the United States is the basis for the prosecution." (Section 422)

But that's very different from Toensing's dubious allegation that the C.I.A. let the information slip out. The U.S. government had never publicly acknowledged anything at the time of Libby spoke with Judy Miller on June 23 and July 8, 2003.

So add up the elements, and there's a prima facie case against Libby.

We should know soon enough what Fitzgerald does. For now, Toensing has new talking points:

"Chris, at one point maybe about a month ago I would have said he's a lawyer who is dotting every I, crossing every T, he's just being thorough and he's telling the press, you wanted an investigation, I'll show you an investigation so that no one can say that I skipped any little beat in this thing. But I think recently, I have seen evidence that he has lost it. He has gone over the edge." Toensing on Chris Matthews' Hardball, October 12, 2005

"Fitzgerald has a reputation for being very brain-smart and for being honest, but not necessarily for being judgment smart." Toensing on Countdown, October 11, 2005

Who is Toensing to talk about "being honest"?