The Betrayal of Valerie Plame

Valerie Plame was a covert intelligence officer covered by the Intelligence Officer's Identity Protection Act, and Lewis "Scooter" Libby lied to the grand jury. These two truths emerge from the opinion written by Judge Tatel, of the U.S. Court of Appeals, and released in February 2005. Thanks to a FOIA request by the Wall Street Journal we now have a more complete record, although key parts of his decision are still blacked out. Perhaps most of the media will now realize that they have been fed a pack of lies by the likes of Ken Mehlman, Victoria Toensing, Cliff May and others.

Tatel's opinion also is relevant to the current furor over "domestic spying" and whether reporters will have any ability to protect their sources. It certainly appears that Tatel would uphold the right of the reporters to protect sources who told them about illegal spying. Tatel's concludes his opinion that Judy Miller and Matt Cooper had to testify before the grand jury with the following:

In sum, based on an exhaustive investigation, the special counsel has established the need for Miller's and Cooper's testimony. Thus, considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas … Here, two reporters and a news magazine, informants to the public, seek to keep a grand jury uninformed. Representing two equally fundamental principles -- rule of law and free speech -- the special counsel and the reporters both aim to facilitate fully informed and accurate decision-making by those they serve: the grand jury and the electorate. To this court falls the task of balancing the two sides concerns ...

... Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jurys need for the reporters evidence, I might have supported the motion to quash. Because identifying appellants sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court's orders compelling their testimony.

Tatel's incisive opinion makes he clear that he understands the difference between someone who leaks information designed to hurt U.S. intelligence assets, as happened in Valerie's case, and someone who leaks information about government malfeasance, as happened with the leak to James Risen that the Bush administration was spying on Americans. The key issue for Tatel was "harm" to the United States versus the public's right to know.

Speaking to the harm caused by the leak, Judge 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 five years -- representations I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.)

Some of the Bush apologists, such as Byron York of the National Review, is still trying insisting that Plame's covert status is in doubt and that no damage was done by seizing on a paragraph in a recent letter from Patrick Fitzgerald to Scooter Libby's attorneys. In a December 14, 2005, letter to Fitzgerald, Libby's lawyers asked for "any assessment done of the damage (if any) caused by the disclosure of Valerie Wilson's status as a CIA employee." Fitzgerald's response stated, "A formal assessment has not been done of the damage caused by the disclosure of Valerie Wilson's status as a CIA employee, and thus we possess no such document."

This much I do know. The CIA, as matter of standard operating procedure, conducted a preliminary damage assessment once Valerie's identity was publicly compromised. Human intelligence assets who had worked under Valerie's direction were damaged. Their lives were put at risk (I don't know if anyone died) and their ability to serve as clandestine assets reporting to the United States was destroyed. Remember, Valerie was working on projects to identify terrorists and criminals who were trying to procure weapons of mass destruction. Part of this information was the basis for the referral to the Justice Department in September 2003 to investigate this as a violation of the Intelligence Identities Protection Act. Although the CIA has not completed a formal written report that is available to outsiders, such as the House or Senate Intelligence Committees, it has done a damage assessment.