while i lay sleeping . . .

while i lay sleeping, c.i. knocked out an incredible entry on something in this morning's new york times. i'm going through my e-mails, drinking my coffee and see sherry's written which is always a good read and she's saying 'rebecca, post this!'

i read it and have to agree. here's c.i.:

NYT: "At White House, a Day of Silence on Rove's Role in C.I.A. Leak" (Richard W. Stevenson)
Nearly two years after stating that any administration official found to have been involved in leaking the name of an undercover C.I.A. officer would be fired, and assuring that Karl Rove and other senior aides to President Bush had nothing to do with the disclosure, the White House refused on Monday to answer any questions about new evidence of Mr. Rove's role in the matter. With the White House silent, Democrats rushed in, demanding that the administration provide a full account of any involvement by Mr. Rove, one of the president's closest advisers, turning up the political heat in the case and leaving some Republicans worried about the possible effects on Mr. Bush's second-term agenda. [. . .]
Under often hostile questioning, Mr. McClellan repeatedly declined to say whether he stood behind his previous statements that Mr. Rove had played no role in the matter, saying he could not comment while a criminal investigation was under way. He brushed aside questions about whether the president would follow through on his pledge, repeated just over a year ago, to fire anyone in his administration found to have played a role in disclosing the officer's identity. And he declined to say when Mr. Bush learned that Mr. Rove had mentioned the C.I.A. officer in his conversation with the Time reporter. [. . .]
In September 2003, Mr. McClellan said flatly that Mr. Rove had not been involved in disclosing Ms. Plame's name. Asked about the issue on Sept. 29, 2003, Mr. McClellan said he had "spoken with Karl Rove," and that it was "simply not true" that Mr. Rove had a role in the disclosure of her identity. Two weeks earlier, he had called suggestions that Mr. Rove had been involved "totally ridiculous." On Oct. 10, 2003, after the Justice Department opened its investigation, Mr. McClellan told reporters that Mr. Rove, Mr. Abrams and Mr. Libby had nothing to do with the leak.

The above is from Richard W. Stevenson's "At White House, a Day of Silence on Rove's Role in C.I.A. Leak" in this morning's New York Times. Among the pluses of Stevenson's article is that it's front paged so Karl gets fingered on the front page. Among the more problematic areas of the article is this portion:

"We made it exceedingly difficult to violate," Victoria Toensing, who was chief counsel to the Senate intelligence committee when the law was enacted, said of the law.
[. . .]
"She had a desk job in Langley," said Ms. Toensing, who also signed the supporting brief in the appeals court, referring to the C.I.A.'s headquarters. "When you want someone in deep cover, they don't go back and forth to Langley."*

Toensing is identified in a very interesting manner. Who's Victoria Toejam? Failed TV pundit. Friend of Robert Novak. (Did he give her bad tips for punditing or was she just unable to overcome her own deficiencies?) Victoria Toejam felt the need to weigh in on this matter before with an op-ed in the Washington Post co-written with Bruce Sanford (whom also weighs heavily at the end of the Times' article).

No mention is made by Stevenson of the Washington Post op-ed entitled "The Plame Game: Was This a Crime?" (January 12, 2005) or of her friendship with Novak (proving that you can take an Elite Fluff Patrol squad member out of the fluff, but you can't take the fluff out of the member). Here's Media Matters responding to that op-ed with regards to Victoria Toejam ("Victoria Toensing failed to disclose friendship with "No Disclosure" Novak in Wash. Post op-ed"):

Multiple news outlets have noted that Toensing is apparently a personal friend of Novak -- a fact that neither she nor the Post saw fit to disclose.
Press sightings of social interactions between Toensing, her husband, Joseph E. diGenova, and Novak abound:
An October 1, 2004, article on Salon.com reported that Novak was a guest along with Toensing and diGenova at a September 21, 2004, party in Washington to celebrate the success of the book Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry (Regnery, 2004).According to an October 17, 2001, "Reliable Source" column in The Washington Post, Novak was among "70 friends" hosted by diGenova to celebrate Toensing's 60th birthday at the Palm restaurant.
A February 27, 1998, profile of Toensing and diGenova in The Washington Post reported that "[t]he couple retreat on weekends to their Fenwick Island, Del., beach house, hanging with such pals as Robert Novak and Bill Regardie."
Novak has also defended or praised his friends Toensing and diGenova on at least three occasions in his nationally syndicated column:
"DiGenova, a conservative Republican, would introduce something new at the IRB [Teamsters union Internal Review Board]. He might recommend that it is time to end the monitoring that has cost the union more than $75 million. [Federal prosecutor Mary Jo] White did her best to obstruct the 1998 congressional investigation of the Teamsters conducted by diGenova and his law partner-wife, Victoria Toensing. Nor is diGenova an admirer of Mary Jo White's glacial pursuit of the pre-Hoffa conspiracy between the Teamsters, the AFL-CIO and the Democratic National Committee as the statute of limitations is about to block further prosecution." [8/1/2001]
"This is a cautionary tale of Washington today. Anybody who dares investigate the Clinton establishment can expect the worst. [Former independent counsel] Ken Starr has been transmogrified from a bookish appellate lawyer to Grand Inquisitor Torquemada. His deputies have seen their legal careers belittled and their religious beliefs derided. Congressional investigators Victoria Toensing and Joe diGenova have had their ethics challenged." [5/14/1998]
"On April 30, House Minority Whip Rep. David Bonior, D-Mich., accused Joe diGenova and Victoria Toensing, the Republican husband-and-wife lawyers running the House Workforce Committee investigation of the Teamsters, of 'an outrageous conflict of interest' because they had become part-time commentators for NBC (a deal they canceled Wednesday)." [5/8/1998]

Toejam and Sanford argued Plame wasn't deep cover in their op-ed. Today they again stress to the Times that an outed agent has to have been stationed out of the country in the last five years. Run back the clock. Plame doesn't qualify by public record. Does the law define a covert agent as someone who has been out of the country in the last five years?
I don't know. I don't see that in the excerpt available online of The Intelligence Identities Protection Act of 1982. That doesn't mean it isn't in the act. When Stevenson address it in one paragraph, he fails to make it clear whether he's noting the act (or a legal opinion on it) or if he's being fed by Toejam and Sanford. By not noting Toejam's past history (more later) with the press or her relationship with Novak, he leaves himself open to questions of whether he researched or jotted down unquestionally. (A skill that Elite Fluff Patrol squad leader Elisabeth Bumiller apparently taught to everyone under her command.) It may very well be in the law (which would appear to defeat Poppy's intent behind supporting such an act for years -- some of Poppy's public remarks are noted here.).

People can speculate on whether Plame left the country for any missions (possible) after moving to D.C. (first to an apartment with Wilson in 1997, mid-1997, then later to a home). In January 2000, Valerie Plame gives birth to twins and suffers from postpartum depression. That doesn't make it impossible that the CIA wouldn't have used her for an operation in the time after the birth or at some point before. If the five year rule, that Toejam and Sanford are trumpeting, is correct (if) then Plame would have had to have been "stationed" (which we'll define here as taking part in a "operation"* -- though Toejam and Sanford define it differently, as permanent residence in a foreign country) as late as July of 1998. (July 12, 2003 is the published leak. By the public record, prior to Novak's colum, the leak starts in early July.)

It seems unlikely that if this defintion of a covert operative is in the 1982 Act, Patrick Fitzgerald wouldn't know of it. (Though who knows?) Toejam likes to pass herself off as a "expert" on the Act. But if the "rule" is in the act and she's the "expert" on it that she present herself as, that still doesn't make her an "expert" on when the CIA last utilized Plame undercover. (Which could have occurred at any time prior to July 2003.) That's accepting the five year "rule" and accepting that Fitzgerald's going backwards from July of 2003.

But if we go to Hunter at Daily Kos (via BuzzFlash) we find him citing a Walter Pincus article on the matter:

On July 12, 2003, an administration official, who was talking to me confidentially about a matter involving alleged Iraqi nuclear activities, veered off the precise matter we were discussing and told me that the White House had not paid attention to former Ambassador Joseph Wilson's CIA-sponsored February 2002 trip to Niger because it was set up as a boondoggle by his wife, an analyst with the agency working on weapons of mass destruction.

Is Fitzgerald looking at this as a conspiracy that started long before Novak's July 12, 2003 column? If the White House is not "paying attention" in "February 2002" what are we looking at? If Fitzgerald is arguing that the plan to out Plame was hatched in February 2002 (when the trip went down) the five year "rule" is in play -- Plame was stationed overseas in February of 1997.

If the White House (or individuals in it) knew in 2002 that Wilson's trip couldn't damage them (regardless of results), were plans already in motion to out Plame?

The five year "rule" may or may not be fact. (Stevenson doesn't inform us why he's including it in the article -- quoted to him by Toejam & Sanford or independtly verified by Stevenson.) But if Fitzgerald is looking at as a conspiracy, Plame returns to Washington (as I interpret Wilson's The Politics of Truth pp. 239-242) in June of 1997. Prior to that, she is stationed overseas.

As Hunter points out, as early as February 2002 (according to Pincus' report) the White House was dismissive of the trip (not "paying attention") because of whom Wilson was married to.

There are blanked out portions (several pages) in Fitgerald's court papers arguing the need for Matthew Cooper and Judith Miller's testimony. This has been noted in various places. We focus on the Times so we'll note a Times' July 7, 2005 editorial "Judith Miller Goes to Jail"** which maintains "The inquiry has been conducted with such secrecy that it is hard to know exactly what Mr. Fitzgerald thinks Ms. Miller can tell him, or what argument he offered to convice the court that his need to hear her testimony outweighs the First Amendment." We'll also note Adam Liptak's front page story of the same day (entitled "Reporter Jailed After Refusing To Name Source"):

Mr. Fitzgerald, who has relied on secret evidence in persuading courts to order Ms. Miller jailed, said that the law now requires her to testify.

What's in the "secret evidence?"

With Toejam and Sanford again trumpeting this five year "rule," it's obviously going to be a talking point. Toejam and her husband diGenova are possibly good at talking points (false ones?). Jacob Weisberg's "Worse Than Drudge: What game is Joe diGenova playing?" (Slate, Feb. 28, 1998) addressed this issue:

One could legitimately describe either diGenova or Toensing as a "Washington lawyer knowledgeable about the investigation," newspapers' favorite leaker ID. There is no proof that either has served as a cutout for Starr. But if they haven't, why do they qualify as a "source" about anything? In fact, the unreliable gossip they sometimes pass on makes the notorious Matt Drudge look discreet.
One gets a glimpse of Joe and Vicky's peculiar role in the fiasco that occurred in late January, when the Dallas Morning News reported, then retracted, then semi-reasserted that a Secret Service witness to a Clinton-Lewinsky encounter was prepared to testify. To recap: On the evening of Monday, Jan. 26, the paper published a report on its Web site. It quoted a lawyer "familiar with the negotiations" as saying there was a Secret Service agent who had seen Clinton and Lewinsky in a "compromising situation" and that he had become a government witness. Hours later, the paper recanted: "the source for the story, a longtime Washington lawyer familiar with the case, later said the information provided for Tuesday's report was inaccurate." The paper further noted that, "The source is not affiliated with Mr. Starr's office." But the following day, the paper reissued a version of the story. An intermediary for a witness or witnesses who might or might not be a Secret Service agent or agents had told Starr's office about seeing Clinton and Lewinsky in what was now described as an "ambiguous situation." Inexplicably, the story quoted "former U.S. Attorney Joseph diGenova, who is not directly involved in the case," as saying that the intermediary had made contact for the witness or witnesses with Mr. Starr's office. "In essence, your story is correct," diGenova told the paper.
Was the original source also diGenova or Toensing?
I think it must have been. Click here to find out why.
Whether diGenova was the source or not, we do know that diGenova spoke to the Dallas Morning News on the record, confirming that a witness of some sort did indirectly pass information to Starr's office. And we know that Toensing spoke off the record, contradicting the originally published version. Since diGenova says they weren't representing anyone involved, on what basis did they know? "This is a small Southern town," says diGenova. "People talk to a lot of people. Reporters talk to people. Lawyers talk. You hear things and you pass them on to reporters so that they might investigate. Sometimes people don't investigate the way they should." This sounds almost like an admission, and suggests that Starr's office may be indirectly using journalists to try to substantiate rumors it has heard. In any event, the fact that the Dallas Morning News considered diGenova a legitimate source would suggest that the paper's reporter thought he wasn't just relating third-hand gossip, but had real information from Starr's office.

So Toejam may have experience issuing talking points. And she (and Sanford) are trumpeting the five year "rule" again. If the "rule" does exist in the law, is Fitzgerald unaware of that "rule" or is he going for a plot to out Plame, should Wilson cause discomfort, hatched on or before February of 2002?I don't know and I'm really not big on speculation. But I'm also not real big on the rejects from the Clinton character assassinations resurfacing as 'reliable' via an unquestioning press. Their false information damaged the country (my opinion). Toejam was part of that (I'm inclined to believe Jacob Weisberg) and she's now returning to the scene, so I think there's reason to speculate. I also think that if Stevenson is told there is a five year "rule" he needs to establish in his article whether that's true or not and what he's based that finding on.

What would it have taken? I'd argue only one call to Floyd Abrams. Abrams certainly knows the act (as Miller's legal counsel). If he didn't, he could get someone to look into it and have an answer long before the story went to press. (Though I'm personally having a hard time picturing Abrams not knowing every aspect of the Act. As always, I could be wrong.) Which would lead to a sentence reading, "Floyd Abrams, counsel to Judith Miller, states that the five year rule . . ."

The five year "rule" may or may not exist. A larger point to be made is that it really doesn't matter in terms of Karl Rove needing to go. His participation, as reported, in this matter makes him unfit to serve in the White House. Regardless of whether a criminal law has been broken or not, he is now known to have passed on information that Plame was CIA (the latest argument on that is that he didn't give her "name" just whom she was married to -- which is pointing out in a similar manner that one identifies in a police lineup). That's not the way Americans expect their government to work.

And as Stevenson notes, the Bully Boy said anyone involved would be fired.

The need on the part of Toejam and Sanford to repeatedly interject the five year "rule" may speak to the fact that Rove will walk (if the "rule" exists) on criminal charges. That doesn't mitigate the fact that the White House has behaved in shameful manner. The Bully Boy was about as clear as he can be when pressed by reporters. He didn't say, "If there's a conviction." (If there's a conviction, it's assumed the person would be gone anyway since he or she would be behind bars.) From Stevenson's article:

Mr. McClellan and Mr. Bush have both made clear that leaking Ms. Plame's identity would be considered a firing offense by the White House. Mr. Bush was asked about that position most recently a little over a year ago, when he was asked whether he stood by his pledge to fire anyone found to have leaked the officer's name. "Yes," he replied, on June 10, 2004.

There's a reason for the repeated use of ToeJam and Sanford's talking point. They promoted it January 12, 2005 in the Washington Post so it's hard to believe Fitzgerald is unaware of the talking point. It may exist in the Act. If so, Fitzgerald may be going for something else (or else be a really bad prosecutor) based on additional information. That could (or could not) include something such as a conspiracy begun while the five year "rule" applied or he could have information on a mission or missions Plame took part in as an undercover operative after moving to D.C. in mid-1997.

Regardless of what Fitzgerald's going for, the fact remains that Bully Boy was clear (even for the Bully Boy) on this matter. Rove e-mailed Matthew Cooper saying Wilson's wife was CIA prior to Novak's column appearing. (His remarks after Novak's column appeared, to Chris Matthews, that Wilson's wife was fair game were also out of line since he shouldn't have been engaging in such conversations.) Rove is involved in the leak. The pledge was that anyone involved would be fired. Even with the talking point (true or false), there' shouldn't be any dancing room on this for the Bully Boy.

The e-mail address for this site is common_ills@yahoo.com.

[*"Stationed" according to one lawyer who has handles cases for CIA agents (former and current) should not mean living abroad if it is in the act. He states that "stationed" should mean "positioned" for a mission regardless of the agent's permananet base. Any other meaning would be "worthless" based on the fact that operatives are in and out of countries frequently and their cover "must be mobile and not locked to a certain area" for them to work effectively undercover. He is unfamiliar with the five year "rule" but notes that Plame being an undercover operative at some point and her cover not yet been blown -- whether or not Novak was told that it was doubtful Plame would be used again in an undercover mission, as Toejame and Sanford maintain in their Washington Post op-ed -- the fact that Plame had an existing cover and was still with the CIA meant that the cover might be used again for national security reasons. If the five year "rule" is in the act, it goes against the intent of the Act which was to ensure, according to him, that undercover operatives' identies were protected. "If Plame's cover was in place" prior to Novak's outing "it didn't have a use-by date. Until she was outed, her cover was a national security asset to the nation. Regardless of the manner in which the law was written, I have difficulty believing that it allows for the destruction of a national security asset to the country. An agent with an existing cover is one that can be reactivated at any time -- such as in a time of national crisis where assistance is needed."
**I don't comment on the editorials in the Times here. I've quoted from one above. And I'll say thanks to Zach who e-mailed Thursday afternoon urging me to read that editorial. I'll also say thanks to Dallas who spotted Stevenson's article online, copy and pasted and gave me heads up. I would have been scratching my head over this article without the heads up. I'll also thank the attorney, who asked not to be named, for his assistance in walking me through this. Disclosure, though it should be obvious from the time frame in which his walk through occurred, the attorney is a friend of mine --otherwise I wouldn't have woken him with a phone call for a walk through on the issue and that talking point offered by Toejam.]

forgive the spacing. it's too early in the morning for me!