Was She or Wasn't She?

In new court filings, special counsel Patrick Fitzgerald has finally resolved one of the most disputed issues at the core of the long-running CIA leak controversy: Valerie Plame Wilson, he asserts, was a "covert" CIA officer who repeatedly traveled overseas using a "cover identity" in order to disguise her relationship with the agency.

Fitzgerald cites Wilson's covert status as part of his argument—advanced in two strongly worded memos filed in recent days—that I. Lewis (Scooter) Libby, Vice President Dick Cheney's former chief of staff, should be sentenced to up to three years in prison.

Libby was convicted last March of four counts of obstruction of justice, false statements and perjury relating to what he knew, and with whom he shared information, about Valerie Plame Wilson in the weeks prior to her outing by columnist Robert Novak in a July 14, 2003, newspaper column. Libby, who is appealing the verdict, is due to be sentenced next Tuesday by U.S. Judge Reggie Walton—an event that could well reignite a fierce political controversy over whether President Bush should pardon the former Cheney aide.

Libby's lawyers, and many conservative partisans of his cause, have argued that Libby should be spared prison in part because there was no underlying crime in the disclosure of Valerie Wilson's identity. (As his trial established, Wilson's identity was leaked to a number of reporters by several Bush administration officials who were interested in discrediting the attacks by her husband, former ambassador Joseph Wilson, on the White House's handling of Iraq pre-war intelligence.)

A major theme of Libby's defenders has been that, at the time of her outing, Valerie Wilson was little more than a desk analyst who was not covered by the Intelligence Identities Protection Act—the 1982 law making it a crime to disclose the identity of a covert officer. Fitzgerald was originally appointed to investigate whether this statute had been violated. But in two memos—and in a document entitled "Unclassified Summary of Valerie Wilson's CIA Employment and Cover History"—Fitzgerald attempts to shoot down the idea that the agent's job was mostly analysis.

"It was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute"—the Intelligence Identities Act—"as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press," Fitzgerald wrote in a sentencing memorandum filed late last Friday night.

A spokeswoman for Libby's defense team declined to comment, saying his lawyers will address the issue when they file their own sentencing memorandum with Judge Walton in the next few days.

In the "unclassified summary" of his memorandum which was based on information cleared by the CIA and became publicly available Tuesday, Fitzgerald provided new details about Wilson's previously classified activities at the agency. In January 2002, she was working for the agency "as an operations officer" in the Directorate of Operations's Counterproliferation Division (CPD) and serving as "chief" of a unit with responsibility for weapons-proliferation issues related to Iraq. In that capacity, he added, she traveled overseas in an undercover capacity.

"She traveled at least seven times to more than 10 countries," the document states. "When traveling overseas, Ms. Wilson always traveled under a cover identity … At the time of the initial unauthorized disclosure in the media of Ms. Wilson's employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States."

Libby's trial earlier this year established that at least three other Bush administration officials—former deputy secretary of State Richard Armitage, White House deputy chief of staff Karl Rove and former White House press secretary Ari Fleischer (who testified under a grant of immunity)—also disclosed information about Valerie Wilson's identity to journalists. But Fitzgerald contends that Libby's disclosures—primarily to New York Times reporter Judith Miller—were made "deliberately and for the purpose for influencing media coverage of the public debate concerning intelligence leading to the war in Iraq" and, according to Libby's own testimony, "may have been sanctioned by the Vice President." Moreover, while Libby denied ever knowing that Valerie Wilson was a covert agent (and prosecutors never introduced any evidence that he had) "other evidence obtained by the grand jury indicated that defendant learned that Ms. Wilson worked at the CIA from multiple government officials under circumstances that, at a bare minimum, warranted inquiry before the information was publicly disseminated."

For all his strong language—Fitzgerald elsewhere asserts that Libby "lied repeatedly and blatantly about matters at the heart of a criminal investigation"—it is unlikely that the prosecutor's new filings will temper the enthusiasm among Libby's backers. Since his conviction last March, a number of conservative partisans—who shared with Libby his ardent support of the Iraq War—have mounted a vigorous public campaign in his defense and sought to lay the groundwork for a presidential pardon. In mid-May, Libby was a featured guest at a New York dinner honoring Norman Podhoretz, one of the neoconservative movement's intellectual godfathers. According to reports from the scene, the dinner, organized by Commentary Magazine, opened with cheers and a "standing ovation" for Libby.

Libby's advocates have also found allies on Capitol Hill. In an appendix to a new report released last week by the Senate Intelligence Committee about Iraq War intelligence, three Republican senators—including Kit Bond of Missouri, vice chairman of the panel—filed "additional views" harshly criticizing Valerie Wilson and her husband for allegedly misleading the committee in 2004 about the role she played in suggesting her husband's trip to Niger to investigate reports that Iraq was seeking uranium from that country. Citing allegedly contradictory statements she has made more recently to a House committee, the GOP senators called for a re-interview of Valerie Wilson.

One of Libby's most ardent defenders, Richard Carlson, a former chief of the Voice of America, who serves as a member of a defense trust set up for Libby, reacted harshly to Fitzgerald's latest filings. "I think it's certainly unseemly that he is kicking him while he's down," Carlson said. "For Fitzgerald, to get on his high horse, it's disgusting and he should be ashamed of himself."