As a prosecutor and former CIA operations officer, I found Victoria Toensing’s article, “Trial in Error” to be as outrageous as it was misleading.
The logic-defying argument advanced by Victoria “I Don’t Know Squat About Secrets” Toensing can be broken down into three major points: that Valerie Plame Wilson was not covert; that the case itself was based on a “he said, she said” scenario; and that there need be an underlying charge for bringing perjury charges. On all three counts of her whimsical indictment, Ms. Toensing is simply wrong.
The Libby case is not a “he said, she said” matter. Foremost, Libby, in the exercise of his rights not to do so, said nothing. So, Victoria, there is no “he said” in the equation. To an actual trial practitioner, the characterization to which you refer applies to a case where there are two witnesses whose testimony is diametrically contradictory. The reported testimony in the Libby trial sounds much more like “he lied, he lied,” times at least NINE witnesses and Libby’s people, by implication saying “he doesn’t remember.” The only good news about this entire episode is that it didn’t, by the grace of God turn out to be a “He lied, She died.”
Second, to allege that there first must be an underlying crime to bring a perjury charge is flat wrong, and every first-year law student knows it. Perjury is itself a crime, period. Under the Grand Jury system, evidence is presented to a panel. If the panel decides that a crime was committed, then an indictment is issued. If not, the case ends. Either way, the evidence submitted must be the truth. You don’t get to lie to a Grand Jury. That’s pretty simple, unless of course you feel that one should be free to lie and suffer no consequence – hardly an argument that should be advanced by an attorney and officer of the court.
To assert that Valerie was not covert is to assert that the CIA operates public branch offices overseas. Victoria, here’s a news flash for you – there are a lot of people in this world that don’t like the United States in general and the CIA in particular. Anyone in the CIA traveling overseas would be as nuts as your op-ed to reveal that association. CIA officers and offices are placed all over the world. I really don’t recall the CIA crest adorning any office or being listed in any embassy directory. Victoria, the CIA is a spy agency, it is full of spies who spy on objects of interest to the United States. There are no non-covert spies.
To add a gloss of legitimacy, Ms. Toensing erroneously cites the law as requiring the covert agent to have had a “foreign assignment,” then concludes that Valerie was not “stationed” overseas. Nice try. The law uses neither of these descriptions as a basis for defining the criminal act of disclosing the identity of a covert agent. The law only requires that the agent have served overseas within the preceding five years of his or her disclosure. CIA officers may very well serve overseas by meeting with secret sources in third countries. The fact that they may be “stationed” or “assigned” to Washington, D.C. does not prohibit them from serving overseas by actually engaging in clandestine operations in other countries and returning thereafter to this country. Would the purpose of the law designed to protect our agents operating overseas be served by distinguishing between the two scenarios? If so, then Ms. Toensing, who claims to have assisted the Senate Intelligence Committee in drafting the law, did a very lousy job.
Rules of professional conduct for attorneys around the country make numerous references to truth telling both inside and outside the courtroom, e.g. “…an advocate must disclose the existence of perjury….” or, “…a lawyer shall not knowingly make a false statement of material fact or law to a third person…”
Being either ignorant of or spinning the facts as to how our clandestine agents operate, misstating the law, and publicly excusing perjury in our legal system, raises some serious questions as to Ms. Toensing’s motivation.
Legal incompetence aside, there may have been another reason for Ms. Toensing’s misleading diatribe.
In what was probably the most insightful statement describing the motivations of the White House in outing Valerie Plame Wilson, Mr. Fitzgerald argued that to the Bush administration, Valerie “wasn’t a person…she was an argument…” He called it exactly right!
If Valerie were viewed as a person, we would see someone who has spent her career protecting this country. We would see a person so dedicated as to risk her own life and potentially that of her family to do so. We would see the intelligence assets she ran who risked their own lives and that of their families. We would see the entire situation for what it really was (and still is): a dangerous yet vitally important effort to protect the people of the United States. Given this reality, the White House knew it couldn’t attack Valerie Plame Wilson as a covert intelligence officer. The administration and its media spinners like Ms. Toensing would certainly lose, based on the facts of Valerie’s professionalism and years of service to her country. As a result, Valerie became an “argument.”
But what does that really mean in the world of political operators like Karl Rove? It means revving up the spin engines, using inaccurate words and images to skew public opinion in your favor. One of the most successful spin tactics is an indirect or even subliminal appeal to the most base instincts, prejudices, or fears of those you are hoping to “persuade.” These guys are really good at it. Remember Willie Horton? To take a recent example, look at the media hoopla over the (false) story of Senator Obama’s attendance at an Indonesian madrassa.
The same tactic is being used on Valerie. Let’s see: female, blond, young, good looking… hell, she can’t be more than a secretary or a bimbo, right? If you think this country has advanced so far that no one is predisposed to believe that, think again. These guys know what plays. And it really shouldn’t come as a surprise that there are some (supposedly educated) women opinion leaders who are happily manipulated into spreading this anti-female message.
So thanks, Ms. Toensing, for publicly attacking a very accomplished woman. Thanks, too, for playing into the hands of biased individuals who don’t believe that a woman can serve her country as a covert officer and indeed be very good at it.