Of course, the definition of a “covert agent” in the IIPA statute is a legislative definition distinct from the CIA’s own categories.

I thought that the issue in the Libby trial was not any distinction as to what entailed a covert agent.

In fact the IIPA defines such as any agent employed by an intelligence branch that serves overseas whose identity as an employee of that agency is not public. Covert agents are temporally protected by the law for a period of 5 years since their last assignment abroad. As Hayden pointed out Plame travelled abroad more than seven and perhaps more than 10 times AFTER her posting to the Counterproliferation Division in February 2002. That means she might have served abroad scores of times…but she was clearly COVERED UNDER THE LAW.

There are several other categories of individuals protected under the law, including those who are non-citizen sources resident abroad. In fact, the law itself draws a pretty clear distinction between those who are protected including both those who “serve abroad” and those “stationed abroad”. The IAPA covers both categories. Plame did not have to be “stationed abroad” at all.

But there is an exemption against prosecution (this has nada to do whether an agent is covert) if the individual who revealed the identity of the agent was unaware that the agent WAS INDEED COVERT. Although the documents that Libby, and others are known to have viewed do state that Plame was employed by the CIA within the CounterProliferation branch of the Covert Operations Division (and are marked as Top Secret and other Classification labels), they don’t state that she was still working abroad. THAT WAS THEIR “Out” under the IAPA. It may very well be possible that they knew of Plame’s activities abroad, but Libby’s assertion that he forgot all of his conversations regarding Plame (with Cheney and a half dozen others) before July 2003 and thus can’t (or won’t) reveal what he was told makes prosecution under that law nearly impossible.

They can easily establish Plame was COVERT (although Goss blocked even THAT for a time~interesting since he was involved in the smears against Plame while a member of the House Intelligence Committee ). They can’t (or couldn’t) establish INTENT.

However they may have been able to prosecute under the acts that prevent the revelation of material in classified documents by authorized employees (and those who have security clearances) to those unauthorized to possess such information. Don’t know why that approach wasn’t pursued?

Hayden, an active-duty four-star Air Force general, first antagonized Hoekstra by telling Reyes what the Democrats wanted to hear about the Valerie Plame-CIA leak case.

Isn’t Novak talking about Hayden’s letter to Waxman, not Reyes? Or is there some communication to Reyes we don’t know about?

As to the officials testifying–it may be no more than the fact that the HPSCI had to subpoena Rodriguez, which technically signals Rodriguez is testifying without the full approval of Bush.

I read the Goss quote a bit differently. I think he’s saying that getting rid of tapes is a bad idea politically. For civil servants, “Washington” is short hand for the political class. He’s saying that the act of destroying tapes will cause political issues, whether or not it is legal.

But if THAT was the meaning, and if Mr. Rodriguez – his hand-selected replacement for the newly vacated Director of Operations position – was now a Washington official…then Rodriguez was DISOBEYING Goss. It’s nice spin…but Rodriguez should realize that this spin throws him under the bus.

And it’s interesting to realize that Rodriguez – who was NOW the head of worldwide Covert Operations – took it upon himself to fly to Thailand, open that safe, and destroy the videotapes. Very interesting…but obvious bulldada.

Do we really think that Goss was REALLY unaware of where his “missing #2″ was for even a couple of days? Rodriguez is #2 at the CIA. Not a field agent. Travel abroad for him would have to be a BIG DEAL, and a task like destroying the tapes would be better left to a surrogate. So why wasn’t the order simply given and the task done? Why did Rodriguez himself HAVE TO DO IT?

Do we really accept that Rodriguez could simply walk away from the CIA offices without being contactable?

That he could utilize CIA resources (flights, security would have to be at a high level, in-country transport) without the DCIA (Goss) knowing about it?

Do we think that Rodriguez would NOT have told Goss that he was flying to Thailand to destroy the tapes?

This whole “official” scenario smells so decayed and putrid that it’s unbelievable. The fact that it’s officially authorized, and that even the Field Agents(who may have participated in the interrogations and knew what was on the tapes) had trepidation about destroying this material becomes apparent.

Hoekstra agrees with Reyes that the Bush administration has made a big mistake refusing to let officials testify in the impending investigation.

What officials has the Bush administration refused to let testify in the impending investigation?

Was the ultimate decision based on legality, security, or on political optics?

And was the decision made in such a way to create plausible deniability? You see, if the White House — specifically the President — viewed the torture, it was likely recorded at the receiving end, and became a presidential record. But if the POTUS viewed it, he cannot use executive privilege to protect the “tapes”. He can only prevent their subsequent review by others using executive privilege, but he incriminates himself personally if he does. And if did view them, and then make any kind of decision (either overt or by omission), he is a participant in an illegal act. The “tapes” are no longer protected by executive privilege at that point.

But if he claims he cannot recall viewing them, maintains separation from the “tapes”, they cannot be protected by executive privilege. Leahy’s testing this gambit already with the Abramoff records — and like all the Abramoff records, they’ve probably been trying to purge whatever they can, including all related emails, in order to maintain this careful illusion that the president wasn’t involved and that he did not make any decisions. The only way they could be ABSOLUTELY certain there is no trail to the White House is to remove ALL the emails.

The other exercise we’ve seen before to hide possible illegal activities was Cheney’s Energy Task Force documents, which he continues to hide in spite of the court’s decision that the documents should be produced. He’s used the argument that they are covered under executive privilege — which is really a weird excuse coming from the Fourth Branch that rejects the notion that it is part of the Executive Branch. Because the court eventually saw through this gambit, the Executive Branch had to take a different tack with the “tapes”; now Leahy’s seen through the next tack. What will be the next approach?

Given these past attempts to hide documentation and the proximate location of the decision makers in these attempts, I suspect that Rodriguez can pin somebody higher than Goss, and the lawyers are merely the next feeble firewall between the decision makers (deciderers?) and the “tapes”, and all the semantics in-between are parry and thrusts to buy time.

This situation certainly seems ripe for extortion…a third-party country with copies of Blackberry communications could do some real damage, yes?

But in any case, yes, I strongly suspect that one of the things the CIA/DO opinion Rodriguez got addressed the Records Act issue. That’s not necessarily to say that Goss himself was thinking and speaking along those lines. But certainly there has been way too much emphasis in the stories about the fact that the tapes were kept overseas for that to be irrelevant.

Worth noting that John McPherson was/is an associate general counsel at CIA. No idea about Vogt.

The two people who wrote the operative opinion are Steve Hermes and Robert Eatinger. But the AP gives a list that appears to include four relatively anonymous opinion-writers.

Reyes also wants the CIA to make available CIA attorneys Steve Hermes, Robert Eatinger, Elizabeth Vogt and John McPherson to testify before the committee. Former CIA directors Porter Goss and George Tenet, former deputy director of operations James L. Pavitt and former general counsel Scott Muller are also on the list.