Victoria Toensing, a conservative former lawyer for the Senate Intelligence Committee, makes a lame and unprovable analogy to the Valerie Plame leak:

“Unlike the Valerie Plame matter, where the cocktail circuit knew she worked for the CIA, these people … Blackwater, were covert,” said Victoria Toensing, a former chief counsel to the Senate intelligence committe. “Every fact that I know points to a violation unlike the Valerie Plame matter. The identifier, the exposer, has to know the relationship is covert.”

First of all, no, “the cocktail circuit” didn’t “know” Plame worked for the CIA. That construction makes it seem like Plame’s identity was an open secret, which is a constant meme simply invented by the right out of thin air in 2003 to minimize the impact of the Bush administration’s leaking of Plame’s identity as a covert agent to discredit her war-critic husband Joseph Wilson. There’s also no way of falsifying it, since — well, who’s the “cocktail circuit” anyway? Toensing knows full well what she’s doing — she’s a lawyer — and she discredits herself by her deceit. Second of all, her point about knowing the Blackwater relationship being covert is surely correct. But isn’t there a difference in the fact that the program was never operative? As a different intelligence official acknowledges to Lake and Carter:

“These leaks, unlike others in the past, didnt cost the country a viable collection or counterterrorism capability,” the official said. “There were different concepts considered and tested over the years, but they always ran into problems.They never proved themselves, so its not a big loss.”

Nevertheless, the two reporters quote the top Republican on the Senate Intelligence Committee, Sen. Kit Bond (R-Mo.), as saying:

“They foil our attempts to carry out classified missions,” Sen. Christopher S. Bond said in an interview. “They tell our intelligence community: We don’t have your back; we’re stabbing you in the back. Our allies ask us, ‘How can we trust you to deal in classified matters in private, when the details are leaked to the press?’”

I suppose in a general sense the point is arguable, but in this particular case, there was never an operational program, so the damage can’t be as bad as Bond portrays. But still: it’s possible the law was broken by this leak, and an investigation into whether that was in fact the case is most certainly appropriate.

“There are no court rules or rules in the military commissions that would prohibit showing detainees photos “as long as you obtained them from an unclassified source, and they weren’t otherwise covered by a protective order,” said Dratel.

In general, lawyers cannot show their clients information that is classified. And like anyone else, they can’t intentionally reveal the identity of a covert CIA agent knowing that the agent is or recently was playing a covert role with the CIA. It’s not clear if any lawyers showed their clients photos of interrogators who were acting covertly, but it’s also unclear how an official questioning a terror suspect on behalf of the CIA would be covert.

In any event, defense lawyers are troubled that the Justice Department decided to leak news of the investigation to reporters. The Washington Post and The New York Times both reported the story this morning.

“It’s unfortunate that someone in a position to know better decided to go public with this and attempt to smear people in a way that they can’t do legally,” Dratel said. “The investigation is something that’s extraordariny not only for the fact that it’s occurring, but for how it’s occurring, with people being confronted by law enforcement,” said Dratel.

Government agents reportedly approached three lawyers from the Judge Advocates General’s Corps two weeks ago and informed the military lawyers of their right to remain silent, then asked whether they’d shown their clients photos of CIA officials.

“Normally, when a prosecutor wants to subpoena a lawyer, they have to get permission and jump through a lot of hoops,” said Dratel. “I see this as heavy-handed.”

It also could be a way to intimidate the lawyers from aggressively defending their clients. Yesterday, American Civil Liberties Union president Anthony Romero vigorously defended the defense lawyers, who are receiving assistance from the ACLU through the John Adams Project, which has organized private attorneys to assist the military lawyers in defending terror suspects.

“Identifying who tortured our clients and what they did to them and when is an essential part of defending their interests in these sham proceedings,” Romero told The Times.

Some of these documents detail high-level executive involvement in the politically charged U.S. Attorney firings in 2006, and emails on the Valerie Plame leak probe, among other things.  The orders may require Obama’s Justice Department to consider changing its positions in several high-profile lawsuits, if the administration is going to follow through on its promises.

We’ll be tracking those positions closely here at TWI, beginning with an in-depth look at one such lawsuit early next week.

Stay tuned …

Committee chair Henry Waxman (D-Calif.) had previously considered holding Atty. Gen. Michael Mukasey in contempt of Congress for not turning over Cheney’s interview with special prosecutor Patrick Fitzgerald.

The retiring Tom Davis, (R-Va.), the top Republican on the committee and who has a track record of skepticism toward the Plame leak probe, signed this statement:

The central document in this dispute is the report of the FBI interview with the vice president.  Both the chairman and the ranking Member are in agreement that the president’s assertion of executive privilege over this document was legally unprecedented and an inappropriate use of executive privilege.

The attorney general argues that the committee should not have access to the report of the interview because of the sensitive nature of the matters discussed. In this case, however, the committee is not seeking to examine sensitive questions of foreign policy or national security.  Rather, the committee is seeking information on the role, if any, played by the vice president and others in the White House in the leak of the identity of a covert CIA officer and what steps, if any, the vice president and others took to investigate and respond to the leak after it occurred.  There is no reason to believe that the special counsel’s interview with the vice president went beyond these questions and into areas relating to presidential decision-making about foreign policy or national security.

Davis, however, has not signed onto a document that said the president abused his claim of executive privilege in getting Stephen Johnson, administrator of the Environmental Protection Agency,  to produce documents related to greenhouse gas regulations and ozone standards.

The committee will meet next week to vote on the report released today. What effect it will have this late in the Bush administration is not clear.

What is interesting, though, is that Davis, at the end of his congressional career, is expressing disdain for an administration he has largely defended.

He was also critical of the president in a recent New York Times magazine profile.

Such criticisms were largely absent during the bulk of Davis’s time chairing the oversight committee and also as its ranking member.