T Nation

Libby Says Bush Authorized Leaks

“Vice President Dick Cheney’s former chief of staff has testified that President Bush authorized him to disclose the contents of a highly classified intelligence assessment to the media to defend the Bush administration’s decision to go to war with Iraq, according to papers filed in federal court on Wednesday by Patrick J. Fitzgerald, the special prosecutor in the CIA leak case.”


This is more misleading by the MSM…whats new.

The President authorizing the declassification of information in a NIE may or may not have anything to do specificially with Traitorgate.

If the President orders something declassified it cannot be a crime can it?

It seems the only crime is lying about it under oath.

Good stuff and some interesting speculative interpretation from Tom Maguire:

Negative Space

Architects sometimes refer to “negative space” as important in creating a desired effect - an area devoid of architectural details can enhance a larger effect.

Or amongst fans of detective fiction, there is the famous incident of the non-barking dog in the night-time - it was what did not happen that was important.

Today there is good blogospheric buzz ( http://www.memeorandum.com/060406/p24#a060406p24 )about a new filing (39 page .pdf: http://justoneminute.typepad.com/main/files/Libby_FitzResp_060405.pdf ) by Special Counsel Fitzgerald in the Plame investigation. There is an overheated reaction to the news of President Bush’s involvement, but for our current purposes it is what Fitzgerald does not say that is interesting.

Our quick reaction is this:

(a) Some of the responses to the Bush Connection are over-done - Fitzgerald does not come close to alleging wrong-doing by President Bush.

(b) There are fascinating new bits about Cheney’s involvement, although the negative spaces are also fascinating. This buttresses the notion advanced by Chris Matthews and many others that Fitzgerald’s real target was Dick Cheney. One might infer that the indictment of Libby ( http://www.washingtonpost.com/wp-dyn/content/article/2005/10/28/AR2005102801086.html )was simply an attempt to elicit his cooperation, and that, so far at least, it is is a flip that failed.

© The Libby defense has made much of the possibility that the disclosure of Ms. Plame’s CIA status did not actually harm national security, and that her covert status was not widely known within the White House. Their point is that, absent this information, Libby had no obvious reason to lie when talking to the FBI or the grand jury.

Fitzgerald attempts to address this by explaining that Libby wanted to spare the White House political embarrassment, and that he feared for his job. However, Fitzgerald seems to have misunderstood or mis-stated the public record in this regard. From the filing:

Thus, as defendant approached his first FBI interview he knew that the White House had publicly staked its credibility on there being no White House involvement in the leaking of information about Ms. Wilson and that, at defendant’s specific request through the Vice President, the White House had publicly proclaimed that defendant was “not involved in this.” The President had vowed to fire anyone involved in leaking classified information.

Well. This old post covers what the President actually said on Sept 30, 2003 ( http://justoneminute.typepad.com/main/2005/07/dont_play_gotch.html ) as well as subsequent press distortions. Here is George Bush from Sept 30 ( http://www.whitehouse.gov/news/releases/2003/09/20030930-9.html ):

[i] And if there is a leak out of my administration, I want to know who it is. And if the person has violated law, the person will be taken care of.

If somebody did leak classified information, I'd like to know it, and we'll take the appropriate action.[/i]

People who broke the law will be fired; folks who leak classified info will be treated appropriately.

That actually might explain the motivation behind Libby’s story about the NIE.

It also seems clear that Fitzgerald is holding few cards on the question of her status - this filing would have been a lovely opportunity for him to present any evidence at all that the White House , specifically Messrs. Cheney or Libby, had been warned about Ms. Plame’s status.

(d) Fitzgerald has repeatedly told the judge that his investigation is ongoing. In the latest filing, he provides a strong hint that Rove (no surprise) and Hadley are still in trouble - per the filing, Rove and Hadley are not currently expected to be called by the government as witnesses. Given their roles in the indictment that seems odd, unless they are still under the gun.

Let’s cover these with a bit more detail. The filing is in response to a defense motion for discovery, and Fitzgerald is explaining why he does not need to surrender certain documents. Here is the passage on Bush that prompted such excitement:

[i] “Defendant testified that he was specifically authorized in advance of the meeting to disclose the key judgments of the classified NIE to Miller on that occasion because it was thought that the NIE was ‘pretty definitive’ against what Ambassador Wilson had said and that the vice president thought that it was ‘very important’ for the key judgments of the NIE to come out,” Mr. Fitzgerald wrote.

Mr. Libby is said to have testified that "at first" he rebuffed Mr. Cheney's suggestion to release the information because the estimate was classified. However, according to the vice presidential aide, Mr. Cheney subsequently said he got permission for the release directly from Mr. Bush. "Defendant testified that the vice president later advised him that the president had authorized defendant to disclose the relevant portions of the NIE," the prosecution filing said.[/i]

Nothing illegal or untoward is alleged. Fitzgerald did talk to Bush and Cheney together, and if he had a different story from them, this would have been the time to note it.

That said, Libby’s story is quite odd. Apparently, Cheney talked to Bush and got the secret declassification for Libby’s July 8 meeting with Judy Miller. On a parallel track, Stephen Hadley and others were working to get portions of the NIE declassified, which happened on July 18 ( http://www.globalsecurity.org/intell/library/reports/2002/nie_iraq_october2002.htm ). Yet Libby never told Hadley that the NIE had already been declassified, not even with a wink or a “Mission Accomplished”. One can imagine that this story did not sit well with Fitzgerald.

(Sorry, bloggus interruptus - duty calls. On point (b), Cheney’s involvement, some highlights are in this earlier post under “GET DICK!” ( http://justoneminute.typepad.com/main/2006/04/new_libby_mater.html )

I will let points © and (d) stand alone for now.)

MORE: On point ©, Libby’s motivation to lie: the defense position is that Libby had no reason to lie since he was not aware that Ms. Plame was covert, and, in any case, there has been damage assessment released showing that national security was harmed.

Fitgaerald’s response, as noted above, is that Libby did not want to embarrass the White House or get himself fired by admitting involvement in the leak.

However - there is a peculair discrepancy in the testimony of Matt Cooper and Lewis Libby. Per Libby, it was Libby who told Cooper that Joe Wilson’s wife was with the CIA.

But Matt Cooper testified that it was he who disclosed the Plame tidbit to Libby; Libby responded with somehting like “I heard that, too”.

So Fitzgerald’s position is what - that Libby feared to tell “the truth” about his chat with Cooper, to wit, Cooper had disclosed Plame to him? That in order to protect his job and spare the White House, Libby invented the lie that he had leaked to Cooper? How does that make any sense?

Now, Libby’s story might fit into a a theory about a conspiracy to protect Rove (who did leak to Matt Cooper). But Fitzgerald notes repeatedly in his filing that Libby is not charged with any conspiracy counts; presumably, he cannot make that argument now and then reverse field and introduce that at trial without annoying the judge.

On the question of Libby’s motivation, Fitzgerald’s filing misrepresents the President’s own words and leaves one baffled by the underlying logic.

[quote]Zap Branigan wrote:
If the President orders something declassified it cannot be a crime can it?

It seems the only crime is lying about it under oath.[/quote]

So, basically the president is a demigod and can do whatever the hell he wants no matter what.

Yeah, we’ve been seeing that a lot lately…

[quote]vroom wrote:
Zap Branigan wrote:
If the President orders something declassified it cannot be a crime can it?

It seems the only crime is lying about it under oath.

So, basically the president is a demigod and can do whatever the hell he wants no matter what.

Yeah, we’ve been seeing that a lot lately…[/quote]

“If the president does it, it’s not illegal.” – Richard M. Nixon

[quote]harris447 wrote:
vroom wrote:
Zap Branigan wrote:
If the President orders something declassified it cannot be a crime can it?

It seems the only crime is lying about it under oath.

So, basically the president is a demigod and can do whatever the hell he wants no matter what.

Yeah, we’ve been seeing that a lot lately…

“If the president does it, it’s not illegal.” – Richard M. Nixon

I don’t believe any individual or the legislature would outrank the President on decisions about what to classify – seems that would be inherent to the Commander in Chief power.


“The President has the legal authority to declassify information, but there are normal channels for doing so. Telling an aide to leak classified information to the New York Times is not a normal channel. A normal declassification procedure would involve going back to the originating agency, such as the CIA, and then putting out a public, declassified version of the document.” (second link)

He not only didn’t do that, he then went on to keep insisting that document was in fact, still classified. (First link)

Even if it may in some ass backwards way be legal, (which I doubt) it is very clear that he lied.

[quote]Zap Branigan wrote:
If the President orders something declassified it cannot be a crime can it?

It seems the only crime is lying about it under oath.[/quote]

Wasn’t Clinton put up for impeachment on the charge of perjury?

[quote]vroom wrote:
Zap Branigan wrote:
If the President orders something declassified it cannot be a crime can it?

It seems the only crime is lying about it under oath.

So, basically the president is a demigod and can do whatever the hell he wants no matter what.

Yeah, we’ve been seeing that a lot lately…[/quote]

If this is the way it went down he went about it the wrong way but it is in his power to do this.

[quote]DemiAjax wrote:
Zap Branigan wrote:
If the President orders something declassified it cannot be a crime can it?

It seems the only crime is lying about it under oath.

Wasn’t Clinton put up for impeachment on the charge of perjury?[/quote]

Same charge Libby is facing.

Has Bush been put under oath regarding this subject?

[quote]DemiAjax wrote:
Zap Branigan wrote:
If the President orders something declassified it cannot be a crime can it?

It seems the only crime is lying about it under oath.

Wasn’t Clinton put up for impeachment on the charge of perjury?[/quote]

Are you suggesting the impeachment of the former Vice Presidential chief of staff? That would be rather silly…

Some good points by the Hill and National Review reporter Byron York:



I confess to being a little baffled by the excitement over the revelation, in Patrick Fitzgerald’s latest filing, that Vice President Dick Cheney told Lewis Libby that President Bush had authorized Libby to discuss some parts of the National Intelligence Estimate with reporters. First of all, it should be made clear – as it has not been in some discussions – that Fitzgerald does not say that Bush authorized Libby to say anything about Valerie Plame. As a matter of fact, on page 27, Fitzgerald writes that as late as September 2003, “the President was unaware of the role that the Vice President’s Chief of Staff and National Security Adviser had in fact played in disclosing Ms. Wilson’s CIA employment…”

As for leaking portions of the National Intelligence Estimate, yes, it was classified, although it would later be declassified. But it should be remembered that when the president decides to make something public, then it can be made public. In the Plame case, there has been much discussion of the unauthorized disclosure of classified information. Would anyone argue that this disclosure was unauthorized?

Also, it’s useful to remember what was happening at the time of the so-called leak. There was an enormous clamor over the “16 words” in the State of the Union address, and about pre-war intelligence in general. The administration was in the process of declassifying various pre-war intelligence matters. In the midst of that came the specific accusations of Joseph Wilson in the pages of the July 6, 2003 New York Times. How was the White House to answer them? On pages 23 and 24 of the motion, Fitzgerald describes what Libby was authorized to tell reporter Judith Miller during their July 8, 2003 meeting, two days after Wilson’s op-ed was published:

Defendant testified that he thought he brought a brief abstract of the NIE’s key judgments to the meeting with Miller on July 8. Defendant understood that he was to tell Miller, among other things, that a key judgment of the NIE held that Iraq was “vigorously trying to procure” uranium…Defendant advised Miller that Wilson had reported that he had learned that in 1999 an Iraqi delegation visited Niger and sought to expand commercial relations, which was understood to be a reference to a desire to obtain uranium. Later during the discussion about Wilson and the NIE, defendant advised Miller of his belief that Wilson’s wife worked at the CIA.

Now the fact that an envoy had been sent to Africa, that that envoy was Joseph Wilson, that he had been exploring possible Iraqi overtures to obtain uranium, and that he had reached some conclusions about the matter – all that was pretty much out of the bag by the time Libby met Miller on July 8, wasn’t it? And, by the way, who had let it out of the bag? That’s not to say that Joseph Wilson leaked classified information; he did not reveal, for example, all of his contacts during the trip, and apparently those remain classified. Of course, Libby didn’t leak that, either. In any event, the basic facts of the trip and Wilson’s conclusions – precisely the matters Libby wanted to discuss with Judith Miller – were quite public.
Posted at 10:07 PM

And some more good points from former NYT staffer and current conservative writer Cliff May:



The Washington Post?s lede p.1 story today is headlined: “Bush Authorized Secrets Release, Libby Testified.”

Again, as established, it?s in the job description of the President to decide what will remain classified (secret) and what will be de-classified and released to the press and public.

But it also should be noted that whatever “secrets” Libby revealed to NY Times reporter Judy Miller were not considered by Miller to be newsworthy enough even to write a story about.

Why not? Suppose for example, that Libby “revealed” the section of the 2002 NIE saying that most agencies of the intelligence community judged that Iraq was reconstituting its nuclear weapons program.

He would be releasing what had been a “secret” ? a problem if he made that decision on his own; not a problem if he was authorized to do so by the POTUS or VPOTUS.

Why would Judy not have considered that worth a story? Because everyone following this issue already knew that. All Libby would have been adding is the fact that most domestic intelligence agencies concurred.

An important point frequently misrepresented in this debate: Those intelligence analysts that did not concur did not quite disagree either. That is, they were not saying, “No! Saddam has destroyed his WMD and has not been reconstituting his nuclear programs! We know that! We have proof!” Rather, they believed there was insufficient hard data on which to base a firm conclusion either way. And they were correct. Because the CIA had no good human intelligence (why that came about is another issue), analyses were based on speculation and conjecture. Unfortunately, policy makers often have to make consequential decisions based on such sketchy information.

In other words, there is no hint of a scandal here. There is not even any news here, except that we have now learned something that Libby testified. But the fact that Bush authorized the release of secrets is about as surprising as would be a headline saying: “Police Chief Authorized Arrests.”

And, finally, some good lawyerly stuff from former federal prosecutor (and friend and former colleague of Fitzgerald) Andrew McCarthy:



We will have to wait to see how this all develops, and I’ll be interested in particular in Byron’s take, but on first impressions it seems to me that the story the press is going gleefully ga-ga about today is pretty disingenuous.

According to reports ( http://news.findlaw.com/ap/p/56/04-06-2006/0eda002841670f5c.html ), the government in the Scooter Libby case has filed papers which include a revelation about Libby’s grand jury testimony. Specifically, Libby is said to have told the panel that he was authorized by President Bush, via Vice President Cheney, to leak “certain information” that was contained in the National Intelligence Estimate.

If you read far enough into the AP report I cite here, you will learn that the “certain information” is not otherwise specified. That is, we don’t know what it was and whether it was classified.

Unfortunately, the AP reports that only after treating readers to Howard Dean’s rant about how “The fact that the president was willing to reveal classified information for political gain and put interests of his political party ahead of America’s security shows that he can no longer be trusted to keep America safe.” (Italics mine.)

It is crucial to note here, however, that there has been no accusation – none – that the President or anyone else was willing to reveal, much less actually revealed, classified information. It is irresponsible to say such a thing based on the current record.

The National Intelligence Estimate has some classified sections, but it is not all classified. Indeed, it is mostly not classified and made available for public consumption. Libby was evidently allowed to talk about some parts of it before it was formally released to the public. But it is important to bear in mind that it was going to be released to the public. Classified information is not released to the public.

Almost certainly, what Libby was permitted to do was preview for certain reporters some of the highlights of what was shortly going to be made public in the NIE. That is, NOT disclose the classified information, but talk about what was going to be in the public domain. This is something that is done everyday in Washington – probably even by Howard Dean.

It would have been an act of political insanity not to do such a thing. There were (and are) people in the government (particularly at the CIA and the State Department) who vigorously opposed the Bush foreign policy. They have leaked things left and right since the president took office, and it would be ridiculous to think they would not have put their spin on the NIE – just the way Joseph Wilson put his misleading spin on something that, in all likelihood, was actually classified and should not have been spoken of publicly (much less made grist for a NYTimes op-ed), namely, the substance of his trip to Niger.

If administration officials like Libby did not speak to the press about what was going to be in the NIE, the American people would only have heard from people like Wilson and others opposed to the President’s policies. One can only imagine how Dean would have played off that one-sided version of events … and I have a slight suspicion – call me crazy – that he would not have been complaining about leaks of classified information from those sources.

In any event, when you look at these stories, it is very important to parse carefully how the press is describing Libby’s testimony. The impression being (consciously) created is of recklessly irresponsible leaking of classified information. The reality is very likely far from that. Remember, leaking classified information can often be a crime, yet no one has been charged with such an offense.
Posted at 05:09 PM

Tom Maguire “fisks” the NYT editorial today:

Hopelessy Compromised (II)

The NY Times editors tackle the latest Fitzgerald filings ( http://justoneminute.typepad.com/main/2006/04/negative_space.html ), and are more disingenuous than their reporters ( http://justoneminute.typepad.com/main/2006/04/hopelessly_comp.html ).

[i] Playing Hardball With Secrets

For more than two years, Senate Republicans have dragged out an investigation into how the Bush administration came to use bogus intelligence on Iraq to justify a war. A year ago, Pat Roberts, chairman of the Senate Intelligence Committee, called it "a monumental waste of time" to consider whether the White House manipulated intelligence to exaggerate the threat posed by Saddam Hussein.

Meanwhile, the evidence has steadily mounted that President Bush and his team not only did that before the war, but kept right on doing it after the invasion. The most recent additions to this pile came yesterday, in reports by The New York Sun, The National Journal and other news organizations on documents from the case against Lewis Libby, the former chief of staff to Vice President Cheney who is charged with lying about[b] the unmasking of Valerie Wilson, a covert C.I.A. agent.[/b]

According to these papers,[b] Mr. Libby testified that President Bush authorized him to tell reporters about classified intelligence on Iraq as part of an effort to discredit Mrs. Wilson's husband, Joseph Wilson[/b], a retired diplomat who had cast doubt on the claim that Iraq tried to acquire uranium for nuclear bombs from Niger. The National Journal reported that Mr. Libby has also said that Mr. Cheney authorized him to leak classified information before the invasion to make the case for war.[/i]

Emphasis added throughout. Regarding the “unmasking of… a covert C.I.A. agent”, it is clear that Ms. Plame’s status was classified, but does the Times actually know that she was “covert” as defined by the Intelligence Identities Protection Act ( http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/15/subchapters/iv/sections/section_421.html )? A key open issue is whether she served abroad in the last five years. That is evidence currently being sought by the Libby defense team and withheld by Fitzgerald (if it exists), so the Times ought to break this scoop - if, in fact, they have any idea what they are talking about. They sort of grasped this point in February 2005 ( http://justoneminute.typepad.com/main/2005/02/ny_times_plame_.html ), but perhaps they have moved on.

On “President Bush authorized him to tell reporters… as part of an effort to discredit … Joseph Wilson”, a casual reader might infer that President Bush was specifically apprised of the motivation behind NIE disclosure. In fact, the Fitzgerald filing does not address Bush’s state of mind in approving the disclosure, nor was Libby privy to that conversation, which, per Libby’s testimony, took place between Bush and Cheney. In any event, if rebutting one’s critics is a crime, all of Washington should be locked up. Hmm, we’re not afraid of Big Ideas… Well, let’s press on:

Mr. Wilson was sent by the administration to Niger to check out the report that Iraq tried to buy uranium in the late 1990’s. He concluded that it was bogus and said so in a Times Op-Ed article in July 2003. In response, the administration leaked word that Mr. Wilson’s wife was a C.I.A. agent.

Wow. The editors seem to have forgotten what Joe Wilson actually wrote ( http://www.ccmep.org/2003_articles/Iraq/070903_wilson.htm ), and what he actually reported ( http://www.globalsecurity.org/intell/library/news/2003/intell-030711-cia01.htm ). I have more detail in this post ( http://justoneminute.typepad.com/main/2006/04/hopelessly_comp.html ), but the gist is, Wilson did not report that Iraq had not tried to buy uranium from Niger; in fact, he reported on a 1999 Iraqi approach which appeared to be exactly that. He did report that he did not believe such a sale was consummated, which is a different matter. One might expect the Times editors to be aware of this distinction.

As to their statement that “In response, the administration leaked word that Mr. Wilson’s wife was a C.I.A. agent”, let’s note that Woodward received a Plame leak in mid-June 2003, prior to the Wilson op-ed. Cause, effect, tedium. Maybe they should mention those great Kristof columns ( http://justoneminute.typepad.com/main/2005/11/jack_shafer_get.html ).

The Times also pounds the table on the aluminum tubes, which, in a particular left-wing constellation ( http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=11370 ), have replaced the Niger uranium ( http://www.commondreams.org/headlines03/0720-09.htm ) as the shining star for the case that Saddam had nuclear aspirations:

According to The National Journal, that document said the State Department and the Energy Department had concluded that it also was not true that Iraq bought aluminum tubes to enrich uranium. During his State of the Union address in 2003, Mr. Bush said flatly that it was true.

Flatly? No, he didn’t. Here we go from January 2003 ( http://www.whitehouse.gov/news/releases/2003/01/20030128-19.html ):

Our intelligence sources tell us that he has attempted to purchase high-strength aluminum tubes suitable for nuclear weapons production.

That is the sort of caveatted, carefully phrased statement that ought to infuriate any of the President’s critics who trouble themselves to read it (We infer that the Times editors have not done so). One might guess that the wording carefully reflected the dispute which was revealed in July 2003 with the partial declassification of the NIE ( http://www.globalsecurity.org/intell/library/reports/2002/nie_iraq_october2002.htm ). Here we go with excerpts on the aluminum tubes:

Most agencies believe that Saddam’s personal interest in and Iraq’s aggressive attempts to obtain high-strength aluminum tubes for centrifuge rotor - as well as Iraq’s attempts to acquire magnets, high-speed balancing machines, and machine tools - provide compelling evidence that Saddam is reconstituting a uranium enrichment effort for Baghdad’s nuclear weapons program. (DOE agrees that reconstitution of the nuclear program is underway but assesses that the tubes probably are not part of the program.)

And later, in the famous INR dissent:

[i] The Assistant Secretary of State for Intelligence and Research (INR) believes that Saddam continues to want nuclear weapons and that available evidence indicates that Baghdad is pursuing at least a limited effort to maintain and acquire nuclear weapon-related capabilities. The activities we have detected do not, however, add up to a compelling case that Iraq is currently pursuing what INR would consider to be an integrated and comprehensive approach to acquire nuclear weapons.

...In INR's view Iraq's efforts to acquire aluminum tubes is central to the argument that Baghdad is reconstituting its nuclear weapons program, but INR is not persuaded that the tubes in question are intended for use as centrifuge rotors. INR accepts the judgment of technical experts at the U.S. Department of Energy (DOE) who have concluded that the tubes Iraq seeks to acquire are poorly suited for use in gas centrifuges to be used for uranium enrichment and finds unpersuasive the arguments advanced by others to make the case that they are intended for that purpose.[/i]

The DOE thought the tubes were “poorly suited” for use in centrifuges; what the President’s wordsmiths had written was that the tubes “were suitable” for such use, which was probably true. Only the Times editors know what logical leap they undertook to get to “Mr. Bush said flatly that it was true” that “Iraq bought aluminum tubes to enrich uranium”.

But parsing aside, the Times theme is that the aluminum tubes (not, any more ( http://www.commondreams.org/headlines03/0720-09.htm ), the 16 Words and the Niger uranium) were what crystallized the case for war. In fact, even the NIE dissenters believed that Saddam had nuclear aspirations; they simply did not believe that the tubes were proof of it.

Nice way to kill a thread.

Anyway, I’m not convinced that the document that the president decided to declassify contained anything about Valerie Plame.

If not, then it would not seem very significant in this case.

[quote]vroom wrote:
Nice way to kill a thread.

Anyway, I’m not convinced that the document that the president decided to declassify contained anything about Valerie Plame.

If not, then it would not seem very significant in this case.[/quote]

The significance is the information in the NIE was leaked before Bush declassified it…according to Scott McClellan.

On July 18, 2003, McClellan told the White House Press Corps that the “information was just, as of today, officially declassified.” However, Libby spoke to reporters ten days earlier, according to the indictment, on July 8 of that year.