Final jeopardy over CIA
leak By Elizabeth de la Vega
The latest in a parade of horrors
emanating from the Bush administration appeared on
Thursday in the form of a revelation buried in
papers filed in federal court by special
prosecutor Patrick Fitzgerald in his investigation
into the outing of Central Intelligence Agency
(CIA) agent Valerie Plame.
I Lewis
"Scooter" Libby, Vice President Dick Cheney's
former chief of staff, now under indictment on
charges of perjury and obstruction of justice,
told the grand jury that Fitzgerald convened
that
President George W Bush had - via Cheney -
authorized him to disclose selected information
from a National Intelligence Estimate (NIE) to New
York Times reporter Judith Miller, which he did
during a private breakfast meeting at the St Regis
Hotel on July 8, 2003.
In a news
conference on Friday, which bore a striking
similarity to Abbott and Costello's "Who's on
First?" routine, Bush's spokesman Scott McClellan
dutifully responded to reporters' questions about
the disclosure. No, the increasingly robotic
McClellan said, the White House would not comment
on an ongoing case. But, he assured the assembled
journalists, the president could declassify
whatever he wanted, whenever he wanted, however he
wanted.
So, McClellan implied, it would
have been perfectly legal for the president to
have taken this action, which he could not, of
course, comment on because this was an ongoing
case (and so on).
Thus has begun a debate
in the US media whose starting questions usually
run along the lines of: "Is what the president did
legal?" or "Does the president have authority to
declassify information at will?" (Given the
president's failure to deny Libby's allegation, it
has largely been accepted as true.) The answer to
those questions has generally been: yes, the
president - as chief executive - has the authority
to declassify information at will.
But it
is not only in the TV game show world of Jeopardy!
that the correct answer to a problem depends on
the question asked. And, as it happens, those are
simply not the right questions.
To decide
what legal issues arise from a given set of facts
- in other words, in order to frame the right
questions - we first have to determine what the
facts are. This is what we know, in summary, about
the CIA leak case.
We know that Plame's
husband, former ambassador Joseph Wilson, had been
an extremely painful thorn in the side of the Bush
administration long before he wrote the infamous
July 6, 2003 New York Times op-ed that Fitzgerald
described in his filing as having been viewed "in
the office of the vice president as a direct
attack on the credibility of the vice president
[and the president] on a matter of signal
importance: the rationale for the war in Iraq".
In March of 2003, Wilson had become
increasingly vocal in questioning the
administration's reasons for war. In a Nation
article and a March 2 appearance on CNN, as well
as a March 4 panel on Ted Koppel's Nightline,
Wilson argued that the White House wanted to
invade Iraq, not because of weapons of mass
destruction, but because it wanted to redraw the
map of the Middle East. Wilson's criticisms
coincided with those of David Albright, president
of the Institute for Science and International
Security, who was questioning the president's
false and misleading arguments that aluminum tubes
intercepted en route to Iraq had been meant for an
Iraqi nuclear program.
Fueling the fire,
on March 7, Mohamed ElBaradei, the director
general of the International Atomic Energy Agency,
had flatly declared that there was no evidence the
Iraqis were reconstituting a nuclear-weapons
program, pointing out that neither the aluminum
tubes claim nor the
attempted-purchase-of-uranium-in-Niger claim were
valid. Indeed, ElBaradei explained, the documents
relating to an attempted purchase of uranium were
obvious forgeries. The next day, a "senior
administration official" was quoted in the
Washington Post as saying in response to
ElBaradei's statement, "We fell for it." Then
Wilson, appearing again on CNN, said, essentially,
that the senior administration official was either
lying or incompetent because analysts from several
different intelligence agencies already knew of
the forgeries.
Quite obviously, then,
Wilson had the attention of the Bush
administration as early as March 2003, long before
he wrote the July 6 op-ed. And it was on March 23
that Bush issued an amended executive order in
which he claimed the right to expand Cheney's
authority to declassify documents.
We also
know that the president's glow from the "mission
accomplished" spectacle had barely dimmed by May
6, 2003 when Wilson resurfaced in a Nicholas
Kristof New York Times column, which described "an
unnamed former ambassador's" trip to Niger as
casting doubt on the accuracy of the "sixteen
words" relating to uranium procurements from
Africa that had been in the president's State of
the Union address that January. At this point, of
course, Wilson would be seen as directly attacking
both the president and the vice president.
Moreover, throughout May and June,
questions about the missing weapons of mass
destruction increased in volume and intensity in
the media and in news conferences, as did concerns
about Wilson. Then-national security adviser
Condoleezza Rice appeared on NBC's Meet the Press
on June 8 to rebut the charges, making her famous
"maybe someone knew down in the bowels of the
agency" comment about the CIA.
By the end
of June 2003, more than a dozen top administration
officials, including Rice and Cheney, who were
known to be the president's closest advisers, were
intensely involved in dealing with the problem of
Wilson and his allegations. Under the
circumstances, it is impossible to believe that
Bush was either unaware of, or indifferent to, the
issue. Clearly he was well aware of his slowly
waning credibility, as evidenced by the surfacing
of a new administration theme in June: the
deriding of "revisionist historians" who were
questioning the pre-war intelligence.
We
also know that the debate about the Bush
administration's grounds for war had been raging
since before the war began. In fact, it had been
raging since before Congress voted to authorize
the war. We know now that the National
Intelligence Estimate, which was prepared in early
October 2002, contained numerous qualifiers and
caveats that were omitted from the minimalist,
unclassified "White Paper" version issued
simultaneously.
At the time, and up to the
start of the war, numerous congresspersons and
others had made public and private pleas to the
administration to declassify the NIE so there
could be a reasoned debate about the issues. But
the administration had steadfastly refused, citing
national security concerns, even though debate
about the evidence for war - the aluminum tubes,
the Niger uranium, the existence of a link between
Saddam Hussein and al-Qaeda - continued both
before and after the invasion.
What was
different in June 2003 when the president
evidently did decide to declassify bits of the
NIE? The answer is: he was kicking off his
re-election campaign. As Helen Thomas wrote on
June 27, 2003, "President George W Bush is trying
to scoop up an historic US$200 million at
political fund-raising events to kick off his
re-election campaign." He had raised close to $10
million over the previous week and had more events
"slated for San Francisco, Los Angeles, Miami and
Tampa before the end of July".
A perfect
storm looked to be forming: four months of
criticism by Wilson, mounting questions and
criticism about pre-war intelligence and the
failure to find weapons of mass destruction - and
the kick off to Bush's historic $200 million
re-election campaign. That was the state of
affairs on July 6, 2003 when Wilson's op-ed
appeared.
Can anyone doubt, under these
circumstances, that Bush did in fact authorize
Cheney to tell Libby to leak previously classified
parts of the October 2002 NIE to Miller? Of course
not - especially when the White House's response
has not been to deny it, but to say that the
president can declassify whatever he wants at his
whim.
There is, however, one remaining
piece of the puzzle. Libby testified that he was
specifically authorized to speak to Miller by
Cheney and to disclose "key judgments" from the
NIE because the document was "pretty definitive"
against what Wilson had said; and Cheney thought
it was "very important" for the key judgments of
the NIE to come out.
Libby testified that
he questioned Cheney about whether he could do
this and the vice president later came back and
said the president had authorized it. According to
Libby, Cheney told him to tell Miller that a "key
judgment" of the NIE said Iraq was "vigorously
trying to procure" uranium in Africa. Libby said
he was also told by Cheney to disclose documents,
including a brief abstract of the NIE's key
judgments, which was one of the reasons the
meeting was held at a hotel.
Libby
insisted that he not be named as a source: he
wanted to be described as a "former [Capitol] Hill
staffer". In addition, Libby testified, he
discussed with Miller the contents of a
still-classified CIA report - which Libby told
Miller had been written by Wilson - that described
a 1999 visit to Niger by a group of Iraqis who
allegedly wanted to purchase uranium. Libby
believed that only he, Cheney and the president
knew about the secret declassification; he did not
reveal it to anyone during the formal
declassification process that ensued.
Libby's account raises too many issues to
address, not the least of which is that he had
already spoken to Washington Post reporter Bob
Woodward about the still-classified NIE in June.
Two other key issues, however, relate to the
information Libby was instructed to disclose.
First, the NIE key judgments did not say
the Iraqis were "vigorously trying to procure"
uranium from Africa. They said nothing whatsoever
about uranium procurements. The body of the NIE
included some vague assertions about such
procurement efforts, but even those had been
repudiated by the CIA in October 2002. In
addition, as Bush, Cheney, and Libby all knew, the
documents supporting the assertions had been
proved to be forgeries by both US intelligence
agencies and the International Atomic Energy
Agency. In other words, it is clear that this
secret disclosure of unilaterally declassified
material from the NIE was at best seriously
misleading, if not entirely false.
That
the contents of another disclosed document had
been written by Wilson, as Libby told Miller, was
equally false and no less misleading, because
Wilson did not write any report whatsoever after
his trip to Niger. He orally reported his findings
to the CIA.
McClellan now says this
declassification and instantaneous disclosure was
prompted by the public interest in contributing to
the understanding of an ongoing debate. We know
that is not true.
After all, before the
war, the existence of a crucial debate about
whether pre-war intelligence justified an invasion
of Iraq was not considered sufficient cause to
impel Bush to decide to declassify the NIE. After
the war, when no weapons of mass destruction were
being found, the existence of debate about pre-war
intelligence did not impel Bush to declassify the
NIE. Even today, most of the NIE, including the
one-page president's summary, is not declassified.
We now have sufficient information to
frame the Final Jeopardy! question. This is it:
Is a president, on the eve of his
re-election campaign, legally entitled to ward off
political embarrassment and conceal past failures
in the exercise of his office by unilaterally and
informally declassifying selected - as well as
false and misleading - portions of a classified
National Intelligence Estimate that he previously
refused to declassify, in order to cause such
information to be secretly disclosed under false
pretenses in the name of a "former Hill staffer"
to a single reporter, intending that reporter to
publish such false and misleading information in a
prominent national newspaper?
The answer
is obvious: no. Such a misuse of authority is the
very essence of a criminal conspiracy to defraud
the United States. It is also precisely the abuse
of executive power that led to the impeachment of
Richard M Nixon.
Elizabeth de la
Vega is a former federal prosecutor with more
than 20 years of experience. During her tenure,
she was a member of the Organized Crime Strike
Force and Chief of the San Jose Branch of the US
Attorney's Office for the Northern District of
California. Her pieces have appeared in The Nation
magazine, the LA Times, Salon, and Mother Jones.
She writes regularly for TomDispatch. She may be
contacted at ElizabethdelaVega@Verizon.net
