The
Truth About Lewis "Scooter" Libby's Statements
By John Dean
08 April, 2006
FindLaw
Special Counsel Patrick Fitzgerald
has now revealed in court filings bombshell information that I. Lewis
"Scooter" Libby told the grand jury investigating the leak
of Valerie Plame-Wilson's covert CIA identity. According to Fitzgerald's
filings, Libby said that he was authorized by the President and Vice
President to leak classified information to New York Times reporter
Judith Miller.
This revelation has been
accompanied by a number of public misstatements, which call for correction.
The most blatant of these is the claim that Fitzgerald's filing indicates
that the President authorized the release of Valerie Plame's covert
status at the CIA. In fact, the document is conspicuously silent on
this fact. The filing does indicate that the President authorized the
release of classified information, but it was different information
- a National Intelligence Estimate that had been classified pursuant
to an executive order.
In addition, conventional
wisdom - if that label fits the consensus information that is surfacing
on radio and television news shows - has it that this information does
not reveal that the President or Vice President did anything illegal.
But that claim, too, is not necessarily accurate.
At a minimum, the filing
indicates that the President and Vice President departed radically,
and disturbingly, from long-set procedures with respect to classified
documents - and that the Vice President, in particular, exceeded his
declassification authority. And it may indicate that they, too, ought
to be targets of the grand jury.
Libby's Grand Jury Testimony
Regarding Valerie Plame
As readers will likely be
aware, Fitzgerald indicted Libby for obstruction of justice, perjury,
and making false statements to federal investigators. In response, Libby
has repeatedly sought discovery of government information that he argues
is relevant to his defense. On April 5, Fitzgerald's office filed a
response to Libby's third effort at discovery of such information.
In his response, Fitzgerald
treated Libby's request as a mere fishing expedition, a fairly typical
response by a party who does not want to give up discovery. But Fitzgerald
also revealed crucial new information about his investigation and findings
in opposing Libby's request.
Fitzgerald's filing noted
that the "evidence will show that" that Op Ed "was 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."
Undercutting Wilson's Credibility
with Classified Information
Plainly, Fitzgerald believes
Libby lied, and this will be the central issue at his forthcoming trial.
Fitzgerald contends that the evidence will show that contrary to Libby's
statements to investigators and the grand jury, not only did Libby know
of Valerie Plame's work at the CIA before he spoke to journalist Tim
Russert, but Libby also used that information as part of the effort
to discredit Wilson's Op Ed.
According to Fitzgerald,
Libby "undertook vigorous efforts to rebut" Wilson because
"Vice President Cheney, defendant's immediate superior, expressed
concern to defendant regarding whether Mr. Wilson's [CIA-sponsored]
trip [to Africa to determine if Iraq was getting uranium from Niger]
was legitimate or whether it was in effect a junket set up by Mr. Wilson's
wife."
This disclosure about Wilson's
wife, according to Fitzgerald's filing, "was one way" to undercut
the Op Ed - based on the hope it would be taken less seriously "if
Mr. Wilson were perceived to have received the assignment on account
of nepotism."
Another way to undercut the
Op Ed was to use the top-secret information in the National Intelligence
Estimate (NIE). A knowledgeable reporter like Judith Miller would understand
that this information was the best judgment of the American intelligence
community.
Fitzgerald reports that Libby
"testified that he was specifically authorized … to disclose
the key judgments of the classified NIE to Miller" because the
information "was 'pretty definite' against Ambassador Wilson…
and that the Vice President thought that it was 'very important' for
the key judgments of the NIE to come out."
When Libby raised the problem
of discussing the NIE with Miller because of its classified status,
the filing reports that Libby "testified that the Vice President
later advised him that the President had authorized" Libby to disclose
the relevant portions of the NIE. (Emphasis added.)
The word "later"
here, in the filing, is crucially ambiguous: Did the President authorized
Libby's actions before Libby actually revealed the classified information
to Miller, or afterward? The distinction may make a large difference
in Libby's defense: If the authorization was retroactive, then Libby
initially revealed classified information without permission to do so;
thus, he would have reason to lie.
In addition, Cheney's counsel
(now Chief of Staff) "opined that Presidential authorization to
publicly disclose a document amounted to a declassification of the document."
(Emphasis added.)
Again, the language here
is telling. The filing says that the President's actions "amounted
to" declassification, not that the President had unilaterally declassified
the material. To the contrary, it appears the material was not declassified
for several days.
Can a President or Vice President
Unilaterally and Selectively Declassify?
Assuming that Libby's testimony
is accurate, did the President do anything wrong by so declassifying
the NIE? Given the fact that the national security classification system
is created by executive order of the president, it would appear logical
that the president has authority to unilaterally and selective declassify
anything he might wish. However, that is not the way any president has
ever written the executive orders governing these activities. To the
contrary, the orders set forth rather detailed declassification procedures.
In addition, there is law
that says that when a president issues an executive order he must either
amend that executive order, or follow it just as others within the executive
branch are required to do. At present, we have so few facts it is difficult
to know what precisely Bush did and how he did it, and thus whether
or not this law is applicable. There is also the problem that no one
has standing in court to challenge a president's refusal to follow his
own rules. But voters may take note of the disposition of this administration
to play by the rules, and put a Democratic Congress in place to keep
an eye on the last two years of the Bush/Cheney presidency.
What is apparent, however,
based on Fitzgerald's filing, is that no one other than Bush, Cheney,
Libby and apparently Addington was aware of this unilateral and selective
declassification - if, indeed, the NIE was declassified. The secrecy
surely suggests cover-up. For example, Fitzgerald notes that Libby "consciously
decided not to make [then Deputy National Security Adviser] Hadley aware
of the fact that defendant [Libby] himself had already been disseminating
the NIE by leaking it to reporters while Mr. Hadley sought to get it
formally declassified." (Also, CIA Director George Tenet apparently
was not aware of the partial declassification by Bush.)
Whatever authority Bush may
or may not have had, however, it is crystal clear that Vice President
Cheney did not have any authority to unilaterally and selectively declassify
the NIE.
Recently, Cheney made the
public claim (to Brit Hume of Fox News) that he had authority to declassify
national security information. Learning of this, Congressman Henry Waxman
asked the Congressional Reference Service of the Library of Congress,
which issues non-partisan reports, whether Cheney was right. CRS found
that the Vice President has limited declassification authority, generally
speaking. And their report shows Cheney had no authority in this instance
- only in situations where the Vice President had been the authority
to classify the material in the first place, could the Vice President
have the authority to unilaterally declassify it.
The Meaning of Libby's Revelations
- and Their Possible Consequences
Libby's statements regarding
the President are clearly hearsay; he was repeating to the grand jury
what he claims Cheney told him. Accordingly, Bush is probably still
protected by Cheney.
Presumably, Patrick Fitzgerald
asked both Bush and Cheney about their actions when he interviewed them.
But what they said, has yet to be revealed. If Cheney lied to protect
himself, in the interviews, then he could also have lied to protect
the President. Or Cheney could have opted to take the fall, and leave
the President out of it.
Many commentators are dismissing
this situation as run-of-the-mill presidential/vice presidential politics.
But I believe it is more serious.
From a political perspective,
separate from the illegality, there is the hypocrisy: The Bush Administration
has prosecuted and sent to jail officials who leaked far less serious
information - as I discussed in detail in a prior column. It is actively,
and currently, threatening to prosecute others who have leaked information
about the president's illegal electronic surveillance of Americans.
Beyond the hypocrisy, however,
is what the President, Vice President, Libby and no doubt others did
to destroy the career of Valerie Plame. Maybe the administration has
quietly settled with the Wilsons, who seem to have dropped out of the
public eye. This would have been wise, because as the facts unravel,
it increasingly appears that administration officials did indeed attack
Mr. Wilson for his speaking out; the leak of his wife's identity does
indeed seem to have been done in harsh retribution. Such a violation
of civil rights is a crime.
Finally, even if Bush and
Cheney both get away clean of criminal charges, or even the suggestion
of criminal conduct, this is still devastating for the Administration.
Illegal or not, the President and Vice-President's actions, as recounted
by Libby, are ugly in the extreme.
After all, Fitzgerald's filings
indicate that, at a bare minimum, these highest of officials played
fast and loose with declassification rules as part of a scheme to take
an uncalled-for revenge against a critic who dared to question an Iraqi
war justification. Even more damning, is that the critic turned out
to be right: Weapons of mass destruction have never surfaced, no uranium
was sold by Niger to Iraq, and the Administration's call to arms was
bogus.
There will be more devastating
revelations from the Libby case, I am certain. I have written of this
matter in the past, and anticipate writing more in the future. The Commander-in-Chief-can-do-no-wrong
veneer is wearing off, thankfully. For a nation that cannot hold its
commander-in-chief responsible is something other than a democracy.
John W. Dean,
a FindLaw columnist, is a former counsel to the President.
© 2006 Find Law