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The Truth About Lewis "Scooter" Libby's Statements to the Grand Jury Claiming the President Authorized a Leak of Classified Information:
The President and Vice President Are Not In the Clear Yet


Friday, Apr. 07, 2006

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.

The Plame controversy, readers will recall, began with a July 6, 2003 New York Times Op Ed by Joseph Wilson, taking aim at the Administration's claim that Saddam Hussein was trying to buy uranium from Africa to be used in nuclear weapons. The Op Ed began, explosively, as follows: "Did the Bush administration manipulate intelligence about Saddam Hussein's weapons programs to justify an invasion of Iraq? Based on my experience with the administration in the months leading up to the war, I have little choice but to conclude that some of the intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat."

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.

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