The latest in a parade of horrors emanating from the Bush administration appeared 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 CIA agent Valerie Plame. I. Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, now under indictment on charges of perjury and obstruction of justice, told the Grand Jury Fitzgerald convened that President Bush had -- via Vice President 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.
On Friday, in a press conference that bore a striking similarity to Abbott and Costello's "Who's on First?" routine, President Bush's spokesman Scott McClellan dutifully responded to reporters' questions about the disclosure. No, the increasingly robotic McClellan said, the White House will not comment on an ongoing case. But, he assured the assembled journalists, the President can declassify whatever he wants, whenever he wants, however he wants. 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 our 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.
In order 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 Valerie 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 Special Prosecutor Fitzgerald described 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, Mohammed El Baradei, 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, El Baradei 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 El Baradei's statement, "We fell for it." Then Wilson appeared again on CNN and 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, Joseph 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 President Bush issued an amended executive order in which he claimed the right to expand Vice President 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 Joseph 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 press conferences. as did concerns about Joseph 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 Joseph Wilson and his allegations. Under the circumstances, it is impossible to believe that President 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 reelection campaign. As Helen Thomas wrote on Friday, June 27, 2003, "President George W. Bush is trying to scoop up an historic $200 million at political fundraising events to kick off his reelection 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 Joseph 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 reelection campaign. That was the state of affairs on July 6, 2003 when Joseph Wilson's op-ed appeared. And as Special Prosecutor Patrick Fitzgerald put it in the filing revealed last week, "The evidence will show that [it] 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."
Can anyone doubt, under these circumstances, that President Bush did in fact authorize Cheney to tell Libby to leak previously classified parts of the October 2002 NIE to Judith 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 Judith 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 that 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 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 Joseph 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 that 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 President Bush, Vice President Cheney, and Lewis Libby all knew, the documents supporting the assertions had been proved to be forgeries by both U.S. 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 Joseph 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.
Scott McClellan now says that 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 President 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 reelection 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 has 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 U.S. Attorney's Office for the Northern District of California. Her pieces have appeared in The Nation magazine, the L.A. Times, Salon, and Mother Jones. She writes regularly for TomDispatch. She may be contacted at ElizabethdelaVega@Verizon.net.