Hiding George and Stephen

by emptywheel

I think it was John Casper who pointed out that the last time I left town for more than a few days, the Plame Affair got really exciting (in that case, the Judy magnum opus appeared). Well, I'll be gone for 9 more days. At this rate, who knows what we'll learn.

Anyway, I won't say anything more about the Bush bombshell from Fitzgerald's response released today. Except to pat myself on the back for correctly discerning what Fitzgerald telegraphed two months ago, when I noted:

Now, apparently Libby "was authorized to dislcose information about the NIE to the press by his superiors." (6) Hmm. Libby is the Chief of Staff to the VP. Who are his superiors. Hold on, I know!! Dick Cheney! George Bush! Both telling Libby to go peddle classified information to journalists. Nice crowd, this Bush White House.

Just a few more tidbits and then I want to talk about the way that Fitzgerald has hidden George and Stephen in this response like Easter Eggs.

First the tidbits. In the department of "not as cool as the President authorizing leaks but pretty damned incriminating anyway," there's this passage:

During this time, while 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, defendant implored White House officials to have a public statement issued exonerating him.

Now, this passage explains the background to Scottie making reassurances that Karl and Libby were not guilty (Fitzgerald goes on to include Libby's very very very technical denial). But this passage almost certainly refers to Fall 2003, the time when Scottie was exonerating Libby. And at that point, Bush was unaware of the role his National Security Adviser had in leaking Plame's identity? Hello! That's Condi, the National Security Adviser in 2003, not Hadley (as I originally thought). Now, we've suspected Condi had a hand in this from the start. Apparently there's a bit of fire behind the smoke.

Update: Shouldn't have been in such a rush to pat myself on the back--as several people pointed out below, this is a reference to Libby in both his OVP roles, CoS for Veep and National Security Adviser. Thanks for the correction!

Next, this passage begins to explain some of the mystery behind Libby's leaking to Judy about Wilson's CIA trip report.

Defendant discussed with Miller the contents of a then classified CIA report which defendant characterized to Miller as having been written by Wilson. 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.

Either Libby didn't know that this report was written by a reporting officer, or he neglected to tell Judy. And as a result, he suggested that Wilson had said nothing debunking the Iraqi-Nigerien uranium deal. As far as we know, Wilson did say something about it, but the reports officer didn't record it.

Finally, I'm increasingly curious about the story surrounding Libby's claim that Powell said that "everyone knows" about Plame.

Nor has defendant established how “[a]ny notes from the September 2003 meeting in the Situation Room at which Colin Powell is reported to have said that (1) everyone knows that Mr. Wilson’s wife worked at the CIA and that (b) it was Mr. Wilson’s wife who suggested that the CIA send her husband on a mission to Niger” (see Memo. at 15) would be helpful to defendant in preparing his defense, even if such documents existed, and it is the understanding of the government that there are no notes indicating that Secretary Powell made the purported statements.

This passage makes it abundantly clear--Libby didn't claim he heard Powell say this. He just reported it, passed along something he heard from someone else (and besides, had Libby been there, he would almost certainly have taken notes). What the hell was Libby doing, passing on such a report during legal testimony? Further, it all seems very sketchy, as if maybe Powell didn't say it at all. Which would be rather curious, since Libby testified to this (apparently) in October, as if it happened in September. All in the time frame when the conspirators were putting together their cover-up.

Now, I've got to bust Fitzgerald just a little. I think he mischaracterizes Libby's reasons to want to get materials on the NIE and Powell's alleged statement. Fitzgerald says Libby is looking for context. But Libby requested those documents because they are things Libby has testified to that Fitzgerald has suggested he will enter into evidence. That is, Libby is afraid he will have to defend himself on these  counts. Though Fitzgerald pretty much slaps down the idea anyway, pointing out that it is irrelevant to the issue of whether or not Libby lied.

So on to the Easter Egg Hunt. Fitzgerald ruins Libby's fun by announcing he has no intention of calling Tenet, Hadley, or Rove.

Because the government does not intend at this time to call three of these individuals – Mr. Tenet, Mr. Hadley, and Mr. Rove – defendant is not entitled to discovery based on the need to prepare to cross-examine those individuals.

As others have pointed out, one good reason not to call them to testify is if Fitzgerald plans to charge them (a distinct possibility with Rove and Hadley). But he also might not call them if he wanted to avoid revealing evidence to Libby ... particularly if he knew Libby would call them anyway. Imagine, for example, if in one of his attempts to avoid indictment, Rove dealt some really good info on Libby. The only way Fitzgerald could spring it on Libby is if Libby calls Rove--freeing Fitzgerald from any discovery. At the least, it's a way to force Libby to admit what he knows, if he wants to call these people. And it may be a great way to keep Libby's team off-balance.

Which makes the materials on the NIE Fitzgerald has agreed to release all the more interesting.

The government has produced to defendant all documents responsive to the above request that were received from the Office of the Vice President, including notes of defendant and drafts of the July 11, 2003 statement issued by CIA Director George Tenet. The government declined to seek copies or produce additional drafts of the July 11, 2003 statement maintained by other agencies on the ground that such documents would be irrelevant in the absence of any connection to defendant, and also potentially duplicative of documents already produced.

That is, if the draft made it to OVP, Libby gets a copy. But if the draft didn't make it to OVP--if it remained at NSC or CIA, for example--Libby doesn't get a copy. Now there may be nothing there (note Fitzgerald's comment about duplicative evidence). But there's also the distinct possibility that there's something in the CIA-NSC correspondance that Libby would like to get a hold of.

Which is rather interesting, in light of the following comment:

Defendant testified in the grand jury that he understood that even in the days following his conversation with Ms. Miller, other key officials – including Cabinet level officials – were not made aware of the earlier declassification even as those officials were pressed to carry out a declassification of the NIE, the report about Wilson’s trip and another classified document dated January 24, 2003.

I'm guessing that two of these cabinet level officers are Hadley and Tenet. Both were clearly involved in declassifying the NIE (indeed, Tenet included a chunk of the NIE in his mea culpa). Again, think about what the correspondance might reveal. Which, if that wasn't clear enough, Fitzgerald repeats it again in a footnote.

Defendant fails to mention, however, that he consciously decided not to make Mr. Hadley aware of the fact that defendant himself had already been disseminating the NIE by leaking it to reporters while Mr. Hadley sought to get it formally declassified. There is no reason to root around in the files of the NSC or CIA or State Department given that no one at any of those three agencies was aware of any declassification of the NIE prior to July 18, 2003. Since Mr. Hadley was involved in efforts to declassify what Mr. Libby testified had already been declassified, Mr. Hadley’s files will create confusion rather than providing context. The government is producing to defendant Mr. Hadley’s notes of meetings and conversations in which both defendant and Mr. Hadley participated, and in which the potential declassification of the NIE was discussed.

Hadley didn't know. His files would create confusion.There's something in Hadley's files that Libby wants and that Fitzgerald won't give him.

Which puts Libby back into the difficult situation. Either he admits he knows something is there (which admits to a greater conspiracy). Or he doesn't get this evidence.

Comments

[emptywheel]

Btw, I'm sitting here in Schipol Airport on my layover. And I'm hearing an aparently international group of men, reading each other the news about Dick leaking the NIE. Completely aghast, they were.

[Ardant]

Hello EW. Off to bed but just stopped in for a check (PDT). I don't know how you do it, just thankful that you do. Be safe.

[emptywheel]

Ardant (and everyone else) thanks for the safe travel wishes!

In this case, I think I've totally screwed myself over for the entire week because, instead of sleeping on the first leg, I watched Syriana instead. So now I'll be jetlagged and miserable all week long!

[emptywheel]

Here's a question I've started thinking of.

Dick authorized Libby to leak like a sieve on July 8.

About the NIE.

But did he authorize him to leak anything else? In other words, how do we know that Dick didn't unilaterally declassify Plame's identity. And only for Libby kicking sand in Fitzgerald's face do we not know?

[obsessed]

EW - you ARE going to keep checking in, aren't you? Last time we nearly got lost in the Aspens without you!

[obsessed]

"EW call home"

[QuickSilver]

I spent the day trying to find a quote from a Republican in Congress -- any Republican in Congress -- willing to voice criticism about the President and Vice President's role in the ordering the leak of classified information. I came up empty-handed.

It's official: not a single Republican in Congress feels there's anything wrong with leaking classified information, or lying about it, so long as it's in the service of covering up a plan to go to war. Not Olympia Snowe. Not Arlen Specter. None of them, not a single Republican, not a single damn one of them.

[Griffon]

Thanks Emptywheel. I think that thanks to you and BooMan (linked to by Jane) I'm finally getting a handle on all this.
I'm conscious that Libby said that Cheney said that George said....
Does this leave us with a potentially unresovable loop if Dick and George decide to say "Well... not exactly..." or "I don't recall saying..."?

Of course, you know all about small planes don't you?
Just kidding (I hope). Safe trip.

[Steve]

It doesn't say Bush was unaware of the role his National Security Adviser had. It says Bush was unaware of the role Cheney's Chief of Staff and National Security Adviser had. The plain-English reading of that is that it was Cheney's National Security Adviser being referred to.

[Tom Maguire]

Re Steve's comment on the National Security Advisor - I had posted a thought similar to EW's (What's up with Hadley, or Condi?) but I was bailed out by a software (or wetware) glitch, and the computer ate it.

In any event, the ubiquitous, mysterious Jeff pointed out that Libby was Cheney's National Security Advisor as well as his Chief of Staff. That can be confirmed from the indictment:

Beginning on or about January 20, 2001, and continuing through the date of
this indictment, defendant I. LEWIS LIBBY, also known as "SCOOTER LIBBY," was employed as Assistant to the President of the United States, Chief of Staff to the Vice President of the United States, and Assistant to the Vice President for National Security Affairs.

Have a safe trip - the Libby team responds to this filing by next Wednesday, but I can't imagine they will make the front pages.

[freepatriot]

told ya libby would prove the conspiricy

stupid fucker asked Fitz for evidence proving there was no whitehouse conspiricy against Joe Wilson

why lob THAT softball to Fitz ???

Libby's dying here

he all but implicated george bush in the biggest national security crime ever committed

how's that pardon looking now scooter ???

[William Ockham]

Steve is right. emptywheel misread a key sentence. The "Vice President’s Chief of Staff and National Security Adviser" was, of course, Scooter Libby.

[Houston]

I could never figure out why Libby is so hell-bent on proving the plame leaking was forgetful/declassified, considering that there is plenty of motive otherwise to lie (i.e. getting fired, revealing polically damaging info. about White House tactics, etc), but now we see the Libby defense a little better. It looks like Libby will claim he forgot because he knew the info. was declassified. And all others (testifying against him) did not know the info. was declassified and therefore have motive to plea out and pin it on Libby. So the questions still remain:

Was the NIE declassified?

What exactly was declassified (the whole Niger info. but not Plame, or everything)?

If something was unknowingly declassified, can Ari et al. be guilty of leaking it (even though they thought it was classified)?

Which follows, will this info. give those who were pleaing and testifying against Libby an out?

What did Bush and Cheney say to Fitz about the declassification issue?

[Jeff]

But did he authorize him to leak anything else? In other words, how do we know that Dick didn't unilaterally declassify Plame's identity. And only for Libby kicking sand in Fitzgerald's face do we not know?

Slightly modified, I think this is exactly the right question. The slight modification would be to add the more general question, "Did Dick direct Libby to blow Plame's cover with Miller?" That would allow for the possibility that Dick did or did not declassify Plame's CIA affiliation. The new filing, it seems to me, points an ever larger finger at Cheney in this whole affair. My suspicion is that Fitzgerald suspects that Cheney directed Libby to blow Plame's cover, but he can't prove it, because Libby of course said no such thing and - well, what did Cheney say?

One interesting question and test concerns testimony regarding July 12. The filing confirms and adds to what Gellmann at the WaPo reported and then withdrew - that Cheney was directing the response to Wilson on July 12. Now, we know that Libby is accused of lying about what he told Miller and Cooper on July 12 regarding Plame, his knowledge of it and his source of that knowledge. So 1)what did Libby testify to regarding the pre-talk strategy session on AF2 with Cheney? 2)What did Cheney testify to about that strategy session? Specifically, did Cheney acknowledge any discussion of Plame and what Libby should say about her? And more specifically, if so, did it match or contradict Libby's allegedly false account? 3) And what did Cathie Martin, who seems to have been the only other participant in the conversation, testify to regarding that conversation?

The answers to these questions obviously don't get to what happened in preparation for Libby's July 8 conversation with Miller. But they do raise the all-important question of whether Cheney acknowledged any direction to Libby regarding Plame, and whether there is reason to doubt the veracity of that acknowledgment (or non-acknowledgment).

Just for the record, since there's been much discussion lately of stories broken in the blogosphere not being acknoweldged as such in the press, I note that I'm pretty sure I beat Gerstein of the NY Sun to the punch on the new filing, albeit rather obscurely, in a comment on ew's previous Libby thread here.

[Mimikatz]

So Libby says Cheney told him that Bush told him it was ok to leak. Double hearsay. But depending on what Cheney will say he said to Libby, either Libby perjured himself or Cheney did tell him that Bush said to leak. Then, as Jeff points out, the question is what did Cheney say to federal officials? Did he lie? It is a crime even if it was not under oath.

And now we have the same problem with Cheney. If he says Bush told him, then what does Bush do? If he doesn't back up Cheney, he looks weak and not in charge. Better a leaker than a wimp.

So the GOP line seems to be, "It doesn't matter if the President selectively leaked to bolster his case for war." But that isn't going to wash with anyone but the Bushbots. Libby does really seem to have been left twisting in the wind.

[chris]

I'm an amateur following along with all this, but do we know who the two senior administration officials sourced in Novak's original july column were?

[Jim E.]

I posted this over at JOM and it was universally ignored, so I'm cutting-and-pasting it here. It's really just a long lega question, and I'm interested in knowing if anyone knows the answer.
-------------------
Can the president retroactively declassify something?

I ask for two reasons:
1. It seems out of character for Bush to be involved in pre-approving Libby's "disclosures" to Judith Miller. That's getting pretty deep into the weeds over a matter that seemed to bother Cheney the most, not Bush.

2. Libby testified that Cheney said "later" that Bush signed off on the disclosure. (It's unclear if "later" means a subsequent conversation, but before the Libby/Miller meeting, or if "later" means *after* the Libby/Miller conversation took place.) It seems that there's at least a chance that Bush didn't "declassify" the NIE until after Libby had already spoken to Miller. If so, is that legal?

[Mimikatz]

In the absence of Emptywheel, I will give it a try. The two SAOs are widely believed to have been Libby and Rove. Rove has claimed he only "confirmed" what Novak already knew, IIRC.

There seems to be a dispute on various blogs whether there has to be a process for an official disclosure or not. See Steve Clemons for one view.

[Lisa]

Jim E.---seems the WH press corps was interested in your 2nd question during this morning's gaggle. I can't remember who (check TPM Muckraker for the transcript), but one of the reporters was asking for a date that the NIE was declassified. Scotty kept saying it was 'made public' on July 18, but refused to answer when it was actually declassified.

[Jeff]

I'm an amateur following along with all this, but do we know who the two senior administration officials sourced in Novak's original july column were?

One of those two was definitely Rove, and the other is widely believed to have been Richard Armitage, not Libby, as Mimikatz suggested. Though ew has a hypothesis that Libby may have talked to Novak, at the moment that is pretty speculative, and stands apart in any case from the two SAOs Novak talked about in his original column.

[Jeff]

Anonymousliberal raised a great set of questions in a post yesterday, which hopefully we will be hearing more on from Murray Waas:

There are a number of puzzling aspects of this story. First, consider this paragraph from Murray Waas:

Although not reflected in the court papers, two
senior government officials said in interviews
with National Journal in recent days that Libby
has also asserted that Cheney authorized him to
leak classified information to a number of
journalists during the run-up to war with Iraq.
In some instances, the information leaked was
directly discussed with the Vice President,
while in other instances Libby believed he had
broad authority to release information that
would make the case to go to war.

Were these pre-war leaks authorized by the President as well, or just Cheney? If by the President, why did Libby describe the NIE incident as "unique in his recollection"? If these leaks were authorized by Cheney alone, did Cheney break the law? And if Libby acted solely on the Vice President's authority for these pre-war leaks, why was he suddenly unwilling to do so with respect the NIE? What changed?

The key questions are the last two. And remember that the relevant law or executive order governing classification is dated, as far as I can tell, in late March - which is to say that the expansion of the VP's classification and declassification powers happened after the events Waas reports on would have happened.

[viget]

Good points Jeff. THat graf jumped out at me from Waas's article too. I wonder who the two (they always seem to come in pairs, no?) SGOs are who are sourced in that article. Wouldn't it be funny if one of them were Rove, twisting the knife in Libby's back? (although, I would hope Waas would know better than to report anything Rove says as being remotely near the truth)

Another thing to consider. Booman over at dKos and his own blog has been speculating that Miller is really an OVP agent planted at the NYT to distribute pre-war intel (probably originating from the OSP, my speculation) as fact to make the case for war. He thinks she was "read in" to the WHIG program, and that this whole president allowing disclosure thing is just another lie made up by Libby et al to prevent the truth of the US gov't using propaganda ops on domestic soil from coming out. Not to mention violating the ban on using journalists as cover for agents.

I don't know if he's right, but he makes a good case by juxtaposing Miller's prewar reporting with the declassified Key Judgements section of the October 2002 NIE. The similarities are quite striking.

Wouldn't THAT be intersting! Perhaps we should just rename this to Millergate instead.

[Mimikatz]

Thanks for the correction, Jeff.

[p.lukasiak]

He thinks she was "read in" to the WHIG program, and that this whole president allowing disclosure thing is just another lie made up by Libby et al to prevent the truth of the US gov't using propaganda ops on domestic soil from coming out.

wasn't there a controversy over Miller's claim to have some kind of special security clearance?

[emptywheel]

viget

Miller was definitely on the distribution list for WHIG materials (that has been alleged, with sources, before). Though I think Booman's column (which I admitted read after no sleep and quickly at that) is a little confusing in that it suggests Libby got it as NIE type info. Remember that OSP and WHIG were getting and using info BEFORE the IC validated it in some cases.

Someone linked to a Karen Kwiatkoski story recently (I think lukery) which noted that the Niger intell WASN'T an OSP product. THought the aluminum tubes were. I'm really beginning to think about what that means--that we can compare one intell campaign against another to see how it was leaked. But in the case of the tubes, at least, OSP was driving that.

Jeff

I think the Libby to Novak thing is less than speculative, if we believe Waas' story on Fragos Townsend (which has been publicly reported elsewhere). In the second-to-last Libby post, I pointed out that Jeffress admitted that Libby claims to have learned from Novak about who his "source" is. And Novak, when he told Rove he'd make him happy with one thing and unhappy with another, was linking these two smear campaigns, so the timing is close (though we can't prove it was post July 7). I guess I'm saying, Libby almost certainly spoke with Novak. And then, at some point, he had a conversation with Novak about how N's sources were. It would be the easiest thing possible to have Novak claim his first leak was Armitage and second (confirming) was Rove, thereby permitting the claim that Libby didn't mention Wilson to Novak. Okay, it's speculative. But add in the telegraphing to Judy, and there is a lot of backing for it.