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July 03, 2006

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This all raises the question, though, of why exactly Fitzgerald was ever appointed to find out who the leaker was.

Did Cheney lie to Bush? Did Libby lie to Cheney? How is it that the administration had to appoint a Special Prosecutor to discover all this?

This is a bit like me hiring a private investigator to tell me where I was yesterday.

Unless this is just some $#!+ they made up after the fact -- or the whole investigation was just a pretext to push back their admission of guilt until after they got re-elected. I can't really think of any other explanation.

Catastrophile

I'm not sure I understand. Why was there an investigation (in the Ashcroft-overseen stage)? Because they thought they could escape with no charges.

Why was the investigation turned over to Fitz? I'm sure Ashcroft did that very reluctantly, after being threatened with evidence of his own obstruction. Did he consult with Bush first? Nope. Otherwise some crummy lawyer would have gotten the job.

What legal obstacles would their be to a conspiracy charge? Can't be conspiracy because the documents were declassified...so there is no law broken. But I still wonder about the damage assessment peice. Would that weigh in to the validity of the declassification..I mean can the president be held accountable for declassfying something that results in damaging the cia?? There is still a lot of cover-up and there is some hinting by Larry Franklin that the damage to the cia was significant. Also, it seems that Fitz and Hogan have gone to great lengths to protect that arena of information. Understandably but could there be more??

I don't know enough about law to ask these questions but they are in my brain...so I'm askin'. If a cia person was killed as a result of the Plame leak, could this go to the top? Could their be a conspiracy charge related to the violation of some other law?? Factually if major damage was done to the cia they would not be able to confirm or deny. So of course there has been no word about the damage peice other than right wing pundits (and bob woody) who state that it was no big deal.

Just asking...please lord, I still want a conspiracy charge that takes the whole administration. It's what happened...we all know that...but could it have violated some other laws?

Katie

Oh eW thank you. And, as to why Hadley, Tenet & Barlett were left in the dark about instant de-class'n ... in a word, deniability to give Cheney & Libby time for cover. Also, it occured to me while reading your piece, the shared breakfast of Miller/Libby was at least somewhat on the record. For a moment he may have gone off record, told her to put down her pen, told her his version of Plame verbally. Later, as she's walking to her car she flips open her notebook to scribble the name down, can't quite remember it exactly, so scribbles her recollection at back of notebook where it's easy to find. Thus, the garbled version of the Flame on different page. Am I really slow and you've already dealt with this? Sorry.

Katie

I think we need to separate the NIE leak, which almost certainly didn't result in the death of anyone at CIA (not least because the "secrets" they were trying to hide in it were how poorly supported it was), and the Plame leak, which did result in damage.

As far as authorizing an NIE leak, there is no legal violation and (for tactical reasons, at least) Fitzgerald has already ceded the point.

Fitzgerald is still a few steps away from proving that Dick ordered Libby to leak Plame's identity. But that will be a different question. I can see Dick claiming he was authorized to declassify Plame's identity, all in the day's work of the Unitary Executive's puppet master. But is it possible that you could declassify someone's identity without telling her? I doubt it. That's where their claims about declassification would fall flat.

I am no expert, but this is one of the first thoughts that I had, back from the beginning. He was/is to be the fall guy for the VP and Resident... I have no doubt in my mind that the whole cabal are guilty, but I could never quite figure out the whole plan. Libby protecting Cheney and Bush now gives it more perspective. I pray Fitz is as dogged in his pursuit of these evil doers as he has been in other prosecutions he has undertaken. Any idea of how much more we will have to wait before we hear that justice is actually done? Also, how does Rover tie into this new info? Thanks for helping sort this all out.

Hey there, PrchrLady

My take is that Rove--and several other people in the White House--testified that Bush didn't know about Libby's doings. And meanwhile, I strongly suspect that Rove DID say Cheney knew what was going on.

In other words, I think Rove has found a way to incriminate Cheney but protect Bush. Or at least that's what he's trying to do.

Scooter's the designated fall guy and will be pardoned before he can ever serve a nano-second in jail. Between insta-declassification and the fact that Deadeye and the Resident weren't under oath when they testified to Fitzgerald, everybody walks. And precisely because Fitz is such a standup guy, nobody will ever know what evidence he did or didn't have against these cruds. However, we have ample evidence of war crimes and a Supreme Court decision just handed down that could force some accountability -- if Democrats take Congress and have the cojones to use it. But of course they won't, and the war on Iran will force cancellation of the next election, which is why the dictatorship will continue for the foreseeable future.

EW, the process of declassifying a classified document involves getting a formal assessment of the information contained in the document from the classification officer in the originating department or agency. In the case of the NIE, that would mean probably about 20 departments and agencies that contributed to the NIE in October 2002. That is not exactly simple or speedy. It certainly would not comport with the intent of the WH to push the information into the ongoing news cycle. Ten days, and the Wilson op/ed would be past tense. Whether that explains the context of the formal effort to legally leak and the Cheney 1% solution to leaking, I don't know. Another thing we don't know is the chain by which Bush's "orders" were passed to Cheney and thus Libby on one hand, and on the other the Hadley, Bartlett and Tenet team. Was there one order which then got split -- or did Bush do two orders. Was Condi involved?

For me to know if Hadley, et al were acting in good faith when they went through the formal declassification, I need to be reminded: did they follow through? Were all the things that were leaked eventually declassified or did they drop the formal effort after the leak (that would suggest bad faith).

Between insta-declassification and the fact that Deadeye and the Resident weren't under oath when they testified to Fitzgerald, everybody walks.
---------------------------
I don't think so. I suspect that Fitz had FBI agents in the room during his interviews with W and the Shooter, so they'd still be on the hook for lying to the FBI. That's one of the things Libby was indicted for, after all. The Shooter is still very much in legal jeopardy. If Scooter gets a pardon, he goes right back to the grand jury again to resolve his previous "misrecollections". At that point, he can either say "Cheney told me to do it," or he can take the fall himself. Either way, he's going to be in a bad spot, and he still has a civil suit to worry about. He's got a long way to go before he's home free.

I believe that EW alludes to the importance of the article at the end of her post: Fitzgerald asked the president whether he authorized the leak, and if he didn't, does he know who did. If this actually was the way that it went, then wow. A prosecutor asked a sitting president in the oval office whether he committed a crime. Amazing. When has that ever happened? and note that the interview took place in the oval office probably with the intent to intimidate fitzgerald into backing off the more provacative questions due to the solemnity of the office. my guess is that fitzgerald was not intimidated.

I believe that the deeper underlying issue is pretty fascinating. Clearly, there was a concerted effort to come up with an explanation to protect bush and he was told what to say in the interview to protect himself. i wonder if the e-mails run counter to this theory. is that why the e-mails from the executive office were disappeared?

Sara also raises a fascinating point. the declassification process takes a long time. too long to really hit back against wilson in the short time span they wanted to do it. it raises, once again, a theory that i posited as to the rove-hadley e-mail. did they go through the formal declassification process as a forward-looking way of providing cover to themselves should it ever come out that they were selective leaking classified information? did rove come up with this idea as well?

One thing that the article does establish is this: bush was exactly like his father: "out of the loop." but in an interesting twist: bush I was out of the loop when he was vice-president. bush II was out of the loop when he was president.

When do you suppose the Bush -> Cheney directive occurred? The reason I ask is because prior to the first week of July I still think the whole game plan was to deny (though they knew otherwise) that any of the WMD claims were faulty. So any such directive during that timeframe would have been in furtherance of the bigger cover-up, and not just to defend the basis of the SOTU claims.

This raises the question in my mind of when Bush accorded OVP expanded powers as regards classified info through what I believe was an Executive Order. Cheney may have had unilateral authority to 'instant declass' as of this date.

windje

The line between formal declassification and leaking in this administration is so blurred. It's like trying to figure out the status of Judy Miller's "security clearance." Did she ever even have one, or was it all just leaks?

this will not work

why are we here ???

if bush authorized declassification of the Wilson stuff, why would anybody be surprised when the Wilson stuff was leaked ???

that story would have worked in October of 2003, but we're in the middle of a criminal investigation here

this basically says that bush decided to tell the truth about the Plame Leak about 3 YEARS AFTER THE FACT

that ain't good enough

"Why was there an investigation (in the Ashcroft-overseen stage)? Because they thought they could escape with no charges."

They'll have to come up with a better explanation than that. At least, I hope they will. Somebody had damn well better try to hold them accountable for wasting all this time and money investigating a leak that they initiated themselves.

Isn't that the real story here?

"I don't think so. I suspect that Fitz had FBI agents in the room during his interviews with W and the Shooter, so they'd still be on the hook for lying to the FBI. That's one of the things Libby was indicted for, after all. The Shooter is still very much in legal jeopardy. If Scooter gets a pardon, he goes right back to the grand jury again to resolve his previous "misrecollections". At that point, he can either say "Cheney told me to do it," or he can take the fall himself. Either way, he's going to be in a bad spot, and he still has a civil suit to worry about. He's got a long way to go before he's home free."

I too think Bush lied:

This article reveals as well that Bush might very well have lied to prosecutors when he denied specifically authorizing Libby to leak portions of the NIE. He only admitted to having authorized the general release of the info. But Libby has testified that Bush specifically authorized him to leak the info. If Fitzgerald asked Bush if he specifically authorized Libby to leak the info and Bush denied it, then Bush is guilty of obstruction, since Libby has testified that Bush did indeed specifically authorize it.

SaltIn

As far as we know, they wanted to officially declassify three things: parts of the NIE (which were declassified on July 18), an NIO-NSC communication (which may have been declassified about the same time), and the CIA report on WIlson's trip (which has never been declassified).

tryggth

Don't know, but Libby testified to asking for authorization to leak the NIE on July 2. And he leaked it at least as early as June 27, and possibly on June 23.

windje

Dick got (de)classification authority in March 2003. Presumably he still has it.

Nice to see some new scoops on this case...I'm starving over here. Thanks Murrah - and EW.

As Murrah has said, and it makes sense to me, I think it is unlikely early on in the investigation that Bush told investigators he authorized the leaking of classified info. - or even immediate declassification. I think more likely Cheney will claim he took Bush's statement to "get it out there" as a declassification statement. I think the fact that both Libby and Cheney have used those talking point could support how critical the comments were to their argument. Weak, but it does offer a defense. Furthermore, Cheney has already commented (I think) on his understanding of the immediate declassification issue, as well as VP authorities in the Fox interview, so if the "get it out there" claim was not enough, he could fall back on his own authority.

But it does seem like the walls are closing in on Cheney. If Bush, (through Rove I suspect) is starting to back off the claim that immediate declassification occured, I'm beginning to wonder if maybe that is part of what Rove gave Fitz - corroberation that Bush did authorize immediate declassification and maybe Rove saying that he communicated to Cheney that the declassification process was still ongoing. Therefore, Cheney could not have thought declassification occured.

That's my two-cent theory at least.

One very minor point. I think if you look at exactly what Fitzgerald says about Addington's role, and his report that Libby testified that as of July 12 (I believe) only he, Bush and Cheney knew about the insta-declassification, the implication is that Libby asked Addington a general question about presidential authorization, and Addington did not know what was going on with any specificity. My own take on it has also been that another implication is that Libby's testimony is that Cheney told him that Bush authorized the disclosure of the NIE, not that Bush declassified it, or something like that. It could be, though, that the story is that Cheney said Bush himself declassified the NIE for disclosure, and Libby knew that was singularly outside the normal declassification process, and asked Addington if such a thing counted as a real declassification.

But emptywheel's point that the disclosure of the NIE to Woodward really screws with this - if the Addington conversation was pinned down date-wise with any specificity - is a good one. Presumably Addington and Libby both told the same story. And we know that Fitzgerald is officially uncertain as to when precisely the authorization to disclose the NIE happened. But I wonder whether he was able to nail down, from Libby, Addington or some other source, when the conversation between them happened.

"My own take on it has also been that another implication is that Libby's testimony is that Cheney told him that Bush authorized the disclosure of the NIE, not that Bush declassified it, or something like that. It could be, though, that the story is that Cheney said Bush himself declassified the NIE for disclosure, and Libby knew that was singularly outside the normal declassification process, and asked Addington if such a thing counted as a real declassification."

No, it is clear that Libby testified that both the president and vice president had authorized the leak:

A senior government official who has spoken to the president about the matter said that although Bush encouraged Cheney to get information out to rebut Wilson's charges, Bush was unaware that Cheney had directed Libby to leak classified information. The White House has pointed out that the president and vice president have broad executive powers to declassify whatever information they believe to be in the public interest. Meanwhile, court papers filed by Fitzgerald in April suggest that Libby was reluctant to leak any classified information to the press, and only did so after being assured that his actions were approved by both the president and vice president.

It is also clear the prosecutors did ask Bush if he specifically authorized the leak, that Bush did deny it, that Bush therefore did lie, and that they have him on at least obstruction.

Jeff

But wouldn't the Addington conversation still have to happen after the Cheney conversation? So if it were, say, July 2, then we still wouldn't know for sure when the Cheney conversation was.

tnhblog,
I don't think its that clear. If Bush told investigators he did not authorize the leak, I think he will stick by that statement. He may have said to "do what it takes to discredit Wilson," but that's not the same as insta-declass. Also, just because Cheney claims Bush declassified doesn't make it so - only he believe it to be so.

Correct me if I'm wrong, but the only first hand claims on the insta-declass topic have come from the OVP.

emtpywheel

I started off trying to just make the point that Addington was, according to the apparent story, in the dark about what was going on specifically (which I think holds, whatever else is the case), and got carried away. But my only point is that if you can date the Addington-Libby conversation to, say, July 2, then it is indisputable that Libby leaked the NIE to Woodward without (even his own) assurances that it was legit. And I think that holds regardless of when Cheney assured Libby that Bush had authorized the disclosure.

At the same time, I really do think that none of this matters directly for Fitzgerald, in the sense that unauthorized disclosure of the NIE falls outside of Fitzgerald's own undertanding of his mandate, and he cannot expand it on his own, and is not likely to ask for an expansion of it. Though tnhblog's suggestion of obstruction on Bush's part is an interesting one from a legal standpoint, I don't think the basis for the suggestion is sound, since I don't see how it adds up to any obvious obstruction. After all, the official narrative appears to be that Bush did what he did, whatever it was, and it was fine, regardless of what Cheney made of it.

I think Fitzgerald's only interest in the NIE issue at this point is the one you've identified: he's skeptical that Libby's note to self on Cheney's instructions refers only to the NIE. Even though I think I might be losing confidence now that the July 2 leak of the NIE was from Libby to Miller.

I don't think its that clear. If Bush told investigators he did not authorize the leak, I think he will stick by that statement.

FB, it is as clear as day, because Libby has testified under oath that Bush did authorize him to leak the info. There is therefore a contradiction between the two testimonies. I don't think Libby is lying and Bush has not contradicted Libby. We only have the word of the senior official that Bush was unaware of the Libby leak, and that contradicts Libby's sworn testimony.

"Though tnhblog's suggestion of obstruction on Bush's part is an interesting one from a legal standpoint, I don't think the basis for the suggestion is sound, since I don't see how it adds up to any obvious obstruction."

It is a clear lie to a grand jury investigation. That is a criminal offense in itself. Nevermind consciosness of guilt and all that.

FB, it is as clear as day, because Libby has testified under oath that Bush did authorize him to leak the info.

Not precisely enough for your purposes. Libby apparently testified that it was his understanding that Bush authorized him, or that the president had authorized the disclosure, but his understanding was derived from what Cheney told him, not from Bush himself, which is what you would need to make your case as clearly as you seem to think you've made it. The official narrative appears to be that if Libby understood that the President had specifically authorized him to leak the classified NIE, that was because Cheney misled Libby as to what the President had told him. But even that is not entirely clear.

Well, according to Waas, Libby "only did so after being assured that his actions were approved by both the president and vice president." So I am going by Waas and not the official narrative. In addition, this passage from an article by Jason Leopold, in addition to the Waas article makes the case pretty airtight:

If you are wondering what President Bush told Fitzgerald during his 2004 interview, Jason reports,

According to four attorneys who over the past two days have read a transcript of the President Bush's interview with investigators, Bush did not disclose to either investigators or the special counsel that he had authorized Cheney or any other administration official to leak portions of the NIE to Woodward and Miller or any other reporter. Rather, these people said the president said he frowned upon "selective leaks."

Bush also said during the interview two years ago that he had no prior knowledge that anyone on his staff had been involved in a campaign to discredit Wilson or that individuals retaliated against the former ambassador by leaking his wife's undercover identity to reporters.

Here's some high-fiber speculation for you all to chew on:

. . . isn't it unusual that just as Plamemania seemed to be calming down, someone chose to leak so many details of the Shrubster's testimony (which you know has to be closely guarded information)?

The last time Waas got some inside information about what Dubya told Fitzgerald's team, it was in October 2005, when it seemed very likely that Karl Rove would be indicted before the end of the month ... and the gist of the leak was that the Shrub-in-Chief had no idea what Rove was up to.

So, um, why are we hearing now that he didn't know what Cheney was up to?

Jeff says:

At the same time, I really do think that none of this matters directly for Fitzgerald, in the sense that unauthorized disclosure of the NIE falls outside of Fitzgerald's own undertanding of his mandate, and he cannot expand it on his own, and is not likely to ask for an expansion of it.

Maybe those counter-espionage types on Fitz's staff have lead the GJ to Sealed vrs. Sealed which can be outside of the mandate, right?

OK, I don't really believe that, but its fun to think about.


I'd like to send flowers to whoever nabbed that copy of the Wilson OpEd off Cheney's desk.

In Oct 2003, the DOJ opened the investigation, but IIRC that original investigation mentioned only 3 reporters (Robt Novak + 2 Newsday reporters).

Bush/Cheney probably created the "formal declassification procedure" primarily as a form of CYA insurance AFTER they'd leaked -- so that they could look anyone in the eye and *claim* that there was 'formal declassification process'. They needed a whitewash, and a 'formal process' probably fit the bill.

In Oct 2003, Bush told the press he had "no idea whether we'll find out.,..( the identity of the leaker) and that DC, "is a town full of people who like to leak information. And I don't know if we're going to find out *the senior administration official*." I recall thinking it was bizarrre when Bush added: "(with) all due respect to [the press], you do a very good job of protecting the leakers." That was the moment in which I knew something weird was going on, that they'd done something they didn't think they'd ever have to be accountable for.

Whether they can be brought to justice remains to be seen.

It wasn't just a CYA for the leak of the NIE -- it was also a shield against all the selective leaking that had been done before the war. The Wilson pushback was an attempt to deny that (as Judy so amusingly asked) "the intell was slanted" -- as if she didn't already know. I don't know if this larger context helps the analysis -- but it hit me pretty hard that Bush may have been trying to cover his ass as much on the pre-war intell leaks as he was on the leak of the NIE (or of Plame's identity, if it came to that). As reader says, he was pretty danged sure that the game of leaking would work. If it had been left to the media, in the absence of Fitz, it would have.

Let me point out, leaking to the press was part of the modus operandi in the Franklin case.

Cheney not only did a unilateral declassification jujitzu, Rove, Libby and Fitzgerald know it, too. And despite what Cheney has said and spun, there is no law allowing him to do this.

I'm willing to bet the farm Fitzgerald is staying up nights working on a treason case against Cheney. I also think Fitzgerald has the stomach and the stones to take this to the Supremes. Unfortunately, Libby can credibly, I think, argue to a jury that Cheney had the right to "insta-declassify", so Fitzgerald won't charge Libby.

Sadly, the end game question probably is does Bush pardon before or after charges are filed.

vachon

You're still working at the level that assumes the NIE is the nugget here. I don't think it is. Or if it is, Libby is orders of magnitude stupider than I think.

Cheney can insta-declassify an NIE. And, I think for pragmatic reasons, Fitz is not challenging that, so that will not be an issue, at all, in a trial. But the pragmatic reason is the key.

Because Libby only introduced the NIE as his excuse for having a note to leak something to Judy Miller on July 8. It's almost certainly not what that note refers to. So whether or not Dick can insta-declassify is moot. The question is, does Libby's claim that Dick did tell him to leak the NIE stand up to scrutiny? If Fitz can prove that it doesn't, he has gotten 70% of the way to proving that Dick ordered Libby to leak Plame's identity. And while Dick might be able to insta-declassify things, he'd be hard-pressed to argue he can insta-declassify someone's identity without telling her.

I think emptywheel pretty much nails this one, but there are a couple of other really interesting things in the Waas piece. First, I love this attribution:

One senior government official familiar with the discussions between Bush and Cheney -- but who does not have firsthand knowledge of Bush's interview with prosecutors

Let's deconstruct this one. How many current govt. officials could convince Waas that they were familiar with Bush and Cheney's discussions about Plame? Couldn't be Bush (presumably he would have firsthand knowledge of his own interview). Cheney would have know about his own conversations with Bush, but I have a hard time envisioning him as a source for Waas. If Tenet or Powell were still in the govt. I would suspect them, but I'm pretty sure Waas wouldn't let them avoid the "former" tag. The most likely suspect is Karl Rove. He certainly has good reason to want that information out into the public view, but wouldn't he have leaked it to Isikoff instead? The only other viable suspects (that I can think of, I welcome alternatives) are Hadley, Rice, Gonzales, Addington and Harriet Miers. In any event, it is interesting that some who is in the inner circle is talking to Waas. I would think that would worry the Administration.

Second, I think the phrase "get all the facts out" will become the 21st century equivalent of "Who will rid me of this meddlesome priest?". Joe Wilson's relationship with Valerie Plame was certainly one of the facts that the adminstration considered relevant.

One of the amazing points from O'Neill's observations in "The Price of Loyalty" is how often Bush was extremely vague in what he wanted people to do, and they ended up having to "zen" out what he really wanted.

I'm beginning to wonder if the Bush directive was something like "Do everything you can to counter Wilson's testimony, and do it now." Some heard "expedite the standard declassification process", some heard "get the NIE information out right now", and some heard "attack and discredit Wilson however you can".

If the level of vagueness and implied communication pictured by O'Neill is correct, it might be a bit of a challenge to truly establish responsibility and accountability in this administration.

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