Hubris Misses the Point of the NIE Lie

by emptywheel

I was interested to see how Hubris dealt with Libby's NIE claims, since so far no one in the conventional media has figured out where they lead (though I'll talk about how NBC may be catching on below). Not surprisingly, Corn and Isikoff appear to still miss the point. But that doesn't mean their treatment of the NIE claim is worthless: they interviewed a "lawyer close to the principals" about the claims, which provides insight on how Libby's team may deal with this in court.

Why the NIE Claims Are Important

As a review, here's what Libby's NIE lies are all about. This is all documented in this post, and here is the court transcript in which most of this is revealed.

• Scooter Libby has instructions in his notes to leak something to Judy Miller on July 8, 2003
• When questioned about the notation, Libby claimed the instructions related to the NIE
• Libby went further to make certain claims about the NIE leak--that the leak was authorized by Dick Cheney and George Bush, that such an authorization was totally unique in his career, and that Libby was so worried about leaking the NIE to Judy that he double checked to make sure he was authorized to do so
• Libby later made claims that directly contradicted these assertions--most importantly, even though Libby claims the Judy leak was totally unique in his career, he also leaked the NIE to three other people: Bob Woodward, a journalist on July 2, and the WSJ
• Also, in spite of the fact that Libby says he was really worried about getting authorization to leak the NIE to Judy, he's not really sure whether he was authorized to leak the NIE to Woodward; his concern about the leak to Judy only extended to whatever he leaked to Judy

In short, Libby is almost certainly lying about what he was authorized to leak to Judy on July 8, 2003, in a meeting where Judy Miller admits he talked about Valerie Plame, and where Libby tried to get her to falsely attribute the story. Or let me put it even more plainly:

Evidence suggests that the Vice President of the United States authorized the outing of the CIA spy who could prove Cheney ignored evidence that Iraq didn't have WMDs.

What Hubris Says about the NIE Claims

Now Hubris doesn't read the basic details the same way I do. Here are the two passages that treat the NIE leak in the book:

In late June, Cheney discussed with Bush the steady stream of negative news stories about the administration's prewar use of the Iraq intelligence, according to a lawyer close to the principals. Cheney and Bush agreed that to refute the criticism they ought to divulge portions of the classified National Intelligence Estimate on weapons of mass destruction that had hastily been prepared prior to the congressional vote on the Iraq War resolution. "The president declassified the information and authorized and directed the vice president to get it out," the lawyer said. How that would be done--who should leak the information and to what reporters--was left entirely up to Cheney, the lawyer noted.

This was an extraordinary move. Before the war, it would have been a firing offense--if not a federal crime--for a government official to disclose any of the contents of the NIE. But now, with the administration under fierce attack for having manipulated intelligence, Bush was directing the vice president to leak parts of the NIE to protect the White House. Bush aides would later say that Bush possessed the authority to engage in such an act of automatic declassification. But the information would be used selectively--not to inform the public but to buttress a political argument. (250)

The passage goes on to describe how Libby leaked the information to Woodward on June 27. It describes what Woodward has publicly testified to have heard from Libby, including Libby's favorite word "vigorous." And it notes, rightly, that Libby wasn't revealing the full truth about the NIE's comments, "he was marshaling evidence to defend his client, the vice president."

Then, later, Hubris includes a second long passage on the NIE leaks, this time in regard to Judy.

Once again, Cheney had given his chief of staff the green light to disclose information from the classified National Intelligence Estimate. The idea was to strike back--at Wilson, at the critics--with the CIA's own words. Libby had also consulted David Addington, Cheney's longtime chief counsel and perhaps the White House's most notorious proponent of unbridled presidential power. Addington, according to Libby's later testimony, had reassured Libby that if Bush had authorized the disclosure of this classified information, that amounted to declassification of the material. This was the first time Libby had seen secret information declassified only on the say-so of a president. And now he was going to go further with Miller than he had with Woodward in revealing the contents of the NIE. He would be feeding sensitive information to a reporter whose stories had bolstered the WMD case for war--and who had an interest in defending the prewar claims. It was, one senior administration official later said, "Scooter's black op."

[snip]

He cited classified intelligence reports from 2002 on the Niger charge. He claimed, according to Miller's subsequent account, that an agency cable based on Wilson's trip had "barely made it out of the bowels of the CIA." He noted that the cable showed Wilson had actually returned with information indicating that in 1999 Iraq had pursued expanding commercial relations with Niger, which included (or so one Niger official thought) uranium purchases.

[snip]

He told her the NIE had "firmly concluded that Iraq was seeking uranium." (Libby at one point read from a piece of paper he pulled from his pocket.) He claimed that the detailed assessments in the NIE "were even stronger" than those in the slick, declassified CIA "white paper" released the previous October. But in making these assertions about the NIE, Libby was again being misleading and highly selective: the NIE hadn't "firmly concluded" that Iraq was seeking uranium. (260-1)

Incidentally, I can't find any attribution in the notes for the "Scooter's black ops" quote--can any of you? Perhaps it's the same guy as the "lawyer close to the principals"--which might make David Addington, a Senior Administration Official who also happens to be a "lawyer close to the principals," a good candidate for their source.

What's Wrong with Hubris' Treatment of the NIE Claims

Now, there are several funny things about Hubris' treatment of the NIE claims, all of which appear to be attempts to cover up the contradictory parts of Libby's story. These passages:

• Simultaneously talk about the "declassification" and the "leak" of the NIE and suggest sharing declassified information is a crime
• Make no mention of the numerous other descriptions in Hubris of classified information leaked to journalists
• Describe a multiple-part declassification of the NIE
• Claim there's a difference in substance between what Libby gave Woodward and what he gave Judy

"Declassification" versus "leak" versus "crime"

So here's the first problem. These passages don't seem to know whether the NIE was really declassified or not. They say the NIE was declassified, but then talk about leaking it selectively, as if, once it were declassified, it mattered who you leaked it to. In one sentence, it describes, "divulg[ing] portions of the classified" NIE, suggesting Bush had authorized the leak of information that remained classified; in the next sentence the lawyer claims Bush declassified the NIE. This seems to be an attempt to justify Libby's claims that this NIE leaking was unique in his career. But it's only sustainable if Bush and Cheney actuallly authorized the leaking of the still-classified NIE. Which is not what Libby claimed.

Other examples of leaked information

Then, Hubris goes on (with what appears to be Corn's and Isikoff's own synthesis of the issue) to suggest that "it would have been a firing offense--if not a federal crime--for a government official to disclose any of the contents of the NIE." Well, yeah, it would have been a firing offense and a crime if anyone ever chose to pursue it. But also would be a totally banal event, something that goes on all the time with this--and all--Administrations.

The Hubris synthesis is all the more absurd given the number of instances where Corn and Isikoff document one or another journalist receiving a leak of classified information from the Administration. Hubris describes the NSC giving WHIG an opportunity to use the aluminum tube leak to Judy and Michael Gordon to its advantage. (36) It shows the volume of other classified information gleaned from anonymous leaks (including SAOs) in Judy's and Gordon's September 2002 aluminum tube and mushroom cloud article. It shows Michael Gerson boasting that, if he couldn't get the super-secret "new" information on the Niger uranium claims into a Fall 2003 Bush speech, he would leak it.

If they didn't use it in the speech, "it's something we might leak to The New York Times," Gerson said, according to Gibson. (85)

Curiously, Corn and Isikoff don't mention that Judy and William Broad got leaked a copy of the then-classified White Paper on the purported Mobile Bioweapons Labs. That example is remarkably similar to the purported NIE leak, the premature leak of something that would be declassified within a matter of days. But even without that leak of classified information, Corn and Isikoff provide many examples of times when the Administration leaked highly classified documents for political gain.

Equally curious, Corn and Isikoff don't question why Libby and Dick would go to such lengths to leak the NIE (or whatever it is they claim to have done) when they were both already involved in the declassification of it? The NIE leak to the WSJ appeared on July 17; the NIE was declassified on July 18. Libby knew about both processes. Why get presidential sanction for such leaks?

The multi-step declassification process

On a related issue, Corn and Isikoff describe this odd declassification process to have happened in two stages. First, they describe the declassification process before they describe the leak to Woodward. Then, they suggest that Cheney "once again" declassified the document before Libby leaked to Judy on July 8. (They don't mention the as-yet unnamed journalist who received the leak on July 2.)

They (or the "lawyer close to the principals") describe it in this way to hide one glaring problem with Libby's NIE story. He first said that the whole insta-declassification process happened on July 2. But that would mean his leak to Woodward on June 27 would have broken the law. So then he simply said, "well, it must have happened sooner." Which of course leads to another glaring problem with Libby's story. Libby describes this whole process to be utterly unique in his career, he describes being very worried about whether leaking the NIE to Judy was really legal. But he also describes not remembering whether the NIE had been declassified before he leaked it to Woodward.

The Hubris version just eliminates this problem by inventing a two-stage declassification process. Which is remarkably close to Wells' version of Libby's grand jury testimony:

MR. WELLS: Just so the record is clear what the grand jury testimony is. He said that the disclosure of the material was a go, then it was a stop and then it was a go. Then he is asked at some point was it possible that you went too fast. He says I could have made a mistake but I know I was supposed to go, then I was told to stop, and then I was told to go.

But it still doesn't explain why Libby claims to care so much about staying within the law, yet doesn't know whether he was within the law when he leaked the classified NIE ("a firing offense" and "a federal offense" Corn and Isikoff remind us) to Woodward.

The Woodward leak versus the Judy leak

Then Corn and Isikoff try to explain, again, why Libby made such a big deal out of the leak to Judy when he didn't make a big deal out of the Woodward leak. They suggest "he was going to go further with Miller than he had with Woodward." But I'm not entirely sure how they see the Judy leak to be different.

They suggest, for example, that the leak to Judy was more problematic than the leak to Woodward because Judy had a self-interest in the material:

He would be feeding sensitive information to a reporter whose stories had bolstered the WMD case for war--and who had an interest in defending the prewar claims.

Though I don't know how this affects the legal issues surrounding the case at all.

Then Corn and Isikoff suggest maybe Libby gave more information to Judy than he had to Woodward. Curiously, the leave out the word "vigorously" in their description of the leak to Judy--Bob Woodward only revealed Libby had used that word with him after learning that detail about the leak to Judy. But none of the details suggests that Judy received more of the contents of the NIE than Woodward. Corn and Isikoff seem to make a big deal out of the news that Libby read something to Judy. But it's not clear how Libby shared the NIE details with Woodward, nor is it clear Libby was reading the NIE to Judy, as opposed to one of the other two documents he leaked to her on July 8.

Corn and Isikoff do reveal, working from Judy's version of the testimony, that Libby leaked details of the CIA report on Wilson's trip. But this doesn't help the logic of the Hubris narrative. It provides another example where Libby leaked classified information to a journalist (did he claim the CIA report was declassified??), which is further proof the NIE leak was no different than Washington as usual. And it really doesn't relate to the NIE claims.

In short, they provide no evidence to prove that Libby was "going further" with Judy than he was with Woodward. Unless they're referring to the fact that it was a breakfast meeting...!?!?!?

What that leaves

All of which suggests Libby's lawyers still have a problem. They're left with the same inconsistencies in Libby's story. And they're left with the increasing likelihood that "Scooter's black op" had nothing to do with the leak of the NIE and everything to do with the leak of the classified identity of a WMD operative.

NBC is catching on

But, as I said, I think the traditional media is beggining to catch on--or at least NBC is (ABC, of course, is quite busy pumping out propaganda, so I don't expect them to notice any time soon).

On MTP yesterday, Russert suckered Dick into reiterating the claim that he had the legal ability to declassify information.

MR. RUSSERT: There was a story in the National Journal that Cheney authorized Libby to leak confidential information. Can you confirm or deny that?

VICE PRES. CHENEY: I have the authority as vice president under executive order issued by the president to classify and declassify information. And everything I’ve done is consistent with those authorities.

But then Russert made the logical follow-up, the same one I'm making here. And all of a sudden. Dick got quiet.

MR. RUSSERT: Could you declassify Valerie Plame’s status as an operative?

VICE PRES. CHENEY: I’ve said all I’m going to say on the subject, Tim.

MR. RUSSERT: Do you think the president should pardon Scooter Libby?

VICE PRES. CHENEY: I’ve said all I’m going to say on the subject, Tim.

MR. RUSSERT: You wouldn’t support a pardon?

VICE PRES. CHENEY: I’ve said all I’m going to say on the subject.

Russert apparently is trying to live down his effort to claim a First Amendment protection for his cocktail weenies. Or maybe he's just getting pressure from Tweety, who thinks "Dick Cheney has so many apologists it's ridiculous." But at least Russert's asking the right questions.

Declassifying an NIE is not a unique event, as the subsequent declassification of it two weeks after Libby and Dick claim to have insta-declassified it shows. Declassifiying the identity of a covert operative--now that would be unique. And almost certainly a criminal act.

Comments

[emptywheel]

Btw, it's also worth noting that Corn and Isikoff didn't use the court transcripts for their book. Which means they're working off of what David Addington some anonymous SAO and/or lawyer told them about the NIE leak, rather than what Libby appears to have testified about it.

[whenwego]

EW:
You also need to connect the dots from the revelation that Plame was working on Iraq WMD prior to the war as well.

[njr]

You have these ducks in such a nice row, the gaps are beginning to cry out for attention...
I await hopefully your further clarifications re:
July 2 reporter and
anonymous Corn/Isacoff consultant who might have a personal interest in "explaining" events to the authors so they would not bother to go to the transcripts...

I'm glad you are not letting them hurry us on, nothing to see here, nothing to see here- ew sees! ew shares!
thanks again

[CLK]

Stay with it, Emptywheel-I am waiting for your book!
So Cheney won't clarify his authority to declassify? Looks like Russert might have tapped into Cheney's "no answer zone." I did not think Cheney had a "no answer zone" since he is always ready to confuse and obfuscate.
My favorite is his "We have evidence of a connection between Iraq and Al Qaeda." Yeah, "we" do have evidence, totally discredited, but we do have it. Wouldja say Dick likes to mislead?

[TenStepsLeft]

You've now confirmed for me what I've thought was the case since day one, Emptywheel. Your logic is unassailable. Good luck with the book. I can't wait to read it.

[orionATL]

a leak to miller might be more problematic than one to woodward because woodward would keep the info close, at least for a while (until his next book, maybe, or his next chat with pincus).

miller was a working reporter hungry for stories and would not necessarily be constrained in the same "gentlemanly" way in her reporting of the info libby was leaking to her.

[Mimikatz]

It was Cheney, almost certainly, but he will get away with it. But we must remember the context. The Wilsons had to be stopped because they knew and Joe wrote that the Bush/Cheney Admin knew the rationales they gave for the Iraq War were lies. They knew they were diverting us from bin Laden and al Qaeda to Iraq on false pretenses and they did it anyway, and it has made us less safe, less well off, and despised in the world.

Watch the video by Taylor Marsh et al. and don't forget the context that makes this all important.

[SaltinWound]

I love how many times you've made the one point that Libby "leaking the NIE" on July 8th was really Libby leaking Plame's status. Like a good bedtime story, I can almost recite it aloud with you step by step. But what's crazy is that I think you may have to keep flailing away at this one in order to make inroads (although the Russert sign is hopeful). It's the big crack in Libby's story, the one that splits it open and leads to Cheney, and I think it's worth sticking with until the mainstream media can't ignore it any longer.

[emptywheel]

Orion

a leak to miller might be more problematic than one to woodward because woodward would keep the info close, at least for a while (until his next book, maybe, or his next chat with pincus).

Yes. One thing I was thinking as I wrote this is that precisely the leak to Woodward makes this whole thing implausible. If you're trying to rebut Wilson immediately, then you leak it to someone who can and will publish the story immediately. If not, you wait the two weeks until you declassifyy. And if you leak it to someone who isn't going to publish it (I think Judy tried, but Woodward clearly wasn't reporting for immediate publication), then it just demonstrates how banal leaking the NIE really is.

Saltin

Oh, I'm just picking up steam with my flailing!!

Btw, the page number for the Gerson quote is (85). Typepad hates me today.

[QuickSilver]

Emptywheel, good for you for responding so quickly to Isikoff/Corn and for not mincing words in your reaction. I agree, there are possible pitfalls in the collaboration, subtle questions about spin and sourcing (which my own antennae would never pick up), but they certainly managed to unearth some new and useful details. Don't you agree?

I am only on page 70, but (so far) enjoying the book like a box of chocolates. These days I am grateful for every frank discussion of the march to war and every print mention of the White House Iraq Group -- remember, the New York Times has never deigned to write an article about WHIG, and among other things, the revelations about speechwriter Michael Gerson's role and importance are particularly enlightening. Even if Corn/Isikoff don't connect all the Plame dots the way you do, it's definitely a book I recommend to TNH readers. What did you learn, and what surprised you in it, if anything? I'm curious....

[emptywheel]

I agree, QS. It's a good book, a much better book than I expected. The most interesting contribution, IMO, is in extensive input from Adam Levine, the Rove aide who was right at the center of a lot of the events described in the book.

[William Ockham]

ew,

Excellent work. In reading this, something peripheral to your main point occurred to me. Obviously, Libby testified fairly earlier on about his supposed leaking of the NIE to Woodward. I don't have the source materials at hand, but I believe that the subject came up in the FBI's interview with Libby (before Fitzgerald was appointed). It appears that the FBI didn't attempt to interview Woodward about those conversations. Fitzgerald didn't ask Woodward about them until after the Libby indictment. Fitzgerald went to great lengths to get the testimony of Pincus and Kessler, but didn't seem at all interested in Woodward (until the Armitage conversation came to light). I don't think that Fitzgerald is incurious or incompetent. Surely there is a reason why he chose not to interview Woodward. I wonder what it was.

[emptywheel]

WO

He wouldn't have been able to subpoena Woodward. DOJ guidelines say you can do so only if it directly pertains to a crime and if you have no other way of getting the information. While Woodward's testimony is helpful in picking apart Libby's NIE lie, the lie itself couldn't be proved or disproved there. And Fitz had do evidence (and still doesn't, as far as I know) to suggest that Woodward got the leak of Plame's identity. That's one of the ironies of the Woodward testimony. I strongly suspect Rove made sure it came forward to undermine Armitage's credibility as a witness, thereby making it impossible to try Rove for perjury. But as a result, Fitz basically got Woodward's testimony for free. Which may end up hurting Libby in the end.

[Jim E.]

Not terribly on-topic, but Michael Gerson has just been hired as an op-ed columnist by the WashPost.

[kim]

Would Woodward have some security clearance that made any leaks to him not a crime? (Funny if he outed Armitage in this circumstance I guess.)

[QuickSilver]

FWIW, in 2005, Froomkin reported that fellow staffers considered Gerson "the conscience of the White House." An evangelical Christian, Gerson "gets credit for the injection of Christian themes, imagery and language into the White House communications strategy."

According to Corn/Isikoff, Gerson invented WHIG's mushroom cloud/smoking gun language, introducing that language just three days before Judy Miller's Sept 8th, 2002 article (even then, the aluminum tubes were already widely believed to be unsuitable for nuclear work, as Isikoff/Corn spell out). Although the mushroom cloud/smoking gun image was invented for a future Presidential speech, WHIG members liked it so much it was quoted beforehand. Both Rice and Cheney borrowed Gerson's mushroom cloud formulation for the talk shows that weekend, and Cheney even cited Miller's article, which quoted an anonymous official using those same words. Less than two weeks later, the Senate had voted approval for Bush's open check in Iraq, giving permission to go to war if the U.N. negotiations with Saddam didn't work out....

Amazing how fast it all happened. WHIG was nothing if not efficient.

[emptywheel]

A small nitpick. The Senate vote for war was on October 11 (just a few days after the Cincinatti speech in which Bush was not allowed to use the Niger claims. So it took a month. But the short time frame was one of the shrewder parts of the strategy. By forcing a vote before the mid-terms (and demanding it take place before everyone went home to campaign) they didn't allow opposition to form.

[emptywheel]

kim

It has been suspected he has clearance, yeah. Then again, Judy claimed to have had clearance in relation to her Iraq reporting.

[pow wow]

"Psuedo-Christian" themes, imagery, and language for purposes of manipulation and false idol worship, that is. Some "conscience" of the White House. Gerson can take his mushroom cloud smoking gun and stuff it. Figures the Washington Post hired him - might as well get the spin out under the name of the actual author, rather than just as anonymous sourcing - what's the difference, anyway, right "free press"? [Thanks for that info, Jim E. and QS.]

ew, one thing I don't grasp here is the ability at this point for Richard Armitage to be a witness against anybody. [Except very remotely at the edges regarding the distribution of the INR Memos, and about what he allegedly told Novak.] Armitage has now flatly stated publicly that he was not part of any conspiracy targeting Mr. and/or Mrs. Wilson, and neither does he know of any such conspiracy having existed. [Of course, in my opinion, that is a lie that has yet to be overcome.] But if Armitage's last grand jury appearance, as he claims, was in December, 2005 (no doubt with regard to Woodward's revelations), Armitage hasn't exactly been in the midst of the evidence about withheld e-mails and whatever went down prior to Rove's April, 2006 fifth grand jury session (contrary to the NY Daily News story about Armitage being sneaked into the courthouse to testify this spring). Armitage's whole cover story rests on being so completely uninvolved in anything to do with the Cheney/Libby/Rove plot that he by his own admission is absolutely worthless as a witness with regard to any of it, as far as I can see.

[emptywheel]

I think he is probably worthless, or Fitzgerald would have charged Rove (unless Fitz made a deal with Rove we don't know about).

But his primary value is in telling what he said to Novak when (because it solidifies who learned when, whether someone else was the leak source for Novak before he spoke to Wilson's friend, and so on).

Beyond that, he wouldn't know anything about conspiracy.

[tnhblog]

The authorization to leak the NIE has always been problematic. How could Bush give presidential authorization to disclose the NIE to Cheney, who never actually disclosed the NIE? How could Cheney disclose the NIE to Libby who already knew about the NIE? If the authorization to disclose does not refer to this then how could Cheney, the Vice President, give Libby "presidential authorization" to disclose the classified material. Remember it is always refered to as "presidential authorization" so the EO does not apply. The claim is not that the Libby had vice presidential authorization but that he had presidential authorization. That is why is still think that Bush lied when he testified that he did not give specific authorization to Libby to disclose the NIE.

[tnhblog]

I guess that what I am asking is that if the president did not give Libby "presidential authorization" to disclose the NIE, then who did? Who beside the president is allowed to give presidential authorization?

[emptywheel]

tnh

You're getting into the weirdness of the "lawyer close to the principals" in Hubris' description. Dick Cheney does have the ability to declassify things, by himself. So if he had declassified the NIE, it would have been technically legal (though unusual). But then there shouldn't have been the worry about Libby sharing it with journalists--with any journalists. And there shouldn't be the worry about getting Bush to approve something since Dick was already legal to approve. The scenario Libby described only makes sense if it was something Dick couldn't have approved.

[tnhblog]

Your scenario, EW, is certainly more damning, but harder to prove, unless someone cracks. With the facts on hand, one could certainly make the case that Bush did lie.

[QuickSilver]

I knew I goofed that...but the draft was sent to the Senate on Sept 17th, I think that's what Hubris said. (Left my copy in the car.)