Plamemania Countdown: Reading Judy, Part IV

by emptywheel

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Buy Anatomy of Deceit on Amazon
Buy Anatomy of Deceit from my local indy bookstore

Tune in to my appearance on the FDL Book Salon Sunday, January 7 at 5PM ET

For more news on FDL/emptywheel/Huffington Post coverage of the trial see this

Reading Judy Parts One, Two, and Three

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One of the things I'm most looking forward to at the Scooter Libby trial is the way each side will dance through friendly and unfriendly witnesses. Libby's team disputes some of the testimony of David Addington, Cheney's replacement Cheney after he lost Libby--maybe if we're lucky they'll be forced to discredit the architect of the Unitary Cheney. Cheney's old Public Affairs Assistant, Cathie Martin, will also be a key witness against Libby. But most of all, there's Judy.

As part of the discovery process, Libby won the right to get materials that will impeach Judy Miller, Administration mouthpiece extraordinaire. And in Judge Walton's estimation, there is at least one detail in drafts of Judy's work that will make her look less than credible on the witness stand. So Libby, a guy who depended on Judy's credibility (and access to the NYT's front page) during the lead-up to war, will now make a concerted effort to destroy any credibility she has.

But there's one detail that--in my ongoing obsession with the role of the NIE leak in this story--I'm particularly fascinated by.

You see, to explain away the odd problem about why Libby would get Presidential authorization to leak the NIE to Judy, but not even clarify whether he was authorized to leak the NIE to Woodward, Libby's team is going to have to argue that Judy got a big bonus leak. Here's how Hubris, relying on "a lawyer close to the principals" describes it.

In late June, Cheney discussed with Bush the steady stream of negative 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 which reporters--was left entirely up to Cheney, the lawyer noted.

This was an extraordinary move. Before the war, it could 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)

Note: Isikoff and Corn's source is fluffing the story on at least two counts here. First, the trial documents all describe the presidential authorization as happening later--in July. Effectively, Hubris' source pretends that the NIE was definitely declassified in time for the June 27 leak to Woodward, even though all the court documents--and Scooter Libby's own testimony--say it's unclear whether the NIE was declassified by that point (in other words--even Libby doesn't assert this conversation happened in June). And Isikoff and Corn don't bother to refer to the court documents to correct their source's misrepresentations.

This passage also totally ignores that, in August 2002, when someone leaked to Judy and Michael Gordon the contents of the same intelligence on aluminum tubes that would form the core of the NIE discussion on the subject, no one lost their job. Rather, the Vice President got on national teevee and gleefully used that opportunity to drum up his case for war.

Ah well, what do you expect from "a lawyer close to the principals"? The fine-tuned art of the limited admission.

Presumably, Isikoff and Corn rely on the same disingenuous source when the cover the NIE leak to Judy (they don't note the July 2 leak to Sanger at all). The source seems to be stretching to imply that Judy got something more--without, however, actually detailing the nature of that something more.

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 sen 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." (260, my emphasis)

You see how contrived that is? Libby's going further with Judy. But the only reasonable explanation the source can give is that Judy was implicated in the WMD intelligence. Which, as I've pointed out before, doesn't pass the sniff test, given all the prior leaking to Judy. They had already leaked such information to her--that's how she pimped the case for war!! So how would leaking the NIE to Judy be a black op? Geez--more like standard fare, if that's all it involved.

But that's the problem. Libby's team is stuck arguing the Judy got something more, all the while denying that that something more related to one of the few things Judy hadn't been leaked before, such as (say) the identity of a CIA NOC.

And what I'm amused by is that Judy doesn't help matters--not at all. Here's what Judy had to say about Libby's NIE leak.

During my testimony on Sept. 30 and Oct. 12, the special counsel, Patrick J. Fitzgerald, asked me whether Mr. Libby had shared classified information with me during our several encounters before Mr. Novak's article.

[snip]

As I told Mr. Fitzgerald, Mr. Libby also cited a National Intelligence Estimate on Iraq, produced by American intelligence agencies in October 2002, which he said had firmly concluded that Iraq was seeking uranium.

An unclassified version of that estimate had been made public before my interviews with Mr. Libby. I told Mr. Fitzgerald that I had pressed Mr. Libby to discuss additional information that was in the more detailed, classified version of the estimate. I said I had told Mr. Libby that if The Times was going to do an article, the newspaper needed more than a recap of the administration's weapons arguments. According to my interview notes, though, it appears that Mr. Libby said little more than that the assessments of the classified estimate were even stronger than those in the unclassified version. [my emphasis]

So here Scooter Libby is, having spun a ridiculous story about getting presidential authorization to leak WMD intelligence to a journalist that the Administration had been leaking WMD intelligence to for years, claiming that Judy got "something more." And Judy, when she has an opportunity to describe that something more (not having been told, however, that she should play up the NIE leak rather than play it down), basically said Libby "said little more" than what had been said in the declassified NIE.

Oops.

There are a lot of reasons why Libby's team is going to attack Judy, hard--not least the fact that she will testify that he was leaking Plame's identity two days before he learned it again "as if it were new." But this is my new favorite instance of an issue on which Libby will want to discredit Judy. Because if this aspect of Judy's story retains any credibility (it is, admittedly, a very big if), then Libby's whole NIE story crumbles. Which quickly gets us to Dick authorizing the leak of a CIA NOC's identity.

Comments

[Swopa]

As part of the discovery process, Libby won the right to get materials that will impeach Judy Miller...

Couldn't he just go to a library where they have the NYT archives on microfiche?

And in Judge Walton's estimation, there is at least one detail in drafts of Judy's work that will make her look less than credible on the witness stand.

"At least one"? Judge Walton has a gift for understatement. :)

[global yokel]

Man, am I glad I'm not a juror on this case. It is enough to make anyone's head spin. There is so much to sort through, I worry that the jury will be too confused to render a convincing 'guilty' verdict.

The defense attorneys will likely generate such an overwhelming blizzard of stuff that nobody can see through it all clearly.

[emptywheel]

Ah, but that's the beauty of it, isn't it Swopa? Libby's team can't USE the most obvious material. What are they going to say:

And so, we have shown that Judy Miller is completely untrustworthy because each and every one of her WMD articles from 2003 and 2003 have been proven to be mistaken at best, and willful fabrications at worst.

At some point, that falls under the law of diminishing returns.

[Jules]

global yokel: I think that's one of the many areas where Fitzgerald shines as a prosecutor. He has an amazing ability to explain the real issues in layman's terms. He gets past the muck so to speak.

emptywheel: As a longtime lurker here, I'm excited about your book. Congratulations!

[ance]

He gets past the muck? He passes on the whole thing!

Everyone is looking forward to the games!

[William Ockham]

The best part of the whole NIE cover story is the most obvious lie. According to Miller's notes (which as a contemporaneous account will be hard to impeach), Libby, rather than leaking the NIE, lied about it ("the assessments of the classified estimate were even stronger than those in the unclassified version"). We know now (and Libby knew then) that the classified version was full of caveats, weasel words, and dissents that were cut out of the unclassified version. When the Administration finally did declassify most of the NIE, they had nothing that made the case stronger. Is anyone willing to argue at this point that there is stuff in the still classified part that Bush and Cheney were willing to declassify via Libby, but won't declassify now?

As near as I can tell, Bush and Cheney backed Libby up on this stupid cover story. Cheney is going to testify. I have a question for someone with trial law experience. Will Fitzgerald get to ask Cheney if he authorized Libby to leak the NIE?

[Jeff]

On the one hand, Fitzgerald agrees with Libby on this. In the 11-15-06 response to Libby's motion in limine on the NIE, p. 4, Fitzgerald says that in the conversations with Woodward and Sanger Libby "disclosed information from the NIE - specifically, the NIE's conclusion that Iraq was vigorously trying to procure uranium - which was substantially less information than disclosed to Ms. Miller on July 8."

On the other hand, while Fitzgerald is express about the ambiguity in the timing of Bush and Cheney's declassification, he is emphatic in rejecting the assertion by Libby's defense, echoing Isikoff's anonymous source (whom I suspect is Dan Bartlett), that Libby was authorized to disclose the NIE when he talked to Woodward in June. He refuses to just accept that assertion, since there is no clarity on it - and he clearly suspects it was later, since Addington testified that the conversation where Libby asked him about presidential declassification was after July 6.

That stuff that Isikoff has, by the way, which he used in Newsweek first, is classic plausible deniability strategy for Bush. It follows the Reagan pattern pretty closely. Bush said, "Get it out," but left all the specifics to Cheney and Libby. So he had no idea what they were doing, even though he thought it would be nice if reporters found out.

[emptywheel]

Jeff

Well, given Judy's testimony, in which she provides a lot of details about specious claims Libby made about Wilson as the source of all intell on Niger, we know what some of the other substantially more is, at least from her perspective.

That is--he doesn't detail whether or not the substantially more relatest to the NIE, or to something else.

[Jeff]

emptywheel

Yes, I am taking that sentence, as constructed, to mean that he is talking about the NIE the whole time.

[QuickSilver]

You got that right, emptywheel, on the NIE. Judy sure blew it!

I love that you have Cheney's handwriting on the cover of your book. Indeed, he wrote out the leading questions for the media, didn't he?

[clbrune]

Several people have posted in recent days sentiments along the lines of "this stuff is so complicated that jurors will have a tough time figuring things out."

I get that feeling when I read TNH Plame stories. But part of that is because there is so much (SO MUCH) speculating about sources, events, chronologies, motives. Not to mention the right wing attempts to completely obscure the facts.

In trial, though, the prosecution can simply present a few facts and witness testimony. Heck, it's already clear that Libby wasn't speaking truth to the FBI and grand jury. The facts don't support him. All Libby has left is "I didn't know I was lying when my mouth opened."

The evidence alreay convicts him. It's on his team's shoulders to sway a jury that, in truth, Scooter is a swell guy, really busy, and just mispoke.

Plus, he has to counter the fact that he had tremendous motive to lie to the FBI and grand jury (just think of all the bad things that would happen if it became publicly known that the VP's right hand was outing secret agents, at a time of war--regardless of whether it was an 'accident').

Seriously, this only gets complicated when the wider picture is considered (such as Cheney's role, Rove's complicity, the source of forgeries, etc). This trial is just a beginning.

Over 3,000 american military dead, and the public can no longer deny the character of those in charge. Despicable liars who put politics before national security.

[emptywheel]

Quicksilver

I did make a concerted effort to get the "junket" part included but it didn't work.

[freepatriot]

here's scooter's problem in a nut shell

There are a lot of reasons why Libby's team is going to attack Judy, hard--not least the fact that she will testify that he was leaking Plame's identity two days before he learned it again "as if it were new."

all of the discussions about the NIE are useless padding

scooter libby claims that he learned it again "as if it were new.", the "It" being the identity of Valerie Plame

and judyjudyjudy ain't the only person who discussed Valerie Plame with scooter before novakula's column was published

this trial isn't about leaking classified information

this trial is about lying to the FBI, Lying to a Grand Jury, and Obstruction of Justice

scooter libby's defense against the charges in the actual indictment seems to be an open admission that scooter committed the crime that scooter claims never happened

Patrick Fitzgerald can explain all of this to a jury in a simple and cogent narrative

and then scooter gets up and tries to confuse the issue by admitting he leaked classified information, but not the classified information that Fitzgerald is supposed to be investigating

anybody ever seen a trial jury get really pissed off at a defendant ???

most people in Washington DC ain't as simpleminded as jodi and the yokel

this is gonna result in a slam dunk guilty verdict, in record time

[lemond54]

EW, are you going to publish an excerpt of "Anatomy" here, at FDL, or god forbid, in one of the old media publications? I'm tempted to buy your book, but I would like to see if the style of your writing in the book differs from what we see here in a regular post? At the very least, can you get Amazon to share the table of contents with us and mabye the first two pages?

[emptywheel]

I will ask. And I believe we're posting an excerpt for the books salon at FDL on January 14.

[mk]

I can't wait to get my copy -- I ordered from Barnes & Noble online late last week tho' I wish I could have ordered from your independent bookseller.
And how are you planning to cover the trial? I can't wait to hear the commentary --
Thanks for all you do to keep the world sane and rational -- and aware of the backstory. That was the suppertime gift my Dad gave us for years -- a trenchant analysis that went behind the scenes to give us with a glimpse of the big picture. Down to earth. Real. Coherent. And that's what you do for us.

[SaltinWound]

Very interesting, as always. I've never been more prepared for a trial in my life.

[Tom Maguire]

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.

I suppose "to go further with Miller than he had with Woodward" could mean, release more information.

I don't have any trouble reading it as "taking a bolder, more consequential step" - leaking to Woodward does not count as contemporanreous news management, since his eventual book won't come out for months or years.

Leaking to a reporter who is firmly on one side of a raging public debate is a lot more likely to lead to a helpful and immediate front page story.

Of coure, my alternative explnantion fails to advance the plot line.

[emptywheel]

Tom

How do you explain Sanger on July 2, then? It obviously was ALSO contemporaneous news management. And frankly more unique because he hadn't already been leaked much of this, as Judy had been.

[emptywheel]

And Tom, remember, the challenge is to find something that, for two journalists, apparently doesn't merit making sure you're authorized to leak; the other merits presidential insta-declassification. So you've got to find a thing that distinguishes the Sanger leak from the Miller leak legally.

[looseheadprop]

EW
I ordered a copy of the book from BArnes And Noble. They already have a shipment on order. hey told me that even if the shipment comes in before that (and they expect it to) that they cannot release the book until the 1/28 publisher's release date unless the publisher contacts them and says it's OK to pre-release.

FYI

[emptywheel]

lhp

I've checked, and they will ship when they get it, but we've done a followup just to make sure.

[p.lukasiak]

Marci....

I ALMOST ordered from Amazon, but when I saw that it wouldn't be shipped until Jan. 28th, I didn't....

I really want a copy before the trial starts as sort of a "study guide".... so if you could get in touch with Amazon as well.... (maybe just change the "official" publication date)....

[emptywheel]

p luk

The book leaves Ann Arbor on Jan 12, so it should be in your hands shortly after the trial starts (before Jan 28).

[looseheadprop]

EW,
It's not the shipping date that is the issue, it is the RELASE DATE

The books stores and AMazaon may have it sooner, but they won't let the readers have it sooner unless the publisher moves up the release date