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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, April 10, 2006

Bush's Catch-22

By Anonymous Liberal

It's taken three days, but the official White House spin regarding Libby's testimony is starting to emerge. David Sanger and David Johnston of the New York Times have the official line:

A senior administration official confirmed for the first time on Sunday that President Bush had ordered the declassification of parts of a prewar intelligence report on Iraq in an effort to rebut critics who said the administration had exaggerated the nuclear threat posed by Saddam Hussein.

But the official said that Mr. Bush did not designate Vice President Dick Cheney's chief of staff, I. Lewis Libby Jr., or anyone else, to release the information to reporters.

Sanger and Johnston provide this bit of analysis:

The disclosure appeared intended to bolster the White House argument that Mr. Bush was acting well within his legal authority when he ordered that key conclusions of the classified National Intelligence Estimate, which was completed in the fall of 2002, should be revealed to make clear that intelligence agencies believed Mr. Hussein was seeking uranium in Africa.

Moreover, the disclosure seemed intended to suggest that Mr. Bush may have played only a peripheral role in the release of the classified material and was uninformed about the specifics — like the effort to dispatch Mr. Libby to discuss the estimate with reporters.

The White House is trying to walk a fine line here. On the one hand, in order to characterize everything as being above board, they are forced to confirm Libby's claim that the President personally authorized the release of information from the NIE, a decision which amounted to de facto "declassification." On the other hand, they are hoping to distance the President as much as possible from Libby's subsequent actions, i.e., misrepresenting the NIE, asking that the information be attributed to a "former Hill staffer," and outing an undercover CIA agent in the process.

So, after three days, they've settled on their spin: the President authorized discussion of the NIE but left all the details to Cheney and his aides.

The problem with this strategy is that Libby was quite specific in his testimony about what he was authorized to say. According to Fitzgerald, Libby testified that he was "specifically authorized in advance of the meeting to disclose the key judgments of the classified NIE to Miller." Later Fitzgerald notes:

Defendant understood that he was to tell Miller, among other things, that a key judgment of the NIE held that Iraq was "vigorously trying to procure" uranium.

So, according to Libby, he was authorized to discuss the key judgments section of the NIE, specifically the part that said Iraq was "vigorously trying to procure" uranium.

But here's the problem for the White House. There is no such section. As Walter Pincus points out in today's Washington Post:

Some of Libby's comments about the NIE that he made to reporter Judith Miller, then of the New York Times, on July 8, 2003, were inaccurate. Libby said one "key judgment of the NIE held that Iraq was 'vigorously trying to procure' uranium." That was not an NIE key judgment, and the CIA officials who wrote the document disputed that statement.

Moreover, according to Judy Miller's account of the conversation, Libby told her that the NIE "firmly concluded that Iraq was seeking uranium" and that "the assessments of the classified estimate were even stronger than those in the unclassified version." This is, of course, entirely untrue.

In other words, Libby badly misrepresented the portion of the NIE he claims he was authorized to divulge--the key judgments section--and actually cites language buried in the text of the NIE. Because the entire NIE has never been declassified, it very much matters which portions of the document the President claims to have authorized Libby to discuss. Did the President only "declassify" the key judgments section, or did he also "declassify" the portion of the text that Libby misrepresented to Miller? Did Bush or Cheney instruct Libby to describe that section, falsely, as a "key judgment"?

This is not just a minor semantic point either. There is an important difference between the key judgments and the less credible data points found elsewhere in the NIE. And this distinction was not lost on reporters at the time. When portions of the NIE were "officially" declassified on July 18, 2003, the White House held a background briefing. At that briefing, the following exchange took place between the briefer and (I believe) Wendell Goler of Fox News (emphasis is mine):

Q. Second question. The information about Africa did not rise to the level of a key judgment, it is not listed as one. The NIE is not meant to come out of the President's mouth -- at best, key judgments are. So why was the information, if it did not rise to the level of a key judgment, why was the information put in the President's speech?

SENIOR ADMINISTRATION OFFICIAL: Well, you made an assertion inside your question, where you're saying that the President is not supposed to cite the NIE. There are ways in which the President can assert the NIE if it's cleared through the process.

Q. But the other things the President asserts are key judgments. The Africa stuff, the uranium stuff did not rise to that level.

SENIOR ADMINISTRATION OFFICIAL: The NIE is a 90-page document. All those documents provide facts. The key judgments are not -- do not include everything in the 90 pages, or it wouldn't be key judgments, it would be the report, itself. And in this case, there were very specific data points provided in writing in the NIE that were included. That's why it was included in the speech by the speechwriters. There was not anybody specifically saying, put this in there; it was included based on a body of information that was provided. And then is the fact-checking progress that clears whether information like that could be used or not.

There are many points, there are central points to the reconstitution of the nuclear program -- those are outlined in the key points. But that doesn't mean that other elements of the case of why they believe it was reconstituting were not accurate.

Q. I don't think you've addressed the question -- let me try a different way. Name me another assertion the President made that failed to rise to the level of a key judgment.

SENIOR ADMINISTRATION OFFICIAL: I can't do that here today. I will be happy to look for that, but I'm not here -- I don't have the NIE and every speech the President has given memorized.

Q. I'm just talking about in this specific case. In the case of the State of the Union address from the '02 NIE, can you show me another assertion the President made that didn't rise to the level of a key judgment?

[snip]

Q. Isn't the reason this didn't rise to the level of a key judgment because there was so much disagreement --

SENIOR ADMINISTRATION OFFICIAL: I don't know.

Q -- and the sources were so weak?

Because Libby so badly misrepresented the content of the NIE, it is very difficult for the White House to claim that the President authorized the disclosure without also implicating the President in a rather egregious bit of deception. That's why it's important that reporters press the White House on the specifics of Bush's "declassification" order. Which portions of the NIE did the President want reporters to know about and how did he want those portions to be represented? These are important questions, not just politically but legally. Only the portions of the NIE Bush actually mentioned can even arguably be described as having been declassified.

If reporters do their jobs and press the White House for answers to these questions, they may end up driving a wedge between the White House, on one side, and Libby and Cheney on the other. Up until now, the White House has been very careful not to say anything bad about Libby or to do anything to add to his legal troubles. Their worst fear is that Libby will flip and begin cooperating with Fitzgerald, a move that would spell disaster for the Vice President. But if Libby's testimony continues to cause political headaches for the White House--and it will if reporters continue to connect the dots--we will start to see a noticeable rift development between the White House and the Vice President's Office. Today's White House spin is the first sign of it.

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