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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.

Thursday, April 06, 2006

Something Doesn't Add Up Here

By Anonymous Liberal

Today's revelation--which comes straight from court papers filed by Patrick Fitzgerald--is that Scooter Libby has testified that President Bush specifically authorized him (via Dick Cheney) to release selected portions of the classified National Intelligence Estimate (NIE) to New York Times reporter Judy Miller in their now infamous July 8, 2003 rendezvous at the St. Regis Hotel. (Thanks to Tom Maguire for posting the court papers on his site). Here's the key passage from Fitzgerald's court filing:

As to the meeting on July 8, defendant testified that he was specifically authorized in advance of the meeting to disclose the key judgments of the classified NIE to Miller on that occasion because it was thought that the NIE was "pretty definitive" against what Ambassador Wilson had said and that the Vice President thought it was "very important" for the key judgments of the NIE to come out. Defendant further testified that he at first advised the Vice President that he could not have this conversation with reporter Miller because of the classified nature of the NIE.

Defendant testified that the Vice President later advised him that the President had
authorized defendant to disclose the relevant portions of the NIE. Defendant testified that he also spoke to David Addington, then Counsel to the Vice President, whom defendant considered to be an expert in national security law, and Mr. Addington
opined that Presidential authorization to publicly disclose a document amounted to
declassification of the document.

At another point in the court filing, Fitzgerald writes:

Defendant testified that the circumstances of his conversation with reporter Miller--getting approval from the President through the Vice President to discuss material that would be classified but for that approval--were unique in his recollection.

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?

According to Libby's testimony, he advised Cheney that he could not discuss the NIE with reporters because it was classified. Then, even after Cheney got specific authorization from the President, Libby felt compelled to seek legal advice from David Addington before leaking the information. Does that make any sense? Waas' sources (and common sense) tell us that this was not the first time Libby had been asked to leak classified information. So is this just an elaborate cover-your-ass story on Libby's part? What's going on here?

Another bizarre aspect of this story is highlighted by Eriposte at the Left Coaster (who has done incredible work on various aspects of this story). Fitzgerald writes in the court filing:

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.

But as Eriposte points out, the passage Libby is referring to was NOT one of the key judgments contained in the NIE. Indeed, it was buried in the text of the document precisely because it was not thought to be particularly credible. And of course Libby neglected to tell Miller about the portions of the NIE that cast doubt on the uranium claim. In other words, not only does Libby claim that he was authorized to release cherry-picked portions of the NIE to Miller, but he claims he was told to misrepresent to Miller that those portions were "key judgments."

So let's assume, for the moment, that Libby's testimony is accurate. That would mean that the President, instead of following normal declassification procedures and publicly releasing a redacted version of the NIE, authorized an aide to present a cherry-picked and manipulated version of that document to a friendly New York Times reporter on deep background. That aide then passed along the highly misleading information and asked that it be attributed to a "former Hill staffer." That may not be illegal, but it is sure as hell unethical. And that doesn't even take into account the fact that during this same conversation, Libby revealed the identity of an undercover CIA agent.

Meanwhile, National Security Counsel staff, unaware of this secret declassification, continued to go through the steps of formally declassifying portions of the document, and finally succeeded ten days later, on July 18, 2003.

I honestly don't know what to make of all this, but any way you slice it, it seems pretty dodgy. Hopefully our esteemed Washington press corps will now start asking some questions.

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