Bush Authorized Leak to Times, Libby Told Grand Jury
BY JOSH GERSTEIN - Staff Reporter of the Sun
April 6, 2006
URL: http://www.nysun.com/article/30561
A former White House aide under indictment for obstructing a leak probe, I. Lewis Libby, testified to a grand jury that he gave information from a closely-guarded "National Intelligence Estimate" on Iraq to a New York Times reporter in 2003 with the specific permission of President Bush, according to a new court filing from the special prosecutor in the case.
The court papers from the prosecutor, Patrick Fitzgerald, do not suggest that Mr. Bush violated any law or rule. However, the new disclosure could be awkward for the president because it places him, for the first time, directly in a chain of events that led to a meeting where prosecutors contend the identity of a CIA employee, Valerie Plame, was provided to a reporter.
Mr. Fitzgerald's inquiry initially focused on the alleged leak, which occurred after a former ambassador who is Ms. Plame's husband, Joseph Wilson, wrote an op-ed piece in the New York Times questioning the accuracy of statements Mr. Bush made about Iraq's nuclear procurement efforts in Africa.
No criminal charges have been brought for the leak itself, but Mr. Libby, a former chief of staff to Vice President Cheney, was indicted in October on charges that he obstructed the investigation, perjured himself in front of the grand jury, and lied to FBI agents who interviewed him. Mr. Libby, who resigned from the White House and pleaded not guilty, is scheduled to go on trial in January 2007.
In a court filing late Wednesday responding to requests from Mr. Libby's attorneys for government records that might aid his defense, Mr. Fitzgerald shed new light on Mr. Libby's claims that he was authorized to provide sensitive information to the Times reporter, Judith Miller, at a meeting on July 8, 2003.
"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 that it was ?'very important' for the key judgments of the NIE to come out," Mr. Fitzgerald wrote.
Mr. Libby is said to have testified that "at first" he rebuffed Mr. Cheney's suggestion to release the information because the estimate was classified. However, according to the vice presidential aide, Mr. Cheney subsequently said he got permission for the release directly from Mr. Bush. "Defendant testified that the vice president later advised him that the president had authorized defendant to disclose the relevant portions of the NIE," the prosecution filing said.
Mr. Libby told the grand jury that he also sought the advice of the legal counsel to the vice president, David Addington, who indicated that Mr. Bush's permission to disclose the estimate "amounted to a declassification of the document," according to the new court papers.
One of the facts Mr. Libby said he planned to disclose to Ms. Miller was that the estimate, produced in October 2002, concluded that Iraq was "vigorously trying to procure uranium." This contention was sharply at odds with Mr. Wilson's op-ed piece which argued there was no evidence of such a procurement effort, at least on a trip he took to Africa at the CIA's request.
Mr. Bush's alleged instruction to release the conclusions of the intelligence estimate appears to have been squarely within his authority and Mr. Fitzgerald makes no argument that it was illegal. While Mr. Libby said he gave that information "exclusively" to the Times reporter at their breakfast meeting at the St. Regis Hotel in Washington, many of the findings of the estimate were formally declassified and discussed at a White House press briefing ten days later, on July 18, 2003.
The court papers filed by Mr. Fitzgerald do not make clear whether Mr. Bush knew the disclosure was destined for Ms. Miller, though they indicate Mr. Cheney knew that fact. Mr. Libby is also said to have testified that five days late Mr. Cheney authorized the release to the press of information about a cable about Mr. Wilson's strip.
Messrs. Bush and Cheney have been interviewed by Mr. Fitzgerald and his staff, but it is not known how their accounts of the events compared to that of Mr. Libby.
In an interview with Fox News in February, Mr. Cheney, who has a reputation for secrecy, acknowledged that he has sometimes pressed for the official release of classified records.
"I've certainly advocated declassification and participated in declassification decisions," he said.
Asked if he had ever "unilaterally" declassified material, Mr. Cheney replied, "I don't want to get into that. There is an executive order that specifies who has classification authority, and obviously focuses first and foremost on the president, but also includes the vice president."
While prosecutors initially said Mr. Libby was the first government official to disclose Ms. Plame's identity, it subsequently emerged that a Washington Post reporter, Bob Woodward, learned earlier about her CIA employment from another government official. Neither Mr. Woodward nor Ms. Miller wrote about Ms. Plame at the time. Another journalist, Robert Novak, first disclosed the employment of Mr. Wilson's wife in a syndicated column released on July 14, 2003. The columnist based his story on interviews with Mr. Bush's top political adviser, Karl Rove, and another official who has not been officially identified.
Prosecutors argued that Mr. Libby covered up his role in the disclosures because "he knew the White House had publicly staked its credibility on there being no White House involvement in the leaking of information about Ms. Wilson." They also noted that Mr. Bush publicly declared he would fire anyone found to have leaked classified information.
The new court filing quotes from handwritten suggestions Mr. Libby gave to the White House press secretary, Scott McClellan, urging the spokesman to proclaim the vice presidential aide's innocence with the same vigor that the press secretary previously denounced as "ridiculous" suggestions that Mr. Rove might have had a hand in leaking Ms. Plame's identity.
Mr. Libby's note, as typed up by the prosecution, reads like a stanza of verse:
"People have made too much of the difference in
How I described Karl and Libby
I've talked to Libby.
I said it was ridiculous about Karl
And it is ridiculous about Libby.
Libby was not the source of the Novak story.
And he did not leak classified information."
Mr. McClellan did not adopt the talking points verbatim, but did tell reporters later that Messrs. Rove and Libby "assured me that they were not involved in this."
Mr. Rove has not been charged with a crime, but remains under investigation by Mr. Fitzgerald's office.
The reports on NPR say that while the report was de-classified, Bush did not authorize releasing Plame's identity. While I don't know if one is possible without the other, that's a point they keep making and I'm sure it's a point that will be highlighted by the administration, too. so, is it possible to release one without the other?
Bush knew about the leak all along. Any time he expressed anger at the leak, he was lying. When he said he would fire anyone found leaking, he was lying. When he said he didn't know anyone in his admin who had leaked, he was lying.
Even though certain executive orders have been signed allowing the Prez and VP to declassify information unilaterally, the identity of a covert agent (The DOJ and CIA have confirmed that she was, in fact, considered covert) ....
It has not been established by anyone that Plame was covert at the time of the leak of her name. If you think I am wrong, please explain how so.
Maybe I'm missing something, but what leak are you talking about? We are talking about the leak of Plame's name, right? Has Libby claimed Cheney claimed Bush said to leak Plame's name? Is that what you're reading into this NY Sun article? If so, can you show me where it says that?
It has not been established by anyone that Plame was covert at the time of the leak of her name. If you think I am wrong, please explain how so.
Valerie Wilson was a CIA officer. In July 2003, the fact that Valerie Wilson was a CIA officer was classified. Not only was it classified, but it was not widely known outside the intelligence community. Valerie Wilson's friends, neighbors, college classmates had no idea she had another life. The fact that she was a CIA officer was not well-known, for her protection or for the benefit of all us. It's important that a CIA officer's identity be protected, that it be protected not just for the officer, but for the nation's security. Valerie Wilson's cover was blown in July 2003. The first sign of that cover being blown was when Mr. Novak published a column on July 14th, 2003.
Then there is the claim that the law to protect intelligence identities could not have been violated because Valerie Wilson had not lived overseas for six years. Too bad this is not what the law stipulates. The law actually requires that a covered person "served" overseas in the last five years. Served does not mean lived. In the case of Valerie Wilson, energy consultant for Brewster-Jennings, she traveled overseas in 2003, 2002, and 2001, as part of her cover job. She met with folks who worked in the nuclear industry, cultivated sources, and managed spies. She was a national security asset until exposed by Karl Rove and Scooter Libby.
The CIA Leak: Plame Was Still Covert
Feb. 13, 2006 issue - Newly released court papers could put holes in the defense of Dick Cheney's former chief of staff, I. Lewis (Scooter) Libby, in the Valerie Plame leak case. Lawyers for Libby, and White House allies, have repeatedly questioned whether Plame, the wife of White House critic Joe Wilson, really had covert status when she was outed to the media in July 2003. But special prosecutor Patrick Fitzgerald found that Plame had indeed done "covert work overseas" on counterproliferation matters in the past five years, and the CIA "was making specific efforts to conceal" her identity, according to newly released portions of a judge's opinion. (A CIA spokesman at the time is quoted as saying Plame was "unlikely" to take further trips overseas, though.) Fitzgerald concluded he could not charge Libby for violating a 1982 law banning the outing of a covert CIA agent; apparently he lacked proof Libby was aware of her covert status when he talked about her three times with New York Times reporter Judith Miller. Fitzgerald did consider charging Libby with violating the so-called Espionage Act, which prohibits the disclosure of "national defense information," the papers show; he ended up indicting Libby for lying about when and from whom he learned about Plame.
Before his indictment, I. Lewis Libby testified to the grand jury investigating the CIA leak that Cheney told him to pass on information and that it was Bush who authorized the disclosure, the court papers say. According to the documents, the authorization led to the July 8, 2003, conversation between Libby and New York Times reporter Judith Miller.
But the disclosure in documents filed Wednesday means that the president and the vice president put Libby in play as a secret provider of information to reporters about prewar intelligence on Iraq.
Libby's participation in a critical conversation with Miller on July 8, 2003 "occurred only after the vice president advised defendant that the president specifically had authorized defendant to disclose certain information in the National Intelligence Estimate," the papers by Special Counsel Patrick Fitzgerald stated. The filing did not specify the "certain information."
"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," the papers added.
Ticomaya wrote:It has not been established by anyone that Plame was covert at the time of the leak of her name. If you think I am wrong, please explain how so.
"...special prosecutor Patrick Fitzgerald found that Plame had indeed done 'covert work overseas' on counterproliferation matters in the past five years, and the CIA 'was making specific efforts to conceal' her identity, according to newly released portions of a judge's opinion." Source
...
In fact, this is what the "newly released portions" of Judge David Tatel's opinion said:
Judge Tatel wrote:As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years" ?- representations I trust the special counsel would not make without support.
I draw your attention to the portion: "the record omits specifics about Plame's work." No specifics ... the judge is trusting Fitzgerald would not make the representations "without support."
This is the "representation" Tatel is referring to ... a footnote written by Fitzgerald in an August 27, 2004, affidavit:
Patrick Fitzgerald wrote:If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 [the Espionage Act] if the information is considered "information respecting the national defense." In order to establish a violation of Title 50, United States Code, Section 421 [the Intelligence Identities Protection Act], it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.
Now, let me highlight the important part of that footnote, because I know you are not going to see it for yourself:
"... it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years."
It appears Tatel has interpreted that to mean Fitzgerald is asserting that the CIA was, in fact, making specific efforts to conceal Plame's identity, and that Plame had, in fact, "carried out covert work overseas within the last 5 years."
Was that what Fitzgerald was saying in that footnote, or was he simply pointing out what level of proof would be necessary in order to prove a case under the IIPA? You have concluded it's the former, I suggest it's most likely the latter, but in any event, Fitzgerald has certainly not established that Plame was a "covert agent" at the time her identity was disclosed.
Quote:Maybe I'm missing something, but what leak are you talking about? We are talking about the leak of Plame's name, right? Has Libby claimed Cheney claimed Bush said to leak Plame's name? Is that what you're reading into this NY Sun article? If so, can you show me where it says that?
There are two leaks: the NIE (part of it), and Plame's name. The NIE was probably able to be declassified by Bush or Cheney and was not illegal to disseminate (though the fact they only declassified the part of it supporting their case is highly suspect). Plame's name was not.
Quote:It has not been established by anyone that Plame was covert at the time of the leak of her name. If you think I am wrong, please explain how so.
You are kidding, right?
In his october press conference, Fitz said:
Quote:Valerie Wilson was a CIA officer. In July 2003, the fact that Valerie Wilson was a CIA officer was classified. Not only was it classified, but it was not widely known outside the intelligence community. Valerie Wilson's friends, neighbors, college classmates had no idea she had another life. The fact that she was a CIA officer was not well-known, for her protection or for the benefit of all us. It's important that a CIA officer's identity be protected, that it be protected not just for the officer, but for the nation's security. Valerie Wilson's cover was blown in July 2003. The first sign of that cover being blown was when Mr. Novak published a column on July 14th, 2003.
So, we know for a fact that she was undercover at the time. Her job at the CIA was classified.
4) The term "covert agent" means?-
(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency?-
(i) whose identity as such an officer, employee, or member is classified information, and
(ii) who is serving outside the United States or has within the last five years served outside the United States; or
(B) a United States citizen whose intelligence relationship to the United States is classified information, and?-
(i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, or
(ii) who is at the time of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation; or
(C) an individual, other than a United States citizen, whose past or present intelligence relationship to the United States is classified information and who is a present or former agent of, or a present or former informant or source of operational assistance to, an intelligence agency.
According to one of her former associates at the CIA, Larry Johnson, she was most definately 'covert' at the time:
Quote:Then there is the claim that the law to protect intelligence identities could not have been violated because Valerie Wilson had not lived overseas for six years. Too bad this is not what the law stipulates. The law actually requires that a covered person "served" overseas in the last five years. Served does not mean lived. In the case of Valerie Wilson, energy consultant for Brewster-Jennings, she traveled overseas in 2003, 2002, and 2001, as part of her cover job. She met with folks who worked in the nuclear industry, cultivated sources, and managed spies. She was a national security asset until exposed by Karl Rove and Scooter Libby.
Yaknow, you could find this stuff out yourself if you bothered to do one minute of Google searches. Here's one that should be pretty clear for ya:
Quote:The CIA Leak: Plame Was Still Covert
Feb. 13, 2006 issue - Newly released court papers could put holes in the defense of Dick Cheney's former chief of staff, I. Lewis (Scooter) Libby, in the Valerie Plame leak case. Lawyers for Libby, and White House allies, have repeatedly questioned whether Plame, the wife of White House critic Joe Wilson, really had covert status when she was outed to the media in July 2003. But special prosecutor Patrick Fitzgerald found that Plame had indeed done "covert work overseas" on counterproliferation matters in the past five years, and the CIA "was making specific efforts to conceal" her identity, according to newly released portions of a judge's opinion. (A CIA spokesman at the time is quoted as saying Plame was "unlikely" to take further trips overseas, though.) Fitzgerald concluded he could not charge Libby for violating a 1982 law banning the outing of a covert CIA agent; apparently he lacked proof Libby was aware of her covert status when he talked about her three times with New York Times reporter Judith Miller. Fitzgerald did consider charging Libby with violating the so-called Espionage Act, which prohibits the disclosure of "national defense information," the papers show; he ended up indicting Libby for lying about when and from whom he learned about Plame.
http://www.msnbc.msn.com/id/11179719/site/newsweek/
There is zero doubt any longer that she was a 'covert' agent.
Cycloptichorn
Well, I gotta disagree with your conclusion, Joe.
Was that what Fitzgerald was saying in that footnote, or was he simply pointing out what level of proof would be necessary in order to prove a case under the IIPA? You have concluded it's the former, I suggest it's most likely the latter, but in any event, Fitzgerald has certainly not established that Plame was a "covert agent" at the time her identity was disclosed.
If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 [the Espionage Act] if the information is considered "information respecting the national defense." In order to establish a violation of Title 50, United States Code, Section 421 [the Intelligence Identities Protection Act], it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.
What Fitzgerald does not need to add, however, is that Plame was indeed a covert agent ...
An offense under the act essentially has three elements: (1) the agent must be covert; (2) the disclosure must be done intentionally; (3) the information must be passed to someone not authorized to receive classified information. What Fitzgerald is saying in that footnote, then, is that there is sufficient evidence for two of the three elements of the offense: that Plame was covert and that the information was passed to some unauthorized individual. What remains an "if" is whether Libby knew that Plame was covert.
Now, is it established that Plame was covert? Well, Fitzgerald clearly believes that she was, but since that is an element of the offense, the government would have to prove it at trial beyond a reasonable doubt, just as it would have to prove that Bob Novak or Judith Miller was not authorized to receive that kind of classified information. Until it is proven at trial, however, I suppose one can always fall back on the argument that it is merely alleged that Plame was a covert CIA operative. As it is, the government probably won't prosecute Libby or anyone else under 50 USC 421, so it will probably never be proven in court that Plame was covert.
Well, no, he doesn't need to add that, but since he didn't, I don't think it is conclusive he intended to assert she was in fact a covert agent.
I believe you are falling into the same trap Tatel did when he read the footnote. You must acknowledge that one can reasonably read the footnote to be merely a recital of what must be proven to show a violation of 50 USC 421, and not a claim that any of that can be proven, right? I believe there are two "if"s that remain to be shown.
I think if Fitzgerald clearly believes that she was a "covert agent" he would clearly state on the record that he believes she was. To date, all he's done is make an ambiguous statement in the footnote of an affidavit. Are you sure you want to hang your hat on this?
