News and events revolving around the ousting of CIA agent Valerie Plame.

Friday, April 07, 2006

Experts: Tactic Would Be Legal but Unusual

By Michael A. Fletcher
Washington Post Staff Writer
Friday, April 7, 2006; A08

Legal experts say that President Bush had the unquestionable authority to approve the disclosure of secret CIA information to reporters, but they add that the leak was highly unusual and amounted to using sensitive intelligence data for political gain.

"It is a question of whether the classified National Intelligence Estimate was used for domestic political purposes," said Jeffrey H. Smith, a Washington lawyer who formerly served as general counsel for the CIA.

In court papers filed Wednesday, Special Counsel Patrick J. Fitzgerald said I. Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, has testified that Cheney told him that Bush had authorized the leak of secret information from the National Intelligence Estimate on Iraq in the summer of 2003. Fitzgerald's court filing portrays the leak as part of an effort to discredit former ambassador Joseph C. Wilson IV, who contended in a newspaper column that intelligence about Iraq's nuclear weapons program was distorted in the run-up to the U.S. invasion.

The court filing says that Libby, who is fighting perjury and obstruction-of-justice charges in connection with the leak investigation, was concerned about the legality of sharing classified information with reporters. But he was assured by David S. Addington, who then served as counsel to Cheney, that presidential authorization to disclose the information amounted to declassification.

Experts said the power to classify and declassify documents in the federal government flows from the president and is often delegated down the chain of command. In March 2003, Bush signed an executive order delegating declassification authority to Cheney.

Libby understood that only he, Bush and Cheney knew of the declassification when Libby held his first conversation with a reporter in July 2003, the court papers show.

In one telling footnote in the filing, Fitzgerald notes that even after Bush authorized the dissemination of the intelligence data, then-White House deputy national security adviser Stephen J. Hadley was "active in discussions about the need to declassify and disseminate" the information.

"There is an institutional interest and ultimately a public interest in having these decisions documented," said Ronald D. Lee, a Washington lawyer and former general counsel to the super-secret National Security Agency. "You can't have a government where everything is sort of done in people's heads."

Wave of Criticism Engulfs Bush Over Leak Case - April 7, 2006 - The New York Sun - NY News

BY JOSH GERSTEIN - Staff Reporter of the Sun
April 7, 2006

The claim that President Bush authorized the release to a reporter of portions of a highly sensitive intelligence summary on Iraq triggered a wave of criticism yesterday from Democrats, who accused Mr. Bush of hypocrisy for publicly denouncing leaks of classified information despite his own alleged involvement in selectively disclosing pre-war intelligence.

In a court filing first reported yesterday on the Web site of The New York Sun, a special prosecutor, Patrick Fitzgerald, said the former chief of staff to Vice President Cheney, I. Lewis Libby, told a grand jury that in July 2003 Mr. Cheney advised that Mr. Bush had given permission for the disclosure to a New York Times reporter of findings from a national intelligence estimate about Iraq.

Mr. Fitzgerald's inquiry focused, at least initially, on allegations that White House officials retaliated against a former ambassador critical of the administration, Joseph Wilson, by telling reporters that Mr. Wilson's wife, Valerie Plame, worked at the CIA and played a role in sending him on an official Iraq-related fact-finding trip to Africa.

According to prosecutors, Ms. Plame's status at the CIA was classified and her exposure could have violated the law.

The new prosecution brief does not suggest that Messrs. Bush or Cheney instructed anyone to disclose Ms. Plame's name, and no one has been charged criminally for that leak. However, the filing made clear that the actions of the president and vice president are likely to be key issues at the trial of Mr. Libby, who resigned last year after being indicted on charges he obstructed Mr. Fitzgerald's investigation.

Prosecutors contend Mr. Libby disclosed Ms. Plame's identity to Judith Miller of the New York Times at the same July 8, 2003, meeting that Mr. Libby said he passed on the Iraq-related intelligence Mr. Bush is said to have approved releasing.

Mr. Cheney told Fox News earlier this year that he "may well be called as a witness" at the trial of Mr. Libby, set for January 2007.

Legal analysts said yesterday that the new information makes it more likely that either the defense or the prosecution could seek Mr. Bush's testimony for the trial.

Such a request could lead to a high profile legal showdown between the judiciary and the executive branch at about the same time as the midterm election this fall.

Even if Mr. Bush is not called, one defense strategy for Mr. Libby could be to argue that any inaccurate statements he made to investigators were the result of faulty memory brought on by the exhaustive efforts he was making at the time to carry out a presidentially directed campaign to rebut Mr. Wilson's criticism. That approach could also draw Mr. Bush further into the case.

As he returned to Washington from an appearance in Charlotte, N.C., yesterday, the president did not respond to a reporter's shouted question about the new reports of his role in Mr. Libby's contacts with the press.

White House officials also turned aside questions about the matter, declining to comment due to the ongoing investigation.

At a previously scheduled oversight hearing of the House Judiciary Committee, two Democratic congressmen from New York, Jerrold Nadler and Anthony Weiner, interrogated Attorney General Gonzales about Mr. Bush's authority to order the release of classified information.

"Is the president covered under the same law that you and I are?" Mr.Weiner asked.

"No, he's not," Mr. Gonzales replied. "I think the president has the inherent authority to decide who, in fact, should have classified information. And if the president decided that a person needed the information, that he could have that information shared."

"Can he do it for political reasons?" Mr. Nadler asked.

"The president has the constitutional authority to make the decision as to what is in the national interest of the country," Mr. Gonzales answered.

Mr. Weiner said the defense reminded him of President Nixon's explanations of his conduct during Watergate. "Your answer seems to be when the president does it, that means it is not illegal. That is exactly what President Richard Nixon said," the congressman said.

A Republican lawmaker from California, Darrell Issa, said the comparison was unfair because Mr. Bush and his staff have cooperated with Mr. Fitzgerald's investigation. "That sort of leadership is very non-Nixonian," Mr. Issa said.

Senator Schumer told reporters he was directing a series of pointed questions about the episode to the White House, although he acknowledged he has no way of compelling Mr. Bush to answer them.

"This administration has been very, very strong against leaks. Now, if the president leaked, for whatever purpose, we ought to know that and then we ought to know what distinguishes his leaking information from all the others who leaked information and were condemned by the president," Mr. Schumer said at a press conference on Capitol Hill.

Mr. Bush's Democratic opponent in the 2004 election, Senator Kerry, also entered the fray, scheduling a series of interviews to denounce Mr. Bush's alleged involvement in the intelligence disclosure to Ms. Miller.

"He said he'd fire whoever leaked classified information, and now we know the President himself authorized it," Mr. Kerry said in a written statement.

"Now we know that the president's search for the leaker needs to go no further than a mirror," he said.

A Republican attorney and former prosecutor, Joseph DiGenova, blasted Democrats and the press for describing Mr. Bush's alleged actions as an instruction to "leak."

"This was not a leak. This was an authorized disclosure," the ex-prosecutor said.

Mr. DiGenova said the fact that Mr. Fitzgerald has not brought any charge in connection with the release of the intelligence estimate shows Mr. Bush and his subordinates acted legally.

"If Pat Fitzgerald, a guy who gloms onto every illegal and unethical thing he can, thought he could sink his teeth into this, he would have," Mr. DiGenova said.

Still, the former prosecutor said the White House made a "tactical error" by providing the information to Ms. Miller at a hotel.

"I never understood why they didn't bring the best possible person to the podium at the White House and just rip Joe Wilson to shreds," Mr. DiGenova said.

An attorney for Mr. Wilson, Christopher Wolf, said his client was "quite distressed" to hear of Mr. Bush's alleged role.

"It certainly sounds like there was collaboration within the White House on the leaking of Valerie Wilson's identity," Mr. Wolf said.

Whatever the ethics or the legality of the alleged intervention by Messrs. Bush, Cheney, and Libby to rebut Mr. Wilson by planting intelligence findings in the press, the effort seems to have been wildly unsuccessful.

Ms. Miller, the hand-picked recipient of the intelligence data, did not write a story about the information Mr. Libby provided. Nor did she ever write about Mr. Libby's alleged disclosure that Ms. Plame worked at the CIA, a fact that emerged six days later in a syndicated column by Robert Novak.

Ms. Miller did not return a call seeking comment on the episode.

Ten days after Mr. Libby relayed the intelligence conclusions to Ms. Plame, similar information was officially released publicly by the White House, which also conducted a background press briefing on the subject.

Mr. Libby told the grand jury that the intelligence officials involved in the formal declassification of the estimate were entirely unaware that Mr. Bush had already authorized disclosure of parts of the document to Ms. Miller.