John Dean
has a piece out today dissecting yesterday's Fitzgerald filing and revelations about Scooter Libby's testimony. Several interesting nuggets to chew on. (emphasis mine)
conventional wisdom - if that label fits the consensus information that is surfacing on radio and television news shows - has it that this information does not reveal that the President or Vice President did anything illegal. But that claim, too, is not necessarily accurate.
At a minimum, the filing indicates that the President and Vice President departed radically, and disturbingly, from long-set procedures with respect to classified documents - and that the Vice President, in particular, exceeded his declassification authority. And it may indicate that they, too, ought to be targets of the grand jury.
One striking note is that the Plame outing is still hovering around the outskirts. Fitz is not done with thatI had not seen it from the filing, but Dean picks up on this:
Fitzgerald's filing noted that the "evidence will show that" that Op Ed "was viewed in the Office of the Vice President as a direct attack on the credibility of the Vice President (and the President) on a matter of signal importance: the rationale for the war in Iraq."
Gotchyer motive right there baby.
Dean next turns to the timeline of Libby's conversations w/ Judy Miller and the declassification question:
When Libby raised the problem of discussing the NIE with Miller because of its classified status, the filing reports that Libby "testified that the Vice President later advised him that the President had authorized" Libby to disclose the relevant portions of the NIE. (Emphasis added.)
The word "later" here, in the filing, is crucially ambiguous: Did the President authorized Libby's actions before Libby actually revealed the classified information to Miller, or afterward? The distinction may make a large difference in Libby's defense: If the authorization was retroactive, then Libby initially revealed classified information without permission to do so; thus, he would have reason to lie.
In addition, Cheney's counsel (now Chief of Staff) "opined that Presidential authorization to publicly disclose a document amounted to a declassification of the document." (Emphasis added.)
Again, the language here is telling. The filing says that the President's actions "amounted to" declassification, not that the President had unilaterally declassified the material. To the contrary, it appears the material was not declassified for several days.
With apologies to Mr. Dean I'm going to post most of his section on the legal discussion (emphasis added):
Assuming that Libby's testimony is accurate, did the President do anything wrong by so declassifying the NIE? Given the fact that the national security classification system is created by executive order of the president, it would appear logical that the president has authority to unilaterally and selective declassify anything he might wish. However, that is not the way any president has ever written the executive orders governing these activities. To the contrary, the orders set forth rather detailed declassification procedures.
In addition, there is law that says that when a president issues an executive order he must either amend that executive order, or follow it just as others within the executive branch are required to do. At present, we have so few facts it is difficult to know what precisely Bush did and how he did it, and thus whether or not this law is applicable. There is also the problem that no one has standing in court to challenge a president's refusal to follow his own rules. But voters may take note of the disposition of this administration to play by the rules, and put a Democratic Congress in place to keep an eye on the last two years of the Bush/Cheney presidency.
What is apparent, however, based on Fitzgerald's filing, is that no one other than Bush, Cheney, Libby and apparently Addington was aware of this unilateral and selective declassification - if, indeed, the NIE was declassified. The secrecy surely suggests cover-up. For example, Fitzgerald notes that Libby "consciously decided not to make [then Deputy National Security Adviser] Hadley aware of the fact that defendant [Libby] himself had already been disseminating the NIE by leaking it to reporters while Mr. Hadley sought to get it formally declassified." (Also, CIA Director George Tenet apparently was not aware of the partial declassification by Bush.)
Whatever authority Bush may or may not have had, however, it is crystal clear that Vice President Cheney did not have any authority to unilaterally and selectively declassify the NIE.
Now, let's move to Dean's overall assessment:
Many commentators are dismissing this situation as run-of-the-mill presidential/vice presidential politics. But I believe it is more serious.
From a political perspective, separate from the illegality, there is the hypocrisy: The Bush Administration has prosecuted and sent to jail officials who leaked far less serious information... It is actively, and currently, threatening to prosecute others who have leaked information about the president's illegal electronic surveillance of Americans.
{snip}
Finally, even if Bush and Cheney both get away clean of criminal charges, or even the suggestion of criminal conduct, this is still devastating for the Administration. Illegal or not, the President and Vice-President's actions, as recounted by Libby, are ugly in the extreme.
After all, Fitzgerald's filings indicate that, at a bare minimum, these highest of officials played fast and loose with declassification rules as part of a scheme to take an uncalled-for revenge against a critic who dared to question an Iraqi war justification. Even more damning, is that the critic turned out to be right: Weapons of mass destruction have never surfaced, no uranium was sold by Niger to Iraq, and the Administration's call to arms was bogus.
There will be more devastating revelations from the Libby case, I am certain. I have written of this matter in the past, and anticipate writing more in the future. The Commander-in-Chief-can-do-no-wrong veneer is wearing off, thankfully. For a nation that cannot hold its commander-in-chief responsible is something other than a democracy.
This is far from over. The real question, though, is how much damage will they do between now and then?