The essence of the crime which Cheney stands accused is involvement in a conspiracy to unlawfully disclose classified documents. Specifically, we learned from a letter filed yesterday by Special Prosecutor Patrick Fitzgerald that Cheney had told Libby to leak a classified CIA National Intelligence Estimate (NIE) related to Iraq's WMD programs. Murray Waas, The National Journal, "Cheney 'Authorized' Libby to Disclose Classified Information."
http://nationaljournal.com/...
Following alleged instructions from Cheney, Libby testified that beginning with NYT reporter Judith Miller on July 8 2003, he released secret information contained in that document to members of the news media in order to bolster the case for going to war and in order to cast doubt on the accuracy and character of Ambassador Joseph Wilson, the husband of Valerie Plame. The identity of Plame as an undercover CIA Officer was first published by columnist Robert Novak six days later.
According to a short inside pages New York Times report published this morning, Mr. Libby revealed the classified details of the NIE to Ms. Miller ten days before that document was declassified. See, "Ex-Cheney Aide Testified Leak Was Ordered, Prosecutor Says"
http://www.nytimes.com/...
By NEIL A. LEWIS
Published: February 10, 2006
WASHINGTON, Feb. 9 -- I. Lewis Libby Jr., the former chief of staff to Vice President Dick Cheney, told a grand jury that he was authorized by his "superiors" to disclose classified information to reporters about Iraq's weapons capability in June and July 2003, according to a document filed by a federal prosecutor.
The document shows that Mr. Libby, known as Scooter, was actively engaged in the Bush administration's public relations effort to rebut complaints that there was little evidence to support the claim that Saddam Hussein possessed or sought weapons of mass destruction, which was used to justify the invasion of Iraq.
The document is part of the prosecutors' case against Mr. Libby, who has been indicted on charges that he lied about his role in exposing the identity of a C.I.A. operative to journalists.
The prosecutor, Patrick J. Fitzgerald, said in a letter to Mr. Libby's lawyers last month that Mr. Libby had testified before the grand jury that "he had contacts with reporters in which he disclosed the content of the National Intelligence Estimate ('NIE')," that discussed Iraq's nuclear weapons capability. "We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors."
It should be noted about that Times story that neither the headline nor the lead paragraphs mention Cheney as anything other than Libby's former boss. One must read down to the bottom of the story to learn:
"Mr. Fitzgerald said in his letter that Mr. Libby discussed the contents of the classified report in a July 8 meeting -- 10 days before it was declassified -- with Judith Miller, then a reporter at The Times. Ms. Miller, who spent 85 days in jail before agreeing to testify in the leak case, has told the grand jury that Mr. Libby told her about Ms. Wilson at the same meeting."
The Washington Post reports that Libby met with Miller on that date in a downtown Washington, DC hotel, not in his office. According to the Washington Post, "On July 8, Libby met Miller, the reporter, for breakfast at the St. Regis Hotel at 16th and K streets. Asking that she attribute the information to a "former Hill staffer" -- he had once been legal adviser to a House select committee -- Libby criticized CIA reporting of Wilson's trip and "advised reporter Judith Miller of his belief that Wilson's wife worked at the CIA," the indictment states."
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/29/AR2005102901478_pf.html
BACKGROUND:
There's a procedure for declassification of secret documents. That procedure was not followed by the Vice President, Mr. Libby and their confederates prior to releasing at least one National Intelligence Estimate (NIE). Declassification is pretty much automatic when requested by the President, but it still has to be done before an NIE can be released.
Those procedures are set by Executive Order. Classified National Security Information, (and Amendments), E.O. 12958.
The Executive Order prescribes a uniform system for classifying, safeguarding, and declassifying national security information. The latest one was issued on April 17, 1995 and took effect on October 14, 1995. E.O. 12958 was amended with E.O. 12972, dated September 18, 1995, E.O. 13142, dated November 19, 1999, and E.O. 13292, dated March 25, 2003.
Unauthorized retention or release of classified docs appears to be a potential violation by Cheney of one or more of several federal felony statutes:
COUNT 1.
(The reader should note that this was the central charge of which Lawrence Franklin was convicted in the ongoing OSP-AIPAC Spy case)
COUNT 1: Unauthorized removal and retention of classified documents or material
TITLE 18 > PART I > CHAPTER 93 > Sec. 1924. Prev
Sec. 1924. - Unauthorized removal and retention of classified documents or material
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined not more than $1,000, or imprisoned for not more than one year, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).
(c) In this section, the term ''classified information of the United States'' means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security
http://www.lii.warwick.ac.uk/...
COUNT 2. Gathering, transmitting or losing defense information
TITLE 18 > PART I > CHAPTER 37 > § 793
Gathering, transmitting or losing defense information
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer--
Shall be fined under this title or imprisoned not more than ten years, or both.
(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
COUNT 3. "Conversion" of Public Records
TITLE 18 > PART I > CHAPTER 31 > § 641
Public money, property or records
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted--
Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
COUNT 4. Conspiracy
United States Code TITLE 18, PART I, CHAPTER 19 - Conspiracy to commit offense or to defraud United States
Section 371. Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
***
The above grounds for a conspiracy charge stand distinct from those already formulated by Congressman Hinchley, (D, NY) who has called in a resolution for Mr. Fitzgerald to investigate and refer the grand jury evidence that the President and Vice President intentially lied to Congress in order to make a fraudulent case for the resolution authorizing the use of force against Iraq. Forty members of Congress joined him in that letter.
The 40 other House members who signed Hinchey's letter to Fitzgerald are: Congressmen Neil Abercrombie (HI-01), Tammy Baldwin (WI-02), Xavier Becerra (CA-31), Wm. Lacy Clay (MO-01), John Conyers, Jr. (MI-14), Sam Farr (CA-17), Raúl M. Grijalva (AZ-07), Luis V. Gutierrez (IL-04), Michael M. Honda (CA-15), Sheila Jackson Lee (TX-18), Jesse Jackson, Jr. (IL-02), Marcy Kaptur (OH-09), Carolyn C. Kilpatrick (MI-13), Dennis J. Kucinich (OH-10), Barbara Lee (CA-09), Jim McDermott (WA-07) James P. McGovern (MA-03), Cynthia McKinney (GA-04), Carolyn B. Maloney (NY-14), Doris Matsui (CA-05), George Miller (CA-07), James P. Moran (VA-08), Jerrold Nadler (NY-08), Richard E. Neal (MA-02), Frank Pallone, Jr. (NJ-06), Donald M. Payne (NJ-10), Charles B. Rangel (NY-15), Martin Olav Sabo (MN-05), Bernard Sanders (VT-AL), Jan Schakowsky (IL-09), José E. Serrano (NY-16), Louise Slaughter (NY-28), Hilda L. Solis (CA-32), Fortney Pete Stark (CA-13), Edolphus Towns (NY-10) Maxine Waters (CA-35), Lynn Woolsey (CA-06), David Wu (OR-01), and Albert R. Wynn (MD-04) (plus one unrecognizable signature).
###
The full text of the letter to Fitzgerald (minus footnotes), which includes details on the laws that Bush Administration officials possibly violated, follows:
September 15, 2005
United States Attorney Patrick Fitzgerald
Justice Department
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Re: Request To Expand Investigation
Dear United States Attorney Fitzgerald:
We hereby request that you expand your investigation regarding who in the Bush Administration revealed to the press that Valerie Wilson, the wife of Ambassador Joseph Wilson, was an undercover agent for the Central Intelligence Agency (C.I.A.). We believe that expansion should include investigating the Administration's false and fraudulent claims in January 2003 that Iraq had sought uranium for a nuclear weapon, which the Administration offered as one of the key grounds to justify the war against Iraq.
President Bush made two uranium claims, one in his State of the Union Address to Congress and another in a report that he submitted to Congress concerning Iraq, and National Security Advisor Condoleezza Rice, Secretary of State Colin Powell, and Secretary of Defense Donald Rumsfeld made three other uranium claims. We request that you investigate whether such claims violated two criminal statutes, 18 U.S.C., Sec. 1001 and 18 U.S.C., Sec. 371, that prohibit making false and fraudulent statements to Congress and obstructing the functions of Congress.
You have broad discretion to conduct this investigation. The issues we raise are directly related to your current investigation and clearly fall under your authority. The desire to discredit the information provided by Ambassador Wilson regarding the lack of evidence to support the Administration's contention that Iraq sought uranium from Niger is the nearly-universally accepted motive behind the leak of Mrs. Wilson's identity. In order to fully investigate the disclosure of an undercover CIA agent's identity, it is clear that you should fully investigate the reasons for that disclosure.
As we outline below, we believe that members of the Administration may have violated laws governing communications with Congress with respect to assertions about Iraq's nuclear capabilities. Ambassador Wilson's efforts to publicly contradict these assertions seem to be the reason for the uncovering of Mrs. Wilson's identity. It is very likely that you would encounter these assertions during the course of your investigation, and thus their legality should be the subject of your investigation.
The Administration's Claims About Iraq Seeking Uranium Were False And Fraudulent
The uranium claims of the Administration in January 2003 that Iraq had sought uranium for a nuclear weapon were shown to be false because, after intensive post war investigations, the Iraq Survey Group found no evidence that Iraq had sought the uranium. In the months prior to the war, weapons inspectors of the United Nations (U.N.) conducted extensive inspections in Iraq and found no evidence that Iraq had revived its nuclear weapons program. The Administration has never produced any legitimate actual evidence that Iraq had sought the uranium.
The uranium claims were also fraudulent because although some in the American intelligence community (including the C.I.A.) may have agreed at the time with the British opinion that Iraq had sought uranium, numerous people within the Administration did not tell the whole truth consisting of the contrary views held by the best informed U.S. intelligence officials. C.I.A. Director George Tenet told the White House in October 2002 that C.I.A. analysts believed the reporting on the uranium claim was "weak" and thus the Director told the White House that it should not make the claim. Later that same day, the C.I.A.'s Associate Deputy Director for Intelligence sent a fax to the White House stating that the "evidence [on the uranium claim] is weak." The National Security Council (N.S.C.) believed in January 2003 that the nuclear case against Iraq was weak. Secretary of State Powell was told during meetings at the C.I.A. to vet his U.N. speech of February 5, 2003 that there were doubts about the uranium claim and he therefore kept it out of his speech for that reason. The U.S. government told the U.N. on February 4, 2003 that it could not confirm the uranium reports.
Furthermore, the original draft of the State of the Union Address stated that "we know that [Hussein] has recently sought to buy uranium in Africa," but after the White House consulted with the C.I.A., the White House changed the speech to refer to the British view rather than the American view. The final draft stated that the "British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." The parties involved stated that they had no discussions about the credibility of the reporting and the reason for the switch was to identify the source for the uranium claim.
However, in response to the uproar over the op-ed article by Ambassador Wilson, C.I.A. Director Tenet issued a statement in which he admitted that C.I.A. officials who reviewed the draft of the State of the Union Address containing the remarks on the Niger-Iraqi uranium deal "raised several concerns about the fragmentary nature of the intelligence with [White House] National Security Council colleagues" and "[s]ome of the language was changed." Tenet stated that "[f]rom what we know now, Agency officials in the end concurred that the text in the speech was factually correct - i.e. that the British government report said that Iraq sought uranium from Africa."
What this tells us is that although Administration officials, informed by the highest ranking members of our own intelligence operation, knew that the claim of Niger uranium going to Iraq was "weak" and could not be confirmed, they were still determined to use it in the president's address to Congress and fell back on the dubious language of the British report. The Administration clearly sought to cover up their own officials' doubts about Iraq's nuclear capabilities and hide those doubts from the Congress and the U.S. public.
Motive
A motive for making such false and fraudulent uranium claims would have been to thwart Congressional and U.N. efforts to delay the start of the war. Pending at the time that the Administration made its uranium claims in January 2003 was a Congressional resolution, H.Con.Res.2, submitted by five members of Congress on January 7, 2003, which expressed the sense of Congress that it should repeal its earlier war resolution to allow more time for U.N. weapons inspectors to finish their work. On January 24, 2003, a few days prior to the State of the Union Address, 130 members of Congress wrote to the president encouraging him to consider any request by the U.N. for additional time for weapons inspections. On February 5, 2003, 30 members of Congress submitted another resolution, H.J.Res.20, to actually repeal the war resolution.
Had it not been for the uranium claims in the State of the Union Address, which sought to squelch congressional concern over the impetus for the pending war, the number of sponsors for H.J. Res. 20 would have been far greater. The influence of the uranium claims can be seen in the fact that 130 members of Congress signed the letter before the State of the Union Address, but only 30 sponsored H.J. Res. 20, which was introduced after the speech. The Administration's uranium claims thwarted the congressional efforts to delay the start of the war since the Administration used the claims to allege that Iraq had a nuclear weapons program -- despite the failure of the U.N. inspectors to find such a program -- and thus falsely assert that Iraq posed an immediate threat that needed to be nullified without further delay.
Concerning the importance of the uranium claims, the report Iraq On The Record, produced by the Minority Staff of the House Committee on Government Reform, states: "Another significant component of the Administration's nuclear claims was the assertion that Iraq had sought to import uranium from Africa. As one of few new pieces of intelligence, this claim was repeated multiple times by Administration officials as proof that Iraq had reconstituted its nuclear weapons program." A nuclear-armed Iraq was a key reason, if not the most important reason, used by the Administration to justify the need for a preemptive war against Iraq. Rather than allow the U.N. inspectors to finish their inspections, the results of which might have fueled further congressional efforts and resolutions to stop the war, the Administration commenced the war in March 2003.
The Administration's False And Fraudulent Uranium Claims Arguably Violated Criminal Laws Concerning Communications With Congress
The criminal statute, 18 U.S.C., Sec. 1001, prohibits knowingly and willfully making false and fraudulent statements to Congress in documents required by law. The two uranium claims in the State of the Union Address and the report to Congress concerning Iraq were false and fraudulent, and are in documents that the White House submitted to Congress. See House Document 108-1 and House Document 108-23. The law required the president to give such reports. Article II, Section 3 of the constitution requires presidents to give State of the Union Addresses. Section 4 of Public Law 107-243, which is the Congressional resolution authorizing the war against Iraq, requires the president to give reports to Congress relevant to the war resolution and the president submitted said report on Iraq pursuant to that law. Thus 18 U.S.C., Sec. 1001 was evidently violated.
The criminal statute, 18 U.S.C., Sec. 371, prohibits conspiring to defraud the United States and is applicable since the Supreme Court in the case of Hammerschmidt v. United States, 265 U.S. 182, 188 (1924) held that to "conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest." Senior Administration officials arguably violated Section 371 because their uranium claims had the effect of obstructing or interfering with the function of Congress to reconsider its war resolution and to allow further time for U.N. weapons inspections. If the whole truth had been told, Congress may well have withdrawn the war resolution or delayed the start of the war to allow further U.N. weapons inspections, which would have shown what we now know; that Iraq had no weapons of mass destruction and had not sought the uranium. However, it should be noted that Section 371 does not require proof that the conspiracy was successful.
Additionally, the Downing Street memos should be part of the investigation as to whether one of the several ways in which the Administration deliberately "fixed" the facts and intelligence on uranium included its switch of the language in the State of the Union Address to justify the war. These documents provide valuable insight into the mindset of the Administration the summer preceding the Iraq invasion.
Conclusion
The above matters are clearly related to your current investigation. Ambassador Wilson's op-ed article focused on the uranium claim made in the 2003 State of the Union Address and he concluded that "intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat." You are investigating whether any laws were violated when Administration officials - in order to discredit Wilson's claim and/or to retaliate against him - leaked to the press the fact that his wife was a CIA agent. As set forth in this letter, Wilson's original charge that the Administration "twisted" the evidence concerns matters that are just as criminal as the Administration's attempts to discredit Wilson and his charge by revealing the identity of Mrs. Wilson as a CIA operative.
Justice Department officials in Washington certainly have the same type of conflict of interest in this matter as they did in the CIA leak case, which resulted in current your assignment. (See 28 CFR, Sec. 45.2(a) prohibiting Department employees from matters in which they have a conflict of interest).
Thank you for your attention to this request. We look forward to your response.
Sincerely,
Maurice Hinchey (and his 40 colleagues)
The signatories of that Congressional letter may now wish to consider adding additional grounds for that investigation in light of the revelations that Mr. Libby's superiors "authorized" him to disclose classified information in a conspiracy to attack the integrity and character of former Ambassador Joseph Wilson and his wife, Valerie Plame, a covert CIA officer.
MARK G. LEVEY, 2006.
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