Cheney ‘Authorized’ Libby to Leak Classified Information

Scooter Libby claims Vice President Cheney authorized him to leak classified information to the press in order to defend Iraq War intelligence.

Vice President Dick Cheney’s former chief of staff, I. Lewis (Scooter) Libby, testified to a federal grand jury that he had been “authorized” by Cheney and other White House “superiors” in the summer of 2003 to disclose classified information to journalists to defend the Bush administration’s use of prewar intelligence in making the case to go to war with Iraq, according to attorneys familiar with the matter, and to court records.

Libby specifically claimed that in one instance he had been authorized to divulge portions of a then-still highly classified National Intelligence Estimate regarding Saddam Hussein’s purported efforts to develop nuclear weapons, according to correspondence recently filed in federal court by special prosecutor Patrick J. Fitzgerald.

Beyond what was stated in the court paper, say people with firsthand knowledge of the matter, Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration’s use of prewar intelligence in making the case for war.

The rest of the piece details Libby’s strategy, notes its similarity to that used by Oliver North during the Iran-Contra investigation, and the difficulty of prosecuting someone in a matter involving sensitive intelligence information.

Without more detail, this report is not particularly damning, despite the lefty blogswarm already underway. The classifying authority certainly has wide discretion on how materials are disseminated and much of the material in even a highly classified (Top Secret with codeword access only) document is quite innocuous in isolation.

What is particularly interesting, given that Libby is charged with matters relating to disclosing Valerie Plame’s identity to the press, is that her name is not attached to this part of the story. That is, it sounds as if Libby is arguing that he was authorized to divulge classified information on more than one occasion and that he therefore interpreted that as a standing right. If he was claiming that Cheney or some other high official specifically authorize him to divulge Plame’s name to the press despite it being classified, one would presume the story would say so.

If my interpretation of his defense–a standing right to divulge classified information inferred from previous instances–is correct, it is without merit. Unless Libby was the classifying authority–and I can’t imagine how he could have been–he would have no such right. His broader strategy of trying to force the government to release reams of classified information to help buttress his case, is more likely to succeed. A judge could simply rule that the attempt is without foundation and dismiss it summarily. If not, however, the administration is exceedingly unlikely to comply with such a request in the prosecution of a relatively minor crime.

Update: Jeralyn Merritt offers some useful insights into the legal strategy including a more plausible reading of it than my initial take:

Libby’s defense is that he didn’t lie to the grand jury, he just was so busy with other important matters he got confused or forgot what he disclosed to Judith Miller or discussed with Tim Russert or Matthew Cooper. He is asking for all of the documents, both classified and unclassified, that he either wrote or reviewed from May 6, 2003, the date Joseph Wilson’s op-ed was published, through March 24, 2004, the date he last testified to the grand jury.

He’s asking for everything that came across his desk for ten months, to show how busy he was during this time period, on the theory that it’s relevant to his defense of confusion or failed memory. No wonder Fitz is objecting. It’s creative lawyering, but I have a hard time believing the Judge will find it relevant and disclosable under CIPA.

One would hope.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. yetanotherjohn says:

    I have no idea on “Libby’s defense is that he didn’t lie to the grand jury, he just was so busy with other important matters he got confused or forgot what he disclosed to Judith Miller or discussed with Tim Russert or Matthew Cooper.” if this is or isn’t a legal defense to the charge.

    But if it is a legal defense, then it would seem that being able to show all the things he was working on, and the press interviews he gave, would be highly relevant. I talked to x number of reporters on y number of occassions on z different topics. If x is 3, y is 2 and z is 2, then I think a jury might find the defense of confusion to be problematic. But if we are talking triple digits on any of the numbers and high double digits on the others, then I think a jury could find a reasonable doubt as to whether Libby intentionally failed to disclose or forgot he had disclosed.

    Since the NIE 2003 was declassified in July 21, 2003 and Libby disclosed in “summer of 2003”, I’m not sure what the issue is any more. Is it an issue of Libby’s “superiors” having him “leak” a report that is about to be decalssified. If so we have Libby’s superiors dead to rights on the charge of shaping coverage by timing when something gets released. You know, “well we are going to make this public, so talk it up the week before.” http://powerlineblog.com/archives/013098.php

    This looks like the article was written to try and induce a feeling that something horrible was done, but fails to deliver.

  2. Anderson says:

    Since U.S. law only kind-of/sort-of applies to the Bush administration, Libby clearly did nothing wrong.