Final Jeopardy: The Right Question about Bush's Leak

Elizabeth de la Vega, who has more than 20 years' experience as a federal prosecutor, is in her typically very valuable, spot-on form in her analysis of the latest chapter in the Bush-Wilson-Plame-leak affair. You should read the entire article, but here are a few key excerpts:

The latest in a parade of horrors emanating from the Bush administration appeared Thursday in the form of a revelation buried in papers filed in federal court by Special Prosecutor Patrick Fitzgerald in his investigation into the outing of CIA agent Valerie Plame. I. Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, now under indictment on charges of perjury and obstruction of justice, told the Grand Jury Fitzgerald convened that President Bush had -- via Vice President Cheney -- authorized him to disclose selected information from a National Intelligence Estimate (NIE) to New York Times reporter Judith Miller, which he did during a private breakfast meeting at the St. Regis Hotel on July 8, 2003.

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Thus has begun a debate in our media whose starting questions usually run along the lines of: "Is what the President did legal?" or "Does the President have authority to declassify information at will?" (Given the President's failure to deny Libby's allegation, it has largely been accepted as true.) [Bush has now confirmed that he did declassify this information.] The answer to those questions has generally been: Yes, the President -- as chief executive -- has the authority to declassify information at will.

But it is not only in the TV game show world of Jeopardy! that the correct answer to a problem depends on the question asked. And, as it happens, those are simply not the right questions.

In order to decide what legal issues arise from a given set of facts -- in other words, in order to frame the right questions -- we first have to determine what the facts are. This is what we know, in summary, about the CIA leak case.

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Quite obviously, then, Joseph Wilson had the attention of the Bush administration as early as March 2003, long before he wrote the July 6 op-ed. And it was on March 23 that President Bush issued an amended executive order in which he claimed the right to expand Vice President Cheney's authority to declassify documents.

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What was different in June 2003 when the President evidently did decide to declassify bits of the NIE? The answer is: He was kicking off his reelection campaign. As Helen Thomas wrote on Friday, June 27, 2003, "President George W. Bush is trying to scoop up an historic $200 million at political fundraising events to kick off his reelection campaign." He had raised close to $10 million over the previous week and had more events "slated for San Francisco, Los Angeles, Miami and Tampa before the end of July."

A perfect storm looked to be forming: four months of criticism by Joseph Wilson, mounting questions and criticism about pre-war intelligence and the failure to find weapons of mass destruction -- and the kick off to Bush's historic $200 million reelection campaign. That was the state of affairs on July 6, 2003 when Joseph Wilson's op-ed appeared. And as Special Prosecutor Patrick Fitzgerald put it in the filing revealed last week, "The evidence will show that [it] 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."

Can anyone doubt, under these circumstances, that President Bush did in fact authorize Cheney to tell Libby to leak previously classified parts of the October 2002 NIE to Judith Miller? Of course not -- especially when the White House's response has not been to deny it, but to say that the President can declassify whatever he wants at his whim.

There is, however, one remaining piece of the puzzle. Libby testified that he was specifically authorized to speak to Judith Miller by Cheney and to disclose "key judgments" from the NIE because the document was "pretty definitive" against what Wilson had said; and Cheney thought it was "very important" for the key judgments of the NIE to come out. Libby testified that he questioned Cheney about whether he could do this and the Vice President later came back and said the President had authorized it.

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Scott McClellan now says that this declassification and instantaneous disclosure was prompted by the public interest in contributing to the understanding of an ongoing debate. We know that is not true.

After all, before the war, the existence of a crucial debate about whether pre-war intelligence justified an invasion of Iraq was not considered sufficient cause to impel President Bush to decide to declassify the NIE. After the war, when no weapons of mass destruction were being found, the existence of debate about pre-war intelligence did not impel Bush to declassify the NIE. Even today, most of the NIE, including the one-page President's Summary, is not declassified.

We now have sufficient information to frame the Final Jeopardy! question. This is it:

Is a President, on the eve of his reelection campaign, legally entitled to ward off political embarrassment and conceal past failures in the exercise of his office by unilaterally and informally declassifying selected -- as well as false and misleading -- portions of a classified National Intelligence Estimate that he has previously refused to declassify, in order to cause such information to be secretly disclosed under false pretenses in the name of a "former Hill staffer" to a single reporter, intending that reporter to publish such false and misleading information in a prominent national newspaper?

The answer is obvious: No. Such a misuse of authority is the very essence of a criminal conspiracy to defraud the United States. It is also precisely the abuse of executive power that led to the impeachment of Richard M. Nixon.

A sane and impartial observer might be forgiven for thinking this finally should be sufficient to get some serious traction against the Bush presidency. But given the experience of the last several years, we know that is probably unlikely in the extreme. Besides, given the drumbeat of war against Iran -- a propaganda campaign that our criminally negligent media and the criminally incompetent and equally guilty (and unforgivably silent) national Democrats are aiding to the fullest extent possible, as if the completely dishonest Iraq war campaign had never happened at all -- war hysteria will probably come to dominate most of our national discussion in the coming months.

If the Bush administration succeeds once again in its efforts to turn the American public into mindless, drooling subhumans demanding vengeance and punishment against someone -- anyone -- I am fully prepared to say that we as a nation will deserve whatever we get, even if it is Armageddon, and even if it spreads its immense and incomprehensible destruction directly to us here at home.

Hatred, murderous destructiveness and lethal stupidity can only be forgiven for so long -- and we passed the point of no return on that particular road some time ago.

[UPDATE: I've received a few inquiries about the final paragraphs of this entry. Some readers wonder if I mean that, should we attack Iran, further terrorist attacks against us would be justified, or that the victims would deserve their fates. No, I most certainly do not mean that: the killing of innocents is never justified. But, tragically, the question is not that simple -- and keep in mind that our war on Iraq has killed many tens of thousands of innocent Iraqis. Similarly, an unjustified attack on Iran would undoubtedly kill many innocent people -- and if such an attack resulted in a broad regional war, the casualties could be overwhelming in number. I'll address these issues in more detail in the next day or two.].