An interesting twist in the Scooter Libby case was revealed yesterday. According to court documents filed last month--and unearthed by the Associated Press--Special Prosecutor Patrick Fitzgerald plans to introduce evidence that Mr. Libby's superiors authorized him to give secret information to reporters. The leaks were apparently part of the administration's defense of intelligence used to justify the invasion of Iraq. Mr. Libby, as you'll recall, was the former Chief of Staff for Vice President Dick Cheney, so the "superiors" who okayed the leaks would (presumably) include the VP.
Fitzgerald's court filings indicate that Libby was authorized to leak portions of a National Intelligence Estimate (NIE) to reporters in the summer of 2003, as the administration defended intelligence used in deciding to go to war in Iraq. Occasionally, portions of NIEs are declassified and released to the public, although it's not clear if that happened in this case.
The special prosecutor's charge is designed to show a pattern of leaks by Mr. Libby, including Valerie Plame's supposed status as a covert CIA officer. The divulgence of Ms. Plame's "identity" launched Fitzgerald's investigation more than two years ago. So far, Libby has only been charged with lying to federal agents and a grand jury about how he learned of Ms. Plame's identity, and when he subsequently told reporters.
Of course, Libby has not been charged with violating the federal law that makes it a crime to willingly disclose the identity of an undercover intelligence operative. We've discussed that issue at great length in this blog. Suffice it to say, Mr. Fitzgerald didn't indict on that charge because his case would be shaky at best. There is compelling evidence that Ms. Plame had come "in from the cold" years earlier. There is also evidence that her former status as a undercover operative was permanently "blown" in the Aldrich Ames spy scandal, meaning that she could never work as a covert agent again.
However, it is also interesting that Libby has not been indicted on charges of willfully divulging classified iinformation, and that begs and obvious question--why? Mr. Fitzgerald apparently has evidence that Libby was authorized to discuss portions of a classified document with the media, but neither he (nor other White House officials) have been charged with that crime (at least not yet).
Why no indictment(s) on those charges? A couple of reasons. First of all, officials at the highest levels of the executive branch (read: The President and Vice-President) are understood to have "declassification authority" for any type of classified material. The development of the B-2 bomber, for example, was a closely-guarded, black world program back in the 1970s until President Carter decided to discuss it in a speech, as proof that he wasn't weak on national defense. In the matter of a few sentences, the B-2 moved from the black world into the white world, with an official budget "line," public relations hand-outs and all the other trappings of an "official" program. Why wasn't Carter investigated? As commander-in-chief, he had the authority to "declassify" the B-2 program in a public address.
Accordingly, every chief executive has had the authority to "move" information from the classified to the unclassified realm, through speeches, comments, and leaks. As we noted yesterday, every administration has played the leak game to some degree, and the Bush White House is no exception. I'm no fan of this approach--whether the leakers are Republicans or Democrats--because it makes the job of protecting our secrets that much more difficult. Most of us in the intel business (both current and former) have had the unpleasant experience of seeing information that was classified SECRET or TS/SCI suddenly splashed across the front page of the Washington Post or The New York Times. If Bush or Cheney authorized the declassification and dissemination of portions of the NIE, it was probably legal, even if there isn't an accompanying paper trail. So much for security.
But there's also another reason that Fitzgerald won't touch the apparent leak of the NIE. That intelligence estimate was widely circulated in both the executive branch and congress. There were, as I recall, a number of leaks of material from that NIE in the summer of 2003, and some of them probably originated on Capitol Hill. If Fitzgerald decided to go after the White House on this issue, Congressional Republicans would probably demand an investigation of NIE leaks on Capitol Hill, and there wouldn't be a shortage of potential suspects. By focusing only on Mr. Libby, the special counsel would open himself--and his investigation--to charges that his inquiry had become a partisan witch hunt, much like former counsel Lawrence Walsh's investigation into the Iran-Contra affair, culminating in the indictment of Cap Weinberger just before the 1992 presidential election.
So, Mr. Fitzgerald will ignore the issue of possible criminal behavior in NIE leak, and instead use it to buttress his perjury case against Mr. Libby. Senate Democrats--led by Ted Kennedy--are already demanding that VP Cheney also take responsibility for the leak, but that's an example of tossing the first stone in a glass house. Rumors in Washington suggest that two Democratic senators may be under investigation for leaking classified information, so Teddy's party is not without sin in this matter. He'd be well-advised to keep quite, at least until Senators Rockefeller and Dryden are cleared on charges they leaked classified information.
But the real essence of this matter is how our senior officials protect the nation's secrets. Paraphrasing F. Scott Fitzgerald [senior officials, both current and former] "are different from you and me." From classified documents on John Deutch's home computer, to Sandy "classified documents down my pants" Berger, senior officials and lawmakers are held to a lower standard than mere mortals with a security clearance. We have often cited the statistic of 600 leak investigations (by the FBI) since the mid-1990s, with zero prosecutions. Until we stop the leak game, hold everyone to the same standard, and send some of these people to jail, the leaks will only continue--and our national security will continue to suffer.