Elizabeth de la Vega

More important, though, it is of no help to Libby that another administration official, “some other dude,” disclosed classified information about Valerie Wilson’s employment in order to discredit her husband before Libby himself did so. (By the way, Woodward’s impression that the disclosure by his source was “casual” proves nothing about whether the smearing official knew that the information being leaked was classified.) Despite the impression newspaper readers may carry away from the flap over Woodward, Libby is not charged with being the first to disclose Valerie Wilson’s employment; he’s not charged with disclosing anything at all. And in a criminal trial, it is the charges that define the issues. What, exactly, are those charges?

There are five counts. Count 1 charges Libby with obstructing justice by deceiving the grand jury about when and how he “acquired and subsequently disclosed to the media information concerning the employment of Valerie Wilson by the CIA.” Count 2 charges Libby with making false statements to the government about his conversation with NBC News reporter Tim Russert on July 10, 2003. Count 3 charges him with making false statements to a government agent about a July 12 discussion with Time magazine reporter Matt Cooper. Four and 5 charge him with making false statements to a grand jury about those conversations.

So, the essential questions on which a jury would have to pass judgment at a trial would be:

1. Did Libby make the statements that the indictment alleges he made?

2. Did the statements relate to an issue that was material — that is, important to the investigation?

3. Were those statements true when Libby made them?

4. If the statements were not true, did Libby make them deliberately, knowing they were false? In other words, did he lie on purpose or did he simply make a mistake?

These, and only these, are the questions the jury would consider. As to Count 2, for example, the indictment says that Libby offered the following account to FBI agents in the fall of 2003:

“During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked Libby if Libby was aware that Wilson’s wife worked for the CIA. Libby responded to Russert that he did not know that, and Russert replied that all the reporters knew it. Libby was surprised by this statement because, while speaking with Russert, Libby did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President.”

Will there be any question about whether Libby actually made that statement to FBI agents or that it related to an important matter? Probably not.

The contested issues at trial will surely be questions 3 and 4: Whether this statement was a true account of his discussion with Russert and, if not, whether Libby deliberately lied. To determine whether the statement was true, it’s necessary to consider its multiple assertions, which are: 1) In a conversation on July 10 or 11, Russert asked Libby if he was aware that Wilson’s wife worked for the CIA; 2) Libby said he didn’t know that; 3) Russert told him that all the reporters knew it; and 4) Libby was surprised because he did not recall previously learning about Wilson’s wife’s employment from the vice president.

Russert says he did not ask Libby whether Wilson’s wife worked for the CIA as Libby claimed, nor did he tell him that “all the reporters knew it.” The government’s proof that Libby’s statement was a knowing falsehood does not depend on whether the jury believes Russert over Libby, but it is worth mentioning that Russert has no easily imaginable reason for lying about this. He was a reluctant witness, not criminally at risk, and had no motive to try to incriminate Libby.

More important, however, even without factoring in additional information, Russert’s account is inherently credible and Libby’s is not. Even if Russert did ask whether Libby knew about Wilson’s wife’s employment, it is nearly impossible to believe that Libby could have been “surprised” by the information. After all, he is, by all accounts, an extremely intelligent and meticulous man who, as he admits himself in the statement, had learned about this fact from the vice president, his boss and our second highest official. Moreover, his statement to the FBI agents can have been no passing slip or mistake, since he elaborated on it six months later. He then told the grand jury that he was “taken aback” by Russert’s question about Wilson’s wife because “at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning.”

Libby’s eternal-sunshine-of-the-spotless-mind defense is harder yet to believe given what the prosecutor is apparently prepared to prove: that Libby had been preoccupied since May 2003 with Wilson’s allegations that the administration knowingly used a false claim about Iraqi attempts to purchase uranium from Niger to make its case for war; and that, by July 10, when Libby talked with Russert, he had discussed Wilson’s wife’s employment not only with the Vice President, but also with at least six other officials including a senior CIA officer, an Undersecretary of State, Libby’s CIA briefer, the White House Press Secretary, the Assistant to the Vice President for Public Affairs, and the Counsel to the Office of the Vice President. In addition, Libby had already talked about it twice with reporter Judith Miller.

As it stands now, Libby is on record as saying that he first learned Joseph Wilson’s wife worked for the CIA from the vice president. (That he had to admit, since he had notes reflecting the conversation.) What he now claims is that whatever the vice president told him fled his brain and he only learned about Valerie Plame, as if anew, when Tim Russert spoke with him in July 2003. Even that encounter, Libby says, failed to jar his memory about previous conversations with the vice president and seven other people, so that when he talked to Time’s Matt Cooper about it on July 12, he was merely relaying what “other reporters,” not the vice president, had told him. Indeed, Libby specifically described his defense to the grand jury on March 24, 2004, in this improbable way: “I told a couple reporters what other reporters had told us, and I don’t see that as a crime.” (This statement was in itself odd, considering that he specifically told the grand jury he had learned about Wilson’s wife only from Tim Russert.)

Interestingly, Libby’s formulation of his defense — that the information about Valerie Wilson’s employment was the subject of reporter “chatter” and “gossip” — is precisely the spin that Bob Woodward had been offering in appearances on “Larry King Live” and other talk shows (before he was revealed as the first reporter to have Plame’s information leaked to him). In turn, the Woodward revelation was preceded on Nov. 15 by a leak from “lawyers close to the defense” to the New York Times indicating that the Libby defense team planned to seek testimony from numerous journalists, not just those named in the indictment, in order to determine what the “media really knew.” As Libby’s lawyer put it on Nov. 16, “Hopefully, as more information is obtained from reporters, like Bob Woodward, the real facts will come out.”

Libby’s defense team should be careful what it hopes for, because the real facts don’t help Libby at all. Woodward’s recent disclosure merely adds another senior administration official to the already large group who were obviously working with Libby to distract the public from a truth the administration had already fessed up to — that the president had made an entirely unsubstantiated claim about an Iraqi search for uranium from Niger in his State of the Union address. It’s not that “some other dude did it” or that “some other dude did it first.” The more the real facts about smearing and deception by senior administration officials come out, the more obvious it is that lots of them did it — and Patrick Fitzgerald shows no signs of folding up his tent and departing. In the meantime, the SODDI defense is likely to prove not only unhelpful to Libby but a potential disaster for the Bush administration, sweeping yet more people into the case.

Copyright 2005 Elizabeth de la Vega

This article was originally published at Tomdispatch.com. Tom Engelhardt, who runs the Nation Institute’s Tomdispatch.com (“a regular antidote to the mainstream media”), is the co-founder of the American Empire Project and the author of “The End of Victory Culture,” a history of American triumphalism in the Cold War. His novel, “The Last Days of Publishing,” has just come out in paperback.

Discussion of this “theory” has been prompted, of course, by President Bush’s recent confession to a crime: repeatedly authorizing the National Security Agency to intercept domestic electronic communications for foreign intelligence purposes without a court order in violation of the Foreign Intelligence Surveillance Act. FISA contains no exception for the president, but Bush claims his action is legal because: 1) Congress endorsed it in its Sept. 18, 2001, Authorization to Use Military Force in response to Al Qaida’s September 11th attacks, and 2) he has inherent power as chief executive to act as he deems necessary in wartime. Many scholars, including Georgetown University’s David Cole and former New York state Rep. Elizabeth Holtzman have thoroughly debunked these arguments.

You don’t have to be a constitutional scholar to know that Bush’s legal justifications are weak. You merely have to consider the administration’s duplicitous conduct. The Bush team has deliberately concealed this program, not only from the public and Congress, but, most damning of all, from the very agency that is responsible for executing the laws of this country: the Department of Justice. It has been widely reported that even Bush appointees, such as former Deputy Attorney General James B. Comey, and possibly former Attorney General John Ashcroft, objected to the NSA’s wide-ranging warrantless spying. After 20 years as a federal prosecutor, I am absolutely certain that the vast majority of career attorneys at DOJ and criminal prosecutors from U.S. Attorneys’ Offices around the country, as well as federal law enforcement agents, would have refused to participate knowingly in this program. Bush and his coterie knew that their legal arguments were weak and intellectually dishonest, if not ludicrous, so rather than making their case honestly, even to their own people, they avoided dissent by acting in secret and affirmatively misleading the entire country. Using a tragically familiar modus operandi, Bush has carried out his unlawful spying scheme by acting not as a unitary executive (whatever that is), but as a solitary executive — as if the president knows best.

To understand the extent and complexity, not to mention frightening consequences, of Bush’s deception with regard to the NSA’s warrantless surveillance, it is necessary to consider some of the practicalities of FISA, both before and after it was changed by the Patriot Act.

As anyone who took high school civics knows, the government must get a warrant before conducting electronic surveillance on people within the United States. But before the Sept. 11 attacks, few citizens knew that law enforcement had to follow different procedures to get that warrant, depending on the investigative purpose. If the purpose was chiefly to aid a criminal investigation, such as in a drug or bribery case, the agents had to get what was called a Title III warrant from the U.S. District Court. If the object was primarily to get foreign intelligence on someone within the U.S., regardless of whether they were communicating with someone in or out of the country, agents had to go to a secret court called the FISA court. Under no circumstances could an agency electronically eavesdrop on a person within the United States without such a warrant, but if people were outside the country, the National Security Agency could electronically intrude on their communications — such as phone calls, e-mails or faxes — without getting any court authorization. So, if the whole communication was outside the U.S., NSA could spy to its heart’s content.

If a criminal case was at stake, the FBI or whichever agency was involved needed a Title III criminal warrant; and if it was a foreign intelligence case, the FBI needed a FISA warrant. What was the difference between the two? Other than the difference in purpose — criminal investigation vs. foreign intelligence — the main differences were threefold. First, the amount of proof needed to get a FISA warrant was less. Second, with a FISA warrant, the person surveilled rarely could seek judicial review because he would normally have had no way of finding out that it had even happened. The third difference flowed from the first two: Because of the relaxed standard of proof and the unavailability of review, foreign intelligence agents were not allowed to share their information with criminal agents, even if they were in the same agency. That barrier between criminal and foreign intelligence agents was called the “FISA wall.”

After the 9/11 attacks, however, as part of its push for the Patriot Act, administration representatives, mainly from the DOJ, proposed numerous changes to the FISA law that they argued were necessary due to both technological and societal developments since 1978. In particular, they wanted to break down the FISA wall to allow for greater sharing of information in order to avoid the numerous communication snafus that may have prevented discovery of the plans for the 9/11 attacks. Ultimately, the administration received most of its desired changes. Break down the “FISA wall”? You got it. Roving wiretaps? You got it. Administrative subpoenas to libraries? You got it.

And that was just the first round. Since October 2001, the administration has obtained passage of three rounds of additional changes to FISA. All the requested changes have led to considerable public debate about the threat to constitutional protections posed by relaxing the rules for getting electronic surveillance warrants as well as the increase in tools available to law enforcement. Nevertheless, for the most part, Congress has acceded to whatever requests for changes to FISA the Bush administration has made.

At no time during this four-year debate about security and civil liberties, despite well-established congressional procedures for discussions that involve classified material, has the Bush administration advised Congress in any meaningful way that it was in ongoing violation of FISA; nor has it ever formally sought to amend the law to accommodate the sorts of technological advances that it now cites as the very reason for its secret program. In other words, the administration has conducted a prolonged charade during which it has pretended to participate in a democratic process of amending and enacting legislation, while secretly, but monumentally, violating the law that was under consideration.

This charade was not merely for the benefit of the public and Congress but also for the benefit of the thousands of administration employees who are charged with enforcing the rule of law. When Bush announced famously on April 20, 2004, “[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way…” — the vast majority of people at DOJ most likely believed that to be true. DOJ has an entire Web site devoted to internal and external propaganda about the administration’s commitment to civil liberties. Prominently displayed on the Web site titled the Patriot Act: Preserving Life and Liberty is a smiling photo of Attorney General Alberto Gonzales and the following quote: “We are waging a war … each day in a way that values and protects the civil liberties and the constitutional freedoms that make our Nation so special.”

What makes Gonzales so special is that, despite being the nation’s chief law enforcement officer, he has been entirely indifferent to the rule of law. Indeed, he has been complicit in the activities of an administration that (as if afflicted by an autoimmune disease that causes it to reject parts of its own body) has marginalized its career employees to hide its activities. Note that the only people who have thus far publicly defended the legality of the NSA eavesdropping scheme are President Bush, Vice President Cheney, Secretary of State Condoleezza Rice and the former NSA director Michael Hayden, all non-lawyers whose self-interest is obvious; as well as Gonzales, Bush’s longtime friend and former White House counsel, and Assistant Attorney General William E. Moschella, a Bush appointee who has been a lawyer for fewer than 10 years and has never actually practiced law. We should not expect to hear support for the warrantless NSA spying from any career criminal prosecutors.

Indeed, this illegal surveillance is a prosecutor’s nightmare. As Hayden testified before the Senate Intelligence Committee in October 2002, the National Security Agency turns over legally obtained evidence to the FBI in a way that prevents FBI agents from knowing its source or sources. If the NSA hides the source of its legally obtained evidence, it certainly also hides the source of any illegally obtained evidence it may be turning over. Neither illegally obtained evidence, nor evidence gleaned from it, can be used in a criminal prosecution. Consequently, an untold number of successful prosecutions are now jeopardized by the possible use of tainted evidence. Such challenges have already begun in the case of Iyman Faris, who is serving a 20-year sentence for conspiring to blow up the Brooklyn Bridge. In other words, the government’s reckless adoption of an illegal surveillance program could actually have the effect of undermining the very prosecutions it claims as its successes in the “War on Terrorism.”

The Bush administration, of course, argues that this sort of secret spying is what we have to do for our own security. Indeed, they suggest that if the program had existed prior to 9/11, those attacks might have been prevented because they would have “caught” two hijackers who were making calls to al-Qaida from San Diego. In legal terms, this claim would be called the defense of “necessity,” but, in lay terms, this claim would be called “a big fat lie” — and a poorly chosen one at that.

The hijackers to whom Bush and his advisors are referring are Khalid al-Midhair and Nawaf al-Hamzi. It is astounding that Bush should cite them in support of the illegal spying program, because the NSA knew about these two men and their relationship to al-Qaida as early as 2000 as a result of a legal wiretap they had on a safe house in Yemen. But they never bothered to place them on a watch list or provide detailed information about them to the FBI or the CIA. NSA’s Michael Hayden said they failed to provide the information to other agencies because they didn’t appreciate its significance.

The problem at that time, as the 9/11 Commission and so many other investigative bodies have found, was failure to communicate among the agencies, or even within the agencies. The NSA was unable to recognize the importance of its own information because it didnt know what the other agencies knew, and was institutionally incapable of sharing even legally obtained information because it was operating as a lone wolf. Ironically, in the hands of President Bush, the NSA has effectively become even more isolated — essentially an outlaw. And it still does not know everything that the other agencies know, so it has no more capability of recognizing the importance of what it learns now than it did before. So it is difficult to imagine how it can now possibly use its illegally obtained information to prevent attacks.

It appears, then, that President Bush, using his wholly fabricated Unitary Executive Theory, has clandestinely managed to marginalize his own agencies and eviscerate many of the information-sharing benefits of his own Patriot Act. When will we, as a country, finally stop thinking that the president knows best?

This article originally appeared on TomDispatch.com.

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Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney’s Office for the Northern District of California. Her pieces have appeared in the Nation Magazine, the Los Angeles Times, and Salon. She writes regularly for Tomdispatch. She may be contacted at ElizabethdelaVega@Verizon.net.