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National Journal
INTELLIGENCE LEAKS
Cheney's Call
By Murray Waas, National Journal
Early on the morning of June 20, 2002, then-Senate Intelligence Committee Chairman Bob Graham, D-Fla., received a telephone call at home from a highly agitated Dick Cheney. Graham, who was in the middle of shaving, held a razor in one hand as he took the phone in the other.
The vice president got right to the point: A story in his morning newspaper reported that telephone calls intercepted by the National Security Agency on September 10, 2001, apparently warned that Al Qaeda was about to launch a major attack against the United States, possibly the next day. But the intercepts were not translated until September 12, 2001, the story said, the day after the terrorist attacks on the World Trade Center and the Pentagon.
Because someone had leaked the highly classified information from the NSA intercepts, Cheney warned Graham, the Bush administration was considering ending all cooperation with the joint inquiry by the Senate and House Intelligence committees on the government's failure to predict and prevent the September 11 attacks. Classified records would no longer be turned over to the Hill, the vice president threatened, and administration witnesses would not be available for interviews or testimony.
Moreover, Graham recalled in an interview for this story, Cheney warned that unless the leaders of the Intelligence committees took action to discover who leaked the information about the intercepts -- and more importantly, to make sure that such leaks never happened again -- President Bush would directly make the case to the American people that Congress could not be trusted with vital national security secrets.
"Take control of the situation," Graham recalls Cheney instructing him.
Graham told the vice president that he, too, was frustrated over the leaks. But his attempt to calm Cheney down was unsuccessful.
On that morning in June 2002, Cheney could not have known that his complaints to Graham about the leaking of classified information would help set events in motion that eventually would lead to the prosecution of his own chief of staff, I. Lewis "Scooter" Libby, as the result of a separate leak investigation.
Libby, who stands accused of trying to conceal his role in disclosing the identity of an undercover CIA officer, Valerie Plame, in 2003, is now on trial in federal court in Washington on five counts of perjury, making false statements, and obstruction of justice. Testimony and evidence at Libby's trial has raised questions as to whether Cheney himself authorized the selective leaking or declassification of information, including whether Cheney may have encouraged Libby to disclose Plame's CIA identity to reporters.
And when Graham received Cheney's phone call nearly five years ago, he had no idea that the vice president was not acting on impulse or entirely out of anger. Although administration officials have said that the White House was legitimately concerned that the NSA intercept leak could harm the war on terrorism, they also saw the incident as an opportunity to undercut congressional oversight and possibly restrict the flow of classified information to Capitol Hill. Libby, two administration officials recalled in interviews, was among the aides advising Cheney on this strategy of neutralizing the Hill.
After Cheney ended his call with Graham that morning, the White House was far from done.
The private complaint was followed by a very public rebuke.
Later that day, then-White House press secretary Ari Fleischer read from a prepared statement: "The president [has] very deep concerns about anything that would be inappropriately leaked that could ... harm our ability to maintain sources and methods and anything else that could interfere with America's ability to fight the war on terrorism."
And Bush himself later said, in reference to an entirely different leak, that whoever in government disclosed details of his administration's covert NSA surveillance program had committed a "shameful act" that had the effect of "helping the enemy." Attorney General Alberto Gonzales raised the possibility of prosecuting journalists.
As a result of the White House pressure over the NSA intercept leak in June 2002 -- applied through Cheney's phone call -- Graham and then-House Intelligence Committee Chairman Porter Goss, R-Fla., asked the Justice Department to investigate whether any members of Congress (including themselves) or their staffs were responsible for the leak. Prosecutors and FBI agents later zeroed in on Sen. Richard Shelby, R-Ala., who was then the ranking member on Senate Intelligence, as the person most likely responsible for disclosing the information to the press.
After a lengthy investigation, the Justice Department did not charge Shelby. Later, Justice referred the matter to the Senate Ethics Committee, and in a referral letter dated July 20, 2004, the department said it had "investigated the unauthorized disclosure of classified information" and had "produced evidence and information" concerning Shelby's conduct. In November 2005, the Ethics Committee wrote Shelby to say it had "dismissed the matter referred to it by DOJ."
Shelby insists that he did not leak any classified information, and he in turn decried as prosecutorial abuse the leaks from federal law enforcement officials suggesting that he, Shelby, had done something wrong.
In a statement prepared in response to questions for this story, Shelby said: "At no time during my career as a United States senator and, more particularly, at no time during my service as chairman of the Senate Select Committee on Intelligence, have I ever knowingly compromised classified information." He added: "We have provided the investigation with our full cooperation."
Boomerang
Although no charges were brought in the investigation of the leaked NSA intercepts, the probe helped to pave the way for the appointment of a special prosecutor to investigate leaks out of the White House and, specifically the Office of the Vice President, in the Plame matter, according to administration, congressional, and law enforcement officials interviewed for this story.
"They [the administration] set the prosecutorial machinery in motion themselves, and the public support for it, before it came back to bite them," said a federal law enforcement official.
Graham, for one, believes that Cheney and Libby's strident demands to investigate leakers in Congress made it all but impossible for the White House to do anything less than cooperate fully with any criminal investigation of the Plame leak.
"They [the administration] would have had a certain exposure to hypocrisy if they hid behind executive privilege" when the Plame investigation began, or if they had fought the appointment of a special prosecutor, Graham said. "It made it politically untenable to avoid having a strong investigation, because they had demanded it of us. With us, they said we should call out the meanest, leanest dogs. The example that they set with us became the boomerang that came around and hit them."
At Libby's trial, Special Prosecutor Patrick Fitzgerald has attempted to show that Libby lied about leaking Plame's identity in 2003 because Cheney's office wanted to discredit Plame's husband, former Ambassador Joseph C. Wilson IV, who was a strong public critic of the administration's decision to go to war in Iraq.
Wilson had traveled to Niger in February 2002 on a CIA-sponsored mission to investigate allegations that Saddam Hussein's regime had attempted to procure weapons-grade uranium from the African nation. Wilson reported to the CIA that from what he could learn the allegations were almost certainly untrue. In a July 6, 2003, op-ed in The New York Times, Wilson charged that the Bush administration had "twisted" intelligence information when it cited the alleged Niger-Iraq connection in the president's State of Union address earlier that year.
White House officials had claimed that they were not warned by the CIA that the agency had discredited the intelligence information before the president's speech.
As one part of an effort to counter Wilson's allegations and to discredit him, Libby and other Bush administration officials told reporters that Wilson's wife selected him to go on the CIA mission, suggesting nepotism.
Libby's trial has also brought Cheney's role to center stage. According to evidence and testimony, Cheney selectively leaked and declassified intelligence information to bolster the administration's case for war and later to defend against charges that he had misrepresented prewar intelligence.
Before the trial, both Cheney and Libby denied that the vice president had authorized or even known that Libby had spoken to reporters about Plame. But at the trial, FBI agent Deborah Bond testified that Libby said in an interview with her that on July 12, 2003, Libby might have spoken to Cheney about the possibility of divulging Plame's name to reporters before he actually did so later that day.
Would Journalists Testify?
In the leak investigation of the NSA intercepts, the FBI agent in charge of the probe, Jack Eckenrode, repeatedly complained to senior Justice Department officials that he was stymied because he could not compel interviews or grand jury testimony from the journalists who received the leak. Without obtaining such testimony, Eckenrode said, he stood little chance of identifying the culprit and bringing any charges.
Two senior Justice Department officials at the time, Deputy Attorney General Larry Thompson and Criminal Division head Michael Chertoff, refused to approve subpoenas for the journalists. They also argued that Eckenrode's case was circumstantial, according to sources close to the investigation. It is unclear whether then-Attorney General John Ashcroft was involved in decisions on whether to subpoena journalists. Chertoff, now secretary of Homeland Security, declined to comment for this story. Thompson, who is no longer at Justice, did not return a phone call seeking comment.
Eckenrode and other investigators kept pressing the argument that they could not know whether they had a good case unless they compelled the testimony of journalists. Some investigators voiced concerns that two GOP political appointees -- Thompson and Chertoff -- had turned them down on subpoenas for a probe whose chief suspect was a Republican senator.
Later, when Eckenrode was placed in charge of the Plame investigation, he privately complained that once again he was coming close to cracking the case, only to have prosecutors fail to bring any charges because of their inability to question journalists.
Eckenrode scored an early success in the Plame investigation by convincing NBC Washington bureau chief and Meet the Press moderator Tim Russert to speak to him. The FBI agent worked Russert the same way Russert might work a news source: Eckenrode mentioned that he had met Russert when his church group had taken a tour of NBC's Washington studios, and he spoke about how both of them came from Irish-Catholic backgrounds.
What Russert had to say to Eckenrode was central to the Plame probe because Libby was telling the FBI that when he talked to reporters about Plame working at the CIA, he was merely repeating rumors that Russert had told him about Plame during a July 10, 2003, telephone conversation.
Russert responded that Libby was lying -- that, in fact, he and Libby had never discussed Plame at all.
But when Fitzgerald attempted to take Russert's testimony under oath, Russert initially refused and NBC sought to quash a subpoena from prosecutors. For Eckenrode, it was a replay of the NSA leak case, when a Fox News correspondent had identified Sen. Shelby as his source to the FBI, only to refuse to testify under oath.
For several months in 2003, the Justice Department oversaw the Plame leak investigation. As evidence mounted that Libby and White House Deputy Chief of Staff Karl Rove might have played roles in leaking information about Plame, two senior Justice Department officials -- Christopher Wray, who was then head of the Criminal Division, and James B. Comey, who had just been named deputy attorney general -- persuaded Ashcroft to recuse himself from the matter and to allow Comey to appoint a special prosecutor. (Rove had earlier served as a consultant to three of Ashcroft's political campaigns.)
Senate Democrats were also pressing for a special prosecutor. Because Cheney had personally pushed for a criminal investigation of senators and their staff over the NSA intercepts, the Democrats insisted that the White House endure similar scrutiny over the leak of Plame's identity, according to several senior congressional staffers involved in the process.
With Fitzgerald's appointment as special prosecutor, Eckenrode found a sympathetic ear for his complaint that leak probes often went nowhere because suspects knew that reporters would never be forced to testify. Although the men agreed that reporters should be compelled to testify only as a last resort, Fitzgerald assured Eckenrode that he would demand such testimony if necessary.
Fitzgerald's resolve was displayed later in the Plame case when he pursued contempt charges against then-New York Times reporter Judith Miller. She refused to testify after being subpoenaed and ended up spending 85 days in jail. Miller finally agreed to testify about her conversations with Libby about Plame -- after Libby called her in jail and encouraged her to do so.
The irony that Libby, once the vice president's top aide, was accused of concealing his role in leaking information to the press has not been lost on some. Graham said in an interview: "It's hard to believe that the chief of staff to the vice president was acting as a rogue agent. What we have learned from the trial validates the suspicion that Libby was not just operating as a lone ranger. He was carrying out what the vice president wanted him to do, which was to besmirch Joe Wilson. I think Libby has been a conspirator in one of the most reprehensible and damaging breaches of American security in modern history."
Craig Schmall, who was a CIA briefing officer for both Cheney and Libby, has testified at Libby's trial that on the morning of July 14, 2003, when journalist Robert Novak outed Plame's covert identity in his newspaper column, Schmall commented to Cheney and Libby, "I thought there was a grave danger leaking the name of a CIA officer. Foreign intelligence services where she served now have the opportunity to investigate everyone whom she had come in contact with. They could be arrested, tortured, or killed."
Huge Stakes
By 7:30 in the morning on that June day in 2002 when Cheney called Graham, the chairmen and ranking members of the Senate and House Intelligence committees met in a secure room in the Capitol. They discussed how to prevent fallout from the administration's threat that they could not be trusted with classified information. Present at the meeting were Graham, Goss, Shelby, and Rep. Nancy Pelosi of California, then the ranking Democrat on the House panel. Senior aides were excluded.
The four lawmakers emerged from their meeting and told their staffs that they had decided to take the unprecedented step of requesting the Justice Department to conduct a criminal inquiry into whether they, any other members of their committees, or their aides were responsible for leaking the NSA intercepts to the media.
A key participant in the events recalled in an interview: "It was a hastily made decision, made out of a sense of panic... and by people with bleary eyes."
Another person involved recalled: "There was a real concern that any meaningful oversight by Congress was very much at stake. The political dynamic back then -- not that long after September 11 -- was completely different. They took Cheney's threats very seriously."
Graham said, "Looking back at it, I think we were clearly set up by Dick Cheney and the White House. They wanted to shut us down. And they wanted to shut down a legitimate congressional inquiry that might raise questions in part about whether their own people had aggressively pursued Al Qaeda in the days prior to the September 11 attacks. The vice president attempted to manipulate the situation, and he attempted to manipulate us." Graham added: "But if his goal was to get us to back off, he was unsuccessful."
Graham said that Goss shared his concerns. In 2003, according to Graham, he speculated to Goss that the White House had set them up in an effort to sabotage the joint September 11 congressional inquiry. Graham says that Goss responded: "I often wondered that myself."
Goss, who would later serve as CIA director under President Bush, declined to comment for this article. Graham, citing a lifelong friendship with Goss, refused to say anything else regarding his private discussions with Goss.
Megan McGinn, a spokeswoman for Cheney, said that the vice president would not comment on his conversations with Graham and Goss. But she added, "As president of the Senate, the vice president has discussions with members on various issues." She also said there would be no comment on the Libby case because it "is a matter before the courts."
At the time of Cheney's phone call in June 2002, Graham and other lawmakers on the Intelligence committees suspected that the vice president viewed the leaking of the NSA intercepts as an opportunity to try to curtail what he believed were nettlesome congressional inquiries.
If that was, indeed, the vice president's main purpose for his angry call to Graham, it was not the first time that Cheney had sought to use a press leak as a pretext for constraining a congressional probe.
A recently declassified memo handwritten by Cheney more than 30 years ago when he was an aide to President Ford shows him considering whether to press the Justice Department to pursue criminal charges against The New York Times and reporter Seymour Hersh after the newspaper published an article revealing a highly classified espionage program against the Soviet Union. The memo was uncovered for a soon-to-be-aired documentary by the PBS program Frontline.
When the Justice Department balked at prosecuting anyone, Cheney adroitly tried to exploit the news report for other ends. He wrote under the heading "Broader ramifications": "Can we take advantage of it to bolster our position on the Church committee investigation? To point out the need for limits on the scope of the investigation?"
At the time, a select committee headed by then-Sen. Frank Church, D-Idaho, was investigating the CIA -- an unprecedented and historic inquiry that revealed everything from CIA-sponsored coups against foreign governments to attempted assassinations of foreign leaders, to illegal domestic spying.
Weighing the Costs
In the NSA leak probe, the FBI focused primarily on news reports from June 2002 that on the night before September 11, 2001, the National Security Agency had intercepted two Arabic-language messages suggesting that terrorist attacks against the United States were imminent. The messages that were overheard said, "The match is about to begin" and "Tomorrow is zero hour." But they were not translated until September 12.
The messages were discussed at length by Lt. Gen. Michael Hayden, who was NSA's director, during a joint closed-door session of the House and Senate Intelligence committees on June 19, 2002. Not long after the hearing concluded, CNN aired a report disclosing the two messages. The next morning, The Washington Post and USA Today published more-detailed reports. It was then that Cheney called Graham, and that Graham then met with Goss, Shelby, and Pelosi.
Senior intelligence officials have insisted that even if the messages had been translated immediately, authorities most likely could not have prevented the 9/11 attacks. But they said that the leak revealed possible sources and methods of intelligence-gathering, and therefore was a major security breach.
The FBI swarmed over Capitol Hill, interviewing virtually every senator and House member who served on the Intelligence committees, as well as the staffs of both panels. Before long, investigators began to focus on Shelby. And as they did, Shelby, who had initially supported the investigation, took to denouncing it.
In August 2002, when the FBI inquired about having members of Congress and their staffs take polygraph examinations, Shelby began to pointedly voice opposition to the investigation, telling the press: "I don't know who among us would take a lie detector test. First of all, they're not even admissible in court, and second of all, the leadership [of both parties] has told us not to do that." More broadly, he complained: "Here we are investigating the FBI for huge failures, and now we're asking them to investigate us."
Among those who provided information to the FBI incriminating Shelby was Fox News correspondent Carl Cameron. He told investigators that Shelby shared information about the intercepts shortly after the June 19 hearing, according to sources close to the investigation.
Immediately after Shelby spoke with him, Cameron told the FBI, he watched as Shelby walked down a Senate office building hallway and conversed with Dana Bash, then a producer, and now a correspondent, for CNN. Cameron was not privy to the Shelby-Bash conversation, but CNN later ran a story about the intercepts based on information that was almost identical to what Shelby had told Cameron. Cameron, who indicated that he was irked that Shelby shared the information with a competitor, also told investigators that he delayed a broadcast of his story because he wanted to make sure that he was not compromising intelligence sources and methods, according to these sources.
A congressional staff member, the sources said, recounted to the FBI that Shelby told the staffer about the NSA intercepts -- that Al Qaeda was about to attack the United States, but that the intercepts were not translated until after September 11. Shelby indicated to the staffer that the issue should be brought to the press's attention, although the staffer said that Shelby did not provide specific details of the information that the senator wanted divulged, the sources said.
The investigation stalled when investigators were unable to compel Cameron, Bash, and other reporters to provide evidence or to testify before a federal grand jury on the sources for their stories.
One senior Justice Department member familiar with deliberations on the case said that some Justice officials were not convinced that the leak probe rose to the level of importance of issuing subpoenas or jailing journalists. This official said: "You have to weigh the costs... versus the benefits. We could have ended up with a reporter going to jail, and still ended up without the ability to make the case -- either because the reporter would refuse to testify or because, even with their testimony, we were unable to make a case."
Lucy Dalglish, the executive director of the Reporter's Committee for Freedom of the Press, said in an interview that she agreed with the decision. "The public is better served when reporters are not required to act as investigative agents for the government," she said.
Dalglish asserted that although the Libby trial has demonstrated that some "leaks are done in the service of slimy political dirty tricks," there are a vastly greater number of "journalists working heroically... in the service of the public good" and "who are at risk of going to jail or are already in jail."
In the case of the NSA intercepts leak, CNN indicated that it would not cooperate with the federal criminal inquiry. Reporters for The Washington Post and USA Today probably would not have cooperated either. And although Cameron voluntarily provided information to the FBI, Fox News executives balked at allowing him to testify before a grand jury.
Graham says that even if Shelby had leaked information about the intercepts to the press, Graham believes with some degree of certainty that certain executive branch officials did so as well. Although CNN broke the story, the next-day stories in The Post and USA Today contained details that Hayden had not disclosed to the Intelligence committees, Graham said. "That would lead a reasonable person to infer the administration leaked as well, or what they were doing was trying to set us up... to make this an issue which they could come after us with."
War of Leaks
Regarding the Plame investigation, in sharp contrast to the NSA leak case, Fitzgerald and Eckenrode were able to obtain the voluntarily testimony of a score of journalists, most importantly columnist Robert Novak, who told Fitzgerald who his sources were. In other instances, when journalists refused to comply, Fitzgerald and his prosecutors pursued contempt charges.
Evidence presented by prosecutors during Libby's trial has detailed Cheney's role in directing Libby and others to selectively leak or declassify intelligence information to discredit Wilson, other administration critics, and the CIA, while defending the Bush administration's actions.
One such instance was when Cheney -- with the direct approval of President Bush -- instructed Libby to leak to the press portions of a still-classified National Intelligence Estimate on Iraq's weapons of mass destruction. Such a disclosure, Cheney and Libby hoped, would prove that the CIA had provided the White House with erroneous intelligence. Later, Cheney directed Libby to leak portions of a highly classified CIA debriefing of Wilson upon his return from Niger -- which Cheney and others mistakenly thought was a CIA cable.
The Times' Miller testified that during a June 23, 2003, meeting with Libby -- the first time that she said Libby had shared information with her about Plame -- he "appeared to be agitated and frustrated and angry" about what he described as a "perverted war of leaks" initiated by the CIA against the White House.
The main justification for invading Iraq had been that Saddam possessed weapons of mass destruction. But with inspectors unable to find any evidence of an Iraqi WMD program, the White House blamed the CIA for faulty intelligence. Senior CIA officials, in turn, said that the White House had often misrepresented accurate intelligence information.
It was during that volatile time, on July 6, 2003, that Wilson wrote his New York Times op-ed alleging that the administration had distorted intelligence information about Iraq's purported attempt to procure uranium. When Cheney and Libby learned that Wilson's wife worked at the CIA, and might even have played a role in selecting him for the Niger mission, they perceived his allegations as one more effort by the CIA to shift blame away from the agency.
Four days later, on July 10, 2003, Mary Matalin, a senior aide to Cheney at the time, warned Libby that Wilson was a "snake" and that his "story has legs," Deputy Special Prosecutor Peter Zeidenberg said in court at Libby's trial.
Matalin then suggested a course of action, according to Zeidenberg: "We need to address the Wilson motivation. We need to be able to get the cable out. Declassified. The president should wave his wand."
Two days later, on July 12, 2003, Cheney and Libby flew together to the Norfolk naval base in Virginia, where they attended ceremonies to christen the USS Ronald Reagan.
On the way home on Air Force Two, the two men sat alone in a front compartment as Cheney counseled Libby on what to say to the press. One bit of advice: Provide reporters with details of the CIA debriefing of Wilson's Niger mission.
The vice president told Libby that the president had waved his wand.
Upon landing at Andrews Air Force Base, Libby and Cathie Martin, a press aide to Cheney, searched for a private room so that Libby could call Time magazine's Matthew Cooper and other reporters. Later from home, he also spoke to Judith Miller.
It was toward the end of conversations with both reporters that Libby told them that Wilson's wife worked for the CIA, Miller and Cooper testified.
Before the trial, Cheney denied that he ever authorized anyone to provide information about Plame to the media -- or that he even suggested such a thing. But FBI agent Deborah Bond testified that on the return trip from Norfolk, the vice president might indeed have talked with Libby about revealing Plame's CIA connection to the press. "Mr. Libby told us he believed they may have talked about it but he wasn't sure," Bond told the court.
As Bond testified, Libby furiously scribbled notes on a yellow legal pad. If he looked like one of the accomplished attorneys at the defense table, it was because Libby is one, too. A graduate of Phillips Academy Andover, Yale University, and Columbia Law School, Libby had been, just before going to work for the vice president in 2001, the managing partner of the Washington office of an international law firm then named Dechert, Price, and Rhoads.
But as Graham points out, Libby, who as the vice president's chief of staff had vigorously demanded leak investigations of others, became a victim of his own "boomerang that had come around."
Scooter Libby was not just another lawyer at the defense table anymore. He was in the dock. -- Previous coverage of pre-war intelligence and the CIA leak investigation from Murray Waas. Brian Beutler provided research assistance for this report.
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