Murray Waas has a new article up at the National Journal regarding Scooter Libby and his defense strategy. As the recently released case documents indicate, Libby is trying to pull an Ollie North by claiming Dick Cheney gave him the okay to release parts of the then-classified National Intelligence Estimate to journalists in order to buck up the Administration's case for war. (He does not, however, appear to be claiming that Big Time told him to out Plame.)
Whether it was legal for Cheney to declassify these documents or not for purely propaganda purposes is for legal experts preferably not named Victoria Toensig to debate. Given the fact that Cheney and Libby knew as of June 17, 2003 that the Niger uranium claims were bunk and Libby began this crusade with Judy Miller anyway on June 23, the service to which these documents were put remain safely outside of "ethical" territory.
But more interesting is the graymail question that arises. Libby has hired John Cline, one of North's attorneys who helped keep Ollie out of the clink:
Among his detractors, Cline is what is known as a "graymail" specialist-an attorney who, critics say, purposely makes onerous demands on the federal government to disclose classified information in the course of defending his clients, in an effort to force the government to dismiss the charges. Although Cline declined to be interviewed for this story, he has said that the use of classified information is necessary in assuring that defendants are accorded due process and receive fair trials.So assuming the judge decides Libby is entitled to any of this, who is it that decides what gets handed over? That is a very good question:
In the Libby case, Cline has frustrated prosecutors by demanding, as part of pretrial discovery, more than 10 months of the President's Daily Brief, or PDBs, the president's morning intelligence briefing. The reports are among the most highly classified documents in government, not only because they often contain sensitive intelligence and methods, but also because they indicate what the president and policy makers consider to be the most pressing national security threats. In the past, the Bush administration has defied bipartisan requests from the Intelligence committees in Congress to turn over PDBs for review.
Is it possible that a prosecution of Libby might be impeded or even derailed entirely by the refusal of the Bush White House or its Justice Department to declassify information that might be necessary to try Libby? "Under the current statute, it may well be the attorney general's call-or whomever he designates-to ultimately decide what should be declassified, and what might not be, in the Libby case," said Michael Bromwich, a former associate Iran-Contra independent counsel and a former Justice Department inspector general.People who have been following this particular soap opera know that in the fall of 2003 John Ashcroft recused himself from the Plame investigation because of conflicts of interest and turned all his powers in the matter over to his then-deputy James Comey. Comey appointed Fitzgerald only to lock horns with the administration over the NSA wiretaps and other matters and finally resigned last year. Abu Gonzales likewise recused himself from the matter shortly after being sworn in. Despite BushCo.'s best efforts to put croneys Timothy "Tyco" Flanagan and David McCallum into the Fitzgerald supervision business, Comey did an end run around all of them and delegated his powers to the ethical, non-crony David Margolis on his way out the door.
Redd says that the DoJ handbook is not clear as to whether Abu's recusal would also mean that his hands would be off any decision to declassify material. I really just cannot imagine that we live in a world where he would not at the very least argue that this is a different matter and thus not a decision Margolis should be making. Nonetheless Abu has already acknowledged his conflict of interest in the case when he recused himself, and by any ethical standards he has an admitted bias that should force him to step back and let Margolis handle it. Not that he will, mind you. But he certainly should.