In another case of protecting Bush administration secrets, Barack Obama’s Justice Department is opposing the release of a transcript of Vice President Dick Cheney explaining his role in blowing the cover of CIA officer Valerie Plame Wilson in 2003 while the White House was seeking to discredit her husband, a critic of the Iraq invasion.
Justice Department attorney Jeffrey Smith told a federal judge that release of the transcript might open Cheney to ridicule from late-night comics and thus could discourage other White House officials from cooperating with government prosecutors.
"If we become a fact-finder for political enemies, they aren't going to cooperate," Smith said during a Thursday court hearing. "I don't want a future Vice President to say, 'I'm not going to cooperate with you because I don't want to be fodder for The Daily Show.'"
When asked by U.S. District Court Judge Emmet Sullivan whether the Obama administration was standing behind the refusal of George W. Bush’s Justice Department to release the transcript, Smith answered, “This has been vetted by the leadership offices. ... This is a department position.”
Both President Bush and Vice President Cheney were questioned in June 2004 by special prosecutor Patrick Fitzgerald about their knowledge of how and why senior administration officials, including top White House aides, were spreading the word about Plame’s covert CIA identity in mid-2003 while trying to undermine Plame’s husband, former U.S. Ambassador Joseph Wilson.
In the months after the March 2003 invasion of Iraq, Wilson emerged as the first Washington insider to claim that the Bush administration had “twisted” intelligence – specifically claims that Iraq was seeking uranium from Africa – to justify the U.S.-led preemptive war.
Though Wilson was right about the bogus uranium story, the White House organized a public relations campaign to damage Wilson’s reputation by contending that a fact-finding trip that he made to Africa in 2002 to investigate the uranium issue for the CIA was a junket arranged by his CIA wife.
In pushing that argument, senior administration officials exposed Plame’s clandestine work as a counter-proliferation expert operating under highly sensitive “non-official cover.” Plame’s identity was first revealed in an article by right-wing columnist Robert Novak on July 14, 2003.
With Plame’s cover blown and her espionage career destroyed, the CIA complained that the leak may have been a violation of a federal law protecting the identities of undercover CIA officers. That prompted a parade of senior White House officials who claimed not to know about the leak.
Leading the way was Bush, who announced his determination to get to the bottom of the matter.
“If there is a leak out of my administration, I want to know who it is,” Bush said on Sept. 30, 2003. “I want to know the truth. If anybody has got any information inside our administration or outside our administration, it would be helpful if they came forward with the information so we can find out whether or not these allegations are true.”
Yet, even as Bush was professing his curiosity and calling for anyone with information to step forward, he was withholding the fact that he had been part of the get-Wilson operation by authorizing the declassification of some secrets about the uranium issue and by ordering Cheney to arrange for those secrets to be given to reporters.
In other words, though Bush knew a great deal about how the anti-Wilson scheme got started – since he was involved in starting it – he uttered misleading public statements to conceal the White House role.
That prompted similar denials from White House political adviser Karl Rove and Vice President Cheney’s chief of staff I. Lewis Libby. However, it later became clear that Rove and Libby had a hand in the Plame leak and that Bush and Cheney had helped organize the campaign to disparage Wilson.
In June 2004, Fitzgerald interviewed Cheney. A couple of weeks later, he also interviewed Bush.
Fitzgerald indicted Libby in October 2005 and secured his conviction in March 2007 on four counts of perjury and obstruction of justice.
In closing arguments, Libby's attorney, Theodore Wells, told jurors that Fitzgerald had been trying to build a case of conspiracy against the Vice President and Libby and that the prosecution believed Libby may have lied to federal investigators and to a grand jury to protect Cheney.
"Now, I think the government, through its questions, really tried to put a cloud over Vice President Cheney," Wells said.
Rebutting Wells, Fitzgerald told jurors: "You know what? [Wells] said something here that we're trying to put a cloud on the Vice President. We'll talk straight. There is a cloud over the Vice President. He sent Libby off to [meet with New York Times reporter] Judith Miller at the St. Regis Hotel. At that meeting - the two-hour meeting - the defendant talked about the wife [Plame]. We didn't put that cloud there. That cloud remains because the defendant obstructed justice and lied about what happened."
Libby received a two-and-a-half year prison sentence but it was commuted by Bush. Fitzgerald chose not to pursue prosecutions of other figures in the case, never explaining why.
When Congress sought the transcripts of the Bush and Cheney interviews, Bush’s Justice Department refused to provide them on executive privilege grounds and because of a speculative concern that future White House officials might balk at cooperating with criminal inquiries.
"I am greatly concerned about the chilling effect that compliance with the [House Oversight] Committee's subpoena would have on future White House deliberations and White House cooperation with future Justice Department investigations," Attorney General Michael Mukasey wrote in 2008.
In a letter sent to the government watchdog group Citizens of Responsibility and Ethics in Washington (CREW), which had filed a Freedom of Information Act request to gain access to Cheney’s transcript, the Justice Department’s Office of Legal Counsel said the documents have been withheld, in part, because they contain classified information.
The OLC, which was then headed by Stephen Bradbury who is under investigation for his role in approving the use of torture techniques, also claimed that the records were protected because they were part of a law-enforcement process and their release "could reasonably be expected to interfere with enforcement proceedings" by discouraging future cooperation with criminal investigations.
But Judge Sullivan said Bradbury was not qualified to make such an unsupported argument about whether a top official might balk at cooperation out of fear of the future release of a document.
“Bradbury’s a political appointee; I don’t know what his experience was,” Sullivan said. “It’s just an assumption this man makes. He didn’t talk to the Vice President.”
Sullivan also said Bradbury's argument was moot because criminal proceedings in the CIA leak case have ended. Sullivan then demanded the Justice Department provide him with a copy of the transcript along with accompanying notes so he can evaluate the Justice Department’s position.
In continuing the battle to keep the Cheney transcript secret, the Obama administration has again chosen to oppose releasing evidence of Bush-era misconduct. Though Obama did release four OLC memos rationalizing torture in April, he has since sided with the Bush administration in withholding photos of abused detainees and documents related to the CIA’s destruction of 92 videotapes recording the treatment of two “high-value” prisoners.
This also is not the first time Obama's Justice Department has backed the Bush administration's position on issues related to the CIA leak case.
One day after Obama was sworn in — as he was signing executive orders ushering in what he called a new era of government openness – the Justice Department quietly filed a motion in federal court to dismiss a long-running lawsuit that sought to force the Bush administration to recover as many as 15 million missing White House e-mails, including some from Cheney's office that Special Counsel Fitzgerald had subpoenaed in connection with the leak of Plame’s identity.
Last Thursday, the government watchdog group Citizens for Responsibility and Ethics (CREW) in Washington revealed in newly released documents that the e-mails from Cheney's office went missing right around the time the Bush White House faced a deadline for turning over the e-mails to Fitzgerald in accordance with a grand jury subpoena.
In May, the Obama administration also sought the dismissal of a Supreme Court petition that Valerie Plame and Joseph Wilson filed after a lower court dismissed their civil suit against Cheney and other Bush administration officials for violating her civil rights by leaking her identity to the media. Obama's Justice Department argued that Plame-Wilson has no legitimate ground to sue.
Obama's Justice Department further argued that Ambassador Wilson failed to prove that he was harmed by the attacks he endured from Cheney and others for accusing the Bush administration of twisting prewar Iraq intelligence.
Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.
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This story was published on June 22, 2009.