Bush's Final Jeopardy

The latest in a parade of horrors emanating from the Bush administration appeared Thursday in the form of a revelation buried in papers filed in federal court by Special Prosecutor Patrick Fitzgerald in his investigation into the outing of CIA agent Valerie Plame. I. Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, now under indictment on charges of perjury and obstruction of justice, told the Grand Jury Fitzgerald convened that President Bush had -- via Vice President Cheney -- authorized him to disclose selected information from a National Intelligence Estimate (NIE) to New York Times reporter Judith Miller, which he did during a private breakfast meeting at the St. Regis Hotel on July 8, 2003.

On Friday, in a press conference that bore a striking similarity to Abbott and Costello's "Who's on First?" routine, President Bush's spokesman Scott McClellan dutifully responded to reporters' questions about the disclosure. No, the increasingly robotic McClellan said, the White House will not comment on an ongoing case. But, he assured the assembled journalists, the President can declassify whatever he wants, whenever he wants, however he wants. So, McClellan implied, it would have been perfectly legal for the President to have taken this action, which he could not, of course, comment on because this was an ongoing case (and so on).

Thus has begun a debate in our media whose starting questions usually run along the lines of: "Is what the President did legal?" or "Does the President have authority to declassify information at will?" (Given the President's failure to deny Libby's allegation, it has largely been accepted as true.) The answer to those questions has generally been: Yes, the President -- as chief executive -- has the authority to declassify information at will.

But it is not only in the TV game show world of Jeopardy! that the correct answer to a problem depends on the question asked. And, as it happens, those are simply not the right questions.

In order to decide what legal issues arise from a given set of facts -- in other words, in order to frame the right questions -- we first have to determine what the facts are. This is what we know, in summary, about the CIA leak case. We know that Valerie Plame's husband, former ambassador Joseph Wilson had been an extremely painful thorn in the side of the Bush administration long before he wrote the infamous July 6, 2003 New York Times op-ed that Special Prosecutor Fitzgerald described as having been viewed "in the Office of the Vice President as a direct attack on the credibility of the Vice President (and the President) on a matter of signal importance: the rationale for the war in Iraq."

In March of 2003, Wilson had become increasingly vocal in questioning the administration's reasons for war. In a Nation article and a March 2 appearance on CNN, as well as a March 4 panel on Ted Koppel's Nightline, Wilson argued that the White House wanted to invade Iraq, not because of weapons of mass destruction, but because it wanted to redraw the map of the Middle East. Wilson's criticisms coincided with those of David Albright, president of the Institute for Science and International Security, who was questioning the President's false and misleading arguments that aluminum tubes intercepted en route to Iraq had been meant for an Iraqi nuclear program.

Fueling the fire, on March 7, Mohammed El Baradei, the director general of the International Atomic Energy Agency, had flatly declared that there was no evidence the Iraqis were reconstituting a nuclear-weapons program, pointing out that neither the aluminum tubes claim nor the attempted-purchase-of-uranium-in-Niger claim were valid. Indeed, El Baradei explained, the documents relating to an attempted purchase of uranium were obvious forgeries. The next day, a "senior administration official" was quoted in the Washington Post as saying in response to El Baradei's statement, "We fell for it." Then Wilson appeared again on CNN and said, essentially, that the senior administration official was either lying or incompetent because analysts from several different intelligence agencies already knew of the forgeries.