Former Vice President Dick Cheney speaks to service members at Balad Air Base, Iraq, in March 2008. (Photo: army.mil)
A federal court judge ordered the Justice Department Thursday to release portions of an interview transcript between former Vice President Dick Cheney and the special prosecutor assigned to investigate the leak of covert CIA operative Valerie Plame Wilson and the role Bush administration officials played in her outing six years ago.
US District Court Judge Emmet Sullivan rejected arguments by Obama Justice Department appointees that releasing the transcript would discourage future vice presidents from cooperating with criminal investigations because their words could become "fodder for The Daily Show."
At a federal court hearing in July, Jeffrey Smith, an attorney in the Justice Department's Civil Division, argued that the transcript of Cheney's 2004 interview with special prosecutor Patrick Fitzgerald about the CIA leak should remain secret for as long as ten more years to protect Cheney from any political embarrassment that would result from the transcript being released.
"Any attempt to predict the harm that disclosure of these records could have ... is therefore inherently, incurably speculative," Sullivan wrote in his ruling. "Accordingly, the Court concludes that DOJ has failed to meet its burden of demonstrating that the records were properly withheld."
Sullivan, however, did agree that the Justice Department can keep under wraps, on national security grounds, statements Cheney had made to Fitzgerald about declassification discussions he had with George W. Bush, conversations Cheney had with former CIA Director George Tenet about Ambassador Joseph Wilson's February 2002 trip to Niger to investigate allegations that Iraq was seeking to purchase yellowcake uranium, discussions surrounding the 16 words in Bush's January 2003 State of the Union address that asserted Iraq had attempted to purchase the uranium, talks between Cheney and then National Security Adviser Condoleezza Rice and conversations between Cheney and other Bush officials about how to respond to media inquiries about the Plame Wilson leak.
Court papers filed by Obama's Justice Department in July revealed that Bush and Cheney were in contact about the scandal, including what is described as "a confidential conversation" and "an apparent communication between the Vice President and the President."
That court filing also revealed that Fitzgerald questioned Cheney about his participation in the decision to declassify parts of a 2002 National Intelligence Estimate regarding Iraq's alleged WMD. It ultimately fell to Bush to clear selected parts of the NIE so they could be leaked as part of the White House campaign to disparage Wilson.
"Judge Sullivan rightly rejected a Justice Department interpretation of the [Freedom of Information Act] that would have allowed the government to withhold virtually any law enforcement record even where an investigation has long since been concluded," said Melanie Sloan, executive director of the government watchdog group Citizens For Ethics and Responsibility in Washington (CREW). The case stems from a FOIA lawsuit filed last year by CREW.
"We are disappointed, however, that the judge allowed DOJ to withhold portions of some records because the American people deserve to know the truth about the role the vice president played in exposing Mrs. Wilson's covert identity. High-level government officials should not be permitted to hide their misconduct from public view," Sloan added.
A Justice Department spokesman said Sullivan's ruling is under review. Unless the Obama administration decides to appeal, the public may learn additional details about Cheney's role in the leak of Plame Wilson's covert identity by October 9, the deadline Sullivan gave the Justice Department to release a redacted version of Cheney's interview transcript.
Senior Bush administration officials disclosed Plame Wilson's identity to several journalists in June and July of 2003 amid White House efforts to discredit her husband, Ambassador Joseph Wilson, for challenging Bush's use of bogus intelligence to justify invading Iraq.
Plame Wilson's CIA employment was revealed in a July 14, 2003, article by the late right-wing columnist Robert Novak, effectively destroying her career. Two months later, a CIA complaint to the Justice Department sparked a criminal probe into the identity of the leakers.
Initially, Bush professed not to know anything about the matter, and several of his senior aides, including political adviser Karl Rove and the vice president's chief of staff I. Lewis Libby, followed suit.
However, it later became clear that Rove and Libby had a hand in the Plame leak and that Bush and Cheney had helped organize a campaign to disparage Wilson by giving critical information to friendly journalists.
On June 24, 2004, Bush was interviewed by Fitzgerald for 70 minutes about the Plame leak. The only other member of the Bush team in the room during the meeting was Jim Sharp, the private lawyer that Bush hired, according to a press briefing by then-press secretary Scott McClellan.
"The President ... was pleased to do his part to help the investigation move forward," McClellan said. "No one wants to get to the bottom of this matter more than the President of the United States."
A couple of weeks earlier, Cheney had been interviewed by Fitzgerald. Cheney retained a private attorney, Terrence O'Donnell, to represent him in the matter.
Fitzgerald's criminal investigation led to Libby's indictment in October 2005 and his subsequent conviction in March 2007 on four counts of perjury and obstruction of justice, which Bush later commuted.
During closing arguments at Libby's trial, Cheney was implicated in the leak, as Fitzgerald acknowledged that Cheney was intimately involved in the scandal and may have told Libby to leak Plame's status to the media.
Fitzgerald told jurors that his investigation into the true nature of the vice president's involvement was impeded because Libby obstructed justice.
Libby's attorney, Theodore Wells, told jurors during his closing arguments 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."
Moreover, copies of Cheney's handwritten notes also appeared to implicate Bush in the leak case.
Cheney's notes, which were introduced as evidence during Libby's trial, called into question the truthfulness of Bush's vehement denials about having prior knowledge of the sub rosa campaign against Wilson.
In an October 2003 note to then-press secretary McClellan, Cheney demanded that the press office add Libby to a list of White House officials being cleared of any role in the Plame leak.
"Not going to protect one staffer + sacrifice the guy that was asked to stick his head in the meat grinder because of incompetence of others," Cheney wrote. However, the note revealed that Cheney had originally written "this Pres" before crossing that out and using the passive tense "that was."
In other words, the original version suggested that Bush had asked Libby "to stick his head in the meat grinder," an apparent reference to dealing with the Washington press corps.
Last year, Congressman Henry Waxman, then the chairman of the House Oversight and Government Reform Committee, revealed in a letter sent to Attorney General Michael Mukasey that, according to FBI transcripts given to Waxman's committee, Libby told federal investigators that Cheney might have told him to leak Plame's CIA ties to reporters.
"In his interview with the FBI, Mr. Libby stated that it was 'possible' that Vice President Cheney instructed him to disseminate information about Ambassador Wilson's wife to the press. This is a significant revelation and, if true, a serious matter. It cannot be responsibly investigated without access to the Vice President's FBI interview," Waxman wrote.