Obama Continues to Move Further Away From Promise of Transparency

(The Intelligence Daily) -- The Obama administration continues to back away from its grand promises of transparency and open government by using legal arguments virtually identical to those made by Justice Department lawyers working under George W. Bush to block the release of critical documents.

In two separate cases this week, Obama’s Justice Department provided additional reasons for refusing to turning over documents to civil liberties and government watchdog groups.

In the first case, Obama’s Justice Department expanded upon its legal rationale Wednesday as to why it won't turn over a copy of a May 2004 transcript of Dick Cheney’s interview with Patrick Fitzgerald, the special prosecutor appointed to probe the leak of covert CIA operative Valerie Plame Wilson. [For the definitive account on this issue please read Marcy Wheeler's excellent analysis.]

And on Thursday, after several delays, the Justice Department said it would not release until the end of the summer a CIA inspector general’s report that was believed to have been sharply critical of the Bush administration’s torture program. Even then, the Justice Department said, there is no guarantee that any part of the report would be declassified.

In the case involving Cheney’s interview with Fitzgerald, Lanny Breuer, the Assistant Attorney General of the DOJ’s Criminal Division, said in a declaration (which begins on page 11 of the court filing) that releasing the transcript would deter future White House officials from cooperating with investigations, even those conducted by independent counsels.

“The Department of Justice believes that there is a reasonable probability of future law enforcement investigations by the Department of Justice that will require and benefit from obtaining information from White House officials, possibly at the highest level of government,” Breuer’s declaration states. “In any such investigation, it will be important that White House officials be able to provide law enforcement officials with a full account of relevant events...

“Baseless, partisan allegations that, easily could be investigated and dismissed through voluntary interviews now may have to be investigated through the specter of the grand jury process. In addition, if law enforcement interviews are routinely subject to public disclosure, there could be a significant risk of politicization of law enforcement files and investigations, which could undermine the integrity and effectiveness of, and public confidence in, those investigations.”

Late last month, during a court hearing in the case, Justice Department attorney Jeffrey Smith made a similar argument. He 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.”

The Justice Department's latest court filing includes a separate declaration by David J. Barron, the Acting Assistant Attorney General in the DOJ’s Office of Legal Counsel, explaining the topics Fitzgerald discussed with Cheney.

Additionally,  it had long been understood that Fitzgerald interviewed Cheney was in June 2004. But according to another declaration in the Justice Department filing, the interview is believed to have taken place on May 8, 2004, more than a month before Bush was interviewed by Fitzgerald, according to a description of the subjects discussed during Cheney’s interview.

According to the Justice Department’s filing [P.20], the topics discussed included:

• The Vice President’s discussion of the substance of a conversation he had with the Director of the CIA [George Tenet] concerning the decision to send Ambassador [Joseph] Wilson on a fact-finding mission to Niger in 2002.
• The Vice President’s discussion of his requests for information from the CIA relating to reported efforts by Iraqi officials to purchase uranium from Niger.
• The Vice President’s recollection of the substance of his discussions with the National Security Advisor [Condoleezza Rice] while she was on a trip to Africa.
• Vice President's description of government deliberations, including discussions between the Vice President and the Deputy National Security Advisor [Stephen Hadley], in preparation of a statement by the Director of CIA regarding the accuracy of a statement in the President's 2003 State of the Union Address.
• Vice President's recollection of discussions with Lewis Libby, the White House Communications Director [Dan Bartlett], and the White House Chief of Staff [Andrew Card] regarding the appropriate response to media inquiries about the source of the disclosure of Valerie Plame Wilson's identity as a CIA employee.
• Vice President's description of his role in resolving disputes about whether to declassify certain information.
• Vice President's description of government deliberations involving senior officials regarding whether to declassify portions of the October 2002 National Intelligence Estimate.
• Description of a confidential conversation between the Vice President and the President, and description of an apparent communication between the Vice President and the President.
• Names of non-governmental third-parties and details of their extraneous interactions with the Vice President.
• Name of a CIA briefer.
• Names of FBI agents.
• Names of foreign government and liaison services.
• The name of a covert CIA employee.
• The methods CIA uses to assess and evaluate intelligence and inform policy makers.

Melanie Sloan, the executive director of the government watchdog group Citizens for Responsibility and Ethics in Washington, who filed a Freedom of Information Act request to obtain a copy of the report, said Breuer’s reasons for withholding the document does not make sense.

“It is astonishing that a top Department of Justice political appointee is suggesting other high-level appointees are unlikely to cooperate with legitimate law enforcement investigations. What is wrong with this picture?” Sloan said.

Additionally, Breuer fails to take into account that that Fitzgerald, the special prosecutor appointed to investigate the Plame leak, told the chairman of a congressional committee last year  that the interviews he conducted with Bush and Cheney in 2004 were not protected by grand jury secrecy rules.

Moreover, Fitzgerald said that in his capacity as special counsel he did not enter into a pre-arranged agreement with the White House to keep secret Bush and Cheney's interview transcripts.

"I can advise you that as to any interviews of either the President or Vice President not protected by the rules of grand jury secrecy, there were no "agreements, conditions and understandings between the Office of Special Counsel or the Federal Bureau of Investigation" and either the President or Vice President "regarding the conduct and use of the interview or interviews," said Fitzgerald's July 3 letter addressed to Henry Waxman, then-Democratic chairman of the he House Oversight and Government Reform Committee.

Last year, the Justice Department told CREW in a letter that it was not turning over Cheney’s interview transcript because it contained information that was classified under the National Security Act. Obama's Justice Department makes that same argument and includes a declaration from Ralph S, DiMaio, the CIA’s Information Review Officer, Clandestine Service, who said releasing Cheney’s transcript, at least certain portions of it, could damage national security because it contains information about intelligence gathering methods and sources that is classified. [P. 25]

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.

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 continuing the battle to keep the Cheney transcript secret, the Obama administration has again chosen to oppose releasing evidence of Bush-era misconduct.

In a separate case, Obama’s Justice Department told a federal court judge on Thursday that it will not be able to determine whether any part of a 200-page report prepared by the agency's inspector general that called into question the legality of the Bush administration's torture program can be publicly released until the end of the summer, the time when the agency expects to complete it's review.

The announcement was made following several delays in the long-running court case between the CIA and the American Civil Liberties Union. The ACLU filed a Freedom of Information Act lawsuit to gain access to the report and other documents related to the treatment of prisoners in U.S. custody in Iraq and Afghanistan.

The Justice Department, acting on behalf of the CIA, previously told U.S. District Court Judge Alvin Hellerstein that the agency would turn over a reprocessed version of the report on June 19. The CIA then requested two extensions – to June 26 and then July 1.

"The Report poses unique processing issues,” the Justice Department said in a letter Thursday. “It is over 200 pages long and contains a comprehensive summary and review of the CIA's detention and interrogation program.

"The Report touches upon the information contained in virtually all of the remaining 318 documents remanded for further review. Although the Government has endeavored in good faith to complete the review of the Special Review Report first, as we have gone through the process, we have determined that prioritizing the Report is simply untenable."

“In this instance, we have determined that the only practicable approach is to first complete the review of the remaining 318 documents, and then apply the withholding determinations made with respect to the information in those documents to the Special Review Report... One month into that process, we have concluded that we must review all of the documents together, and that the review will take until August 31, 2009.” 


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