Hubris

by Michael Isikoff

  The conversation prompted Eckenrode to think: Wow, this is one serious prosecutor.

  Don’t go down this road, Pat.

  —FLOYD ABRAMS, FIRST AMENDMENT LAWYER

  18

  The Prosecutor Versus the Press

  WHEN DEPUTY Attorney General Comey compared Pat Fitzgerald to Eliot Ness of The Untouchables fame, he wasn’t joking. The forty-three-year-old prosecutor had gotten his job as U.S. attorney because a Republican senator had been looking for a no-nonsense, nonpolitical crime fighter. As Illinois’s only Republican senator in 2001, Peter Fitzgerald (no relation) had the opportunity to recommend to the White House a candidate for the important and much coveted U.S. attorney post in Chicago. Peter Fitzgerald had never heard of Patrick Fitzgerald. But the senator wanted an outsider. He wanted somebody who—like Ness, the incorruptible revenue agent dispatched to clean up the Al Capone mob—would be beholden to nobody in Chicago and willing to take on the state’s perennially corrupt political establishment.

  The senator called around, looking for the best assistant U.S. attorney in the country. Both FBI Director Louis Freeh and Mary Jo White, the Clinton-appointed U.S. attorney in New York, gave him the same answer: Patrick Fitzgerald. The senator interviewed the prosecutor, and his search was over. “You could just see, without question, he was an incredible straight shooter, a real straight arrow,” the senator recalled.

  Not everyone wanted the prosecutor from New York. House Speaker Dennis Hastert was an old ally of the state’s former Republican governor George Ryan (who was already under investigation by the U.S. attorney’s office that Fitzgerald had been chosen to head). Hastert didn’t want an outsider for the state’s most sensitive prosecutorial post; he had his own candidate from inside Illinois. He complained to the White House. But Senator Fitzgerald by custom had the prerogative, and the Chicago media were in his corner on this issue. Patrick Fitzgerald got the nod. Months later, though, when Senator Fitzgerald was meeting with Karl Rove about another U.S. attorney selection in the state, the White House political adviser started yelling at him about the Patrick Fitzgerald pick. You got great headlines for yourself, Rove told him, but you ticked off the base.

  PATRICK FITZGERALD, as Senator Fitzgerald saw him, was “straight from central casting.” He grew up in Brooklyn, the son of two Irish immigrants. His father was a doorman at a ritzy apartment building on Manhattan’s Upper East Side. He went to Amherst and studied math and economics. He was, his friends recalled, a brilliant problem solver with a phenomenal memory. Six feet two and over 200 pounds, he was an avid rugby player. After graduating Harvard Law, Fitzgerald entered private practice, got bored, and joined the U.S. attorney’s office in New York. He soon developed a reputation as an aggressive, methodical investigator with plenty of patience and not much taste for compromise.

  He put behind bars big-time heroin dealers, Mafia capos (including John Gambino), and a group of Islamic terrorists, including the radical blind cleric Omar Abdel-Rahman, for conspiring to blow up the World Trade Center and other New York City landmarks. His colleagues marveled at his ability to master the small details of a case and weave them into a larger narrative that made sense to a jury. They also ribbed him for his eccentric bachelor ways; once he accidentally left a lasagna in the oven for three months.

  Following his conviction of the blind sheik in 1995, Fitzgerald focused on the little-noticed activities of an obscure Saudi financier named Osama bin Laden. Fitzgerald spent years tracking bin Laden, flying overseas with FBI agents to gather evidence and question witnesses. By the spring of 1998, Fitzgerald had filed the first sealed indictment against bin Laden—for conspiracy to attack U.S. military facilities. And Fitzgerald became known as the Justice Department’s premier expert on al-Qaeda. In the spring of 2001, he convicted the bin Laden operatives who had bombed two U.S. embassies in Africa. As a safety precaution, he did not receive personal mail at his home.

  When he arrived in Chicago, Fitzgerald declared he was neither a Democrat nor a Republican. He declared himself an independent—and then proved it. He launched a wide-ranging probe into hiring practices at City Hall, a frontal attack on the Democratic organization of Chicago Mayor Richard Daley. And days before Comey handed him the CIA leak case, Fitzgerald filed a ninety-one-page indictment against the GOP ex-governor George Ryan on corruption charges.

  He had one of the biggest and most significant caseloads in the nation and worked legendarily long hours, occasionally spending the night on a pullout sofa in his office. “Do I have zeal? Yes, I don’t pretend I don’t,” Fitzgerald once told an interviewer. “As a prosecutor, you have two roles: Show judgment as to what to go after and how to go after it. But also, once you do that, to be zealous. And if you’re not zealous, you shouldn’t have the job.”

  His track record wasn’t perfect; critics pointed to an excess of zeal, particularly in one case: Fitzgerald’s pursuit of two large Chicago-area Islamic charities, the Global Relief Foundation and Benevolence International Foundation. Not long after he took over the Chicago U.S. attorney’s office in mid-2001, Fitzgerald launched a criminal investigation of both groups, suspecting they had been funneling money to al-Qaeda. In late December 2001, FBI agents raided the offices of both charities, and the groups’ assets were frozen. The charities were forced to shut down. But Fitzgerald wasn’t able to bring terrorism-related charges against either. The 9/11 Commission later concluded that the U.S. government’s treatment of the two charities “raises substantial civil liberties concerns”—an implicit slap at Fitzgerald.

  But Fitzgerald came to believe that his Global Relief case had fizzled because it had been compromised—by the media. The day before the raid on Global Relief, New York Times reporter Philip Shenon had called the charity and asked about an impending law enforcement action. Fitzgerald and the FBI were convinced charity officials, in response to Shenon’s call, had removed incriminating documents from the premises. So Fitzgerald launched a new investigation to find the source who had tipped off the Times. On August 7, 2002, he sent the Times a letter, asking to question Shenon about his sources and to inspect the reporter’s phone records. “We believe,” Fitzgerald wrote, “that freedom of the press neither protects the potentially criminal conduct of the government source in sharing this information with Mr. Shenon nor countenances Mr. Shenon’s decision to relay that information privately to the subject of the search.”

  The Times turned Fitzgerald down. In the paper’s response, Times lawyer George Freeman argued that the First Amendment “protects us from having to divulge confidential source information to the Government.” But officials and editors at the paper worried that Fitzgerald wouldn’t accept this far-from-certain legal point, and they were right.

  Fitzgerald kept digging, and, thanks to secret national security wiretaps on the charity and testimony from charity officials, he eventually pieced together the story: Shenon had been tipped off to the Global Relief raid not by a government source but by a Times colleague, Judy Miller. Fitzgerald also had transcripts of a phone call made by Miller to the officials of another Islamic charity under government surveillance, the Holy Land Foundation, shortly before the FBI raided its offices. Someone in the U.S. government, Fitzgerald assumed, was leaking sensitive law enforcement information to Miller.

  In the summer of 2003, Fitzgerald stopped by the office of Mark Corallo, the chief of public affairs at the Justice Department. Fitzgerald wanted to subpoena the phone records of Shenon and Miller. (Under department guidelines, subpoenas for news media records first had to be approved by Corallo, who turned down most of them.) Fitzgerald explained the case to Corallo. The public affairs chief feared that subpoenaing the Times would create a firestorm. “We were already being accused by the ACLU and our critics of creating a secret police force through the PATRIOT Act, and now we were going to be seen as trampling on the First Amendment,” he later said. Ashcroft would get pummeled. And the evidence to justify the subpoena would have to be kept secret. Corallo was appalled t
hat the Times might have tipped off a terror target. He asked Fitzgerald to do more work and figure out if there was a way “that part of the story could be told.”

  Fitzgerald agreed. Months later, he was still actively pursuing the case, determined to find Miller’s source, when he sat down with Jack Eckenrode and began plotting out the CIA leak investigation.

  THE president’s speechwriters had a challenge. It was mid-January 2004, and they were drafting the annual State of the Union speech. The troubles in Iraq weren’t letting up, but the Baathist regime had been destroyed, Saddam had been captured, and an interim government was forming. There was enough material to work with for a section in which the president could proclaim progress.

  But what to say about Iraq’s nonexistent weapons of mass destruction? Saddam’s WMDs had been the president’s public rationale for war. The speechwriters bandied different ideas about. One writer suggested using the past tense; have the president say Saddam had WMDs. After all, he had—in the 1980s. But this time, the NSC wasn’t going to allow them any liberties. They were told to stick exactly to the language David Kay had used when he had presented his interim report three months earlier. So in his State of the Union addresss on January 20, 2004, Bush said of Iraq’s weapons, “We’re seeking all the facts. Already, the Kay Report identified dozens of weapons of mass destruction–related program activities.”*73

  A week later, Kay offered a far more honest and memorable line.

  He was back in the United States, having just resigned from the Iraq Survey Group. (In November, General John Abizaid, who had replaced Tommy Franks as head of Central Command, tried to change the mission of Kay’s Iraq Survey Group to include counterinsurgency work. Kay resisted, and when he lost the fight he quit the ISG post.) Testifying before the Senate armed services committee on January 28, with only four lines of hand-scrawled talking points, Kay told the panel, “We were almost all wrong—and I certainly include myself here.” The WMDs weren’t hidden; they hadn’t been produced in the first place. Despite Kay’s sweeping statement, not everybody had misjudged Saddam’s capabilities. Some intelligence analysts and UN inspectors, particularly those who questioned the nuclear claims, had gotten important parts of the story right. In any event, Kay said an independent commission was needed to investigate the Iraq intelligence failure. But his testimony made it seem as though the WMD debate was all but over.†4

  Kay’s blunt words produced anguish among some members of Congress. Democratic Senator Bill Nelson, a former astronaut from Florida, was especially upset by one aspect of Kay’s testimony: that he had found no evidence supporting the administration’s prewar claim that Iraq had unmanned drones that could attack the United States with chemical or biological weapons. In an angry speech on the Senate floor that day, Nelson noted that he had attended classified briefings in which “I was looked at straight in the face and told that UAVs could be launched from ships off the Atlantic coast to attack eastern seaboard cities of the United States.” He was “given that information as if it were fact,” Nelson said, and it had influenced his decision to vote for the war. Now he was learning it was not true and that Air Force intelligence had disagreed with that assessment. (The Air Force dissent had been in the National Intelligence Estimate, which few senators had read.) “We need some answers,” Nelson demanded.

  The next day Kay met with Bush at the White House. Cheney, Rice, and Card were there, too. This time—unlike at Kay’s previous meeting with Bush in July—the president asked a lot of questions: How did we get it wrong? What had Saddam been up to? Kay went through the whole Curveball disaster. Cheney, who was present, had no questions for him. (Days earlier, Cheney had insisted the trailers found in Iraq were definitely bioweapons labs.) Discussing Kay’s findings, Bush showed no anger. He didn’t ask Kay, could you be wrong? “The president accepted it,” Kay recalled. “There was no sign of disappointment from Bush. He was at peace with his decision to go to war. I don’t think he ever lost ten minutes of sleep over the failure to find WMDs.”*74

  THE CIA director, though, was feeling defensive. On February 5, 2004, Tenet gave a speech at Georgetown University on “something important to our nation and central to our future: how the United States intelligence community evaluated Iraq’s weapons of mass destruction programs.” He had two main points to make: U.S. intelligence had not gotten it all wrong and the CIA had not distorted its findings to enable a White House hell-bent on war.

  Tenet started off by declaring that intelligence is not a black-and-white business: “In the intelligence business, you are almost never completely wrong or completely right. That applies in full to the question of Saddam’s weapons of mass destruction.” He conceded only a few mistakes. The agency, he said, “may have overestimated” the progress Iraq had made toward developing a nuclear weapon. (He noted the NIE had contained dissents related to Iraq’s nuclear weapons program—but he failed to mention WINPAC’s aggressive promotion of the aluminum tubes and Niger allegations.) The CIA, he reported, was “finding discrepancies” in some of the claims made by its human sources about the mobile bioweapons labs but had been unable to “resolve the differences.” This was a watered-down reference to the Curveball mess.*75 As for chemical weapons, he claimed more time was needed to search for them.

  Tenet now made points he hadn’t emphasized before the war. The NIE had said Iraq possessed weapons of mass destruction, but, he noted, the analysts who had written it “never said there was an ‘imminent’ threat.” And the analysts had “painted an objective assessment…of a brutal dictator who was continuing his efforts to deceive and build programs that might constantly surprise us and threaten our interests.” It was “an estimate,” he said—not a firm and hard conclusion.

  Tenet also referred—for the first time in public—to “sensitive reports” that had come from a source who “had direct access to Saddam and his inner circle.” That source, he said, had insisted Saddam was “aggressively and covertly” developing a nuclear weapon, “stockpiling chemical weapons,” but only “dabbling” with biological weapons with limited success.

  This source, whom Tenet didn’t identify, was Naji Sabri, the Iraqi foreign minister who had passed word to CIA Paris station chief Bill Murray that Saddam had nothing like the weapons capability that the Bush administration was claiming. But Tenet in his speech inflated what Sabri had said, according to Tyler Drumheller, the European Division chief of the CIA’s Directorate of Operations.

  Drumheller had handled Murray’s reporting on Sabri, and he had drafted several paragraphs on the Sabri operation for Tenet’s speech. But Tenet and his speechwriters had changed Drumheller’s proposed language, Drumheller later said. Drumheller had written, in his view, a more precise account of what Sabri had actually told the CIA: that Saddam had talked about pursuing a nuclear weapons research program but was far from developing a weapon and that he had given up on maintaining chemical weapons, dispersing what was left of his arsenal to provincial political leaders. Drumheller didn’t think Tenet was lying. The director was “parsing the language” to “maintain some level of respectability,” Drumheller said. “He was spinning.”

  Tenet was implicitly saying, We did our job; if you don’t like the results, talk to the White House. Tenet and McLaughlin may have even believed this. About the time of the speech, a senior CIA official subsequently recalled, “McLaughlin said to me, ‘For the want of a few adverbs and adjectives we would have been fine.’ He said to me, ‘It’s not an intelligence failure.’ I said to him, ‘What is it, a success?’ He didn’t have much of a response.”

  AFTER devouring Eckenrode’s collection of 302s on New Year’s Eve, Patrick Fitzgerald moved quickly on the CIA leak case. In mid-January, he requested records from the White House, including documents and e-mails relating to any conversations aides had had with reporters about Joseph Wilson.

  On January 14, Fitzgerald arrived at the law offices of Swidler Berlin to interview Robert Novak. Thanks to Eckenrode’s efforts, the pr
osecutor had in hand three waivers. One was signed by Armitage, one by Rove, and one by Bill Harlow, the CIA spokesman. This was everyone Novak had spoken to for his column. This created, as Novak later wrote, a “dilemma.” Like other journalists, he considered these waivers to be meaningless. But his lawyer, James Hamilton, had told Novak that he would have little chance of prevailing in court if he didn’t answer Fitzgerald’s question.

  This was the crunch time for Novak. In October, Eckenrode had not pushed Novak to disclose his sources. Now Fitzgerald wanted the columnist to name names. And Novak did. As Novak subsequently wrote years later, “I answered questions using the names of Rove, Harlow and my primary source”—meaning Armitage. Six weeks later Novak would testify before Fitzgerald’s grand jury.

  FITZGERALD not only needed to know the identity of the leakers; he had to determine if there had been a violation of the Intelligence Identities Protection Act, a poorly drafted law that established several hard-to-prove criteria. There were other legal issues, too. Another law, the Espionage Act, could be read to cover the leak of classified information—though prosecutors had never used the law in a case like this. Conspiracy charges could be a possibility—and that might cover both the leakers and their colleagues or superiors.

  Fitzgerald also expanded the scope of his investigation. He got Comey to write him a new letter (which wasn’t made public at the time) that clarified he had the authority to investigate not just any underlying crimes connected to the leak but perjury, obstruction of justice, the destruction of evidence, and related crimes.