Hubris

by Michael Isikoff

  With only three weeks to go to the election, the public was unaware that Rove was suspected by Fitzgerald of having lied to the grand jury to hide his role in the CIA leak.

  ON NOVEMBER 2, 2004, Bush was reelected, capturing 51 percent of the popular vote to Kerry’s 48 percent. The Republicans strengthened their hold over both houses of Congress. There had been no blowups in the CIA leak case. And Bush’s selling of the war hadn’t come back to haunt him. A Newsweek poll taken the week before the election found that 43 percent of Americans—a large bloc but not a majority—thought that Bush and his administration had purposefully misled the public about the prewar intelligence and the case for invading Iraq. According to a Harris poll, 46 percent believed that “what we were told by the government before the war about weapons of mass destruction and links to al Qaeda” was “misleading.” By election day, almost half of America had concluded that Bush had falsified his argument for war—but a slight percentage more believed he had acted in good faith.

  Two days later, a buoyant Bush held a White House press conference and declared, “I earned capital in the campaign, political capital, and now I intend to spend it. It is my style.”

  Less than two weeks after Bush’s reelection, Colin Powell resigned. Bush quickly picked Condoleezza Rice to be his next secretary of state.

  ON DECEMBER 14, 2004, Bush staged an extraordinary ceremony at the White House to present the Presidential Medal of Freedom, the country’s highest civilian honor, to three architects of the Iraq enterprise: Tenet, Franks, and Bremer. Bush kidded and teased the CIA director for having the “demeanor of a longshoreman” and for chewing on unlit cigars. He credited Tenet as being “one of the first to recognize and address the threat to America from radical terrorist networks.” He praised the CIA’s role in the war in Afghanistan and its efforts to dismantle the leadership of al-Qaeda. He made no mention of the prewar intelligence on Iraq. A few days before the ceremony, it had been reported that Tenet had signed a $4 million contract to write a “candid” account of his tenure as CIA director. There was immediate speculation that Tenet would use the book to blame the White House for the Iraq WMD debacle. Not long after the ceremony, Tenet decided to postpone the book. He explained that he needed more time to do the research and “to gain the necessary perspective.” He didn’t yet know what he wanted to say.

  FITZGERALD’S investigation moved relentlessly forward, as he zeroed in on the reporters he wanted as witnesses. On December 8, a three-judge federal appeals court panel heard oral arguments regarding The New York Times’ and Time magazine’s appeals of the contempt orders issued against Judy Miller and Matt Cooper. The large hurdle facing the news organizations became apparent when Judge David Sentelle, a cantankerous conservative, interrupted Floyd Abrams and demanded to know how this case differed from Branzburg, the 1972 Supreme Court ruling that reporters have no privilege to refuse to testify in criminal investigations. When Abrams didn’t offer a satisfactory answer, Sentelle grew testy. “If there’s an answer to my question, I’d love to hear it,” the judge snapped. “I take it you don’t have one since you haven’t advanced it yet, given three, four, or five opportunities.”

  When Cooper interviewed Bush in the White House that month, the president cracked, “Cooper! I thought you’d be in jail by now.” Cooper replied, “What can I say, Mr. President. The wheels of justice grind slowly.”

  FOR the Bush White House, the WMD controversy was done. In January 2005, the Iraq Survey Group shut down for good. At a press briefing, reporters pressed McClellan to respond to this finale. “If the information about WMDs is wrong, as we all agree now, is there no consequence?” one asked. Bush’s “focus,” McClellan replied, “is on helping to support those in the region who want to move forward.” Days later, Washington Post reporters interviewed Bush aboard Air Force One. “In Iraq,” they said, “there’s been a steady stream of surprises. We weren’t welcomed as liberators, as Vice President Cheney had talked about. We haven’t found the weapons of mass destruction as predicted. The postwar process hasn’t gone as well as some had hoped. Why hasn’t anyone been held accountable, either through firings or demotions, for what some people see as mistakes or misjudgments?” Bush brushed aside the suggestion that anyone had to be held responsible: “Well, we had an accountability moment, and that’s called the 2004 election.” On January 20, during his second inaugural address, Bush proclaimed that America’s security depended upon advancing “liberty in other lands.” He did not utter the word “Iraq.”

  Ten days later, millions of Iraqis participated in the first post-Saddam election. The violence in recent weeks had been discouraging. The governor of Baghdad had been assassinated. A helicopter crash and insurgent attacks had resulted in thirty-seven dead American troops in one day. But the election was a stirring moment—an optimistic one—with Iraqis leaving polling places and brandishing a purple finger that showed they had voted. The images of smiling Iraqi women in black abayas emerging from polling booths was heartening. When Bush delivered his 2005 State of the Union speech three days later, some members of Congress held up fingers that had been dyed purple.

  ON FEBRUARY 15, 2005, Fitzgerald won a key victory. The appeals court panel ruled three to nothing that Miller and Cooper had to testify or face jail. “There is no First Amendment privilege protecting the evidence sought,” the majority opinion stated. In a concurring opinion, Judge David Tatel, a Clinton appointee, cited the fact that forty-nine states and the District of Columbia offered some protection to reporter-source confidentiality (though no federal law did so). Tatel stated that he believed in a “balancing test” to determine whether a reporter should be forced to disclose his or her sources. There were cases when leaks of even classified information produced important public benefits that justified protecting confidential sources, he wrote. (He cited as one example the prize-winning series cowritten by Miller that had alerted New York Times readers to the threat from al-Qaeda months before the September 11 attacks.) But in ten redacted pages, Tatel discussed the secret grand jury evidence that Fitzgerald had presented to the court to demonstrate his need for the two reporters’ testimony. Although the public—and the lawyers for the news organizations—couldn’t read these pages, Tatel concluded that this secret evidence showed that in this case the balance was in the prosecutor’s favor. The leak of Valerie Wilson’s identity had “marginal news value,” he wrote, and compelling the reporters to identify their sources was “essential” to “remedying a serious breach of the public trust.”*83

  The Times and Time announced they would appeal the decision to the Supreme Court.

  The prospect of imprisonment transformed Miller into a First Amendment crusader. The Times reporter, whose reporting on Iraq had caused so much controversy, struck a defiant note. “I have to be willing to go to prison,” Miller told CNN. “I think the principles at stake in this case are so important to the functioning of a free press and to the confidentiality of sources that I just have to be willing to do that.” Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, observed, “This has rehabilitated her image a bit.”†6

  Though the Times—Miller, Sulzberger, and Keller—displayed a united front in public as advocates for media rights, cracks were forming. Miller didn’t trust Keller after the May 2004 editor’s note questioning her WMD-related reporting. She worried he wouldn’t want to identify the paper fully with a reporter accused of having helped the Bush White House. And a few weeks earlier, she had retained her own lawyer, Robert Bennett, one of Washington’s premier criminal defense attorneys, whose clients had included Bill Clinton in the Paula Jones case and Caspar Weinberger during the Iran-contra affair. (Matt Mallow, a corporate lawyer and friend, had pushed Miller to retain her own counsel, arguing that Floyd Abrams and the Times’ in-house lawyers were being paid by Sulzberger, not her.) “I don’t want to represent a principle,” Bennett told her when he was hired. “I want to represent Judy Miller.” During their first m
eeting, he had explained to her that not only could she be cited for civil contempt for refusing to cooperate with Fitzgerald, she could face a criminal contempt charge and a prison sentence of five years. She had walked out of the meeting terrified, wondering if the Times and she shared all the same interests.

  For his part, Cooper seemed no more eager to play the crusader. After the appeals court panel ruled against him and Miller, he said, “You’d have to be catatonic not to be unsettled by the prospect of a jail sentence. Great career move? I had a pretty good career already.”*84

  BUSH’S commission on WMD intelligence concluded its investigation at the end of March and released a 692-page report. Its overall finding was no news flash: “the Intelligence Community was dead wrong in almost all of its pre-war judgments about Iraq’s weapons of mass destruction. This was a major intelligence failure.” The commission warned that the “harm done to American credibility by our all too public intelligence failings in Iraq will take years to undo.” It reported that intelligence analysts who had handled WMD issues had told the commission they hadn’t been directly pressured to “skew or alter any of their analytical judgments.” But, the panel added, “it is hard to deny that intelligence analysts worked in an environment that did not encourage skepticism about the conventional wisdom.”

  As had the Senate intelligence committee, Bush’s commission, cochaired by Judge Laurence Silberman, a Republican, and former Senator Chuck Robb, a Democrat, ignored a key issue: whether Bush and his aides had overstated and misrepresented the intelligence they had received from the intelligence agencies. The commission noted in a footnote:

  There is a separate issue of how policymakers used the intelligence they were given and how they reflected it in their presentations to Congress and the public. That issue is not within our charter and we therefore did not consider it nor do we express a view on it.

  The war was two years old, and no official body in Washington had yet examined how Bush and his aides had used the intelligence. The commission hadn’t even interviewed Bush or Cheney during its fourteen-month investigation.

  IN IRAQ, it was another bloody spring. In May, about 600 Iraqi civilians and 250 Iraqi police officers and soldiers were killed in car bombings, suicide bombings, and attacks. Responding to this rise in violence, the new Iraqi government launched a major counterinsurgency campaign in Baghdad, employing 40,000 Iraqi troops. As this effort was under way, the police chief of Basra admitted he had lost control of three quarters of his officers and that sectarian militias had infiltrated his force and their loyalists were using these posts to assassinate opponents. The intense pitch of insurgent and sectarian attacks continued into June.

  Vice President Cheney, though, saw grounds for optimism. “The level of activity that we see today from a military standpoint, I think, will clearly decline,” he said on Larry King Live. “I think they’re in the last throes, if you will, of the insurgency.”

  THE final showdown in the CIA leak case began on June 27, 2005, when the Supreme Court, without any comment, declined to consider the appeal filed by The New York Times and Time to Judge Hogan’s contempt order. Responding to the Supreme Court action, Sulzberger noted that Miller was honor-bound not to disclose her source.

  At a hearing two days later, Judge Hogan gave Miller and Cooper one week to comply—or face the consequences. Hogan also told lawyers for Time Inc. that he was prepared to impose large fines on the company if Time didn’t turn over Cooper’s notes and e-mails. When one of Time’s lawyers, Theodore Boutrous, said the magazine was “grappling with” what to do, Fitzgerald shot back, “I don’t understand what Time can deliberate about. They don’t have a right to break the law. We shouldn’t allow people to think court orders are sort of optional.”

  Fitzgerald had a point. Time was owned by a publicly traded corporation (Time Warner). If it defied a court order—and that would cost the corporation lots of money—the corporate parent could face repercussions from federal regulators and its own shareholders. The decision about what to do was left with Norm Pearlstine, Time Inc.’s editor in chief.

  The next day, after much agonizing, Pearlstine decided to turn over Cooper’s notes to Fitzgerald. “I found myself really coming to the conclusion that once the Supreme Court has spoken in a case involving national security and a grand jury, we are not above the law,” he said to explain his decision. Sulzberger told the Associated Press that he was “deeply disappointed” by Pearlstine’s decision.*85

  Among the materials Time gave to Fitzgerald was Matt Cooper’s e-mail showing that Karl Rove had been his source about Valerie Wilson’s employment at the CIA.

  THAT week, Newsweek reporter Michael Isikoff was working the CIA leak story. He had been told by several sources that Rove was the unidentified Bush administration official Cooper was protecting—and that the subpoenaed Time e-mails would show that conclusively. Late on the afternoon of June 29, Isikoff e-mailed Rove. He told him he planned to report this and asked for his comment.

  A few hours later, Robert Luskin, Rove’s attorney, called Isikoff on his cell phone. He professed that Rove had nothing to worry about. His client, Luskin once again said, had fully cooperated with Fitzgerald and was not a target in the investigation. “Karl has never knowingly disclosed classified information,” he remarked. “Karl did not tell any reporter that Valerie Plame worked for the CIA.”

  But Isikoff pressed Luskin. He told the lawyer he had sources assuring him that Rove was identified in Cooper’s e-mails. How did Luskin account for that? Had Rove spoken to Cooper that week or not? Luskin dodged this question a bit; then he acknowledged—first on background, later on the record—that Rove indeed had a brief call with Cooper. But the lawyer claimed that all Rove had said to Cooper was that Time shouldn’t get too far out on the Wilson story and that Tenet was going to be putting out a statement on the Niger matter that afternoon. That was it, merely a helpful heads-up, according to Luskin.

  This was a partial breakthrough in the story: Rove had talked to Cooper. But it was short of what Isikoff had been told by other sources—that Rove had provided Cooper the key information about Wilson’s wife. The story that Isikoff ended up writing was toned down. When it came to Rove, his editors wanted to be careful. The piece reported only that Rove had been “one of the sources” for Cooper’s article. It quoted Luskin as denying that Rove had disclosed anything to Cooper about Valerie Wilson. But the story did quote another lawyer for a White House official saying there was “concern” among Bush aides about Fitzgerald’s focus on Rove.

  The story prompted reporters to start pushing Luskin, and Rove’s lawyer responded by spinning away. To a Washington Post reporter, he said, “Who outed this woman?…It wasn’t Karl.” To the Los Angeles Times, he called the Newsweek account “70 percent wrong” and added, “I state categorically that my client did not disclose Valerie Plame’s identity to Matt Cooper or anyone else.” He told The Wall Street Journal that Rove had not asked any reporter to treat him as a confidential source regarding Valerie Wilson and “if Matt Cooper is going to jail to protect a source, it’s not Karl he’s protecting.”

  Luskin’s comment to The Wall Street Journal appeared on July 6, 2005, the day Cooper and Miller were scheduled to be sentenced to jail. (Time had handed over Cooper’s e-mails, but Fitzgerald still needed Cooper’s testimony about them—and Cooper was still standing on principle.) That morning, Richard Sauber, Cooper’s lawyer, read the Journal article with great interest. He was on his way back from a family vacation in Alaska, switching planes in Chicago, so he could be in the courtroom in Washington at 2 P.M. for the hearing before Hogan. As he fixated on Luskin’s quote, he thought he saw an opening—but he knew he had to move fast.

  Cooper so far had showed no sign of wavering, but he was torn. “Nobody knew what Matt would do,” one of his editors later said. Cooper and his wife, Mandy Grunwald, a Democratic political consultant who was the daughter of a venerated Time editor, had a six-year-old son. He wanted to do the ri
ght thing as a journalist, Sauber later said, but he understandably had no interest in becoming an inmate. Just in case, Sauber had recently arranged for a prison consultant to brief Cooper on how to prepare for jail: how he should handle himself with other prisoners, how and when to make eye contact, how to avoid becoming a target.

  From the airport in Chicago, Sauber called his client. Cooper hadn’t accepted the general waiver that Rove and other White House officials had been compelled to sign. But, Sauber told Cooper, if Luskin was willing to say to Sauber what he had told the Journal, that could be considered a “personal” waiver. Sauber quickly called Luskin, and Luskin said he would have to check with his client.

  A frenzied series of phone calls ensued. Luskin called Rove, Fitzgerald, and then Sauber. And shortly after 12:30 P.M., Sauber faxed to Luskin a proposed statement that Rove “affirms his waiver of any claim of confidentiality he may have concerning any conversation he may have had with Matthew Cooper of Time Magazine during the month of July 2003.”

  In authorizing his lawyer to accept the statement, Rove wasn’t acting out of compassion for Cooper’s plight. Anytime in the past year, he could have called Cooper—or had Luskin call Sauber—and spared the reporter his agony. But once Sauber made the request, Rove had little choice. Asking Cooper to stay silent could be construed as obstruction of justice by Fitzgerald.

  Ninety minutes later, Cooper and Miller were in Courtroom 8 in the federal courthouse. Standing before Judge Hogan, Miller read a statement. “If journalists cannot be trusted to guarantee confidentiality,” she said, “then journalists cannot function and there cannot be a free press.” She called her refusal to testify “an act of civil disobedience.” Hogan was unmoved. “I have a person in front of me who is defying the law.” He ordered her sent to jail. She was taken into custody by three court officers. Shackles were placed on her hands and feet, and she was driven to the Alexandria Detention Center in Virginia. As she passed the U.S. Capitol and other government buildings—where she had roamed as a reporter—she thought, “My God, how did it come to this?”