Vice

by Lou Dubose

  The man prosecuting Scooter Libby is Patrick Fitzgerald.

  The U.S. attorney in Chicago was a loyal lieutenant in an administration that had declared a war on terror. Fitzgerald convicted Sheikh Omar Abdel Rahman for his role in the 1993 World Trade Center bombings. In June 1998, he handed down a sealed indictment against Osama bin Laden after investigating him and his terrorist network for two years. That same year, he was in Nairobi two days after the bombing of the American embassy there, directing five hundred FBI agents sifting through evidence. Three years later, in federal court in Manhattan, Fitzgerald won convictions against the Nairobi bombers, two of whom were sentenced to death. "His brain was like a computer," Manhattan U.S. attorney Mary Jo White told Vanity Fair. "You had 224 victims, you had lots of al-Qaeda names, Arabic names that sound alike. He could recite these names and knew the links, knew the history. I thought I'd seen everything. . . . But watching him in that case was just head-jerking." Adored by magazine feature writers, who described his workaholic habits, his indifference to the world around him, and his uncanny mind (he keeps his suits, underwear, and socks in his office; once left a pan of lasagna in his oven for three months; memorized entire case files), Fitzgerald was the Bush administration's fed from Central Casting.

  Then he was appointed to investigate them—at which point he became the prosecutor described in an Irish Times headline: "Scary Irish-American." After Bush's first attorney general, John Ashcroft, recused himself, and Assistant Attorney General Patrick Comey appointed Fitzgerald to investigate the criminal betrayal of CIA agent Valerie Plame's name, the scary forty-five-year-old Irish American prosecutor became the administration's worst nightmare. An attorney representing reporters whom Fitzgerald was pressuring for information about Libby said that after just one meeting with the prosecutor, he knew it would be bad for the press. Fitzgerald did put Judith Miller in jail for three months when she refused to reveal her sources. The lawyer said he walked away from his meeting with Fitzgerald realizing that Libby and the vice president were in far greater trouble: "1 don't think these guys had any idea what they are in for."

  Fitzgerald's appointment was another unintended consequence of the excessive and endogamous partisanship of the Bush-Cheney administration. Attorney General John Ashcroft was the only incumbent U.S. senator in U.S. history to lose his seat to a dead man, coming in second after Democratic challenger Mel Carnahan was killed in a plane crash. Ashcroft's one term in the Senate had been fairly unremarkable. But he had been a client of Karl Rove. He was the darling of the extreme Christian right. And he was out of work. For the Bush team, he was a natural choice for AG. And Cheney had eliminated Oklahoma governor Frank Keating, who as AG could have directed the investigation with no "Rove conflict."

  Because Rove had directed Ashcroft's Senate campaign and was also a possible target of the leak investigation, Ashcroft, as they say at the courthouse, was "conflicted out." He was too close to one of the subjects he would be investigating. Once Ashcroft designated his assistant AG to appoint a special investigator, the White House was saddled with Fitzgerald, a prosecutor so dedicated to the law that he's become a cult hero among his peers.

  Fitzgerald deposed and jailed journalists, questioned the president, engaged in a broad and protracted discovery process, and began to follow a testimonial and documentary trail into the Vice President's Office. He became the Javert of the DOJ, following Libby from reporter to reporter and building a case based on what he extracted in what one witness described as "precise and persistent interrogation." In most instances, Fitzgerald knew the answer to the question he would ask each subject he called before the grand jury.

  Fitzgerald's indictment provides a narrative that tells a story and defines a motive. He starts at Bush's sixteen words on January 28 and proceeds to Nicholas Kristof's May 5 column. By May 29, Fitzgerald has Libby on the phone with the State Department inquiring about the trip. On June 9, he has Libby receiving faxed classified documents from the CIA, with "Wilson" noted in Libby's handwriting on one page. On June 11, he finds Undersecretary of State Marc Grossman telling Libby that Wilson's wife works for the CIA. On June 11, the CIA advises Libby that Wilson's wife works at the agency. On June 12, the vice president appears on the crime scene, telling Libby that Wilson's wife works for the CIA in the Counterproliferation Division, information Cheney has gotten out of the CIA. On June 14, Libby is meeting with his CIA briefer, discussing Joe Wilson and his wife, Valerie Wilson.

  Fitzgerald's detailed indictment also tracks Libby to a long meeting with New York Times reporter Judith Miller at the St. Regis Hotel—a Washington institution a few blocks from the White House. The St. Regis meeting occurred two days after Wilson's op-ed ran. When asked by the FBI and later under oath, Libby says he first learned about Valerie Wilson's CIA status from "reporters." He says he told each reporter he spoke to that he heard about Valerie Wilson "from reporters." Fitzgerald's investigation, however, established that Libby was working official government sources from his office in the White House. Based on Libby's response, Fitzgerald makes a prosecutorial decision that will make 2007 a difficult year for Scooter Libby and Dick Cheney. Rather than prosecute him under the Intelligence Identities Protection Act, Fitzgerald puts Libby in a very small box. He charges him with perjury and obstruction of justice.

  Behind the narrative is a clear motive. Cheney, according to one CIA source, was furious when he learned that the CIA had revealed the Niger documents as a forgery, because they were "the very core" of his argument for war in Iraq. Further fueling the vice president's anger was the man the agency sent out to investigate the story: Joe Wilson, a flamboyant Francophile and a Democrat. And the timing, just as American troops in Iraq were finding there were no weapons of mass destruction of any kind, made a bad moment for the vice president even worse. For the White House, the story of the 2004 campaign could not be about missing weapons of mass destruction. Scooter Libby went after Valerie Plame Wilson.

  Trying to get to the bottom of what essentially was an act of treason committed in the White House, Fitzgerald relentlessly worked the paper trail that led to the Vice President's Office. Two years and six months into the investigation, the persistent U.S. attorney from Chicago walked into the clerk's office in the E. Barrett Prettyman Courthouse and filed a piece of evidence that literally bore the fingerprints of the vice president—an original clipping of Joe Wilson's New York Times op-ed piece of July 6, 2003. Written in the margin are pointed questions about Wilson's mission to Iraq and his wife's role at the CIA. The handwriting—on the wall as well as on the op-ed page of the Times—is Dick Cheney's. "Have they done this sort of thing before?" Cheney wrote. "Send an Amb. to answer a question. Do we ordinarily send people out to do pro bono work for us? Or did his wife send him on a junket?" The annotation places Cheney at the center of the campaign to discredit Wilson, aware early on that Wilson's wife was a CIA agent.

  Judge Reginald Walton is a Republican. George W. Bush appointed him to the District Court bench in Washington, D.C. He's one of the party's African American stars, first brought to Washington to work in the White House by George Bush the elder. Unfortunately for Scooter Libby and Dick Cheney, Reggie Walton is a hardass when it comes to criminals. A trim man with a sprinkling of gray in his hair, an intense and focused face, and a dry, sometimes witty demeanor, he has yielded little ground to Libby's attorneys. In a pretrial hearing in May, Libby sat taking notes as Walton refused to order the State Department and CIA to turn over documents to the defense team. He repeatedly reminded Libby's attorneys that the case is about perjury and obstruction of justice. His standard for what is relevant in the trial was clearly defined in one reply to the defense counsel:

  "I just don't see how that helps the jury decide whether Mr. Libby lied. . . ."

  Speaking from the bench in the stark, cavernous courthouse, the judge also spelled out what the case is not about:

  "I'm not willing to let this case end up to be a judicial resolution on the war or the state
ments the president made."

  Yet when the trial begins in January, the court of public opinion will be focused on the issue Judge Walton promises not to put on trial. The subtext has become the text. It is evident that Dick Cheney was made aware of Wilson's findings in Niger. Yet he and others at the CIA and on the White House staff allowed the president to utter those sixteen words— which were put to the lie by Joe Wilson's fifteen-hundred words in The New York Times.

  When the criminal case is done with, Scooter Libby will again be compelled to answer the same questions Fitzgerald is asking. In July, Joseph Wilson and Valerie Plame filed suit, naming Dick Cheney, Scooter Libby, Karl Rove, and ten unnamed defendants in a suit that makes the same charges Fitzgerald did. Fitzgerald, in fact, had done much of the leg-work for Wilson and Plame, providing through his criminal investigation pretrial "discovery" that would have cost Wilson and Plame hundreds of thousands of dollars. Their suit was filed in the E. Barrett Prettyman Courthouse on Judiciary Square in Washington.

  Scooter Libby can be pardoned. The president can plead ignorance. Dick Cheney cannot. He knew when he decided to take the country into war that there was no real evidence Iraq was buying uranium from Niger. As secretary of defense in the first Gulf War, he presided over the bombing of all the suspected nuclear weapons facilities in Iraq, each one identified with precise targeting coordinates. He knew that U.N. inspectors had been all over the country. He knew that German and French intelligence services had concluded there were no nuclear weapons in Iraq. And he knew that the CIA had concluded there were no nuclear weapons in Iraq. Yet he sent American soldiers into what has turned out to be a prolonged, failed, and unpopular war, with a cost that will exceed $300 billion and the death or disfigurement of tens of thousands of Americans and Iraqis.

  His justification for doing so was a handful of forged documents that he knew were bullshit.

  EPILOGUE

  In a hotel restaurant at Pentagon City, a retired general wears a grimace on his face as he speaks. "The Army is broken," he says. "It will take decades to fix." He had seen the first Gulf War up close, watching Dick Cheney and Colin Powell ensure that there were adequate forces deployed before they commenced hostilities. He knew the vice president when Cheney was secretary of defense.

  "It was different then," he says. "The staffs were apolitical. And the military was taken care of. If we made a mistake, we did no irreparable harm. Cheney now seems oblivious to what the military needs. That's because he trusts Rumsfeld. . . .

  "So we have an army that is broken. The DOD is broken. And the process is broken. Rumsfeld has left us with the smallest army since 1941. First time in the history of the country that we haven't surged up the Army in time of war. We have never not surged up the Army in time of war. They can't recruit. So we redeploy, and redeploy, and redeploy, and break down the Army.

  "They're not surging up, and they're burning through equipment in Iraq." Dick Cheney and Donald Rumsfeld have done, he says, "irreparable harm" to the Army.

  Across the river in Foggy Bottom, Larry Wilkerson makes a similar argument. "They have gone through so much equipment in Iraq," Wilkerson says. He argues that the real test the military faces will not be on a foreign battlefield, but in Washington. "The first challenge," he says, "is going to be the reconstitution bill that will confront the next president. I mean bringing the ground forces, and to a certain extent the Air Force, back to levels pre-Iraq. They have burned up Abrams tanks, Humvees, wheeled vehicles, five-tons, eight-tons, Apache helicopters, Chinook helicopters, all very expensive hardware, at a rate which is astronomical." This will all be left for the next Congress to repair. Wilkerson also believes recruiting an army after this war is going to be very difficult.

  Another institution that will be in need of repair when Dick Cheney and George W. Bush return to the private sector is the CIA. The vice president's visits to the agency's Langley, Virginia, headquarters in the run-up to the Iraq War, accompanied by his chief of staff, Scooter Libby, and others from the OVP, will adversely affect the agency's ability to provide accurate intelligence for decades.

  Former CIA analyst Mel Goodman, who spent twenty-five years at the agency, says the damage is lasting, if not permanent. "The CIA is a brittle bureaucracy, fragile as any other," he says. "It's now broken."

  "In the history of the agency, I've never heard of a vice president making specific demands of analysts," says a former deputy director of the agency. "It's never occurred. It's without precedent." It will, he says, change the way the CIA functions. Analysts and supervisors are bureaucrats, sensitive to the complaint that bureaucracies are unresponsive.

  He shares Goodman's concerns. "The mere fact that [Cheney and Libby] were out there will generate in the bureaucracy—and the CIA is a bureaucracy—a sort of thinking that says 'Gee, can we make them happy, can we continue to satisfy them?' That's not the sort of thinking you want in any intelligence agency."

  The agency, he says, already had morale and organizational problems. The damage didn't end with the visits to Langley, but continued through the outing of CIA agent Valerie Plame Wilson and the appointment of Porter Goss as director of the agency.

  An impaired intelligence agency and an impaired military are the contradictory legacy of the Bush-Cheney administration. Contradictory if only because Bush described himself as a "war president" who would fix the intelligence system that failed the nation on September 11, 2001. Yet the problems are identifiable, and they can be fixed—if a president and a Congress can summon the political courage and imagination to address them.

  Over coffee at the University Club a few blocks from the White House, constitutional lawyer Bruce Fein has a lot to say about the assault under way on the safeguards America's founders created to keep the nation free. Fein has been around the block a few times in Washington. He has argued cases before the Supreme Court, so he understands the importance of saying all that needs to be said while the clock is running. On this particular morning he is speaking at a Gilbert-and-Sullivanesque pace, trope after pressurized trope, delivering a magisterial defense of a Constitution under attack by Vice President Dick Cheney.

  "Dick Cheney exercises all the powers of the presidency," Fein says. "He has great contempt for Congress. You can get pretty cynical about Congress. Some of these people are yahoos. But that's not the point. You don't have to be brilliant to provide the checks and balances. You just need the constant questioning, the restraint."

  Fein dismisses Cheney's argument that Congress overreached when it requested the names of participants in his energy task force meetings. "Bogus" and "Specious," he says. He's equally dismissive of the administration's defense of its warrantless wiretapping. "This is a crime," Fein states flatly. "FISA says if you operate or undertake electronic surveillance on American citizens, it's illegal. They don't need to do this to spy on al-Qaeda outside the country. It's not necessary. . . . The president could have asked for changes in FISA. They've amended it five times. . . . The important thing is to get the constitutional issues right. These are crimes against the constitutional architecture."

  Fein doesn't expect Congress to set things right. "Congress is too philosophically ignorant to know how much of their power is being usurped," he says. He also sees the current congressional majority as accommodating the president because they belong to the same party. "They don't think about the future. The destiny of the nation is too long-term for them." After spending almost half of the last century in the minority, the Republican majorities in both houses of Congress reached a tacit agreement with the executive branch: Congress surrendered much of its constitutional authority to the president in exchange for partisan political dominance. It's particularly unfortunate that they did so on the eve of a terrorist attack that has made fear a political campaign tool.

  Waiving away the waiter, Fein continues to describe the larger and more lasting structural damage done by the vice president—damage to the Constitution and the system of government it has defined for two hun
dred and thirty years. In the decade that followed Watergate, the Congress reasserted the authority vested in it by the Framers and redefined constitutional limits for an executive branch that refused to recognize them. It did so in response to a very evident constitutional crisis. What the vice president refers to as "the post-9/11 world" has delivered the country into another, although still largely invisible, constitutional crisis—in this case, an executive branch that has very low regard for the Bill of Rights, or for the Congress.

  Whether the Democrats can take control of Congress, and, should they do so, whether they would somehow find the vision and political courage to confront the current constitutional crisis, are questions that, unfortunately, address our last best hope. The account of Ben Franklin emerging from the Pennsylvania State House after the ratification of the Constitution has been told so many times it is now a part of our received historical wisdom. As the story has it, a woman in the crowd gathered on the Philadelphia street shouted out to Franklin: "What sort of government have you given us?"

  Franklin's reply was brief:

  "A republic, if you can keep it."

  The intersection of Dick Cheney, a supine Republican Congress, and four commercial jetliners transformed into terrorist weapons give Ben Franklin's response a currency it has not had since the Civil War.

  25 QUESTIONS FOR DICK CHENEY

  1. Why was your energy task force reviewing maps of Iraqi oilfields in 2001, two years prior to the Iraq War, while Iraq oil was embargoed?