Cheney Disclosure Could Serve as Defense for Libby

Vice President Dick Cheney disclosed Wednesday that he has the power to declassify sensitive government information, authority that could set up a criminal defense for his former chief of staff, I. Lewis “Scooter” Libby.

Cheney’s disclosure comes a week after reports that Libby testified under oath that he was authorized by superiors in 2003 to disclose highly sensitive prewar information to reporters. The information, about Iraq and alleged weapons of mass destruction, was used by the Bush administration to bolster its case for invading Iraq.

At the time of Libby’s contacts with reporters in June and July 2003, the administration, including Cheney, who was among the war’s most ardent proponents, faced growing criticism. No weapons of mass destruction had been found, and Bush supporters were anxious to show that he had relied on prewar intelligence projecting a strong threat from such weapons.

When Special Counsel Patrick J. Fitzgerald revealed Libby’s assertions to a grand jury that Libby had been authorized by superiors to spread sensitive information, the prosecutor did not say which superiors.

But in an interview on Fox News Channel, Cheney said there was an executive order that gave the vice president, along with the president, the authority to declassify information.

“I have certainly advocated declassification. I have participated in declassification decisions,” Cheney said, refusing to elaborate.

A legal expert said Cheney’s TV appearance could foreshadow a Libby defense.

Former Whitewater independent counsel Robert Ray said Cheney’s ex-chief of staff could point to authorization from his superiors as part of his strategy at trial.

“If it turns out that Cheney was actively involved in decisions related to the disclosure of a CIA officer’s identity and if the truth of it is that he was orchestrating the disclosure of information to the media, it seems to me that’s a fundamentally different case than one centered around the activities of Libby,” said Ray.

On Oct. 28 of last year, Libby was indicted on five counts of perjury, obstruction and lying to the FBI about how he learned of the identity of undercover CIA officer Valerie Plame and what he told reporters about it.

In July 2003, Plame’s CIA identity was published by columnist Robert Novak eight days after Plame’s husband, former U.S. envoy Joseph C. Wilson IV, accused the administration of twisting prewar intelligence to exaggerate the Iraqi threat. Wilson said it was unlikely that a purported sale of uranium yellowcake by Niger to Iraq in the late 1990s had ever taken place.

A defense that Libby was authorized by superiors to leak sensitive data about Iraq would not appear to provide any help to the former Cheney aide for making false statements.

But some lawyers point out that setting up defenses before a jury involves more than simply constructing legal arguments.

“You’re trying to present a persuasive case that your client should not be found guilty,” said ex-Whitewater prosecutor Ray.