There are several ways that Cheney may unilaterally authorize the leak of classified information, such as the NIE, to unauthorized persons under color of legal authority. In terms of declassifying authority, Cheney may argue that he is a supervisory official of the CIA or that he has power to declassify in the public interest. In terms of disclosing classified information, Cheney may argue that CIA Director Tenet authorized Cheney to disclose the NIE or that he was empowered to disclose classified information in defense of the homeland. The irony is that Cheney may prevail on his claim of authority but he has also opened a Pandora’s box of issues that this administration may not want subjected to public or Congressional scrutiny. For example, does Bush realize that his Executive Order promoted Cheney from Vice President to co-President? And, how may opponents of the NSA illegal spying and other unilateral actions by Bush use this EO to argue that it is unconstitutional and that Bush’s unitary executive theory is truly a farce?
(1) Factual Background
Cheney and then-Deputy National Security Adviser Hadley joined forces in March 2003 to discredit former Ambassador Wilson for publicly criticizing Bush’s case for war. Some of the activities conducted just in the March 2003 time period of this campaign which preceded Bush’s Executive Order include:
–March 2, 2003: In a CNN interview, Wilson stated Iraq war had little to do with terrorism but rather the objective was to redraw the political map of the Middle East. Former UN weapons inspector David Albright made similar comments about the grounds for war, and advocated more time for weapons inspectors to search for WMDs. Cheney was so furious with Albright that he visited the CIA in March 2003, asked CIA officials to “dig up dirt on Albright, and to put together a dossier that would discredit his work that could be distributed to the media.”
–March 8, 2003: In another CNN interview, Wilson stated that the Niger case was “outrageous” and “stupid” and tainted the case that Bush was trying to construct for war.
–March 9, 2003: Cheney chaired a meeting with CIA and State Dept. officials as well as White House officials (Libby, Hadley, Rove and Hannah) and it was decided that Wilson should be discredited.
–March 10, 2003: State Dept. redistributed to newspaper editors a column Hadley wrote in Feb. 2003 about the Iraqi threat and the Niger claim.
–March 16, 2003: Cheney stated on Meet the Press that UN claims that Niger documents were forgeries was “wrong.”
–March 23, 2003: Bush issued Executive Order (EO) 13292 which essentially made Cheney co-president.
Then, according to Libby’s testimony to the Plame grand jury, in the summer of 2003, Cheney and other White House “superiors,” armed with Bush’s EO 13292, authorized Libby to disclose classified information, such as the NIE, to journalists to defend the use of prewar intelligence when citing grounds for war.
Now, Cheney states in an interview with Fox that an executive order provides the vice president with authority to declassify information, although Cheney would not answer whether he had ever acted unilaterally in declassifying information.
(2) Bush’s Establishment of Cheney as Co-President in EO 13292.
Bush’s EO 13292, which modified EOs of prior presidents, sets out the authorities who may classify documents as the President and, “in the performance of executive duties,” the Vice president. [EO 13292, Sec. 1.3(a)] Should Cheney need classification authority beyond the scope of “the performance of executive duties,” it is possible that Bush may delegate additional classification authority to Cheney. Bush’s EO provides for the delegation of original classification authority which “shall be limited to the minimum required to administer this order.” [EO 13292, Sec. 1.3(c)] It is noteworthy that just days after ordering troops into Iraq in March 2003, Bush amended the order to give Cheney the “same classification power as the president.” Prior to Bush’s EO, the “Vice President only had classification authority comparable to that of an agency head.
(3) Cheney’s Unilateral Leaking Powers.
(3.1) Supervisory Declassifier: Bush’s EO provides Cheney with declassifying authority as a supervisory official of the CIA Director.
Under Bush’s EO, the declassifying authority includes the official who authorized the original classification, the successor in office of that official or a supervisory official of either one. [Bush EO, Sec. 6.1(l)]
In terms of the NIE document, the question is whether Cheney is a supervisory official of the original classification authority or the CIA Director. According to the CIA, it now has 3 primary supervisory authorities: Congress, the Executive Branch and the Director of National Intelligence, a position created in 2005. In terms of the Executive Branch, the Vice President is one official who oversees the CIA:
“Both the Congress and the Executive Branch oversee the Central Intelligence Agency’s activities. … In the Executive Branch, the National Security Council–including the President, the Vice President, the Secretary of State, and the Secretary of Defense–provides guidance and direction for national foreign intelligence and counterintelligence activities.”
Unless there are other orders or directives mandating a process to implement this declassification authority as a supervisory official, then Cheney may have the power to unilaterally declassify the NIE or other classified documents where the CIA was the original classifier.
(3.2) The Unilateral Disclosure Loophole.
Even if Cheney were not a supervisory official of the CIA, Bush’s EO provides an easy loophole for disclosing classified information that originated with another agency. Section 4.1(c) provides that “classified information shall remain under the control of the originating agency or its successor in function. An agency shall not disclose information originally classified by another agency without its authorization.” An “agency” is defined as “any `Executive agency,’ as defined in 5 U.S.C. 105; … and any other entity within the executive branch that comes into the possession of classified information.” [Bush EO, 6.1(b)] “Executive agency” means an “Executive department, a Government corporation, and an independent establishment.” Assuming that the Vice President’s office qualifies as an agency, this rule provides that if Cheney’s office is the holder or possessor of a document (NIE) that was classified by a different originating authority (CIA), then Cheney’s office “shall” not disclose the classified information without the CIA’s authorization.
In an administration loaded with power, surrounded in a bubble of loyal political appointees, and excelling at bullying or coercing others to prevail, it would not be hard for Cheney to obtain such authorization. In the case of the NIE leak in 2003, George Tenet was still the CIA Director. Would Tenet give Cheney authorization to disclose the NIE to reporters? A declassified version of the NIE was publicly released 10 days after Libby provided information to Miller. Libby made general statements that the NIE concluded that there was strong evidence about Iraq’s WMD program. Given that Tenet probably knew that at least part of the NIE would be declassified within days and the information Libby provided to Miller was general, it is likely Tenet would provide Cheney with authorization.
(3.3) Cheney’s Authority to Disclose Classified Information In Defense of Homeland.
There are situations where Cheney could disclose classified information to unauthorized recipients yet the disclosure would not constitute declassification. For example, “in an emergency, when necessary to respond to an imminent threat to life or in defense of the homeland, the agency head or any designee may authorize the disclosure of classified information to an individual or individuals who are otherwise not eligible for access.” [EO Sec. 4.2(a)] However, “information disclosed under this provision or implementing directives and procedures shall not be deemed declassified as a result of such disclosure or subsequent use by a recipient.” [EO Sec. 4.2(a)]
Cheney could devise a creative argument, parsing of words and spin to support using this provision to authorize Libby to leak the NIE to reporters in “defense of the homeland.” From the neocon perspective, Wilson’s debunking of the Niger claims would be detrimental to maintaining public support for a war that was necessary to protect America from Saddam’s WMD’s and the unmanned drones that would hit the East Coast with chemical or biological weapons.
However, it is unclear whether Cheney constitutes an “agency head.” On the one hand, “agency” is defined to include “any entity within the executive branch,” including an executive agency or executive department. [Bush EO, 6.1(b)] On the other hand, there are sections of the EO which may be interpreted as indicating that the Vice President is an entity different from an “agency head.” Moreover, Bush’s EO elevated Cheney from the Vice President’s prior status of authority comparable to an agency head.
(3.4) Cheney’s Power to Declassify in the Public Interest.
Bush’s EO also provides declassification authority in “some exceptional cases” when the “need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.” [Sec. 3.1(b)] Once again, the neocon argument would apply here because even if Cheney is not an “agency head,” he certainly would be a “senior agency official.”
(3.5) Original Declassifer not a Likely Authority for Cheney.
The declassifying authority under Bush’s EO includes the original classification authority or the official who originally classified the document. Given that Cheney’s office was not the original classifier of the NIE document, this option can be written off.
4. Cheney may Win this Battle but Lose the War.
Based on this administration’s track record of winning specious arguments and its success with manipulating media, Congress and a good chunk of the public, there is a good chance that Cheney would win any case that argued that he violated the law by authorizing the disclosure of classified information. This is not to say that Cheney has a strong case, only that the political context of living in Orwellian times is a strong factor in his favor. For example, Nixon was subjected to impeachment hearings and forced to resign after he violated laws because his defense that he was acting to protect America from Communists during the Cold War was a dud. Bush engages in similar conduct with a similar defense but with a less formidable enemy than the Soviet Union, and so far he has been successful. Indeed, instead of impeachment, Congress wants to take action to retroactively validate the NSA surveillance and clear Bush of any blame or legal responsibility. The irony is that if Congress absolves Bush of legal responsibility, Congress will be performing the executive function of granting Bush a pardon rather than performing its constitutional function of impeachment. Under these circumstances, Cheney may only need a colorable argument threaded together with ambiguous legal authorities (as well as any yet uncovered additional orders or directives by Bush) and a good public campaign to prevail.
5. Cheney may have Opened Pandora’s Box.
But, Cheney may not win the war. Cheney’s intentional disclosure of his declassifying authority, perhaps unilateral, directed the public’s attention to Bush’s EO, which raises new questions about the Vice President’s role in our government. Is Cheney now a co-president given the expansion of executive powers that Cheney now shares with Bush? How is this sharing of powers with Cheney consistent with Bush’s claims that he has power to unilaterally violate laws and usurp legislative and judicial functions under his unitary executive theory? Wouldn’t a more appropriate name be the bilateral executive? If Bush truly believes in his unitary executive theory, did Bush realize the implications of his EO or did some fast-talking, perhaps smarter, conniving folks bamboozle Bush? What does that say about Bush’s leadership capabilities as our Commander in Chief? Given that the unitary executive theory is the underlying rationale for NSA warrantless spying, rules used in the “war on terror” etc, do opponents of these measures now have more ammunition to challenge Bush’s actions? Is Bush’s EO unconstitutional given that the Constitution provides for a single president? If the Constitution had to be amended to provide the process and rules governing a disabled president, is a constitutional amendment necessary to provide for co-presidents? Cheney may have opened up a whole bevy of issues that this administration would rather not be subject to public or Congressional debate.
Cross posted at Daily Kos, My Left Wing and Patriot Daily.