There are reasonable grounds to believe that Bush did not declassify portions of the NIE prior to Libby leaking the information to Judy Miller. Some in the  MSM appear to jump to the conclusion that if Bush authorized the release of classified information to Miller, then the nature of Bush’s action was a declassification.  However, it may be more likely that Bush simply authorized the disclosure of classified information to Miller, while simultaneously pursuing the regular process of declassification of this same material, which was completed 10 days after the Libby-Miller meeting. Otherwise, the same material would have been declassified twice, a conclusion that may also have been reached by Fitzgerald. This distinction may be significant as the circumstances permitting disclosure would require a rather convoluted spin by the White House to justify, more so than may be the case if Bush’s actions constituted a declassification.

(1)  Fitzgerald’s Legal Documents State Bush “Authorized” Libby To “Disclose” Specified NIE Information To Miller.

The legal document filed by Fitzgerald, who has in the past precisely chosen his words, describes Bush’s action as authority for Libby to “disclose” specified information to NY Times reporter Judy Miller:

“Vice President advised defendant that the President specifically had authorized defendant to disclose certain information in the NIE. Defendant testified that the circumstances of his conversation with reporter Miller – getting approval from the President through the Vice President to discuss material that would be classified but for that approval – were unique in his recollection.”

Libby had requested the advice of Cheney’s legal counsel, David Addington, who indicated that Bush’s permission to “publicly disclose” the NIE “amounted to a declassification of the document.” However, if nothing else, this administration has repeatedly taught the public that we can not trust the legal opinion of its attorneys, who have often stated what they would like the law to be rather than what the law actually is as interpreted by courts or written in the statutes. Moreover, if Bush’s permission constituted declassification, why did the White House pursue a 2nd declassification?

(2)  Did the NIE have to be declassified twice?

The public has been provided few facts. What is known is that a declassified version of the NIE was publicly released on July 18th or 10 days after Libby provided information to Miller on July 8th.  No one at NSC, CIA, or State Dept. was even “aware of any declassification of the NIE prior to July 18, 2003.”

It is also known that declassification is a process which entails paperwork be completed by government officials. However, at the time of Libby’s conversations with Miller and Cooper, Libby believed that only 3 people – Bush, Cheney and Libby – knew that part of the NIE had been “declassified.”  Libby further testified that key Cabinet level officials “were not made aware of the earlier declassification of the NIE “even as those officials were pressed to carry out a declassification of the NIE.”  At this time, Hadley was “active in discussions about the need to declassify and disseminate the NIE.” While Hadley was involved in the declassification process, Libby was “disseminating the NIE by leaking it to reporters while Mr. Hadley sought to get it formally declassified.”  In other words, as Fitzgerald noted, “Hadley was involved in efforts to declassify what Mr. Libby testified had already been declassified.”

It is possible that Bush authorized a limited declassification for Libby’s meeting with Miller on July 8th and then authorized a separate declassification that was different in scope for the general public on July 18th.  It is well known that documents may be declassified in part or in whole, as we have all seen declassified documents that are heavily redacted. It is also well known that the audience or recipients of the declassified document may be limited to one or more people or to the general public. For example, oftentimes the White House declassifies information so that it may brief a limited number of lawmakers but the document remains classified as to the rest of Congress and the general public.

What does not make sense is that if Bush declassified part of the NIE for Miller, it would not constitute a limited audience declassification as it was intended as a leak to a reporter so that it would be published in the New York Times and disseminated to the general public. In other words, under these circumstances, declassification to a limited audience of Miller constituted declassification to the public at large. Therefore, why did the White House declassify the NIE twice, once for Miller and the public, and then a second time for the public again? It could be that the nature of the material that was declassified for Miller on the 8th  was different from the material declassified for the general public on the 18th.  However, Fitzgerald, whom I am assuming knows the nature of the material declassified, stated in the court papers that Hadley was pursuing the declassification process for the same material that Libby had testified had already been declassified.

One explanation is that Bush authorized a disclosure to Miller because the White House wanted to aggressively attack Wilson’s claims and time was of the essence. Then, the White House pursued declassification of the same material to cover-up that it had leaked classified material to a reporter.

A second possibility is that Bush’s permission to leak to Miller constituted a declassification and that the 2nd declassification process with Hadley was a wasted, redundant exercise that was not lawfully required. Then the question is why pursue a 2nd unnecessary declassification? Was it simply a matter of miscommunication? And, why was the whole process kept secret from other administration officials if there was nothing inappropriate about the first declassification by Bush?

If Bush’s permission to leak to Miller was a declassification, then it may be that the 2nd declassification process by Hadley was not lawfully required but politically required to hide Bush’s personal involvement in the leak. After all, the public perception was that this NIE was not declassified until 10 days after the Libby/Miller meeting. If the first declassification had not been revealed by Libby, then the public would not have learned about Bush’s involvement of authorizing a leak, even if the leak was of declassified material. That would enable the White House to claim that no classified material had been leaked. This would also explain why the White House was so secretive about Bush’s declassification of material for Miller. If agencies and officials had been informed of the declassification process, then they may have learned that Bush had already declassified the material, and thus learned of his direct role in the leak of material.

(3)  Bush may have authorized a disclosure to Miller while the White House proceeded simultaneously in the declassification process so that the NIE could be disseminated to the general public 10 days after the Miller meeting.

Another method to lawfully reveal classified information is a disclosure,  but this method does not render the material disclosed declassified. According to Bush’s Executive Order governing classification and declassification, there are situations where, for example, Cheney could disclose classified information to unauthorized recipients yet the authorized 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)]

The problem with a disclosure is that Bush and Cheney would have to defend their actions with convoluted spin and parsing to convince the public that they had used some exemption or exception in the manner intended by declassification rules. For example, Bush and Cheney may argue that they deemed the “threat,” posed by Wilson’s public statements debunking the claim that Iraq sought to purchase uranium from Niger, as a threat to national security. In Bush’s bubble world, attacking the grounds for war was viewed as unpatriotic and tantamount to treason.  After all, he was the commander in chief and the US was at war with Iraq and Afghanistan as well as the “war on terror.” Wilson’s debunking of mythical grounds for war would be seen as “weakening US resolve” which would be harmful to our troops and probably constitute support for the enemy. However, more and more of the public is freeing itself from Bush’s bubble world of parsing and double-talk and may be less likely to buy even the best spin that leaking to the press of a national security issue is justified by an argument of acting in the interest of national security to defend the homeland. And, if Bush’s permission constituted an improper disclosure, then Libby may have leaked classified information to Miller. Another problem will occur if it turns out that Libby leaked Plame’s identity at this meeting as well as the NIE information. If Bush “authorized” the leaking of classified information that is protected by statute (rather than a classified status derived from Bush’s constitutional authority as commander in chief), then Bush’s action would be illegal  — at least until Bush claims that he does not have to follow that law either during a time of war.  

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