I hate saying “I told you so”, but I told you so.
HERE.
and
HERE.
And I raised a flag about Scott McClellan “shouting fire” about the NIE and other classified documents…
HERE.
And now we have confirmation — Cheney apparently declassified highly confidential CIA documents (without the president’s knowlege(?)) to Scooter Libby on July 12, 2003 as another Fitzgerald filing reveals.
Now, the media (and I’m sure other diaries on the blogs) will be telling us all that it is now inconceivable that Cheney did not also instruct Libby to leak Plames name — given the context.
However, I think there may be a bigger — more concrete issue — that we can hang Cheney on.
IS HE LEGALLY ALLOWED TO DECLASSIFY?
As I noted in my previous diaries, Cheney has publicly stated during the Brit Hume interview in February, 2006, that he does indeed believe that he has authority to declassify:
Q Let me ask you another question. Is it your view that a Vice President has the authority to declassify information?
THE VICE PRESIDENT: There is an executive order to that effect.
Q There is.
THE VICE PRESIDENT: Yes.
Q Have you done it?
THE VICE PRESIDENT: Well, I’ve certainly advocated declassification and participated in declassification decisions. The executive order —
Q You ever done it unilaterally?
THE VICE PRESIDENT: I don’t want to get into that. There is an executive order that specifies who has classification authority, and obviously focuses first and foremost on the President, but also includes the Vice President.
The executive order he refers to is EO 13292. The Bush administration passed this ammendment in, get this, March 25, 2003! Days after the Iraq invasion began. It has been stated that this EO makes the Vice President a “co-president” in terms of classifying / declassifying information. Surprisingly (or not) nothing much has been written in the corporate media about these new powers.
Now, along comes this new development. It definitely gives fuel to my suspicions of whether Cheney’s authority to declassify is real or not. It also fuels my suspicions as to whether the President, the other day, is indeed lying about declassifying the NIE.
Here’s what the National Journal has to say about this new development:
Vice President Dick Cheney directed his then-chief of staff, I. Lewis “Scooter” Libby, on July 12, 2003 to leak to the media portions of a then-highly classified CIA report that Cheney hoped would undermine the credibility of former Ambassador Joseph C. Wilson, a critic of the Bush administration’s Iraq policy, according to Libby’s grand jury testimony in the CIA leak case and sources who have read the classified report.
…
The new disclosure about the CIA report further raises questions about the vice president’s role in directly authorizing the leak of classified information outside the formal declassification process. Last week it was reported that Libby also testified to the grand jury that Cheney told him that as part of the effort to rebut Wilson’s criticism, President Bush had authorized the leaking of portions of a then-classified National Intelligence Estimate concerning purported attempts by Iraq to develop nuclear weapons.
The Bush administration has asserted that presidents have the constitutional right to declassify information. Although vice presidents haven’t shared such authority, President Bush issued an executive order in March 2003 allowing Cheney to share such authority with him. According to Fitzgerald’s April 5 filing, Libby has also testified that in July 2003, then-Counsel to the Vice President David Addington “opined that Presidential authorization to publicly disclose a document amount to a declassification of the document.”
Jeffrey Smith, a former general counsel for the CIA, said in an interview, however, that while there are executive orders that apparently allow the vice president “on his own to determine what to declassify and to whom,” that authority should “not exempt him or anyone from exercising prudence or good judgment” in doing so. “You would want the president or the vice president to seek the views of the CIA or any other intelligence agencies… to make sure that there is no potential disclosing an intelligence source” or some other sensitive information.
“Apparently allow”. And this is a former attorney for the CIA? What the hell, man? These are pretty weak words, IMHO.
Now, can someone explain this one to me? Why would the President go to the trouble of signing EO 13292 to give the Vice President these new powers that supposedly make him co-president for declassifying information in 2003? Well, I would imagine that it allows the President to distance himself from any controversy that may erupt during the aforementioned leak of classified information. However, a few months later (apparently), the President ignored this new executive order and went ahead and declassified the NIE himself (so he tells us last week).
Something is not right here.
Now, consider the past White House position on this matter of declassification. Before the president divulged this new information, in what looked like to me as a desperate act — Scott McClellan gave reporters “the impression” that the President had declassified the NIE on July 18th, 2003. However, (and this is a very important detail)HE NEVER ACTUALLY STATED THAT THE PRESIDENT DID SO. Don’t believe me? Take a look:
From the WH Press Gaggle on July 18, 2003:
MR. McCLELLAN: Well, we always want to share as much information as we can. There is some classified information that — well, there’s some information that remains classified for national security reasons. But we felt that this information — which is what the State of the Union statement was originally based on — was important to share with the American people, because it could be declassified.
Q When was it actually declassified?
MR. McCLELLAN: It was officially declassified today.
Q Just today?
And here he is April 17, 2006 — almost 3 years later:
Q Back when the NIE was released on July 18, 2003, you were asked that day when that had been actually declassified. And you said in that gaggle that it had been declassified that day. And if that’s the case, then when the information was passed on to the reporter 10 days earlier, then it was still classified at that time.
MR. McCLELLAN: Well, I think you’re referring — a couple of things. First of all, it was publicly released that day, so that’s when a portion of the National Intelligence Estimate that we were making available to the public was released. The second part of your question is referring to an ongoing legal proceeding, and referring to a filing in that legal proceeding. We have had a policy in place, going back to the October time period of 2003, that we are not going to comment on an ongoing investigation or an ongoing legal proceeding. That policy remains unchanged.
But let me point out a couple of facts, step back from this legal proceeding. The President of the United States has the authority to declassify information. I also indicated to some reporters earlier today that the President would never authorize the disclosure of information that he felt could compromise our nation’s security. Now, the National Intelligence Estimate was declassified — portions of it were declassified. We made sure that we did not — that we continued to protect sensitive sources and methods within the National Intelligence Estimate.
…
And because of the public debate that was going on and some of the wild accusations that were flying around at the time, we felt it was very much in the public interest that what information could be declassified, be declassified. And that’s exactly what we did.
As you can see, the use of the pronoun “WE” is hard not to notice. It’s as suspicious as the absence of the word “President” when tied to the past tense of the word “declassify”. Why would they not want to formally identify Bush as the “declassifier”? There are 2 possibilities in my mind:
- The president was not the only “declassifier”.
- The president wasn’t the one doing the “declassifying”.
Now, before this new development with Fitzgerald, (as I noted in my earlier diary) — Scott McClellan shouted “fire!” and nobody noticed (April 10, 2006). Here is the excerpt:
Q Scott, let me just follow on that point. When the President made the decision to get the NIE out there, to make it public, for the reasons that you stated, was he aware at that point that information would be leaked to a reporter?
MR. McCLELLAN: David, that’s getting into this ongoing legal proceeding, and you shouldn’t read anything into it one way or the other when I say I just cannot comment on an ongoing legal proceeding. I’ve seen reports —
Q There’s been reports about —
MR. McCLELLAN: Hang on, hang on. I’ve seen reports, including today, in The New York Times, talking about this very issue that you bring up. I read that story with great interest, just like many of you in this room did. I would say that I cannot speak to whether or not the parts of that National Intelligence Estimate may have been declassified at some point prior to the release of the National Intelligence Estimate that we made on July 18, 2003.
And let me back up. The entire portion of the National Intelligence Estimate that was released on July 18th went through a declassification process. And I spoke to that issue back on July 18, 2003, and I’ll stand by the remarks I made at that time. I have had a chance to go back and look further at information from that time period and I will leave it where I did. But again, I cannot speak to whether or not certain parts of it may have been declassified prior to that time.
Q But you’re not challenging that report?
MR. McCLELLAN: Well, I just cannot speak to it because of the ongoing legal proceeding.
He was prepping the journalists for what was going to happen 4 days later with Fitzgeralds new development, but noone picked up on it.
Where does this leave us? Well, much to my chagrin, nobody has followed up on this notion that a group of liars may, in fact, be lying about the notion that Cheney does indeed have exclusive legal authority to declassify documents. If he does have this authority, then it makes absolutely no sense that the President should have to get involved as well.
DO YOU GET IT?!!!
IT IS SHEER NONSENSE THAT WE SHOULD BELIEVE, AT FACE VALUE, THAT BOTH THE VICE PRESIDENT AND PRESIDENT WERE INVOLVED WITH DECLASSIFYING CONTROVERSIAL DOCUMENTS
Especially considering the effort made for executive order 13292.
Now, consider what we now have:
- evidence that the VP declassified information
- the President admitting that he declassified information
- executive order 13292
If the Vice President does not have the authority, under EO 13292 to exclusively declassify information — he has committed a felony. It’s all out in the open. Anyone can pursue this now.
When is it going to happen?!!!
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UPDATE:
Hux has pointed out an article in The National Review, which describes the Vice President’s new powers in Executive Order 13292. In terms of “classification” authority — Bushco. has added this phrase throughout:
in the performance of executive duties, the Vice President
For example:
Classification Authority.
(a) The authority to classify information originally may be exercised only by:
(1) the President;
(2) agency heads and officials designated by the
President in the Federal Register…In the Bush order, that section was changed to this (emphasis added):
Classification Authority.
(a) The authority to classify information originally may be exercised only by:
(1) the President and, in the performance of executive duties, the Vice President;
(2) agency heads and officials designated by the President in the Federal Register…
Now, in the article it only addresses the “classification” authority. However, it does not address the “declassification” authority — which is the important issue here. Would they be the same? Anyone know?
——————————–
UPDATE 2:
I have looked at the ammendement made to Classified National Security Information on March 25, 2003 and I CANNOT find anywhere where it says that the Vice President now has the authority to declassify. Please check it out yourself — especially if you are a lawyer. Here is the relevant section (I believe) with respect to declassification (emphasis mine):
Sec. 3.1. Authority for Declassification. (a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.
(b) It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, 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. This provision does not:
(1) amplify or modify the substantive criteria or procedures for classification; or
(2) create any substantive or procedural rights subject to judicial review.
(c) If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification. Any such decision by the Director may be appealed to the President through the Assistant to the President for National Security Affairs. The information shall remain classified pending a prompt decision on the appeal.
(d) The provisions of this section shall also apply to agencies that, under the terms of this order, do not have original classification authority, but had such authority under predecessor orders.
