Evidence Dick Didn't Declassify the NIE

by emptywheel

As part of Dick Cheney's attempt to regain the love of his adoring Fox viewer supporters the other day, he threw in a tidbit completely unrelated to the accidental shooting of his friend.

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.

As a result, a number of very smart people have revisited the question of whether Dick Cheney does, in fact, have the power to unilaterally declassify something. But I think we're getting distracted from the matter at hand.

The question of whether or not Dick can declassify things at will first arose from this passage in Fitzgerald's Ocean of Motions response, where he hinted that Libby had claimed Dick told him to share the contents of the NIE with journalists, including Judy Miller.

At this time, we do not intend to offer any evidence of "other crimes" pursuant to Rule 404(b). As we discussed during out telephone conversation, Mr. Libby testified in the grand jury that he had contact with reporters in which he disclosed the content of the National Intelligence Estimate ("NIE") to such reporters in the course of his interaction with reporters in June and July 2003 (and caused at least one other government official to discuss the NIE with the media in July 2003). We also note that it is our understanding that Mr. Libby testified that he was authorized to disclose information about the NIE to the press by his superiors. We expect that such conduct will be the subject of proof at trial in that we intend to introduce Libby's grand jury transcript in evidence and Mr. Libby has testified that the purpose of his July 8 meeting with Ms. Miller was to transmit information concerning the NIE. Our anticipated basis for offering such evidence is that such facts are inextricably intertwined with the narrative of the events of spring 2003, as Libby's testimony itself makes plain. (6)

It expanded somewhat when Murray Waas started talking to his sources. Not only did Dick order Libby to leak the NIE, they said, Dick also ordered Libby to leak information needed to justify the war.

Beyond what was stated in the court paper, say people with firsthand knowledge of the matter, Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration's use of prewar intelligence in making the case for war.

Note what Waas didn't say, though. He never said Dick had ordered Libby to leak Plame's identity. In fact, Waas said the opposite--that Libby stopped short of saying Dick ordered him to leak Plame's name.

Libby has never claimed that Cheney encouraged him to disclose information about Plame to the media.

Now, frankly I think this is a lot of smoke and mirrors, an attempt to capitalize on Waas' expansion of the issue from the NIE to larger questions of Iraq intelligence in order to distract from the central question of the Plame outing. I don't doubt, mind you, that Dick and Rove and Hadley and Libby (in concert) decided they should leak things like news of the aluminum tubes, so they could make unsubstantiated claims about mushroom clouds.

But the central question before us--the primary accusation that Fitzgerald ever so skillfully allowed to leak out--pertains exclusively to the NIE. So before we get around to the question of whether or not Dick has the ability to declassify information, we ought to focus on the question of whether or not Dick declassified the NIE.

And I'm fairly certain the answer to that question is no. Why am I certain that Dick didn't declassify the NIE? Simple. Because 10 days after Libby shared pieces of the NIE with Judy, the NIE was declassified.

In fact, a declassified version of the NIE was publicly released just 10 days later, and it showed almost precisely the opposite. The NIE, it turned out, contained caveats and qualifiers that had never been publicly acknowledged by the administration prior to the invasion of Iraq. It also included key dissents by State Department intelligence analysts, Energy Department scientists and Air Force technical experts about some important aspects of the administration's case.

Seems to me, if Dick declassified the NIE in time for Libby to show it to Judy (and, seeing as how Fitzgerald refers to "reporters" and says Libby, "caused at least one other government official to discuss the NIE with the media in July 2003," probably two other journalists), it wouldn't have to be declassified 10 days later. That's the point of declassification, right? You can't declassify for just three journalists. Showing a classified document to just three journalists is not declassification. It is a leak. If the NIE was declassified 10 days after the conversation with Judy, then it was not yet declassified during that conversation with Judy.

We may need to return to the question of whether Dick can declassify information unilaterally. But for now, I think Dick has only reframed that question to distract people, to draw attention away from the NIE leaking Libby did in July 2003. Look at how Dick presented this with Brit Hume, in his very-canned and very-scripted love session. Immediately before the passage I cite above, Brit asks Dick specifically about the NIE. And rather than addressing the NIE, Dick talks about what a great guy Libby is:

Q    On another subject, court filings have indicated that Scooter Libby has suggested that his superiors -- unidentified -- authorized the release of some classified information.  What do you know about that?

THE VICE PRESIDENT:   It's nothing I can talk about, Brit.  This is an issue that's been under investigation for a couple of years.  I've cooperated fully, including being interviewed, as well, by a special prosecutor.  All of it is now going to trial.  Scooter is entitled to the presumption of innocence.  He's a great guy.  I've worked with him for a long time, have enormous regard for him. I may well be called as a witness at some point in the case and it's, therefore, inappropriate for me to comment on any facet of the case.

See how that works? Here's my translation of Dick-and-Brit-speak:

Brit: Did you order Libby to release classified information? [note, he doesn't say, did you declassify classified information so Libby could share it with journalists]

Deadeye Dick: Grumble grumble ongoing trial. Hey! Have I mentioned what a great guy Libby is? Great guy, and innocent to boot!

Brit: Oh, and while we're talking about classified information, do you by chance have the ability to declassify information?

Deadeye Dick: Sure do, Brit, Bush said I do.

Dick never claims he declassified the NIE--Brit even presents the leaking as the opposite, releasing still-classified information. And rather than answering Brit's question--are you guilty of ordering Libby to leak classified information--Dick answers one Brit didn't ask--hey! Libby is innocent until proven guilty. The question, of course, isn't about Libby's guilt, but about Dick's.

So frankly, it doesn't matter whether Dick has the ability to declassify information. From everything we know, he didn't do this with the NIE and he's not even claiming to have done so. Time to return to the issue raised in Fitzgerald's response, Dick Cheney's involvement in leaking classified information.

Comments

[emptywheel]

Now that we've dispensed with the red herring of declassification, let me ask a more interesting question:

Who are the (at least) three journalists to whom Libby and another Bush official leaked NIE information?

One, we know, is Judy.

There are another several possibilities for the other (at least) two.

Libby may have referred to the NIE during his conversation with Novak during the week of July 7, in which he claims he was attacking Frances Fragos Townsend. This would make sense timing wise, because it would place both NIE leak conversations on July 7 or 8, at the beginning of the week.

Libby may have mentioned the NIE to Cooper on July 12. This would make sense, since there's a significant part of Cooper's conversation with Libby that Fitzgerald retains interest in (given the redactions in the various documents). But the conversation was via the phone, not in person, so if Libby leaked NIE information at this point, then he only did it verbally; he didn't show Cooper anything.

Libby may have caused Cathie Martin to share contents of the NIE with Walter Pincus in a July 12 conversation. This would make sense, because Cathie Martin is the kind of person Libby might reasonably be considered to cause to share contents.

Libby may have caused Ari to share contents of the NIE. Same logic as above. Ari was apparently tasked with responding to Wilson's op-ed, so it would make sense that Libby would direct Ari in this way. Also, in the July 9 gaggle, Ari talks like he has seen the CIA report of Joe Wilson's trip. So it may be that Libby gave Ari a document dump of things to reference while doing pressers in Africa.

Libby may have caused Rove to share contents of the NIE with Rove on July 11. This would make sense given Rove's comment about wanting to declassify something. But can Libby really cause Rove to do something? (Also, I still thiink Rove told Novak and Cooper that they would be declassifying the Wilson trip report, which they never did, and not the NIE.)

[William Ockham]

emptywheel,

Thank you for stating the obvious (and I mean that with all sincerity). There's going to be a concerted effort to bamboozle the public about the clear distinction between leaking and declassification. It's long been recognized that the President has the authority to arbitrarily declassify information. We just saw Bush do this with information about an NSA spying program. Bush could have gone on television and outed Valerie Plame to the world. That would have been morally reprehensible and politically stupid, but it would have been legal. It was NOT legal for Bush and Cheney to authorize Libby to selectively leak details of a classified document (and lie about other details). It was NOT legal for Bush and Cheney to authorize Libby to expose the identity of NOC CIA operative.

Declassification is a public act with clear accountability. The leaking of the aluminum tube story, the NIE, and Valerie Plame's identity were all part of an evil plot. We need to be clear about this. This isn't politics as usual. This isn't hardball. This is a story about a group of men and women who have conspired to subvert our system of government. There are a whole lot of people who support this administration out of ignorance and fear. Truth is on our side. I salute you for your efforts in shining the light on the darkness that is the Bush administration.

[emptywheel]

William

I think POTUS and Veep can declassify. But the person who classified information in the first place does get some say, normally.

Recall that Novak and Cooper were both told BushCo was going to declassify information; Novak seems to have been told the trip report would be declassified. But BushCo never did this. I'm fairly sure that's because they were squabbling with Tenet over whether or not they could do that. And in the case of the trip report, I don't think they succeeded in declassifying. Now maybe they didn't do it because it would have really caused a revolt on the part of the CIA. Or maybe the CIA just has final word on issues affecting sources and methods.

[William Ockham]

emptywheel,

I agree that they can declassify. Although the original classifier has some say, the President, as head of the executive branch, can overrule any executive branch official (let's face it, if he really believed something should be declassified, he could just fire the classifier and get somebody else to do the job). I'm not sure that kind of authority can be delegated the VP, but it's really beside the point. The real point is that the information in question wasn't declassified when it was leaked. Declassification is an official public act. The declassified information is then public information. That's not what happened in the case of the aluminum tubes, the NIE, or Plame's outing. We can't let these Rovian smears hide under the rubric of declassification. The reason they didn't declassify the stuff you mention isn't because the CIA has the final word. The reason they didn't do it was because they don't want to take responsibility for it.

[SaltinWound]

Very interesting. Back from another thread, I'm still wondering if Judy Miller ever had the clearance she thinks she did. I still believe, in many cases, they may have just been leaking to her, telling her it was okay because she was "cleared," and she was too stupid to know the difference.

[John Casper]

"Showing a classified document to just three journalists is not declassification. It is a leak."
The WaPo has an online political chat starting in about 40 minutes and I am submitting your statements. I'd submit it with attribution to you and tnh, but I think that would lessen the slim chances that the WaPo will print it.

[Roosevelt Democrat]

If Cheney (or anyone else) declassified NIEs, can copies of those declassified documents now be requested under the FOIA? Has anyone filed the necessary paperwork? This would seem to be a way to flush out Cheney and make the administration say whether any NIEs were declassified, and by whom.

[Jeff]

ew - Totally persuasive on the central point. A side point to consider is the question of who actually declassified parts of the NIE when they releaed it on July 18 (or whenever it was precisely), because it was one of the most strange moments in the whole episode. Unless I'm mistaken, the White House handed to reporters information which actually seemed to undermine the case they were making, as they included the famous misplaced INR dissent and other dissenting material from the NIE in what they released. Reporters went nuts, if I'm reading the record right. So my guess is that it was not anyone in the White House who actually did the declassifying, but rather either Tenet or the relevant agencies who contributed their bits to the NIE. (I am working on the assumption, from my recollection, that it was not the whole NIE but only selected bits that were declassified and released on July 18. If I'm wrong on that, my point is gutted.)

My immediate guess about who else Libby caused to leak the NIE was Martin-to-Pincus.

There's a new filing from Fitzgerald out - his response to Libby's team's motions on discovery. Maguire's got a copy over at JOM. As it was just filed yesterday, i am encouraged by all the language about the continuing investigation, and protecting the strategy and direction of it. Fitzgerald calls out Libby's team on the graymail angle twice (15 and 25). And there are some interesting arguments over the issue of the damage done by Plame's outing and its relevance not only to the present charges but even to a charge of IIPA or Espionage Act violations (26-27, esp. 27n10).

[CKR]

I agree that the declassification question is a red herring. The veep probably does have the authority to declassify information. But there's no indication that he did that before Libby went out with Plame's identity. Nor has he claimed that he did that.

There are a number of larger problems here. This administration classifies so much stuff that it gives itself an enormous playground to declassify for political motives.

I'm hoping to go into this in more detail on my blog in the next few days. I'll send a trackback if I do.

[KM]

I'm glad you're taking up this question, EW.

I think the question of whether Plame's identity was ever declassified, as suggested by Pete Yost in this AP article, can be pretty summarily dismissed. After all, Fitz explicitly stated at the Oct. 28 press conference that "I will confirm that her association with the CIA was classified at that time through July 2003." As you say, this question pertains only to the NIE (and other Iraq intelligence), not Plame's outing.

As one of the people trying to hammer home the difference between a leak and declassification, I completely agree that the key issue here, even if Cheney has the authority to unilaterally declassify something like the NIE, is whether in fact the NIE was actually declassified by June 2003. I can think of all kinds of reasons why Cheney, even if he had the power to declassify it unilaterally, would not in fact take such a fairly momentous step. Given the history of the Admin's and OVP's leaking of classified info on an unprecedented scale, I doubt that it even occurred to Cheney that he "should" do such a thing.

In other words, I think it very, very likely, whatever Cheney's declassification authority, that the NIE was in fact classified at the time Libby showed it to reporters in June/July 2003.

That said, I'm not sure I find your arguments in this direction conclusive.

(1) Do we know for a fact that the NIE (actually, only portions of it) was formally declassified on 18 July 2003? We do know that portions of the NIE were publicly released on that date (and that other portions had been declassified in order to produce the 4 October 2002 "White Paper"). Can we be sure that reporters aren't just assuming that the public-release date is the same as the declassification date?

(2) It's entirely possible that the portions of the NIE Libby was, er, disclosing to reporters were different from those portions which were declassified and publicly released in mid-July. In fact, given that Libby was trying to justify the Admin's case for war, it seems quite likely that he wasn't disclosing at least some of the parts which were released in mid-July, because those portions included the State Dept dissents, the judgement that Saddam if threatened could be driven to using his alleged WMDs, etc. I think on this question I'm inclined to agree with Jeff's hypothesis as to who was responsible for the declassification of those portions and the interesting political effect that this had. At any rate, it's at least theoretically possible that Cheney declassified more convenient portions of the NIE for distribution to select stenographers and that the portions later publicly released were declassified by someone else.

Like I said, I agree that the NIE was almost surely still classified when Libby was leaking to reporters. I just don't know that we can demonstrate that conclusively, yet.

[emptywheel]

KM

I agree, I don't think I've proved the case (I changed the title of this from it's original "proof" to "evidence" for just that reason).

I like Roosevelt Dem's suggestion, that we FOIA the NIE. Much of it has not been released, classified or no. So if they refuse to hand it to us, then we would know pretty definitively that it is not now classified (note, BushCo is famous for retroactively classifying things, like Sibel Edmonds' testimony, so it still wouldn't be proof, but it'd be a pretty good indication).

[KM]

By the by, I'm not really sure why everybody is so quick to say that Cheney did have the authority to unilaterally declassify information for which he was not the original classifying authority. (As someone who's been interested in this question of late, I really would like to hear people's reasoning, as I'm trying to nail this one down for myself.) And I do think this is a question of rather considerable political significance, though it might strike professional Plame-ologists as a distraction. ;)

In part, I think, the "red herring" stems from the very ambiguous word "authorised" (Waas used it in his article, albeit with the appropriate shudder quotes). It makes it sound as if the person doing the authorising had, well, the authority to do so. Many people read it and assume that so long as Cheney in fact had the authority to declassify the NIE, the act of "authorising" (directing, etc.) Libby to disclose it to reporters is ipso facto tantamount to declassifying it. Which, of course, it isn't.

William Ockham is right, though I'd amend his formulation. Declassification is an official (though not necessarily public) executive action. Presumably there must be some formal, official record of it somewhere -- not least on the declassified document itself. (Here for instance is one DoD primer on rules for marking classified documents; it states (near the bottom) that "Classified information that is downgraded or declassified should be promptly and conspicuously marked to indicate the change.") This need not apply to the document as a whole but can apply to specific paragraphs with specific classification status. So it should be a straightforward matter of record whether in fact (portions of) the NIE was (were) declassified by June 2003, and if so, when exactly and by whom.

[semiot]

The point that it was A LEAK and not declassification when a few select reporters got content of the NIE from Libby was made forcefully by Richard Ben-Veniste on Blitzer's show last week. I was struck, actually, by the way Wolf handled this exchange that included Jerk DiGenova. Wolf actually phrased questions and paced the exchange to give Ben-Veniste the opportunity to score this point with force. Maybe because it was making DiGenova look like he had a bad case of acute - itching, burning - hemorrhoids. That Wolf is such a cutup sometimes. Here's the xscript:

http://transcripts.cnn.com/TRANSCRIPTS/0602/10/sitroom.02.html

[narexbyrnes]

What is amazing to me is the last few weeks we have learned:

1. Libby did lie. Period. He admitted it. His excuses are he was too busy and he was confused. So he confessed to two out of the three major crimes he was indicted on! And yet the National Review crowd is still trying to spin it away. (It's like watching the band play on the Titanic. "Hey, what iceberg?")

2. Plame was covert. (Notice that doesn't come up as much on the right wing sites now.)

3. The VPs office knew the Niger info was bogus and STILL tried to smear Wilson.

4. The VP office was aware who Wilson was before the war started - and targeted him (ouch) early.

5. The VP thinks he can selectively declassify whatever information he wants -even if he is outing a covert agent to smear her husband.

6. Guns don't kill people, but the VP sure tries.

[KM]

narexbyrnes -- replace that "STILL" with "therefore". ;)

[kim]

I'm guessing the aluminum tube "press release" would have come before the Executive Order change including the VP (March 2003)?

Perhaps they realized they were breaking the law, modified things to include the VP after the fact, then happily went off declassifying more stuff (Plame) for partisan political purposes?

[Meteor Blades]

Plame was covert. (Notice that doesn't come up as much on the right wing sites now.)

I beg to differ, I just encountered a reprise of the Plame outed herself long before July 2003 theme at a site - can't remember where exactly - just this week. They'll surrender this the same day they surrender the idea that Vince Foster was killed by Hillary.

[emptywheel]

kim

Superb point.

I heard Diane Rehm dealing with this today. Tony Blankley was on, claiming that this executive order happened some vague time around 9/11. I almost spit. No, Tony, it happened just as Libby was dreaming up his slam attack on Wilson. And in any case, significantly after they leaked the aluminum tube report to Judy on September 7 2002 to prep their September 8 morning talk show appearances.

[vin]

If you check out the executive order, it says declassification is a 'process' that must have the approval of the head of the agency that originally classified the information. In the case of NIE, since several agencies are involved in its creation, maybe declassification proceeds with the approval of all participating directors?

When asked whether he had ever unilaterally declassfied information, Cheney said he "didn't want to get into that" and noted the executive order that gave the Vice President "classification authority". Cheney parses his words carefully - i.e. he is a real good liar. Note he said nothing about the declassification process.

Aside: Cheney is in the habit of answering this way. Check out the News Hour interview when Lehre asked him about the insurgency in Iraq. His response was canned and never actually addressed the question.

There are specific guidelines about declassification issued by the Director of the Information Security Oversight Office. We need to look at those guidelines and find out what kind of documentation they archive.

Information Security Oversight Office
National Archives and Records Administration
Seventh and Pennsylvania Avenue, N.W.
Washington, D.C. 20408
phone (202)357-5250

[kim]

This also might suggest that Novak went directly to Tenet, as the classifying agency director, to get a final answer on the Plame "declassification" before finishing his article about Wilson.

[Patriot Daily]

Declassification is not always a condition precedent to valid disclosure of classified information.

Your theory and analysis is great as usual. But, perhaps Cheney was trying to distract a bit more. There are options available to provide classified information to people without declassifying the information. Bush’s executive order has this exemption:

“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.”
http://www.liberaloasis.com/archives/021206.htm#021606

Moreover, such action does not constitute “declassified” information:

“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.”
http://www.whitehouse.gov/news/releases/2003/03/20030325-11.html

So, there are ways for Cheney to spread the information without any declassification. So, Cheney could have used this section to authorize Libby to disclose the classified information to Miller under claim that Wilson/Plame presented a threat to national security by putting a damper on Bush’s war case.

[KM]

The georgia10 piece unfortunately focusses on the Plame outing rather than the NIE. But I wanted to pick up on one point:

Do you recall that when it became clear Rove had leaked the information to reports, there was a flurry of articles about how "upset" Bush was, that he felt betrayed by Karl? In the New York Daily News (yes, I know) there was a hint that the anger wasn't at the disclosure, but at the fact the Office of the President was tied to the leak....

Let me use this to get at one reason why I think this question of Cheney's authority to declassify at will might be important. Even if EO 13292 doesn't give Cheney blanket declassification authority, it still provides him with a few ways to have declassified the NIE without Tenet's formal approval. Cheney could, for instance, have had Bush's vast declassification authority formally delegated to him (thereby becoming a "declassification authority" by the terms of Section 6.1(l) of EO 13292). But it strikes me that each of these methods ultimately ties the action to Bush himself.

So if the NIE was in fact declassified by June/03, and if the CIA didn't review and authorise the declassification, and if Cheney doesn't have the authority to declassify information he didn't originally classify, then it seems (a) either Cheney directed an illegal leak or (b) Bush was involved in the process. In case (b), the disclosure of the NIE was legal, but it's unquestionably a political scandal, one that now has Bush's fingerprints all over it.

(Of course, we should continue to keep in mind that Waas said "Cheney and other White House 'superiors'".)

[SaltinWound]

KM, I usually look at those NYDaily News stories as volleys fired by Cheney, letting Bush and Rove know they're in it up to their eyeballs. I've thought this since I saw Andrea Mitchell out Cheney as Tom DeFrank's source on "Hardball" (at least this was my perception at the time, for reasons I've gone into here). Even if at first you don't see a DeFrank story through that prism, it's helpful to ask, "What's in it for Cheney?"

[antiaristo]

emptywheel,
Clarification please.
My understanding is that the IIPA is unique in that it specifically ties the hands of the president.
The president may not release the identity of covert operatives.
Same would apply to delegated authority.

[margaret]

Question from the hinterland: there has been news, speculation, fact(?) that Plame was working on Iran as well in her position at CIA. Could the "outing of Plame" be related to a possible attempt by the Administration to cut off the flow of any actual facts from the CIA that would run counter to the Administration's case that Iran is, was, might be a "threat" in the same way that Iraq was a "threat" regarding WMD's? Sacrifice Plame, as well as all her contacts to protect the lies in a runup to war?

This administration so much wants to go to war that any truth which counters its arguments is just so much "trash." Discredit the truthtellers to push the argument for war.