Ever since it was revealed (first by me and then by Murray Waas) that Libby had testified he was authorized to leak
Plame's identity the NIE, Vice President Cheney has claimed that he has the ability to declassify things at will. He did so on Brit Hume:
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.
He did so when Tim Russert started to figure out it probably wasn't the NIE that Cheney declassified:
Q There was a story in the National Journal that Cheney authorized Libby to leak confidential information. Can you confirm or deny that?
THE VICE PRESIDENT: I have the authority as Vice President under an executive issued by the President to classify and declassify information. And everything I've done is consistent with those authorities.
Q Could you declassify Valerie Plame's status as an operative?
THE VICE PRESIDENT: I've said all I'm going to say on the subject, Tim.
And, after the country's head of Information Security, Bill Leonard, asserted at the Waxman hearing that the President has absolute authority to declassify things, Congressman Tom Davis tried to sneak such authority for the Vice President into the Congressional Record:
Davis: Mr. Leonard, let me ask. Does the President or the Vice President have the authority to declassify on the spot?
Leonard: As I mentioned earlier, Mr. Davis, the President’s authority in this area is absolute, pursuant to the Constitution, ...
Davis: So they can do it on the spot. Can they declassify for limited purposes?
Leonard: Absolute is absolute.
It was pretty clear to me that Davis was just pulling a fast one, so I asked Leonard for clarification.
[emptywheel] In response to a question from Congressman Hodes, you stated unequivocally that the President has absolute authority to declassify information. Then, Congressman Davis asked you a follow-up question regarding the ability of the President and the Vice President to declassify. In your response, you simply repeated your earlier answer, that the President has absolute authority to declassify information. Does the Vice President have the ability to declassify information beyond that for which he is the original owner? If so, under what circumstances? Would there be any paperwork if he had done so? Would he need back-up from the President if this occurred?
[Leonard] Reply: My comments at the hearing with respect to the President's authorities dealt with classified national security information as established in Executive Order (E.O.) 12958, as amended. The Vice President's declassification authority for such information beyond which he authorized the original classification would depend upon the extent to which he has been delegated that authority by the President. [my emphasis]
That is, Cheney can only declassify things (as distinct from the classification authority included in the Executive Order that he keeps citing), if he either originally classified the material or Bush tells him so specifically.
This is critically important. Though Libby testified Cheney had assured him Bush had declassified
Plame's identity the NIE before Libby leaked it, Libby had no independent evidence that Bush actually did so.
Q. And do you know when the Vice President talked to the President to get the permission for you to discuss this with the press and in effect in your mind declassify the document?
A. No, sir.
Q. And were you present for that conversation?
A. No, sir.
And since that time, as we have seen, Cheney has made a concerted effort to claim he would have had the authority to declassify
Plame's identity the NIE all by himself. Note--he has done so by referring to the Executive Order, not to the kind of delegated authority that Leonard explains Cheney would need.
Which means that if Libby leaked
Plame's identity the NIE based on just Cheney's say so, the leak would be illegal.