Cheney Does NOT Have Authority to Declassify at Will

by emptywheel

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.

Comments

[pdaly]

Great citizen journalism AND blogging!

It also reflects poorly on Bush, who must know that Cheney overstepped the line.
Since nothing has changed, either Bush is in agreement with Cheney's actions or doesn't care about the rule of law. And I suppose those are not mutually exclusive conclusions.

Now if only there were a Legislative Order giving Emptywheel subpoena power to inestigate use and misuse of Presidential signing orders, this government could regain its equilibrium overnight.

[hauksdottir]

If any more shoes hit the floor, we're going to think an army of octopi has taken over the White House.

Wait....

Tentacles. Suckers. Big heads. Ink-splattered cover-ups. And yet more suckers.

This doesn't call for a superhero, but a sushi chef! ;)

A bit more seriously, that aide (Cathie Martin?) who left rather than listen while the NIE was being discussed over the phone was right to be uncomfortable.

Somebody needs to tell Cheney that he doesn't have total and absolute insta-declass authority so that he can get Bush to amend his EO and backdate it. Otherwise, we would have to have him up for trial on treason... during wartime.

[Sally]

ew, Mr. Leonard should be asked specifically whether Bush and Cheney can out a CIA undercover agent and, if so, what is the policy and procedure. It seems to me people are (deliberately?) confusing declassifying the NIE and outing an undercover agent. These are two very separate issues and should be treated as such.

[emptywheel]

Sally

Not as it relates to classification (at least from Leonard's perspective)--a classified identity is the same as a classified document.

[Stuart Kiang]

"...would depend upon the extent to which he has been delegated that authority..."

Hypothetically, could the president delegate to the vp the authority to declassify national security information at will?

[Gosprey]

Great post. This slip in the Russert interview where he idenifies himself as President is also revealing.

"Now, is it tough and difficult? Absolutely. No doubt about it. You regret every single casualty. I visit with the families. We spend time with the wounded when they come back. I visit with the troops every chance I get. It's the toughest thing the President has to do. But it is absolutely the right thing to do, Tim,..."

[emptywheel]

Stuart

Yup. In fact, Libby says Bush did that, in just this case.

But you see the risk of where their argument leads?

First, it is probable that it wasn't the NIE they were discussing.
Second, if Bush just authorized declassification in this instance it would mean 1) he was intimately involved in the smear and 2) he may have told Dick he could leak Plame's identity.

That's why, I think, Cheney has claimed the ability to declassify. To build in a firewall for Bush.

[pseudonymous in nc]

That's fantastic, Marcy. Like you, I noticed that Davis tried to elide the distinction between the Prez and Veep in his question to Leonard, and worried that the response was a punt. It perpetuated the vague sense, endorsed by Cheney himself, that the revised Executive Order gave Cheney the power -- or asserted the power -- for the Veep to declassify at will.

The language of the EO is (perhaps deliberately vague), though I'd reached the same conclusion that Leonard confirmed: that Cheney's powers of declassification were still akin to those of an agency head, except when delegated from above.

But what's still vague is the extent to which the plenary authority of the president has been delegated, and what mechanisms are available for determining that. Presumably, any such delegation has to be documented, though: otherwise, it's just at-will declassification that goes beyond even the wider powers of the 2003 revision to the EO.

[KM]

Nice work, EW. That's as strong a confirmation of the basic asymmetry between classification and declassification authority for the VP that I've yet seen. And it's quite categorical about the only possible exception to that asymmetry.

It seems clear that EOs 13292 and 12958 intended the delegation of classification/declassification authority to be a specific privilege, applying only to specific cases. (Though for the sake of practicality it would probably also include a limited set of cases.) But I've got the same question as Stuart. What if the Admin claims that in Cheney's case the President's authority was delegated as a general privilege -- i.e. it wasn't limited to a specific case or limited set of cases, but was an across-the-board, unlimited and indefinite delegation?

Here's the first clause from the relevant section in EO 13292, 1.3(c):

(1) Delegations of original classification authority shall be limited to the minimum required to administer this order. Agency heads are responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise this authority.

Now obviously an unlimited delegation of authority would fly in the face of the intent and spirit of this article. But you know the routine here. Nation at war, terror terror terror, national security, etc. -- it is essential given the unique nature of the situation America finds itself in that the VP be delegated the President's original declassification authority broadly and indefinitely. The need, conveniently, is "demonstrable and continuing". And so forth.

And, as pseudonymous is suggesting, we still need to figure out whether such delegation did in fact happen. Just as we do, for that matter, for the insta-declassification of NIE/Plame.

[KM]

Oh, BTW, it would be worth firing off an e-mail to Steven Aftergood to see what he thinks about this and some of the further questions it suggests.

[Jeff]

Which means that if Libby leaked Plame's identity the NIE based on just Cheney's say so, the leak would be illegal.

This is true. But I think it's sort of beside the point, since as you say Cheney is building a firewall for Bush, though not exactly in the way you suggest. Cheney knows full well that he doesn't have the power of declassification - look carefully at what he says, and at all points it's a non-assertion assertion of vice presidential declassification power. I think he's making it sound like he does or might just in order to save Bush from uncomfortable questions, given the story of Cheney getting presidential authorization. Don't you think it's safe to say that Cheney and Libby didn't concoct a story about going to the president for authorization to leak stuff? I take it they wouldn't simply abandon the principle that your first job is to protect the president. So that being so - and in light of the fact that Bush apparently backed up Cheney's and Libby's story in his interview with Fitzgerald - what's going on, I strongly suspect, is an effort just to keep things focused on Cheney and Libby and away from Bush, not an effort to hide the fact that they did not go to Bush.

If I had to guess, Cheney went to Bush, they discussed pushing back against Wilson, there was probably some mention of Plame, and Cheney basically kept his permission-asking very vague, along the lines of, "There's some stuff we want to get out there, can we get the go-ahead from you to do that?" and Bush responded, "Yeah, get everything that's helpful out there, get it all out." Which Cheney and Libby, helped by the legal opinion of Addington, took as declassification of all relevant documents and/or information they needed on the matter, probably including, in their mind, some documentation that would have revealed that Wilson's wife was CIA.

That's just a guess, though it is in keeping with the information practices Cheney has been innovating, so nicely characterized by Suskind in The One Percent Doctrine.

[KM]

A couple of further thoughts.

First, on one point by pseudonymous:

Presumably, any such delegation has to be documented, though: otherwise, it's just at-will declassification that goes beyond even the wider powers of the 2003 revision to the EO.

From EO 13292, Section 1.3(c):

(4) Each delegation of original classification authority shall be in writing and the authority shall not be redelegated except as provided in this order. Each delegation shall identify the official by name or position title.

(Also, the part about "redelegation" seems to confirm the intended specificity of the practice of delegation that I was suggesting earlier.)

Second, Leonard's response very strongly suggests that another talking point has hit the dust. The one that relied on the definition of "declassification authority" in Section 6 (l), which includes "a supervisory official of [the original classifying authority]", to argue that Cheney, as VP, was a "supervisory official" of Tenet and the CIA and so fully entitled to declassify the NIE (or Plame's ID, for that matter).

[emptypockets]

The main point you raise in this post about VP powers is a very important one.

But, I'm unclear where you're going with the point that Libby didn't get first-hand verification that Bush had declassified [the material], and I don't understand your conclusion that the leak was therefore illegal. To help those of us who can only hold one thought in our heads at a time, can we take the scenarios in turn?

Alibi A, in which Bush really declassified [whatever] and Cheney saw him do so and truthfully informed Libby. Was it illegal for Libby to treat that [whatever] as having been declassified, based on Cheney's word? Why?

Alibi B, in which Bush did not declassify [whatever] and Cheney falsely asserted to Libby that Bush had done so. In this scenario it is clear that Cheney has done a dirty, and would likely face some charge for it (I hope). But would Libby be charged somehow for the leak? Certainly not under any statute that requires him to intentionally be revealing classified information.

[orionATL]

wow, e'wheel.

this is important.

the question has nagged me for a long time.

why do you suppose the ny times or the wapo couldn't have checked on this three years ago?

thanks for keeping your gaze on these critical small matters that get overlooked in the great surge of verbiage and publicity where white house shenanigans are concerned.

i'll bet anything that the nie or plame were improperly "de-classified" by cheney. if so, this really is a federal offense.

[Phoenix Woman]

The poor dear's just confused, that's all. He's so used to being the de facto Prez that he forgets he's not the de jure one.

[Redshift]

*Thank you* for getting to this, and doing such a thorough job of following up. I thought it was pretty clear from everything I'd read that classification authority did not automatically include declassification authority (over other people's classification); frankly, the idea that it would seemed insane. But I'm certainly not an expert in this area.

On a related note, I'm hoping to make it to one of Tom Davis' town meetings on Saturday and ask him whether he actually believes that to protect its covert agents, the CIA has to tell the White House who all of them are, as he seemed to be saying in the Plame hearing. :-)

[kim]

Good reporting EW!

[Kagro X]

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.

Untrue (of course). Everything the Vice President has done is, in fact, inconsistent with those authorities, since the Office of the Vice President has been out of compliance with Information Security Oversight Office regulations since 2003.

The ISOO finally got around to challenging the OVP's extraordinary claims of exemption from its regulations recently. But guess who's supposed to enforce compliance?

Yeah, you guessed it. Alberto Gonzales.

[emptywheel]

emptypockets

I think Jeff is absolutely correct: That what Cheney is doing is drawing attention away from Bush, but that Bush in fact declassified Plame's identity. In fact, I'd go further and say he knew about it.

Which means the leak would not be illegal.

But the reason, Jeff, that it's important to get this out is to make Cheney's (and Davis') excuse ineffective. IF Bush did indeed grant Cheney the power to declassify Plame, then he needs to pay for it politically. (Not least since acknowledgement that Plame needed to be declassified would be acknowledgment that she was covert.)

[smiley]

ew: Bush in fact declassified Plame's identity. In fact, I'd go further and say he knew about it [...
] Which means the leak would not be illegal.

It wouldn't violate the IIPA... I think it still amounts to treason.

[emptywheel]

smiley

Well, the point is that COngress would have to make that judgment. They're not going to do so unless the case is made for them.

[Jeff]

it's important to get this out is to make Cheney's (and Davis') excuse ineffective.

Completely agreed. I'd just add that from Cheney's very own carefully parsed, casuistic statements, it's clear he knows that he does not have unilateral declassification powers. I'd also add that the point is that his and Libby's official story is that they went to Bush. The business about vice-presidential declassification is an utter and double distraction. It's irrelevant, given the very story that Libby and evidently Cheney (and almost certainly Bush as well) gave to investigators. No claim was ever made to vice-presidential declassification.

[emptywheel]

Jeff
First, I think you're wrong--it is not a non-assertion assertion. For example, in this exchange:

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.

Cheney overstates what his powers to declassify info are. Add in the Davis question, and there is a clear attempt to say he does have the power.

Besides, we don't know what Cheney's story is. Yes, Libby's story is that Cheney told him he asked Bush. But we don't know what Cheney said.

By clarifying the law, it becomes easier to dismiss this distraction. And, more importantly, to use the distinction to press for release of the non-grand jury interviews from Bush and Cheney.

[CKR]

Who said what when, and where the authorities lie is important in unraveling what's going on in the White House. But there is another point about classification that needs to be kept in mind, even if it shifts out of the spotlight.

That is that there are reasons for classifying information. We don't want just anyone having the blueprints for a nuclear weapon. We don't want the enemy to know the plans for an attack. We don't want just anyone to know who's a spy.

Information should be declassified only because that information no longer needs to be protected. There are books and books of rules for this sort of thing.

But if you classify in order to protect your buddies or to hide the unconstitutional things you're doing, then it makes sense to declassify just as arbitrarily.

In other words, this is one more part of the administration's Politicization of Damn Near Everything.

[Dismayed]

Devil and deep blue sea. Bush knew or Cheney committed a crime. HMMMMM. They might as well cop to Bush knowing - he can't get any less popular. However, this brings echos of 9-11 when Cheney gave the green for shooting down passenger planes while Bush listened to my pet goat. My money says Cheney did the declass himself knowing Bush has given him free reign.