Tom Davis Reveals His Cards

by emptywheel

There's a remarkable detail from Waxman's hearing on Friday, relating to my favorite story of Libby's bogus NIE story. In short--the ranking Minority member, Tom Davis, reveals he knows--and fears--Libby's story about being authorized to leak the NIE by the President Vice President. Davis reveals that he has been prepared for this point--and has come ready to craft the record to protect Cheney.

The interchange starts when Congressman Paul Hodes asks James Knodell about the NIE. (On the CSPAN video, this starts at 2:35:55.)

Hodes: Do you agree with me Mr. Knodell that the NIE is a classified document?

Knodell: Pardon me? 

Hodes: Do you agree with me that the National Intelligence Estimate, before it is declassified, is a classified document?

Knodell: [quietly] Yessir. 

Hodes: Are there procedures for declassifying the National Intelligence Estimate?

Knodell: [shifts uncomfortably, looks away] I’m not familiar with specific declassification for that particular document. 

Hodes then asks Bill Leonard, Mr. Classification, whether such insta-declassifcation is kosher:

Hodes: Mr. Leonard, are there procedures, um, for declassifying the National Intelligence Estimate?

Leonard: Um, yessir, as with any classified information, it can become declassified pursuant to the original decisions as to when it becomes declassified, it can become declassified under the authorization of an authorized official, and then it can also become declassified just by the mere passage of time. 

Hodes: If classified information is revealed without having been properly declassified, that’s considered a leak. Correct, Mr. Leonard?

Leonard: That’s an unauthorized disclosure, yessir. 

Hodes then asks Knodell whether all this constitutes a crime.

Hodes: And Mr. Knodell, you agree with that? It’s considered a leak if it’s not properly declassified and revealed.

Knodell: Yes. 

Hodes: And leaking classified information is a crime, is it not, Mr. Knodell?

Knodell: [nods hesitantly] Yes. 

Hodes: And if two or more persons agree to leak classified information, one of those persons takes affirmative steps to do something pursuant to that agreement, that could be considered a criminal conspiracy. Is that correct?

Knodell: It could be considered … 

Hodes: It’s my understanding that Mr. Libby testified that he was specifically authorized to disclose key judgments of the classified National Intelligence Estimate to reporter Judy Miller because Vice President Cheney believed it important to do so. Uh, Mr. Libby also testified that the Vice President had told him that the President had given the authorization to disclose portions of the National Intelligence Estimate. In your experience, gentleman, in government, have you ever seen such [emphasis] selective [pause] declassification before?

Knodell looks from side to side. 

Leonard: I’m not aware of uh any similar type of action such as that, no sir.

Bill Leonard saves the day by stating that such weirdness is legal, even if totally abnormal.

Hodes: Do you know of any basis for there to be selective declassification to a few reporters of the National Intelligence Estimate [points finger] and I want to tell you that on the date that this was supposedly disclosed by Mr. Libby, July 8^th, in the following ten days Administration officials told folks that the NIE was still classified and it was formally declassified on July 18^th. Can you explain to this panel how, if Mr. Libby had authority from the President and the Vice President to declassify the NIE on July 8, the Administration continued to claim that it was classified for ten days, and then apparently declassified it again on July 18^th? 

Leonard: I don’t have any firsthand knowledge to address any of that sir.

Knodell: Nor do I. 

Hodes: Does it raise any questions for you?

Leonard: The uh … the provisions of the Executive Order as I have indicated clearly provides for instances whereby classified information can be declassified even when it otherwise meets the standards for continued classification. And then … and then, ultimately, uh, the exercise of classification and the declassification authority is the President’s absolute authority. It’s not derived from any law, regulation, or executive order, it’s his Article II Constitutional authority to be used absolutely. 

Hodes: Assuming that to be the case, is it your testimony that the President could choose to selectively declassify the National Intelligence Estimate and give directions that it could be used with three reporters but then still retain, and that document is still classified?

Waxman: The gentleman’s time is expired, but we do want an answer. 

Leonard: Sir, it’s my testimony that it’s the President’s absolute authority when it comes to the classification and declassification of information.

At this point, two things should be clear to those who haven't been briefed to be concerned about this point. One, the President can do whatever he wants with regards to declassification. And two, then if Libby leaked the NIE to Judy Miller with the President's blessing, then it's all legal--and shouldn't be any concern.

Then why is Tom Davis so concerned about it? More importantly, why does Tom Davis introduce a detail (available in Libby's testimony) that no one has yet mentioned? That the Vice President was the one insta-declassifying?

{starting at 2:56:55 on CSPAN)

 

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.

Curious game Davis and Leonard are playing at this point. Davis is clearly asking about the President and the Vice President. Yet Leonard is answering solely in reference to the President. (Perhaps, as a civil servant, he has forgotten that Cheney isn't really the President???)

In any case, I'm struck by the way that Davis knew that this wasn't a question of just Presidential insta-declassification. Indeed, he came prepared to get Leonard to confim, kind of, that Bush's "absolute" powers extend to Cheney as well.

Comments

[pdaly]

Nice pick up.

Looks like Waxman is taking time out from his day job to appear on Charlie Rose this Monday.

[Mickey]

I've had a mild headache over this point since the Trial. As I recall it, Cheney told Libby to leak the NIE. Libby balked. Cheney said the President had declassified it. Libby checked that out with [no apparent neck] Addington. Much later, after everything was kind of public, President Bush confirmed the story. I suspect that either Bush never did it for real at the time and Cheney made it up or this is evidence of Bush's direct involvement in the whole sordid story. Was there a time in between when Bush ever commented on the leaking of the NIE? My other question is about Article II of the Constitution. When Leonard said that, I read Article II, but I don't see that power. Is it in some case that interpreted that power?

[TDHCheri]

Marcy, I may have missed it, but did anyone ask any of the witnesses whether we as citizens ought to be able to assume that the oath of office for these federal officials (the VP, say) implies that extraordinary care will always be exercised, as a simple matter of responsible common sense, in the matter of public discussions of covert intelligence agents? All of this parsing of whether any of the leakers knew Plame was covert is spectacularly beside the point. Why would the burden not always be on the leaker to make certain that any information to be made public about CIA employees would not in any way damage any of our security interests. Even if they want to argue that there is some inherent unitary executive power to declassify on the spot, such a power could not possibly extend to revealing the identity of a covert agent, with all of the ramifications that could ensue. I, like the jury, remain astonished that Fitzgerald could find no one to prosecute for the real and obvious crime.

[Muzzy]

I think Davis is trying to protect Bush. The personal act of declassification can imply knowledge and awareness of intent wrt closely related events, especially when the subject of declassification is selective and only made known to a couple or few people. To the extent that Bush's absolute authority to declassify extends to somehow authorizing Cheney to declassify on the spot without Bush's knowledge, it maintains plausible deniability for Bush to claim no knowledge of events, particularly 'legal' acts that were subsequently lied about to the public or investigators.

[Jeff]

I suspect that either Bush never did it for real at the time and Cheney made it up or this is evidence of Bush's direct involvement in the whole sordid story.

Even with this most powerful of vice presidents, what are the odds that the president would be brought into a cover story to protect the VP? It just doesn't work that way. So I'd go for the other alternative.

[KenBee]

Some people have accepted/swallowed whole the Bush-wah that the Pres can declassify whenever he wants...I don't yet agree and have not seen that spelled out very clearly, but....
That would be a very dangerous ability and truly a license to steal.
According to my reading of the exec orders, there are specific instructions for declassifying something.
The VP and Pres must have originated the document to declassify it the way I read the Exec orders.
So, on Dkos I suggested that they could have written a review or memo about a classified document from another agency, and since they wrote this new document, then declassify it whenever it suits them...which would make moot the Exec. orders and support the claims by those who say they can do what they like. grrrr.
KagroX has detailed on Feb 10(?) how the VP's office is making claims about their authority...that's a fight that needs to be had, constitutionally speaking!

[hauksdottir]

I've mentioned here before that this absolute ability to insta-declass and classify again is a great way to take control of documents from other agencies, or even branches of government. "Absolute is absolute" strikes me as a dangerous idea to feed to this or any President.

[p.lukasiak]

I was surprised that no one asked Leonard what kind of records are kept when a document is declassified. I mean, if the document is completely declassified, there should be a record of that, even if the President does it. And if the document is declassified for only a few people, that would be written down as well, right?

[semiot]

Does it strike anyone as odd that Waxman or other Dems didn't follow up on this ambiguity in the testimony? Or could it be in the interest of pursuing the investigation that the point regarding Cheney's authority re insta-declass remain ambiguous for now? If so, what might Waxman be setting up? I ask this because I was really struck in watching this live that everybody sort of took a big swallow at this point - witnesses, audience, and members from both sides. It was like everybody at once went "cough, cough I think I just smelled somthing . . . " Maybe I'm making too much of it. But I find it hard to believe that Waxman let this point go because it's insignificant or he was distracted, etc.

[emptypockets]

Davis is clearly asking about the President and the Vice President. Yet Leonard is answering solely in reference to the President. (Perhaps, as a civil servant, he has forgotten that Cheney isn't really the President???)

Good thing I'm nearly finished with AoD (I'm a slow reader) or I'd be totally lost in these waters, as usual. As it is I have some idea where you're going (absolutely terrific book by the way, Marcy -- I really appreciate that it was written for even someone as ignorant of these Wheelers' & dealers as I am.) Cheney is quoted on p.117, speaking to Russert:

"I have the authority as vice president under executive order issued by the president to classify and declassify information. And everything I've done is consistent with those authorities."

This of course doesn't jibe with the series of events you lay out just a couple pages back, and that Mickey summarizes above, in which Cheney directs Libby to leak (something) and then has to tell him it has been declassified by the President, rather than just declassifying it himself. Clearly by their own actions VP ≠ POTUS.

But, on both political and policy footing, I really like Hodes going after the implications of a sentence you have on p.116, "Miller fairly routinely received classified leaks regarding WMDs", supported by about 3 or 4 examples over a few month period. Also clever to make it clear that "leak" is not anonymously providing insider gossip in this context, but in any way providing classified information -- a usage from the intelligence world that's quite different from the usual usage in journalism. Surely even Republican stalwarts can agree that a reporter from the NYT should not be getting a de facto security clearance -- there is no question that is a national security risk (Fox News, ok; but the NYT??) Leaking a classified NIE is leaking classified information, just as much as leaking a covert agent's identity is leaking classified information -- "I didn't steal that cookie, I was only stealing candy."

[Sally]

Two things: (1) The point is repeatedly made by the Republics that no one said Mrs. Wilson was a covert agent (even though Novak should have assumed this was what Mr. Harlow was telling him). The fact is that no one said Mrs. Wilson was NOT a covert agent so, in the interest of due diligence, everyone should have assumed she was. (2) The legal distinction should be made between exposing a person in covert status via instant declassification and that of instant declassification of a paper (the NIE). Facts confuse the Republics but they should be in the record.

[viget]

Mickey--

IANAL, and lawyers please feel free to correct me on this, but the absolute authority given to the pres wrt classification/declassification authority stems from both Sections 1 and 2 of Article II. In section 1, it states that the "...executive power be vested in [the] President..." Now this is where Addington gets his unitary executive theory, but with regards to classification issues, which have been interpreted by the Supremes to be the purview of the Executive branch since they deal with sensitive governmental information, as head of the Executive branch, he has absolute authority to make these sorts of decisions.

Furthermore, his Section II powers include the C-in-C clause, and since many classification matters deal with matters vital to the national defense and the military, his authority to oversee such matters is also absolute.

I'm sure there's some case law citation that explicitly spells this stuff out, like I said IANAL, so I don't know.

[kim]

Are there differences between declassifying a document and revealing an undercover agent's ID? I remember reading something at TNH or JOM saying that Congress, or maybe Tenet (and Plame herself), would need to approve if Plame's info was released. Might be another reason for using the NIE in to cover for leaking Plame, easy to demonstrate that all's Kosher.

[oldtree]

the insta de, and re, is evidence of a conspiracy. the acts were to hide criminal activity. should be quite simple to read the statutes. the interpretation will be the interesting part. will congress believe it enough to constitute a misdemeanor, or a high crime

[Redshift]

IANAL or security professional, but it's my understanding that the authority to classify and declassify are separate (which would make sense), and the executive order delegates the authority to classify, but makes no mention of declassification. I take this to mean that Cheney's "I have the authority to declassify on a whim" is just an attempt to muddy the waters.

[Redshift]

It's a pity Tom Davis isn't likely to have any town hall meetings until it gets closer to election season. I'd love to ask him about this, and about his contention that if the CIA doesn't tell the White House who their covert agents are so they know not to mention them, the CIA isn't really protecting them.

[orionATl]

e'wheel

i'm glad you are persisting in writing on this matter.

there is still much to understand about how this white house handled intelligence papers as well as personnel.

do you know whether waxman going to hold more hearings working out form friday's?

[viget]

Redshift--

I agree. There's much more oversight and process that goes along with declassification than with classification. It seems relatively easy to classify something. But declassification is much harder, and usually involves the person who classified it in the first place. Since Cheney didn't classify Plame's status, I'm assuming he doesn't really have the power to declassify it unilaterally. Only the president can do that. And I'd like to think, that for something as serious as outing an NOC, there'd be a paper trail for such an order.

[Mimikatz]

I made the point over at Kos that the fact that Knodell testified that no investigation was ever opened into the leak of Valerie Plame's identity meant that from the outset Bush knew that there had been no leak of "classified" information because he or Cheney had declassified it so it could be leaked to reporters. Hence no need to investigate the leak, despite what he told the public about getting to the bottom of it. I think this is really damning.

[clbrune]

Frankly, I don't know where Congress could go with the NIE matter, unless they can get Cheney and Bush to testify.

I'm incredibly glad Waxman held this hearing. I don't know what the procedure is, but this seemed to me like the beginning of a set of hearings. Is that a faulty assumption? He concluded the session by stating that he'd "keep the record open," to fact-check Toensing...but does that imply this matter is otherwise done?

Speaking of Toensing...does anyone think she actually made false statements to Congress? If she didn't cross the line, she sure as hell stood on it!

[Sally]

It makes absolutely no sense that the president and/or vice-president can out a covert agent without the agent's knowledge. What if Mrs. Wilson had been overseas on a secret mission when Novak told the world what it had no need to know? Did all the loose lips know her whereabouts while they were chattering about her? I cannot believe there is a provision anywhere that allows the president and/or vice-president to do what they did.

[KenBee]

Mimikatz,in your DKos comment you said
"Only 2 people (besides the CIA) can declassify info--Bush and Cheney (by delegation)."
Well, that's the issue, and why do you say that? There is discussion about Exec Orders and also section II, but no one has found that to be clearly true. Quite the opposite.
Thanks.

[John Casper]

Thanks emptywheel, great catch.

[Swopa]

FWIW, here's a line of questioning from Libby's grand jury testimony -- either Fitzgerald and/or
the GJ apparently suspected Cheney never really got permission from Bush (this was before Fitz had interviewed Cheney or Bush, though):

Q. And the next question was, what did the Vice
President tell you about his conversation with the President
when the President gave you the green light to share some of
the NIE information with the press which turned out to be
Judith Miller?
A. He told me to go ahead and talk to -- that we should
go ahead and, and talk to the press about the NIE. I don't
remember whether he said Judith Miller at that point or, or we
should go ahead and talk about it. And, you know, I said, the
President cleared it? And he said, "yes," or something. I
didn't use those words necessarily, but that was -- I made
sure that, that he had talked to the President, the President
said that we should talk about it.
Q. Do you know if he met with the President in person
or spoke to him by telephone?
A. I don't know.
Q. And do you know if the Vice President was in town,
in Washington, when he talked to the President about it or was
out of town?
A. I believe he was in town when he talked to, talked
about it.
Q. And do you know whether the President was in town
when he talked to the President about it?
A. I think that he talked to the President -- I believe
they were both in town when they talked about it, but I, I
don't know, but that was my impression.
Q. Any other detail that the Vice President imparted to
you about his conversation that he had with the President?
A. No, sir.

A really dedicated weed-digger might explore Cheney and Dubya's schedules for the time period in question (e.g., Dubya was in Africa July 7-13, Cheney in Wyoming the weekend just prior)...

[Mimikatz]

KenBee--I assume your question is over the VP's authority to declassify. I am giving them the benefot of the doubt here because i don't think it gets them anything. one or the other did it. My money is on VP, probably without initial Presidential authorization. I don't think it lets anyone off; rather, it shows Bush for a liar.