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July 01, 2007


EW, I took the time to read the whole EO and the set of changes earlier, and I came to the same conclusion. Since then, and in light of all the commentary I've read in the meantime, I've assumed I read it wrong. Good to know my comprehension isn't a flawed as I thought. This is a very important point and we have to spread the truth far and wide. You're right--there's no reason to take Cheney's word for anything.

You should also crosspost this at DKos so it will get the exposure it deserves.

EW - SOOOOO lucid! A real pleasure, and thank you for seeing past the sideshow to laser in on Bush's role, or lack of a role in the Plame leak (although I do believe that he put out the hit on Valerie, it would be the kind of vindictive thing that Cheney in all his manipulative glory would know that Bush would relish doing). Please continue to hammer on the "waving of the wand", as Mrs. Carville describes it. While it is clear that Bush does have the power to declassify at will, "at will" does not mean that the document is declassified the minute the thought pops into Bush's head, like some kind of impulse that he would like to have some popcorn. To make this kind of argument is to condone as well that he can RETROACTIVELY (hint, hint!) declassify something - the President is required to go through the declassification procedure set out in statute, regulation, or un-amended Executive Order, just like everyone else, except that the decision itself to declassify cannot be questioned, no matter how stupid or ill-advised.

Which direction would lead to a better outcome for US democracy: proving Cheney illegally declassified or that Bush allowed it?

I'd go with the former. Removing Cheney from office for high crimes unhinges the powerbase in the OVP.

By contrast, Bush copting to the fact that he BUSH was in the end the WH leaker will provide at most a momentary sunspot on his person. The light may leave burn marks on his flesh, but the rightwing media with then protect him with a cover of pablum and fog stating that Bush had the absolute right to have leaked it.

Mornin' EW.
Notwithstanding all the other weasling and wiggling the right has done to exonerate and rehabilitate Libby for his role in Plamegate, isn't it true that no one has suggested there was no crime 'cause Deadeye had instadeclassification powers? In fact, if they were to propose that there could have been no crime for that reason, the whole problem would go away. Rather, from Bush on down, all these weasels know that the power to declassify is a separate issue from outing a spy, and to claim that Valerie's outing wasn't an outing 'cause Bush or Cheney declassified it would be to admit that they were in full knowledge of her status when they outed her, which would be an admission of guilt under the statute, and convictions would be, to borrow a phrase from George Tenet (who seems to have remained miraculously clean through it all), a slam dunk. No? Or, yes?

So, the following conversation wouldn't make everything all legal, eh?

Cheney: I just told Scooter to out Wilson's wife.
Bush: Good idea.

No implicit EO, delegation, declassification?

i wondered about this myself, but just assumed rich had discovered something i had not heard before.

man, what an error. it tacitly legalizes cheney's unmasking of plame.

i even opined to my wife this morning that this was the first of rich columns' i'd read in a while that contributed much to my understanding of anything.

guess i'll have that to clear up now too.

as if it needed saying,

this post is an excellent illustration of just how vital weblogs like "the next hurrah" are for ordinary citizens like myself

in out effort to really understand what is happening in this nation's government affairs.

in the old days,

pwl (pre-weblog),

i could have gone years obliviously accepting, and occasionally repeating, rich's misinformation.


i don't want to hear any more of that crap from the journalistic swells in washington and new york about how "rude and radical" the progressive weblogs are -

unless they mean by that to convey that an accurate depiction of facts and inferences from them is rude and radical.

I read Rich's column closely, and I just assumed that he got it right. Even a quick read of the language of the Executive Order makes it clear that EW is right. This is a demonstration of the power of the MSM, when we have a columnist whose views we generally support, we assume they are right. So do the people on the right.

"Eternal vigilance is the price of liberty" needs a lemma: A good memory is the down-payment on the price of liberty.

I add this: David Addington says Cheney isn't an agency. If that is so, there is no circumstance in which he could even be authorized to declassify.


Nice point--let's go with it and on that basis indict him for declassifying Plame's identity!!

hmmmm. . . permit me to disagree, here:

i, for one, think it high-time to take
the vice president's latest assertions
of super-constitutional powers quite
seriously, and accord them all the
comity, and deference, due and owing to
the second-highest ranking official -- of
any branch of government -- in this,
our republic, and these fine united states. . .

to that end, i've assembled these very-considered
opinions of the best and brightest constitutional
law scholars extant, on that quite-weighty topic of mr.
cheney's role outside -- and over -- all three of
the "ordinary" branches of government -- and,
in just 47 seconds of running video, to boot


seriously -- you know i agree, EW. in spades.

p e a c e

Well, I didn't say that last point correctly. In order for the president to give authority to Cheney, the president himself would have to be an "agency", within the meaning of the EO. Cheney would have to be an "official". I don't think this is consistent with their theory explaining why Cheney doesn't have to comply with the rules on classification.

Note how odd something else is about this language. If you were simply adding another person to a list of authorized actors, the bracketed portion would be deleted because redundant:

"Sec. 1.3. 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;"

Or, the bracketed portion would have inserted into it a "his", to make clear whose authority the Vice President (in this case) is exercising:

"Sec. 1.3. Classification Authority. (a) The authority to classify information originally may be exercised only by:

(1) the President and, in the performance of [his] executive duties, the Vice President;"

Addington, presumably the drafter of these changes that peculiarly favor Cheney, is a careful, tireless and creative drafter. The extra language, missing the usual "his", is there for a specific purpose. What?

My supposition is that this is another example of purposefully conflating the offices of the President and Vice President. Where it works in his favor, Cheney is claiming to act "as" President", not "as if, or on behalf" the President. Of course, where liability may attach, Cheney is just a messenger boy for the man, like Sampson and Goodling.

I think this curious construction is also designed to avoid inquiry into what those "executive duties" the Vice President are, principally because they are so few - except as explicitly delegated by the President or by statute. Which gets us back to EW's argument that this is an attempt to both insulate the President from direct involvement and give the appearance (in my opinion) to others that the VP has the power of the President as a matter of law, not temporary delegation.

How many times and in how many ways are we going to whip this dead horse?

Gee, I don't think I ever understood this distinction, thanks.

It seems to me that this might be a presidential power that you can't delegate. It would seem to be a clear cut violation of the chain of command or whatever. But there is something else interesting here: how exactly did the Vice President classify stuff before the EO? Was he considered to be under the President, just like all the other agencies? Or did he have less power than an agency, and Cheney just noticed the problem in 2003. I say this because I was originally thinking the modified EO was to allow Cheney to declassify Plame, etc., but since that is now invalid, maybe the reason is so that Cheney didn't have to involve the White House in the classification business.

At any rate, just as the EO had to be written ahead of time, I would be willing to bet than any delegation would require a written agreement. Even then I can't see how any lawyer in the WH would allow such a delegation. I can't see the benefit. The President could more easily instant declassify and buy time if those leakers don't tell the whole story. But I'm going with rogue OVP assuming Bush doesn't complain.

Fascination with Cheney is a disaster--unavoidable, certainly, but a disaster all the same. And why? Because we cannot also attend to Bush while attending to Cheney--or I, at least, have enormous trouble doing so. This situation is certainly well known to Cheney as well as Bush: Cheney may indeed wish (and largely manage) to maneuver in secrecy, but it's always to HIS secrecy that his antics draw our attention. And this only increases his value to Bush.

The correlative problem? We really don't know how to attend to Bush. His incompetence, his ignorance, his passivity, the deranging clumsiness and poverty of his discourse, all make him quite impossible to watch--it's like watching paint dry.

Too bad for us, because, finally, it's all about Bush. And I think he's finally quite legible in a disgusting sort of way. To begin with--and also to end with--the man is a vindictive and punitive sadist who needs to hurt individual human beings, then to sit back and watch the damage being done. The particular instance of the Plame case is a perfect example: isn't it obvious that it was Bush--not Cheney, who couldn't care less, but Bush--who wanted to hurt the Wilsons, and hurt them in ways that would cause them real personal damage, destroying their careers to begin with? (Cheney's gratification comes, first, foremost and always, from scoring points with the boss.)

Bush did that thing to Joe Wilson and Valerie Plame. He had to do that thing because he had nothing better to do--by which I do not mean that there was no better thing to do, but, rather, that doing this thing was, for Bush, the one and only satisfying thing to do--on a purely personal level.

To take ths point a step further: so utterly lacking is Bush in any abstract or conceptual skill, any curiosity, compassion or imagination, that the only remaining stimulus of any kind available to him is the most trivial, the basest, the most concrete, and the most vile activity at hand: and it always, without exception, a matter of hurting people, and of watching them suffer from his handiwork.

The better to sharpen our skills at watching this (unwatchable) thing, we might start--because it keeps us on a level pertaining to the man--by taking careful note of his interactions with the casualties in our armed forces, and with the family members of the casualties most of all--more specifically their parents, and more specifically still, their mothers. For this is the Great Asshole's shining moment--his moment for shedding tears about the terrible hardships of being George W. Bush.

Where the hell is Mencken when we need him? And where the hell is Mark Twain?

Marcy, I hope you've sent this to Frank Rich directly.

I wonder if you have comments on Noman Pearlstine's session on C-Span's Book TV today including the debate with Bob Woodward?

marcy, just happened upon c-span coverage of a discussion at the aspen institute between norman pearlstine and walter isaacson that has touched on many issues involving the plame leak and the press, etc.

of note is pearlstine's cavalier acceptance of leaks in dc as daily fare and in fact (his opinion) that the press relies on them, as well as his repeating the falsehood as you describe it here that cheney was authorized to declassify.

don't know when this segment started, but i came into it about 5, and it's already in q&a.

oops; just saw stev888's note on pearlstine's session, sorry for the redundancy.

also sorry i missed the woodward debate!

unlike horses, War Crimes Charges NEVER DIE

there AIN'T no status of limitations on Crimes Against Humanity

so if a certain skidmark implied that this is a dead horse, well, when has the skidmark ever been right about anything ???

at least the skidmark is consistent

if consistency were a virtue in itself, the skidmark could even call herself a moral person

but that ain't the case

hey skidmark, you're still wrong, and still a skidmark

"and, in the performance of executive duties, the Vice President;"

Certainly,divulging and directing, the release of classified information; such as the name or occupation of a covert CIA officer, does not fall into a category of "executive duties", no matter how you twist it around and no matter who you are.


Fascinating, and highly significant. I thank you for this piece of excellent work and rest assured I will make sure I note this distinction whenever it comes up in conversation, be it verbal or written. This is *very* important I think, and something which I suspect Bushco was hoping no one would notice, and clearly until you nobody really was noticing, at least not anyone with a significant credible "voice" that is listened to by many which you most certainly are and deservedly so as demonstrated by your excellent work product on the Plame affair alone, not to mention your other work regarding the Imperial Presidency. I really hope this spreads through the online world, that should make it far more difficult (although alas not impossible) for the various MSMers to miss/ignore this vitally important point regarding Cheney's authority on DECLASSIFICATION as opposed to CLASSIFICATION and how it shows regarding Plame's outing either GWB specifically authorized it or Cheney was acting as rogue/criminal. Either being of course something no American that believes in the America of the Constitution and Bill of Rights should be willing to defend/accept.

Good luck in getting this disseminated Marcy Wheeler.

I remember figuring this out some months ago, during a discussion at Firedoglake. The only person who has the universal power to declassify documents is the President, even according to EO 13292.

So, yes, it's true, and Rich should know better. Unfortunately, I also remember glancing at that order and at first thinking that he _did_ have the power to declassify anything, since he had been given the power to classify. Apparently, this is a mistake many people make.

The sibling point is that declassification and covertly planting cherrypicked classified information with domestic newsources for the purposes of influencing domestic poltics are two different things.

jodi (@ 15:01):

When the last Cheney is strangled with the intestines of the last Bush (to borrow a famous phrase of Diderot's)....

Peter Baker in today's "WaPo" (cited with reference to that rant @15:21):

King, the GOP congressman, introduced him backstage to a soldier injured in one eye. Bush teared up and asked the young man to take off his dark glasses so he could see the wound, King recalled. "Human instinct is when someone has a serious injury to look the other way," King said. "He actually asked him to take them off. He actually touched the eye a little. It was almost as if he felt he had to confront it."

As was said in that previous thread, Cheney has been very, very careful -- Cheneyesque fashion -- to ensure that he's not saying something that's an explicit lie, but overstates the case.

Gah! Anyone have the stomach to read this?


"A President Besieged and Isolated, Yet at Ease"
----Bush, Grasping for Answers and Fixated on Iraq, Remains Resolute

"At the nadir of his presidency, George W. Bush is looking for answers. One at a time or in small groups, he summons leading authors, historians, philosophers and theologians to the White House to join him in the search.

Over sodas and sparkling water, he asks his questions: What is the nature of good and evil in the post-Sept. 11 world? What lessons does history have for a president facing the turmoil I'm facing? How will history judge what we've done? Why does the rest of the world seem to hate America? Or is it just me they hate?"

I'm going out on a limb here and guessing Glenn Greenwald will not be enjoying the presidential soda anytime soon...


This is a crucial, but subtle distinction.

I have a confession to make. I have been guilty of the error of thinking Cheney could declassify under theprovision that he was a "supervisor" of others with classification authority and thusly could declassify all but that for which the President was the orginal classifier.

I am a dolt! Cheney may be a de facto supervisor of the cabinet officals, but I don't think ANYONE has established that he is a legal supervisor of them.

Hence, I revise my opinion and now agree with you that Cheney can only declassify things for which he was the original classifier absent specific delagation from the President.

In an attempt to redeem myself, I offer this anomaly:

If Cheney has orginal classification authority as laid out in this EO, how come he has beenn using the just made up in his own fertile imagination designation "Treat as Classified"????

There has to be a reason for that. I don't think that the mere fact that a given document does not fit the ctiteria for classification would cause him to hesitate, so there has to be some other reason why he is using the non-legal designation.

BTW, to any current or former feds out there who have been hesitant about going public with info contain on a "treat as classified" document---I can't think of what the crime might be if you decided to talk about it.


And in no case was Cheney Tenet's supervisor, which is what was at issue here. Much as he would like to be.

Also remember that Addington said the first time he had seen the Treated as designation came when he was turning over evidence to investigators. I still don't know what the significance of that is, but it must be significant.

Treated as classified. Hmm. Was there any marking to that effect on the memo sent to Air Force One on the way to Africa, the one where Valerie is named in a paragraph marked S for secret?


So was the 2003 EO an expansion of power Cheney had previously not exercised OR was it cover Cheney's pre 2003 activities OR was it to limit Cheney's pre2003 activities?

"Cheney can only declassify things for which he was the original classifier absent specific delagation from the President."

That's a problem for Cheney if you assume Cheney doesn't already think he is the original classifier. Wouldn't it be just like Cheney to argue his handling of the intelligence portfolio for Bush in 2001 carried with it an implied deligation of Bush's authority to classify materials as he would have done so with or without Bush's verbal approval.

When did Cheney begin using the "treat as classified" designation and Why? Maybe 2001 when Bush handed the intell portfolio to Cheney. Isn't it likely that Cheney handling intell would want to use Bush's authority to classify and declassify? Just because he didnt' have that authoirty doesn't mean he didn't try to do just that from 2001 to 2003.

If so, the "treated as" designation was likely born out of another one of Addinton's theories implied co-extensive powers. It may have went something like this - since Bush delegated handling the intell portfolio to Cheney, Bush also implictily delegated his classification auhority to Cheney as well. So without an express delegation, Cheney/Addington decided to use the "treated as" designation to escape liability for violating the pre-2003 EO and to prevent any backlash caused by Cheney becoming the intelligence decider

That may also explain why they've continued to use it after 2003? Makes sense if you don't want to admit the pre 2003 designation lacked any real authority under the pre-2003 EO. And if you continue to use it you don't have to explain why you dropped it or why you used it to begin with. Have they ever explained what authority "treated as" has or why it was adopted?

Who wrote the 2003 EO may explain why it was written.

Did Addington/Cheney write the EO? If so, was it really an expansion of VP's power? Perhaps, if you assume Cheney hadn't exercised such power before 2003. If Cheney had done so, is it likely the EO was an attempt to get Bush to retroactively clear Cheney of improperly classifying materials from 2001 to 2003 in violation of the Pre-2003 EO?

Did someone else write the EO?
If so, would someone outside the VP's office write it for the purpose of expanding the VP's power? It's doubtful anyone outside the VP's office would help the VP gain more power considering the VP was already the dominant force in the White House.

So was someone outside the VP's office trying to stop Cheney's 2001-2003 activities? If so, the EO would apprear to be an expansion of power but in practice would limit the VP's exercise of his implied powers based on his pre-2003 EO interpretations.

Does the word originator mean a person who possesses original classification authority, as opposed to the person who created a document? My understanding is that there are two kinds of classifiers, original classifiers and derivative classifiers. Derivative classifiers may only classify or declassify based on guidelines written by original classifiers (hence, the word "derivative"), and the subject areas and levels they can cover are specified at the time they receive their authority. Original classifiers specify the guidelines on the classification and declassification of documents. If Cheney possesses derivative classification authority then he may only classify (or declassify) based on the guidelines set forth by original classification authorities. If Cheney instead possesses original classification authority, the scope of his declassification authority is broader, the extent to which I cannot specify.

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