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The Whole Declassification Question


UPDATEMedia Matters raises some questions about this as well. 

The question of authority on declassification has come up again and again with regard to the Traitorgate case.  And I wanted to hit a couple of points again on that issue, since it is a central question in some of the reading today with regard to the latest filing from Fitzgerald.  Back on February 19, 2006, after the Cheney interview on Fox, I had this to say:

With this shooting, that raw nerve has once again been exposed — by Cheney, himself, this time in his "damage control" interview with Brit Hume, wherein Cheney claimed to have inherent declassification authority. If true, this would be a sea change of Vice Presidential power — this authority has rested solely with the President, period — and if true, this change has occurred in the absence of any public discussion or notification, which also runs contrary to American sensibilities on sensitive national security issues. (For a great review of this, listen to this NPR interview.)

Is this an accurate assessment of how things stand in the Bush Administration? Or is this another example of Dick Cheney grabbing the reins with both hands while thumbing his nose at "the boss?"

The link to the NPR interview is an amazing one.  If you missed it the first time, take some time and listen to this interview.  I also covered some further skepticism from the WSJ and others regarding Cheney’s claims of declassification authority in this post around the same time

Georgia10 at dKos reminded me today of the fantastic discussion that went on around the same time in one of her diaries, and I wanted to bring the diary and the whole comments thread to everyone’s attention.  The diary itself is a great piece of research — it details all sorts of information, including some valuable links to documents and case law, but the comments thread is really a incredible and worth a full read.

As Georgia10 put it so well in her post:

That’s because, as this whole conspiracy illustrates, the plan was to confine the smear to the Office of the Vice-President. That is why the order was amended to give Cheney the power to smear. That is why Libby was the main leaker. When Rove’s deviousness tempted him to play along, he screwed up the plan by tainting the Office of the President with the leak.

The Vice-President’s decision to declassify this information may not be judged in the courts, but rather in the court of public opinion. Courts long have been hesitant to question the President’s discretion in dealing with classified materials. Does such deference extend to the Vice-President? Even if the legal cover-up here withstands or avoid judicial review, what will the public make of the fact that Vice-President Cheney committed a crime, but President Bush chauffeured the getaway car?

Except today, we learn that George Bush may have been doing a whole helluva lot more than just chauffering.

And for all those agencies whose job it is to protect our nation’s security secrets:  how are they supposed to know what is or is not classifed information if George Bush only tells Dick Cheney and Scooter Libby when he’s decided to declassify something?  Doesn’t that seem more than a little odd to anyone else — let alone outside the boundaries of normal procedures?

Reader Mary raises some critical questions about all of this in the comments as well.

Re: declassification. Prof Foland has given the link to the current Exec Order.

It is not the best organized of orders, but as to who can declassify, a part of the info on this is hidden down at the end of the Order in the Definitions.

l) “Declassification authority” means:
(1) the official who authorized the original classification, if that official is still serving in the same position;
(2) the originators current successor in function;
(3) a supervisory official of either; or
(4) officials delegated declassification authority in writing by the agency head or the senior agency official.

This is one reason Tenet’s name keeps coming up. The NIE is, I believe, deemed a CIA generated doc (although it can have parts in it that are from other agencies as well)

Lots more in Mary’s comment, and well worth a read.

Reader Cujo359 responds with this further point of clarification and questioning:

For the most part, I understand the declassification document the way you do. The one thing I differ on is that it appears to me that the President has the power to declassify anything for any reason. The only thing that could make this illegal is, as you suggest, that some act of Congress makes it illegal to declassify some kind of information without further consultation or whatever. So the Pres. certainly has the right to declassify an NIE, but if there’s some law about CIA NOCs, then that would complicate the declassification of Plame’s identity.

Either way, it’s scandalous that Bush would play these games. Plame’s identity and some of the information in the NIEs are among the most important secrets we have as a nation, as they involve the identities of people who provide us intelligence and demonstrate how effective we are (or aren’t) at gathering that intelligence. I’d say that even if it was all legal it’s worth looking into as grounds for impeachment.

All in all, one thing is quite clear: how something can be declassified is a question with a whole lot of shades of gray. And it hasn’t been answered in this case by a long shot. (Or by any birdshot, as the case may be.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com