CommunityFDL Main Blog

Insta-De-Classification and Other Bedtime Stories

47cf429a-e55f-43bc-a4e4-25ea9c03809c.jpg

Dear sleepy little Firepups,

Put on your footsie pajamas, get your warm blankie, snuggle under the covers and Looseheadprop will tell you a bedtime story about a mythical event called Insta-De-Classification. Unlike unicorns or Santa Claus or Sasquatch which have all had multiple sightings and for which there exist a vast treasure trove of both testimonial and documentary evidence, Insta-De-Classification is a fable made up to help the simple minded avoid nightmares.

Once upon a time there was a President. This President issued an Executive Order called 12958 (funny name that). Anyway, 12958 was a noble, though verbose Executive Order. It laid out the rules for classifying and de-classifying government documents.

Among other things, our friend 12958 created an Information Security Oversight Office which had as its job both making sure that the rules for classifying and de-classifying secret information were followed, but also for keeping the records that would let people know what was and was not classified at any given time.

You see, pups, section 5.1(b) of 12958 defined a violation of that Executive Order as among other things:

(b) “Violation” means: (1) any knowing, willful, or negligent action that could reasonably be expected to result in an unauthorized disclosure of classified information;

And section 5.7 (b) states among other things

(b) Officers and employees of the United States Government, and its contractors, licensees, certificate holders, and grantees shall be subject to appropriate sanctions if they knowingly, willfully or negligently: (1) disclose to unauthorized persons information properly classified under this order or predecessor orders

[snip]

(4) contravene any other provision of this order or its implementing directives. (c) Sanctions may include reprimand, suspension without pay, removal or termination of classification authority, loss or denial of access of classified information, or other sanctions in accordance with applicable law and agency regulation

Now you may be wondering, what “applicable law?”

Well, our good friend Citizen Spook has a theory about that and excerpted and added emphasis to two sections out of Title 18 of the US Code. Title 18 is where they keep all the crimes BTW.

793:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing…or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it…

(e) Whoever having unauthorized possession…(followed by same as above)

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing…or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed… Shall be fined under this title or imprisoned not more than ten years, or both. (g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

—————————————————————————-

And now 794:

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing…or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

So, as you can see puppies, if a person can commit a big ugly federal crime with up to A LIFE SENTENCE for “caus[ing classified information] to be communicated, delivered or transmitted the same to any person not entitled to receive it…” this is a very serious matter. Consequently, under the authority of our friend 12958, the Information Security Oversight Office was created.

The current Director of ISOO is one William Leonard. Yes! That same nice Mr. Leonard who testified before BIG HANK Waxman’s committee on Friday. Wasn’t Mr. Leonard a credible witness? He wouldn’t let anybody left or right side of the aisle spin his testimony or get away with telling any fibs. Mr. Leonard strikes the Looseheadprop as a pretty straight arrow based on his performance in front of BIG HANK.

Well, Mr. Leonard set up a system for all the people who have authority under 12958 to report to ISOO what they had classified or what they had de-classified so that there would be one central definitive list. After all, if you want to throw somebody in jail for LIFE you better be able to prove that the thing they “communicated, transmitted o delivered” was actually classified at the time they did it. N’est pas?

Well in 2001 and 2002, everybody in the government was reporting every time they classified something or de-classified something. So far, so good. However beginning in 2003 (perhaps coinciding with that energy task force thingy?) the Office of the Vice-president decided it wasn’t going to comply any more. Mind you, the Office of the President still had to comply, but not OVP. Odd? According to the SeattleTimes:

A standing executive order, strengthened by President Bush in 2003, requires all agencies and "any other entity within the executive branch" to provide an annual accounting of their classification of documents. More than 80 agencies have collectively reported to the National Archives that they made 15.6 million decisions in 2004 to classify information, nearly double the number in 2001, but Cheney insists he is exempt.

[snip]

Bush has a partner — some say mentor — in Cheney, who from the start resisted all efforts to disclose the inner workings of a task force devising energy policy. He defeated an unprecedented lawsuit by the Government Accountability Office, the investigative arm of Congress, to unveil that task force and carried his fight successfully to the Supreme Court

The New Standard tells us:

In its 2005 report to the president released last month, the Information Security Oversight Office (ISOO), a branch of the National Archives, provides a quantitative overview of hundreds of thousands of pages of classified and declassified documents. But the vice president’s input consists of a single footnote explaining that his office failed to meet its reporting requirements for the third year in a row.

[snip]

In a May 30 letter to J. William Leonard, director of the ISOO, the Project on Government Secrecy contended that Cheney’s rationale was illogical, because additional legislative functions should have no bearing on the vice president’s executive-branch obligations.  Troubled by the continued non-compliance, the organization warned that if the ISOO did not act to enforce the vice president’s responsibilities under the executive order, "every agency will feel free to re-interpret the order in idiosyncratic and self-serving ways."

Each year, the ISOO publishes data on the amount of information classified by government entities, such as the Department of Justice and the Pentagon, and broadly analyzes how the bureaucracy processes national-security secrets. Mandated by an executive order, the report is intended to encourage greater accountability and minimize secrecy.

[snip]

In 2003 – around the time Cheney’s office stopped reporting to the ISOO – the Bush administration affirmed and expanded the vice president’s classification powers through a revision of Executive Order 12958, the same order mandating the yearly ISOO assessment. The amended order explicitly granted the vice president unprecedented authority to classify information "in the performance of executive duties," including the ability to label information "secret" and "top secret" on par with the heads of federal agencies and the president himself.

Critics also note another legal shield compounding the vice president’s reticence about how he handles secrets: Cheney enjoys general immunity from the Freedom of Information Act, which empowers members of the public with a process for demanding the release of government documents.

[snip]

Some question whether Cheney has wielded his power over secret government information to smear opponents.

[snip]

In a February interview with Fox News, asked whether he had ever exercised declassification powers, Cheney replied, "I've certainly advocated declassification and participated in declassification decisions," though he refused to elaborate on the nature of those decisions.

Aftergood said that the ISOO could try to compel Cheney to comply with the executive order through enforcement mechanisms. These could include sanctions, which under the ISOO’s mandate might entail "termination of classification authority" or "denial of access to classified information" – or officially requesting an advisory ruling from the attorney general to clarify the vice president’s obligations.

Since receiving the letter, Leonard of the ISOO told TNS that he is "currently pursuing the matter." Noting the novelty of Cheney’s defense, he added, "I am not aware of any other entity claiming any such ‘exemption.’"

Jennifer Gore, communications director for the watchdog group Project on Government Oversight (POGO), pointed to a precedent for public-interest advocates bringing legal challenges to curb executive secrecy. Referring to the Watergate scandal, which also involved a court battle over the White House’s refusal to disclose incriminating documents, she said, "In the past, when members of the executive branch have voiced privilege as a reason not to turn something over, then it’s time to go to the courts."

And then there’s the Chicago Tribune:

Vice President Dick Cheney again refused to report his offices activities in either classification or declassification of documents during 2005, as he has refused to disclose since 2003.

And from “National Security Archive”:

Only 14 of the full 93 pages of the National Intelligence Estimate that President Bush authorized Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, to disclose to New York Times reporter Judith Miller has actually been officially declassified, according to a posting today on the Web site of the National Security Archive at George Washington University.

In May 2006, Steven Aftergood , Director of the Project on Government Secrecy, Federation of American Scientists wrote a letter to William Leonard at ISOO pointing out that Cheney was flouting the law and urging Mr. Leonard to excercise his authority under 5.5(b) of 12958 to sanction the OVP for failing to comply with the reporting requirements. 

So, you puppies may be wondering what has allXGCFHDXthis  to do with Insta-De-Classification? It’s like this, during the Summation in the Libby trial Wells said that only 3 people in the world knew that Cheney and/or Bush had Insta-De-Classified the NIE at the time Libby went to leak it to Judy Miller and Libby went jumping through all kinds of hoops to try to show that he wanted to be sure he had authority to leak it.

Two problems with that:

1) Libby had already leaked it to Woodward and Sanger (hat tip to Marcy for reminding me of that on the phone last night) before the Insta-De-Classification for Judy’s benefit

2) I don’t think anyone can find contemporaneous proof of the Insta-De-Classification anywhere or we would have seen Wells introduce it at trial.

Now, we know OVP doesn’t do the required reporting to ISOO, but there was no indication that the Office of the president wasn’t doing it.

So, here is an interesting possibility: What if Insta-De-Classification is a myth? What if it never happened? What if Libby leaked the NIE to Woodward, Sanger and Miller just like that? Without a thought?

What if, after the fact, they decided to “confess” to leaking the NIE to Miller to cover up the fact that the purpose of the 2 hour St. Regis breakfast was to leak Valerie Plame’s ID and they also gave her the NIE information?

One of the most classic ways to distract from liability for one crime is to confess to another crime. It acts almost like an alibi “I couldn’t have murdered the victim at 10 AM on April 12th because at 10 AM, I was robbing the bank!” When using this method of false alibi, the criminal usually tries to choose to confess to a crime that either carries significantly less jail time or, better still, a crime he knows the prosecution will have a hard time proving.

So, Libby cops to leaking the NIE, a crime not within Fitzgerald’s mandate. Now, I suppose Fitz could have referred the leaking of the NIE to, to, to –who? Alberto? Scratch that. Hmmmm? Who to refer to?

Well, if there is a conspiracy between Bush and Cheney to lie after the fact and falsely claim that an Insta-De-Classification happened when so such thing ever occurred, the only place to refer a high crime like that to would be????????

First person to answer correctly gets a lollipop. Oh, extra hint for you all, Pat actually alluded to it at the post verdict press conference and he specifically talked about believing that violations of the Espionage Act may have been committed during the indictment press conference. Anybody got a guess yet?

Previous post

Open thread: in-camera activism

Next post

The Comments from Largo

looseheadprop

looseheadprop

In rugby, the looseheadprop is the player in the front row of the scrum, who has the ability to collapse the scrum, pretty much at will and without the referee knowing who did it.
While this can give the LHP's team a great tactical advantage, it also exposes scrum players from both teams to the dangers of catastrophic spinal cord injury.
Consequently, playing this position makes you understand your responsibility to put doing the right thing ahead of winning, and to think beyond your own wants and desires. It also makes you very law and order oriented.

313 Comments