Sunday, February 19, 2006

Unilateral Declassification?

By Melissa Boyle Mahle

The debate over the merits or demerits of leaks continued this week, but in an odd direction. I. “Scooter” Lewis Libby, former Chief of Staff to VP Cheney, who has been indicted for perjury, is claiming that he was authorized to give parts of the National Intelligence Estimate to the press. Cheney publicly backed him up, saying that as VP he has Executive Authority to declassify information. In other words, this was not a leak. Portions of the National Intelligence Estimate had been declassified.

Here is what Cheney said:

Interview of the Vice President by Brit Hume, FOX News
Vice President's Ceremonial Office
Eisenhower Executive Office Building
2:01 P.M. EST

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.


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.

What is the difference between declassification and a leak? The first denotes the use of an established procedure and the second is a unilateral action. Declassification requests can originate from anywhere, from the President’s office, Congress or the public (FOIA). The request goes to the originator of the classification; i.e. the agency that classified the information in the first place. They decide what if any can be declassified. Under the Bush Administration, the White House apparently demanded a reviewing role of the declassification decisions if there was a political angle. A leak bypasses this process entirely and the information is made public.

The question is did VP Cheney go through the declassification process or did he do it legally unilaterally. There is no evidence that the CIA received and declassified the portions of the NIE—or for that matter the identity of Valerie Plame—before the information was passed to the press. If it is has been declassified by the CIA, there will be a paper trail with the request, action date and decision. A simple FOIA request would clear this up if it exists.

Did Cheney unilaterally, legally declassify portions of the NIE. Executive Order 12958 on “Classified National Security Information” provides the core rules on handling the classification and declassification of national security information. The role of the VP is mentioned only once and this was in terms of preempting the 25-year automatic declassification rule if declassification would “impair the ability of responsible United States Government officials to protect the President, the Vice President, and other individuals.”

It is important to remember the context of the Clinton EO on declassification. This was part of Gore’s Reinventing Government. There was the belief that the US government was too secret and was over classifying information. The goal was to introduce a process of automatic declassification and to make classification process more accountable—there had to be a valid reason behind the decision to classify in the first place. The Clinton EO did not provide anyone with the unilateral decision-making authority to declassify information, but the automatic declassification after 25 years—with notable exceptions.

The Bush Administration issued revisions to the Clinton EO on 25 March 2003, Executive Order No. 13292. In the amendments, the Vice President plays a major role. The VP-related sections deal with classification, access to classified information and declassification. The access and declassification parts are as follows:

• The automatic, 25-year declassification of national security information can be preempted if it would impair the ability to "protect" the Vice President from physical harm;

• Mandatory declassification review is required of information originating from the Vice President (i.e. of stuff the VP personally classifies);

• Mandatory declassification review is required from the Vice President's staff (i.e. of the stuff the VP staff classifies)’

• Access to certain national security information can be provided to individuals who occupied policy-making positions appointed by the Vice President (such as the VP’s staff, commissions members appointed by the VP, but the press would not fall into this category); and

• Waivers to rules of access to classified national security information will only apply to Vice Presidential appointees in areas of their policy work while working as an Executive Branch appointee.

I do not see anything here that indicates the VP has a legal, unilateral authority to declassify national security information classified by another individual and/or agency. Furthermore, if the leak was not a leak, but a declassification, why did Libby ask reporters to not identify him as the source of the information. Was the White House using the aura of a leak to give more credibility to the message? Now that is definitely a “wilderness of mirrors” thought.

The other point I’d like to make is the context of the Bush EO. It was drafted purposely to tighten up control over classified information. The White House and the intelligence community were roiling from leaks, on one hand, and Cheney’s anger about his staff being denied access to certain kinds of classified information.

Daniel Schorr, a long time political and intelligence watcher, astutely notes why leaks are an enduring problem in Washington. As long as there are partisan politics, there will be political leaks. Most leaks come from the politicos; not the spies. But that does not stop Goss’ witch hut at the CIA.

Christian Science Monitor
The dichotomy of intelligence leaks
There are leaks that serve an administration's purpose - and those that do not.
February 17, 2005
By Daniel Schorr

WASHINGTON - All leakdom could be said to be divided into two parts: the top-level leak serving some administration purpose, and the unauthorized subterranean, whistle-blowing leak that tends to defeat the administration's purpose.

President Reagan once complained of being, "up to my keister in leaks." He deeply resented leaks because they suggested some loyalty other than to him.

The current prime example of a damaging leak is The New York Times story of Dec. 15, 2005, about government eavesdropping without a warrant, which plunged the administration into something of a crisis. The Times' only attribution in the story was, "According to government officials." The president has ordered an investigation to discover the leaker. As far as I know, no whistle-blower leak investigation has ever led to successful prosecution.

Perhaps the unauthorized leaker of the century was the FBI's Mark Felt, aka Deep Throat. President Nixon, in time, came to suspect Mr. Felt but took no action against him. Nixon told his subordinates he feared Felt might make revelations about him that would prove even more damaging.

The other famous leaker of the 20th century was the RAND Corporation's Daniel Ellsberg, who delivered to The New York Times and The Washington Post the 7,000 page history of American involvement in the Vietnam War that came to be known as the "Pentagon Papers."

Deeply resentful of unauthorized and especially anonymous leaks, the White House nevertheless likes leaks that it can control. One such leak that spun out of control was the unveiling of the covert CIA identity of Valerie Plame, whose husband had cast doubt on the existence of an Iraqi nuclear program. If a leak can be said to have boomeranged, this one did. It is now the subject of a two-year special investigation. Vice President Cheney's chief of staff, I. Lewis Libby, has been indicted for perjury.

Mr. Libby has testified that his superiors also instructed him to leak information from a secret intelligence report about supposed Iraqi weapons of mass destruction. The investigation is still in progress.

Leaks can be a dangerous game, but danger is not likely to discourage them - either from the top, or from deep inside the government. As I have written before in these pages, the ship of State is the only kind of ship that leaks mainly from the top.

• Daniel Schorr is a senior news analyst at National Public Radio.


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2/24/2006 11:31 AM  

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