Here are three genuine, not utterly hypothetical, questions inspired by the revelation that Libby fingered Cheney as the person who instructed him to leak information from a National Intelligence Estimate hyping Iraq’s supposed efforts to obtain weapons of mass destruction. I really don’t know the answers; all I have are guesses at best.
- Does Vice-President Cheney have the legal authority to declassify material single-handedly?
- And even if he does, if Cheney proved also to be the source of an instruction to leak information about Valerie Plame, does his legal authority extend to the exposing the identity of a covert CIA agent?
- And if the answer to either question above is “no” does that amount to an impeachable offense?
My guesses–and they are only guesses–below. Make your own before peeking.
1. Does Vice-President Cheney have the legal authority to declassify material? I am certain that there is nothing inherent in the office of the Vice-Presidency that includes the authority to declassify information. (Conversely, I can imagine arguments that such authority might be an inherent Presidential power; I would also expect that there are such statutory powers.) I also rather doubt that there is any legislation giving him this power, although I don’t actually know whether this is the case. I do know, however, that Presidents frequently delegate powers to the Veep, or appoint them to various administrative roles, e.g. chairs of intra-governmental committees, and it’s entirely possible that one or more of these roles carries declassification authority. [Note also that the Washington Post article is careful to state that parts of the report had been declassified, so it’s not certain that the leak actually included classified material.]
2. And even if he does, does this extend to the exposing the identity of a covert CIA agent? The Post article doesn’t directly tie Cheney to ordering the Plame outing, but it’s quite suggestive. Suppose, hypothetically, that further testimony ties him to the Plame leak more directly. Even if Cheney has the power to declassify documents, it doesn’t follow that this includes the power to ‘out’ a covert agent, as those identities are jealously protected by a special statute. Furthermore, even if one argues via far-out theories like the unitary executive that the President has inherent authority to violate statutes that might restrict his speech — and the argument is not wholly fanciful — I fail to see how an argument premised on the unitary and unique role of the President should also encompass the vice-president. (Although in fairness I should note that the D.C. Circuit and to a lesser extent the Supreme Court flirted with the idea that the Veep enjoys some sort of derivative Presidential powers and immunities in the recent dust-up over access to Cheney’s energy task force’s records.)
3. And if the answer to either question above is “no” does that amount to an impeachable offense? For the straightforward leak of the NIE, I’m pretty sure the answer is ‘no’: So much stuff is classified that should not be; leaking it is a very standard part of DC culture; leaks even those with an agenda also often serve the public interest as they add information to the public debate. While technically this might be a serious crime, my instinct is that absent some special circumstances in which the information was actually particularly harmful to ‘sources and methods’ or other grave national interests when released a mere leak is not the sort of action for which impeachment is the politically, morally, or precedentially appropriate remedy. (Of course if some prosecutor wants to conduct a leak inquiry, that’s fine with me.)
That doesn’t mean I think that taking us to war on false pretenses might not be an impeachable offense. It just means that technical violations of the classification rules by leaking information of no great value to our enemies ought not to rise to that level on their own.
But the Plame leak is a much trickier issue. If it proved to be the case that Cheney ordered the outing of Plame without authority and with the knowledge that she was a covert operative then I think given that Congress has made clear by statute that this is a special circumstance, this leak does rise to the sort of ‘high crime’ that is an impeachable offense. It was something that directly weakened the US by exposing an agent, ruining her value to the CIA and also her career, and it was done for vile, partisan purposes, perhaps even in part as personal payback. [I also think Congress has the constitutional right to ignore impeachable offenses, so no duty arises from this.]
But suppose that the defense is that Cheney didn’t know she was covert, a defense frequently raised in the media in relation to other suspects in the Plame case. Then I’m not so sure. Here we have a combination the intent to engage in garden-variety leaking combined with a negligent failure to find out the real facts. Bad. Very bad. But impeachable? I’m just not sure, and I suspect in case of doubt one probably shouldn’t go forward.
Again, these are guesses, at most tentative, and not the product of research. More facts, research or thought that might produce a better more considered answer.
“the argument is not wholly fanciful”
As always, Michael, you are kind to a fault.
The part about portions of the NIE having been declassified is a red herring. Those portions were declassified as part of releasing them to the public (so they weren’t even FOUO any more), so it would be impossible to leak them. That would be like “leaking” a page from Huck Finn.
IMHO, the answers to your questions are:
– The President can declassify classified material and also can delegate that authority, at least for specific purposes. However, I don’t think that’s what happened here. When something is declassified, it’s not declassified for just a little while, it’s simply no longer classified at all. In this case, the NIE remained classified. Authorizing release of still classified material to a person or group which wouldn’t normally be authorized it would also be within the President’s powers, but only to accomplish a legitimate purpose and it would also be accompanied by a charge to keep the information within a select group, which would pretty much defeat the purpose of a leak to a news organization.
– I agree with your understanding that this inherent authority does not extend to areas which have been specifically forbidden by statute.
– I agree that outing a CIA agent would be an impeachable offense for the reasons you’ve stated (although I don’t think there’s a chance in a million of it happening). On the issue of leaking part of the NIE, I agree with your conclusion that this probably wasn’t an impeachable offense but disagree with your reasoning. “Everybody does it” isn’t an effective defense in second grade, let alone the highest levels of government. By that logic accepting bribes wouldn’t be impeachable so long as enough other people did it too. Absent other factors (such as a specfic statute), I think whether or not a leak rises to that level comes down to the harm (or potential harm) to the nation’s security caused by the leak. In this case, I don’t think the direct harm of the information leaked was very great (despite the fact that it was probably defined as “extremely grave damage” by the way the information was initially (over)classified).
Libby had two direct-report bosses: Cheney and Bush.
Cheney may simply be the second fire-line behind Libby.
Cossacks working for the Tsar and all that.
The NYT’s Neil Lewis ran a similar story today, and there’s an interesting take on the matter elsewhere in today’s NYT. From Porter Goss, on the
:
On the other hand, those who choose to bypass the law and go straight to the press are not noble, honorable or patriotic. Nor are they whistleblowers. Instead they are committing a criminal act that potentially places American lives at risk. It is unconscionable to compromise national security information and then seek protection as a whistleblower to forestall punishment.
[. . .]
I take seriously my agency’s responsibility to protect our national security. Unauthorized disclosures undermine our efforts and abuse the trust of the people we are sworn to protect. Since becoming director, I have filed criminal reports with the Department of Justice because of such compromises. That department is committed to working with us to investigate these cases aggressively. In addition, I have instituted measures within the agency to further safeguard the integrity of classified data.
So according to Porter Goss, the Director of the Central Intelligence Agency, Scooter Libby and his “superiors”–George W. Bush, Dick Cheney, Andy Card, and Karl Rove–are ignoble, dishonorable, and unpatriotic. They are criminals who have put American lives at risk. Their actions are unconscionable.
Maybe we’ve finally found a good Republican after all. I guess we’ll find out when he launches his investigation against these criminals who have “abused the trust of the people we are sworn to protect.” I’m looking forward to Goss’s criminal reports and his aggressive investigations against Libby, Bush, Cheney, Card, and Rove.
Re: Authority to declassify: don’t a lot of folks have the authority to classify stuff? I mean, I don’t think it’s done by committee with a lot of deliberation. I imagine some subset of those folks have at least an adminstrative (if not statutory) power to declassify stuff as well. I suspect the VP, at least if he’s a member of any executive security committee, could point to that authority if he had to.
Re: Plame: I can’t get excited about this issue. It’s only interesting on a narrow technical basis that is too small to support the political hopes for it. Had Plame been overseas, or there been follow-on damage (agents killed, secrets compromised etc) the libbies’ outrage would be more justifiable. As it is, it’s just another example of Rovian perfidy. I recognize an important law was broken, but it’s not enough of a gotcha in this case.
Mack Arthur,
The ability to classify/declassify government information is not one of the spoils of office; it has to be done per a criteria, not per somebody’s whim.
Re: Plame, a law wasn’t broken in merely a technical sense; the case wouldn’t have been given to the DOJ to investigate if it was a case of No Harm No Foul. The scenario that’s coming out from all this investigating is that multiple Senior Administration Officials (not just Rove and Libby) knowingly conspired to burn a CIA officer who specialized in issues of counter-proliferation because her husband was an authoritative Republican figure who was poking holes right through the heart of their bogus (counter-proliferation) justifications for war against Iraq.
Cheney may have had the power, but did he actually do what is required to use it?
Declassification requires a process and a definitive act.
This spinpoint bothers me more than most of the other leaking-is-fine baloney because it so blatantly blames the victims (Plame and the rest of the covert chain of command she was part of) for obeying the law and doing their duty to safeguard the country. If secrets were compromised (and with the exposure of both a covert agent and a longtime front company we have reason to believe they were) and if people were killed (which is a common result of being discovered as a CIA asset when your country isn’t a friend of the US) then that information would be classified, and making it public would do serious damage to the US by disclosing intelligence sources and methods.
So Plame and her CIA colleagues are getting slimed for complaining about an unlawful act whose consequences they are bound by law and oath from discussing, while the people sliming them can make up whatever stories they please with impunity. Remember those stars on the wall at CIA headquarters in memory of agents who died in the line of duty. And note that by no means all of those stars have names next to them — that’s how seriously the agency takes its duty not to talk out of school. ((It feels odd to be defending the integrity of the CIA — I guess that’s a little like sense of nostalgia for Nixon that some moderates are feeling.)
CHENEY HAD NO LEGAL POWER TO DECLASSIFY CIA DOCS
Thu Feb-16-06 11:51 AM by leveymg
Yesterday, Cheney claimed in a televised interview that he may on his own authority make public classified documents. This assertion comes in the wake of accusations made in Grand Jury testimony by Cheneys former Chief of Staff, I. Lewis Libby, that he was authorized by his superiors to release to Judy Miller and other reporters a classified CIA National Intelligence Estimate (NIE) related to Iraq WMDs issued the previous October.
The Vice President is quoted by AP as stating during an interview on Fox News last night: There’s an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.” See, AP, 02/16/2003, Cheney Says He Has Power to Declassify Info http://www.nytimes.com/aponline/national/AP-Cheney-CIA-…
***
A review of relevant laws, executive orders, and presidential directives reveals that the Vice President has no lawful power to unilaterally declassify CIA documents. Court documents released last week revealed that Dick Cheney stands accused of having told his aide to release a secret National Intelligence Estimate (NIE) ten days before it was declassified by the Agency. See, http://www.nytimes.com/2006/02/10/politics/10leak.html ; http://www.dailykos.com/story/2006/2/10/105540/799
Cheney appears to be referring here to Executive Order 13292, issued March 25, 2003 which gave the Vice President the authority to request the classification of his own documents, and to exempt some of these from release under the Freedom of Information Act. See, E.O 13292, Sec. 3.5 (03/25/2003) http://www.whitehouse.gov/news/releases/2003/03/2003032…
However, there is nothing contained in that Order, or any other law, executive order or presidential directive that gives the Vice President the power to unilaterally de-classify secret agency documents, or to authorize others to do so on his behalf. Such a power by the Vice President simply has never been provided for in any written statute, executive order, presidential directive, or agency regulation. It simply didnt exist as part of American law until Cheney announced it yesterday.
***
MORE at http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364×441331
CHENEY HAD NO LEGAL POWER TO DECLASSIFY CIA DOCS
Thu Feb-16-06 11:51 AM by leveymg
Yesterday, Cheney claimed in a televised interview that he may on his own authority make public classified documents. This assertion comes in the wake of accusations made in Grand Jury testimony by Cheneys former Chief of Staff, I. Lewis Libby, that he was authorized by his superiors to release to Judy Miller and other reporters a classified CIA National Intelligence Estimate (NIE) related to Iraq WMDs issued the previous October.
The Vice President is quoted by AP as stating during an interview on Fox News last night: There’s an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.” See, AP, 02/16/2003, Cheney Says He Has Power to Declassify Info http://www.nytimes.com/aponline/national/AP-Cheney-CIA-…
***
A review of relevant laws, executive orders, and presidential directives reveals that the Vice President has no lawful power to unilaterally declassify CIA documents. Court documents released last week revealed that Dick Cheney stands accused of having told his aide to release a secret National Intelligence Estimate (NIE) ten days before it was declassified by the Agency. See, http://www.nytimes.com/2006/02/10/politics/10leak.html ; http://www.dailykos.com/story/2006/2/10/105540/799
Cheney appears to be referring here to Executive Order 13292, issued March 25, 2003 which gave the Vice President the authority to request the classification of his own documents, and to exempt some of these from release under the Freedom of Information Act. See, E.O 13292, Sec. 3.5 (03/25/2003) http://www.whitehouse.gov/news/releases/2003/03/2003032…
However, there is nothing contained in that Order, or any other law, executive order or presidential directive that gives the Vice President the power to unilaterally de-classify secret agency documents, or to authorize others to do so on his behalf. Such a power by the Vice President simply has never been provided for in any written statute, executive order, presidential directive, or agency regulation. It simply didnt exist as part of American law until Cheney announced it yesterday.
***
MORE at http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364×441331
CHENEY HAD NO LEGAL POWER TO DECLASSIFY CIA DOCS
Thu Feb-16-06 11:51 AM by leveymg
Yesterday, Cheney claimed in a televised interview that he may on his own authority make public classified documents. This assertion comes in the wake of accusations made in Grand Jury testimony by Cheneys former Chief of Staff, I. Lewis Libby, that he was authorized by his superiors to release to Judy Miller and other reporters a classified CIA National Intelligence Estimate (NIE) related to Iraq WMDs issued the previous October.
The Vice President is quoted by AP as stating during an interview on Fox News last night: There’s an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.” See, AP, 02/16/2003, Cheney Says He Has Power to Declassify Info http://www.nytimes.com/aponline/national/AP-Cheney-CIA-…
***
A review of relevant laws, executive orders, and presidential directives reveals that the Vice President has no lawful power to unilaterally declassify CIA documents. Court documents released last week revealed that Dick Cheney stands accused of having told his aide to release a secret National Intelligence Estimate (NIE) ten days before it was declassified by the Agency. See, http://www.nytimes.com/2006/02/10/politics/10leak.html ; http://www.dailykos.com/story/2006/2/10/105540/799
Cheney appears to be referring here to Executive Order 13292, issued March 25, 2003 which gave the Vice President the authority to request the classification of his own documents, and to exempt some of these from release under the Freedom of Information Act. See, E.O 13292, Sec. 3.5 (03/25/2003) http://www.whitehouse.gov/news/releases/2003/03/2003032…
However, there is nothing contained in that Order, or any other law, executive order or presidential directive that gives the Vice President the power to unilaterally de-classify secret agency documents, or to authorize others to do so on his behalf. Such a power by the Vice President simply has never been provided for in any written statute, executive order, presidential directive, or agency regulation. It simply didnt exist as part of American law until Cheney announced it yesterday.
***
MORE at http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364×441331
CHENEY HAD NO LEGAL POWER TO DECLASSIFY CIA DOCS
Yesterday, Cheney claimed in a televised interview that he may on his own authority make public classified documents. This assertion comes in the wake of accusations made in Grand Jury testimony by Cheneys former Chief of Staff, I. Lewis Libby, that he was authorized by his superiors to release to Judy Miller and other reporters a classified CIA National Intelligence Estimate (NIE) related to Iraq WMDs issued the previous October.
The Vice President is quoted by AP as stating during an interview on Fox News last night: There’s an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.” See, AP, 02/16/2003, Cheney Says He Has Power to Declassify Info http://www.nytimes.com/aponline/national/AP-Cheney-CIA-…
***
A review of relevant laws, executive orders, and presidential directives reveals that the Vice President has no lawful power to unilaterally declassify CIA documents. Court documents released last week revealed that Dick Cheney stands accused of having told his aide to release a secret National Intelligence Estimate (NIE) ten days before it was declassified by the Agency. See, http://www.nytimes.com/2006/02/10/politics/10leak.html ; http://www.dailykos.com/story/2006/2/10/105540/799
Cheney appears to be referring here to Executive Order 13292, issued March 25, 2003 which gave the Vice President the authority to request the classification of his own documents, and to exempt some of these from release under the Freedom of Information Act. See, E.O 13292, Sec. 3.5 (03/25/2003) http://www.whitehouse.gov/news/releases/2003/03/2003032…
However, there is nothing contained in that Order, or any other law, executive order or presidential directive that gives the Vice President the power to unilaterally de-classify secret agency documents, or to authorize others to do so on his behalf. Such a power by the Vice President simply has never been provided for in any written statute, executive order, presidential directive, or agency regulation. It simply didnt exist as part of American law until Cheney announced it yesterday.
***
More at: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364×441331
Sorry about the dupes!!!