Cheney Claims Declassification Power

My goodness - Dick Cheney is now saying the same thing I said last week, and last year.  Let Dick tell it:

When Special Counsel Patrick Fitzgerald revealed Libby's assertions to a grand jury that he had been authorized by his superiors to spread sensitive information [Note: "sensitive information" refers to the 2002 National Intelligence Estimate, not Valerie Plame's CIA status], the prosecutor did not specify which superiors.

But in an interview on Fox News Channel, Cheney said there is an executive order that gives the vice president, along with the president, the authority to declassify information.

"I have certainly advocated declassification. I have participated in declassification decisions," Cheney said. Asked for details, he said, "I don't want to get into that. 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."

I had cited Executive Order 12958 from Bill Clinton, 1995.  However, it was supplanted by a revised version (EO 13292) in (care to guess?) March 2003.  The revisions specifically create a role for the Vice President.  Here is an example from Part 1, relating to Classification Authority:

EO 12952 (1995):

Sec. 1.3

(c) Delegation of original classification authority.

...(3) "Secret" or "Confidential" original classification authority may be delegated only by the President; an agency head or official designated pursuant to paragraph (a)(2), above; or the senior agency official, provided that official has been delegated "Top Secret" original classification authority by the agency head.

EO 13292 (2003)

[1.3 (c) (3) ] "Secret" or "Confidential" original classification authority may be delegated only by the President; in the performance of executive duties, the Vice President; or an agency head or official designated pursuant to paragraph (a)(2) of this section; or the senior agency official described in section 5.4(d) of this order, provided that official has been delegated "Top Secret" original classification authority by the agency head.

Thanks to Cathy and Rick for their guidance on this.

UPDATE:  I *knew* someone mocked this idea at the time!  Well, they laughed when I stepped up to the keyboard...

OK, let's serious up - Kevin Drum (in his UPDATE) translated my suggestion that it may be legal for Cheney to declassify some material into "Tom Maguire suggests that even if Cheney's the leaker [to Bob Woodward], he didn't do anything wrong".  Hmmph.  First, not everything that is wrong is also illegal.  And somehow, "didn't do anything wrong" also managed to overlook this paragraph from my post:

My official position is this - if Cheney was Woodward's source, he ought to be impeached.  Not for any national security issues, or legal reasons - he ought to be impeached for utter gutlessness.

Whatever.  The agit-prop sites have a job to do, but getting the facts right isn't it.

MORE:  Hmm, the AP wrote that "Cheney said there is an executive order that gives the vice president, along with the president, the authority to declassify information."

But Cheney is not quoted as specifically addressing his de-classification authority.  But that said, I expect he has enough influence in the White House that if he tells his staff that something will be declassified, they believe it, and he can get it done.

Or, we could check the transcript (right at the bottom):

HUME: Let me ask you another question. Is it your view that a vice president has the authority to declassify information?

CHENEY: There is an executive order to that effect.

HUME: There is.

CHENEY: Yeah.

HUME: Have you done it?

CHENEY: Well, I have certainly advocated declassification. I have participated in declassification decisions.

HUME: Have you —

(CROSSTALK)

CHENEY: I don't want to get into that. 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.

Comments

[maryrose]

This White House is within their rights and privledges under the law and is NOT DOING ANYTHING WRONG. They have full authority and Fitz needs to brush up on constitutional law.

[kim]

Hey, what's the big idea here, anyway? Who put Bush and Cheney in charge?
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[jerry]

An Executive Order eh, written afer the fact perhaps?

Also, here's and interesting post on KOS:

http://www.dailykos.com/story/2006/2/16/32934/9980

[p.lukasiak]

having read this executive order, and the relevant statutes concerning classified materials, it would appear that while Cheney may have the power to "classify" materials as "secret", (and possibly the power to declassify those personally classified), he does not have the power the declassify whatever the hell he feels like at any given point in time.

[kim]

Who's this 'it' that appears to have read the executive order and the statutes. What's 'it' got to say that's pertinent? Can 'it' point to the meaning 'it' has had appear?
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[Appalled Moderate]

Does anyone know exactly what Libby declassified per Cheney's order?

[clarice]

kos is still in business after it's apparent he's just a tool of the DLC? This statement made the left go bonkers BTW..they are still waiting for blood..anyone's--they had too much invested in this.

[Jeff]

I haven't been able to find the part where the VP is given declassification, though I'm sure it's there. March 2003, let me think, what was going on then? Wasn't there a war or something? Oh, I can't remember. It's all just a big coincidence anyway, I'm sure. It is interesting to note that Waas' article from last week reported, without much detail on this point, that

Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war.

Presumably this was before March 25 2003, when the executive order was amended. So it would be interesting to know whether Cheney was allowed to authorize declassification of the relevant material before then, and whether Cheney did so unilaterally, or whether he was backed up by other superiors who did have the authority to do so.

[Jeff]

sorry for the italics.

[Dwilkers]

Ah, Pluk returns from calling us insane to grace us with his wisdom.

[kim]

Just as a minor side issue, what is Tenet's authority to declassify CIA stuff? Might he be considered a superior of Libby's in certain circumstances?
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[kim]

Some people keep falling for the wild and crazy ones.
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[Wonderland]

Unless someone can point out some legal document giving the VP declassification authority, I don't buy it.

The policy reasons behind giving certain high-level officials authority to classify documents in the first instance are materially different from the policy reasons behind preventing a single high-level official from unilaterally declassifying information in the second instance.

And, in any event, even if VP did have unilateral declassification authority, there'd have to be some sort of procedure, most likely involving a written record, or some type of certification, that the VP would have to go through before he could declare a document with a big red "CLASSIFIED" stamp on it to be public information.

Does anyone here think that any records like that exist? Come on.

[cathyf]

There's a new wikipedia article on the VP and the March, 2003 EO 13292. link. One thing that is misleading about this is that this latest article implies that the 2003 EO and the 1995 EO that it replaces are the only two EO's dealing with the matter. As in Bill Clinton invented the classification system and George Bush modified it.

Here is an excerpt from a short history of the classification system in a Congressional Research Service article

Although formal armed forces information security orders had been in existence since 1869, security classification arrangements assumed a presidential character in 1940. The reasons for this late development are not entirely clear, but it probably was prompted by desires to clarify the authority of civilian personnel in the national defense community to create official secrets, to establish a broader basis for protecting military information in view of growing global hostilities, and to better manage a discretionary power of increasing importance to the entire executive branch.

Relying upon a 1938 statute concerning the security of armed forces installations and equipment and “information relative thereto,” Franklin D. Roosevelt issued the first presidential security classification directive, E.O. 8381, in March 1940. However, the legislative history of the statute which the President relied upon to issue his order provided no indication that Congress anticipated that such a security classification arrangement would be created.

Other executive orders followed. E.O. 10104, adding a fourth level of classified information, aligned U.S. information security categories with those of our allies in 1950. A 1951 directive, E.O. 10290, completely overhauled the security classification program. Information was now classified in the interest of “national security” and classification authority was extended to non-military agencies which presumably had a role in “national security” policy.

Criticism of the 1951 order prompted President Dwight D. Eisenhower to issue a replacement, E.O. 10501, in November 1953. This directive and later amendments to it, as well as E.O. 11652 of March 8, 1972, and E.O. 12065 of June 28, 1978, successively narrowed the bases and limited discretion for assigning official secrecy to agency records.

Shortly after President Ronald Reagan issued E.O. 12356 on April 2, 1982, it came under criticism for reversing the limiting trend set by classification orders of the previous 30 years by expanding the categories of classifiable information, mandating that information falling within these categories be classified, making reclassification authority available, admonishing classifiers to err on the side of classification, and eliminating automatic declassification arrangements.

With the democratization of many eastern European countries, the demise of the Soviet Union, and the end of the cold war, President Clinton, shortly after his inauguration, initiated a sweeping review of cold war rules on security classification in general and of E.O. 12356 in particular with a view to reform.

Many began to suspect that the security classification program could be improved when the Department of Defense Security Review Commission, chaired by retired General Richard G. Stilwell, declared in 1985 that there were “no verifiable figures as to the amount of classified material produced in DoD and in defense industry each year.” Nonetheless, it was concluded that “too much information appears to be classified and much at higher levels than is warranted.”

The cost of the security classification program became clearer when the General Accounting Office reported in October 1993 that it was “able to identify governmentwide costs directly applicable to national security information totaling over $350 million for 1992.” After breaking this figure down — it included only $6 million for declassification work — the report added that “the U.S. government also spends additional billions of dollars annually to safeguard information, personnel, and property.”

Established in April 1993, the President’s security classification task force transmitted its initial draft order to the White House seven months later. Circulated among the departments and agencies for comment, the proposal encountered strong opposition from officials within the intelligence and defense communities. More revision of the draft directive followed.

As delay in issuing the new order continued, some in Congress considered legislating a statutory basis for classifying information in the spring of 1994. In the fall, the President issued an order declassifying selected retired records at the National Archives. After months of unresolved conflict over designating an oversight and policy direction agency, a compromise version of the order was given presidential approval in April 1995.

The last paragraph of the document reviews Bush's modifications:

Further amendment of E.O. 12958 occurred in late March 2003 when President George W. Bush issued E.O. 13292. The product of a review and reassessment initiated in the summer of 2001, the directive, among other changes, eliminated the Clinton order’s standard that information should not be classified if there is “significant doubt” about the need to do so; treated information obtained in confidence from foreign governments as classified; and authorized the Vice President, “in the performance of executive duties,” to classify information originally. It also added “infrastructures” and “protection services” to the categories of classifiable information; eased the reclassification of declassified records; postponed the starting date for automatic declassification of protected records 25 or more years old from April 17, 2003, to December 31, 2006; eliminated the requirement that agencies prepare plans for declassifying records; and permitted the Director of Central Intelligence to block declassification actions of the ISCAP, unless overruled by the President.

Ok, that was today's history lesson...

cathy :-)

[kim]

Is the Vice-President extended the authority to determine classification? I'd say yes, and part of the clue is the word 'originally'.
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[Sue]

OT...democrats are calling for Gonzales to appoint a SP to investigate the Abramhoff scandal. Just what we need, another SP.

[maryrose]

Gonzales is not going to appoint an SP for the Abramoff no matter how much the dems squeal. We did not get our money's worth with the last one Fitz who couldn't get a conviction on any statute or law being broken.

[maryrose]

By the way Wonderland, Luk and Appaled Moderate, Jeff et al .. The VP has the authority so did Libby -GET over IT.

[Gary Maxwell]

Oh this is funny. The looney libs all say Cheney is wrong and he does not have the pwer he says he has. I am in the words of the infamous AB, laughing my ass off.

[Soylent Red]

I should think that as a member of the executive branch, the VP would at minimum have the power to declassify under direct authority of the Pres.

At maximum, as the second highest Executive in the land, he would be free to act at his own discretion within the confines of the Constitution and EO's.

Wherever this falls between the two ends, the simple fix is for Bush to simply state that Cheney was acting under direct orders, and that the whole Libby/Plame affair was an unfortunate byproduct, since her status was technically not classified.

[Gary Maxwell]

Dont you see? the lump of coal the Looney got for Fitzmas is about to be subjected to factory recall. the morons got nothing for Fitzmas. NOTHING. And Kos is over selling them out for a few DLC dollars. At least they still got Al Gore to speak truth to power.

[topsecretk9]

Gary
And Kos is over selling them out for a few DLC dollars.

Gawd, no doubt. Talk about passive aggressive misplaced self doubt denial obsessing.

[clarice]

That's about it Gary..And I wonder what's going down in the SP's brain trust today..(And my "brilliant" article on why the Obstruction count must fail still sits in the queue).

[kim]

Oh yes, executive power: I'm allowed to not tell, but I'm not allowed to tell. Sure, sure.
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[kim]

It really is an argument reduced to absurdity.
=============================================

[Jim E.]

Contrary to TM's headline, I don't see that Cheney himself (as opposed to the AP writer) says that the VP has DE-classification powers.

[kim]

Here's an eminently progressive notion, the New Order Theory, or NOT.

The NOT executive, cannot say things, but can say nothing.

The NOT legislator, Rocky says it all.

The NOT judge say we cannot have laws different from elsewhere.

All for naughty.
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[Dumbledore]

The WSJ ran a pretty good article on this a few days ago. (I especially like the bit about the president being able to _secretly_ declassify things).

For what it's worth, I think that even absent the inherent authority, the VP was probably explicitly granted it as per EO1392 [6.1 (l)(4)].

From:

http://online.wsj.com/public/article/SB113962394427971509-4nyoE0q5oTejTPe9cRHBg_om6mM_20070211.html

The president can declassify anything," William Banks, a Syracuse University law professor and expert on national-security law, said. While the president would have to amend his own executive order governing secrets in order to declassify something on the fly, that can be accomplished very informally, even orally and in secret. "He could do it on a cocktail napkin," Mr. Banks said.

The vice president's authority to declassify is less clear. Some legal scholars believe that Mr. Cheney would share in the president's authority, as an elected official. Alternatively, the president could delegate his declassification authority to the vice president.

"The classification system is rooted for the most part not in statute but in executive order. ...In the case of the NIE, the White House was free to declassify it at a moment's notice," said Steven Aftergood, director of the project on government secrecy at the Federation of American Scientists

[KM]

Indeed, I'll repeat the point raised by p. lukasiak, Jeff and Jim E.

What exactly is this post trying to claim?

It's not news that EO 13292 amended Clinton's 12958 in order, among other things, to give the VP original classifying authority.

So what? What does that have to do with declassification?

Notice that Cheney only plays the usual Admin game of suggesting that he's got such general declassifying authority without actually saying it. Reread what he says. Of course, he precedes the deceptive-but-literally-true statement about the VP having original classifying authority as a result of 13292 with lots of random statements about "declassification", thereby doing his best to ensure that the reader will assume his statement says something it actually does not.

[maryrose]

KM - Wishing the VP doesn't have the authority doesn't make it so. Get your own guys elected and then they get the authority too!

[KM]

Yup, and claiming you have an argument doesn't make it so. I never said the VP doesn't have the authority ... I don't pretend to be a national-security law expert. But I do know that you can't derive such authority from sloppy reading of the relevant Executive Orders. And those, at least, in my opinion, do not give the VP any such authority. I welcome actual reasoned arguments to the contrary.

My own guys? Whatever. You know nothing about me or my politics.

[Jeff]

Wait - so is the current rightwing talking point that Cheney ordered a political hit on the Wilsons, but it was all legal because he can declassify anything he wants at any time, so he just declassified her status, told Libby to reveal it to reporters, and everything is ok in the world? Is that it? Or that if he did, it's all okay? So it's ok for the VP of the U.S. to declassify the status of CIA agents in order to counter political opponents?

[Bob]

Look at Section 6.1:

"(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."

Wouldn't the VP be a "supervisory official" of everyone in the executive branch but the President?

[kim]

And what is the point of an executive who can determine what is not said, but not what is said?
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[SPQR]

Its more than a bit bizarre that Jim E and p.luk would actually believe that someone with the power to classify something could not "classify" it unclassified.

[Appalled Moderate]

Hey. All I want to know is what was declassified. I'm just curious.

(TM -- If Plame's status was one of the things declassified by Cheney, we wouldn't be having this Libby trial, as there would be no crime for Fitz to investigate. Unless there is some Byzantine plot to protect Cheney which involved Libby getting indicted. That idea just involves more tinfoil than I have at hand right now.)

[Ranger]

The Headline says:

Cheney Says He Has Power to Declassify Info

Yet, nowhere in the article is Cheney ever quoted as saying that. In fact, all he is quoted as saying is that "I have certainly advocated declassification. I have participated in declassification decisions." He does say that he has the authority to classify information, but no where does he expressly say what the headline claims. More quality journalism from the AP.

Further, lets look at the chain of the investigation and see what this adds. We know that the President was interviewed, we also know now that Libby has stated he was authorized to give parts of the NIE to the press. This declassification thing would explian why the President was interviewed as part of the discussion.

The NIE was a CIA product and George (Slam Dunk) Tenant's baby, therefore, Tenant, as Director of Central Intelligence had the authority to declassify, if Chaney wanted something declassified and Tenant didn't agree, then it goes to the President to make the final determination.

My take is that Tenant was just as eager to get the NIE into the press because he was the one pushing the intel on WMDs as a "Slam Dunk" case. This statement: "I have participated in declassification decisions" indicates to me that there was probably a discussion about what parts of the NIE to give to reporters and what parts to keep classified, and that Chaney was part of that discsussion with the President making the final call.

[kim]

Got a safety net under some of those leaps of logic, Jeff? And be offended, KM, it's easier than explaining your absurdities.
=========================================

[TM]

Jerry - I know Jason Leopold is a lot of fun, but IMHO he is not even credible enough for Raw Story.

For the legal literalists out there - please, if the Executive Branch is unilaterally capable of declassifying things (Hint - they are), and Dick Cheney is the "real" President (Hint - he's not), he can declassify things.

For the rest of us, if the VP says he intends to get something declassified, the fact that the specific procedures may oblige him to work with the President or agency heads is not exactly the same as saying "he can't do it". I doubt many agency heads have made a long career of crossing Dick Cheney, who is by all accounts a very powerful force in the White House.

From Jim E:

Contrary to TM's headline, I don't see that Cheney himself (as opposed to the AP writer) says that the VP has DE-classification powers.

Good point. I think I'll change my headline to include "AP -".

[Martin A. Knight]

KM,

I'm under the impression that we're talking about the declassification of the 2002 NIE - this is in relation to the Waas story in which Waas was trying to prove that Libby leaked classified information on the orders of his "superiors" i.e. the Vice President.

Unfortunately for Waas, Cheney apparently does have the power to classify information. From my reading on National Security laws, classification authority includes the power to declassify, or, in other words, raise or lower the level of classification of a document or some other bit of information.

At the end of the day, I don't think Plame is an issue here.

PS: I think it is very obvious what your politics are. It really doesn't seem to be much of an enigma.

[jerry]

Upon reflection it looks worse that they wrote the VP into that Executive Order, what's the reason for doing it?

Is this a pre-meditated strategy to allow leaking classified info for political purposes? I don't see a good national security rational behind that. And what is the protocol for declassification, a momentary twinge of conscience on a talk show?

[cathyf]

Hey, AM, I don't think that Libby's lawyers are going to try to argue that Cheney declassified Plame's statue and directed Libby to leak it to reporters. I think that they are going to argue that Plame occupied very little of Libby's attention, and that's why his memory of Plame trivialities differs slightly from reporters. And the NIE is what they will claim that Libby was concerned with.

Now as to the question of whether Plame's CIA employment was, in fact, classified, Cheney could be completely irrelevant. If Plame's status satisfied Sec 1.7 (a) (1), (2) and/or (4) then her employment status was not classified no matter who was trying to make it so.

cathy :-)

[Martin A. Knight]

I don't see a good national security rational behind that.

Would you believe that it's not really that important that you don't actually see what it is you don't see?

[kim]

Jerry, is conscience what provokes disclosure in your case?
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[Jim E.]

In an update, TM writes: "I expect he has enough influence in the White House that if he tells his staff that something will be declassified, they believe it, and he can get it done."

Perhaps, but with this reasoning, your links to executive orders and quoting of laws becomes virtually irrelevant, doesn't it? Karl Rove has a lot of influence, and gets stuff done, too.

[kim]

The stereotactic strawman: I can't see it so it doesn't need demolishing.
=================================================

[cathyf]

Posted by: jerry | February 16, 2006 at 06:31 AM

An Executive Order eh, written afer the fact perhaps?

Posted by: jerry | February 16, 2006 at 10:03 AM

Upon reflection...

While you were reflecting, did you notice that March 2003 came before June, 2003?

cathy :-)

[Anne]

There is NO way the VP would have the authority to declassify the status of an undercover agent. Get real morons. She was undercover working on WMD and Iran. She had other agents in the field and contacts. He doesn't have the authority to undermine the efforts of the CIA. He's smoking funny cigarettes and so are you to believe this horse shit.

[Jim E.]

Here's a link discussing the same topic, with a bit more context: http://www.thewashingtonnote.com/

TM,
It turns out that the AP was correct with its headline. In the relevant portion of the transcript (see above link), Cheney does claim that the VP the authority to declassify. Doesn't mean he's correct, but it does mean the AP was accurate.

[clarice]

Not on the calendar Kos distributes to his readers.

The EO was published in the Federal Register without a peep of protest. Byron York compares it with the Clinton EO and shows how much more power the VP was given under Bush.