But Is It Legal
In Josh's discussion of the Libby testimony regarding the NIE, he says "Let's set aside the whole question of whether the president can do that (declassify selectively)" the information. I'd try to like to answer that, not because it matters to an Administration that balks at most legal constraints, but just because there ought to be legal backing to the justified political complaints of the disclosure. And because the timing of the Libby disclosure is very odd given later Cheney comments.
The declassification is allowed under a new Bush Executive Order, 13292. That order was mostly about more favorable (to the Executive) classification procedures. They were most notable for allowing the Vice President (the language did not exist in previous Exec. Orders) to classify materials, a nod to Cheney's powerful role in secrecy issues in the Administration.
The declassification part reads like this:
In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.
Later parts of the Order also talk about "historical records", public right to know, etc., a list hinting that declassification can't be so targetted. So, on the legal side, it seems like a pretty strong argument that the decision to declassify for the "public interest" could not extend simply to Judith Miller. The one-time offering contradicts the language of the new Order.
In addition, Scooter Libby's grand jury testimony (in 2005) now illuminates Cheney's subsequent defense of his new authority in a rather odd televised interview with FOX's Brit Hume. This interview, in Feb. 2006, was supposed to be about Cheney's hunting accident. At the end, as noted in this piece, Cheney defends his new power to classify.
The addition of this aside conversation is telling, and I don't have any solid theories of why Cheney would be discussing it when the hunting accident was of primary concern. Did he know then that Scooter Libby had testified as such? If yes, who told him given that grand jury testimony is not supposed to be disclosed.
In any event, Fitzgerald's statements in the documents released suggest, as Josh notes, that this was a unique circumstance and that Libby viewed it as such (to disclose only to one person). Its unique because it may be illegal.
Comments (25)
Bush operates under the royal philosophy of Louis XIV: "L'etat, c'est moi!" Under this theory, everything he does is legal. Torture, leaking, eavesdropping whether foreign or entirely domestic, it's all legal, because he says so. And for good measure, his Court Jester, Alberto Gonlawless, also says so, making it doubly true, in this best of all possible worlds.
April 7, 2006 8:44 AM | Reply | Permalink
The Bush Administration has, through Executive Orders, so completely muddied the waters of the classification/declassification policy of the Executive Branch as to make any attempt to define this issue on that level pointless. Much though I, too, prefer to analyze the law in cases such as these, it is really a waste.
What matters is that the president pulled a fast one with declassification. Even if it's legal by some order or another, its not even remotely ethical, and any rational person can see that. The whole thing stinks to the heavens, but not so that the media will bother paying any attention.
Watching from just above the water line. . . .
http://www.dragonflyeye.net
April 7, 2006 9:00 AM | Reply | Permalink
Grand jury testimony -- absent a sealing order -- may be disclosed by the witness, although I gather that Fitzgerald has asked the witnesses he has called voluntarily not to discuss their testimony.
So if Cheney knew what Libby testified, it could have been and most likely was Libby himself who told him.
April 7, 2006 9:05 AM | Reply | Permalink
"When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure."
Unless Bush has demoted himself to "agency official" this sentence makes his abrupt declassification of that information illegal. And, of course, the only way to declassify something for one person only is to give that person a higher security classification and disclose the information to him, but that wouldn't authorize the receiever of the information to disclose it to anyone else.
Bush broke the law. Bush violated his own executive order. Watch for the media to make this a mega scandal - complete with hourly updates reporting all of the latest rumors about Bush on CNN. (Have you any idea how hard it is to type that without breaking down in hysterical laughter?)
Hoppy in Sacramento
April 7, 2006 9:25 AM | Reply | Permalink
>>The addition of this aside conversation is telling, and I don't have any solid theories of why Cheney would be discussing it when the hunting accident was of primary concern.
This is an excellent point. I saw the cumbaya interview that Hume & Shooter had and i was struck by the how out of place the "declassification" topic was in light of what they had been talking about up to that point. They just slapped it on the end of the love fest. It struck me as a planted question, where both had agreed that they needed to cover some off-topic material due to expected future events. Shooter new the recent Libby revelation was coming, and Hume wanted to help him out.
April 7, 2006 9:55 AM | Reply | Permalink
As long as we're engaging in counterfactual hypotheticals here (imagining, for example, that Dick Cheney referred the decision to out Plame to George Tenet as "agency head or the senior agency official" involved), I've got another one: would this authority make any difference to a prosecution under the IIPA (which isn't happening, but that's what counterfactuals are about)?
The IIPA doesn't really refer to classified information, it refers to the identities of covert agents that the CIA has been trying to keep secret. So even if information about Plame had been properly declassified, it's not clear to me that it could automatically be disclosed without violating the IIPA. That sounds stupid at first glance, but since there are a bunch of different secrecy regimes in addition to/on top of the regular confidential/secret/top secret setup, it doesn't seem out of the question to me.
April 7, 2006 10:34 AM | Reply | Permalink
If the information was declassified, yet the public was not told it was declassified, was it then really declassified?
Providing bits and pieces of the contents of the NIE to one person (Judith Miller) to use against political enemies hardly appears 'declassified'. On the surface, this still appears to be leaking stuff that really shouldn't be leaked, and if that is true, how can it be legal?
What am I missing here?
Beware of the fanatics, they never see gray.
April 7, 2006 11:27 AM | Reply | Permalink
With regards to this
What public interest? The only reason I can think that the administration would release this information would be in an effort to basically say "See, if we take "this" bit and "that" bit of intelligence, declassify it and tell you [the public] about it, it proves our case. Therefore, we're right!" In other words, another attempt to bolster support for the war.
In other words, for political reasons and not reasons of national security. The only national security angle I can come up with for this would be that the administration knew the war was going the wrong way and so long as they had enough blind Americans on board, there wouldn't be all the criticism and harping on the details of "Who knew what, when..."
Sounds like another round-about sort of way to attack your critics, basically.
April 7, 2006 12:19 PM | Reply | Permalink
The problem is that there is no enforcement mechanism, even if Bush did violate the law, and getting bogged down in whether he did or not makes the issue appear more complicated or a closer call than it is, which puts him right where he wants to be, able to paint the issue as a partisan one and able to deflect attention from it for people who get their news from TV or passing headlines (i.e. most voters).
Perhaps Russ Feingold can add it to the list of reasons for censure and Dems with spine can bring it up in their 2006 races (GOP as rubber stamp for lawless administration) and make it the topic du jour with the press for as long as possible. Now that Bush is directly linked to leaking the name of a covert CIA agent working on WMD and Iran (for goodness sake!) simply to damage his enemies, it's a lot easier to make the case that this is really, really bad.
April 7, 2006 2:34 PM | Reply | Permalink
All well and good, but I worry we're focusing too much about selective leaking and its legality. We're happy with whistleblowers after all, and we were the ones insisting that the problem wasn't a leak per se but (a) the outing of a CIA agent, (b) the Bush mafioso habit of retaliating, and (c) the manipulation of the willing media. The helpful discussions here add a lot to the picture, including parallels to other selective use of intelligence and abuse of presidential power. Still, those, too, are not reducible to the paperword associated with classified documents.
John
http://www.haberarts.com/
April 7, 2006 2:43 PM | Reply | Permalink
J. McCutchen "JmacSF"
San Francisco. CA
Long article, today's paper.
April 7, 2006 5:18 PM | Reply | Permalink
Strict definitions apply in court but not elsewhere. An employer might fire you for lack of enthusiasm, or conflict of interest. Similarly, the strict legality of the actions of the White House are not the point. The spirit of their actions is the point.
The intent of the leak was of course PR, to draw fire away from the aluminum tubes, and retaliation against Wilson as well as muddying the waters on Niger. That the actions were not necessary acts of governing but PR makes them corrupt, and that they risked, whether legal or not, an ongoing intel op, is impeachable.
If the people decide the administration is damaging the country, legalities don't matter. Impeachment is on whatever grounds Congress decides. Appalling incompetence sounds good to me.
April 7, 2006 5:55 PM | Reply | Permalink
Damage to Bush's credibility? WHAT credibility?
The point of this is just to protect Bush's butt from legal problems. Period. And since it will work, the whole issue is irrelevant.
Step back from the minutae that you people seem to get obsessed by - following Josh's obsession with every little detail of Republican corruption - and start talking about the "Big Picture" (as William Burroughs used to say.)
Bush authorized the leak of an entire covert CIA operation in order to ALLEGEDLY retaliate against a critic of his policies (I say "allegedly" because there is still good reason to believe that shutting down the Plame operation was in fact the actual purpose of the disclosure - i.e., it was not an accident.)
It's that simple. Nothing else need be said. No matter what the legality, nothing can be used to justify this - unless you're already convinced that the war on Iraq was justified for other reasons.
Richard Steven Hack
www.computerproblemssolvedcheap.com
April 7, 2006 5:56 PM | Reply | Permalink
The twist I take on this post is that if information is declassified to the point where a member of the public (Judith Miller) can have it, then it's completely declassified. Because it apparently was classified afterwards, then Bush didn't declassify it - he illegally leaked it.
I did a brief writeup here:
http://backseatdriving.blogspot.com/2006/04/declassifying-versus-leaking-depends.html
April 8, 2006 8:30 AM | Reply | Permalink
BTW, interesting that we still don't have a name attached to the other media sources.
http://www.haberarts.com/
April 8, 2006 8:48 AM | Reply | Permalink
Tom...
I moseyed on over to Findlaw upon reading your post. In an article entitled, "Presidential Impeachment: The Legal Standard," your claim that a criminal acti is not required for impeachment appears to be borne out. It does say there is some debate about what constitutes an impeachable offense, the particular language of the framers being somewhat ambigous:
It's that last phrase that creates the difficulty. There are four main interpretations of the legal meaning; of the four, two say that a criminal act is not required. But the fourth may be most applicable in the case of Bush:
Thanks for pointing that out, Tom. I learned something new.
Why, if it is now being claimed that Bush authorized this all along, did nobody bother to inform the public of that fact previously? Why would Bush make the statements about getting to the bottom of the leaks if they weren't really leaks? I mean, if it's legal, why hide it?
I was following this much closer several months ago, but maybe there was something I've missed since. This doesn't seem to make sense - it surely appears that someone has been lying, and in an unbelievably dumb way. Impeachment is looking more likely all the time. Let's hope it happens before we bomb Iran, and set the entire Middle East aflame.
April 8, 2006 11:29 PM | Reply | Permalink
The basis for Gerald Ford's argument, that "impeachable" was whatever Congress decided, is that if Congress impeaches, what body can undo it? None. Congress is the source of authority, by confirming elections and appointments, and it can remove authority, also.
Consider observable mental incompetence, not acknowledged by the officeholder. What other recourse is there?
The charges mentioned in the Constitution serve as suggestions, but do not limit Congress.
April 9, 2006 6:28 AM | Reply | Permalink
Tom...although I, like you, wish for an impeachment, as I re-read the FindLaw article, it appears unlikely that it could happen on the basis of Ford's argument. Although there are many in Congress who do think otherwise, the article states that the argument that Congress can set its own criteria for what constitutes an impeachable offense is disputed by most legal scholars. The reason is that the interpretation would in effect mean that the President sits at the will of Congress, which clearly wasn't the intent of the framers.
But, not to worry, the other three interpretations give us more hope. I had mentioned earlier that it looks like even now, a sturdy argument could be fashioned in favor of impeachment on the basis of two of them; the other would require a judgement by Congress that the President had indeed violated the law. Since there are two interpretations that, rather than setting a threshold of actual indictable law-breaking (harder to prove), rely on an interpretation of the word, "misdemeanor" in the Laws of Impeachment (it had a different meaning back then; a "misdemeanor" was not a crime in the indictable sense), and we appear to be inching ever closer to a point where actual criminal actions might be considered, it looks like Congress does even now have legitimate grounds for impeachment. Three out of four ain't bad.
There is no question that an impeachment would be a very messy thing that would create a constitutional crisis, as no president has been impeached in our country's history, and thus there are no precedents to rely upon. And there is some legal question about whether an impeached President would have a right of judicial review, which is something that would muddy up the waters considerably. On the other hand, impeachment was something the Republicans were all too willing to risk in their zeal to go after Clinton, so it would be hard for any of them to argue against from a constitutional crisis basis.
The problem of course is the action must start in the House of Representatives where the Republican majority would be unlikely to bring an impeachment charge against one of their own. Thus it appears the stakes are even higher for the fall elections. One would think that a consideration of a possible impeachment might slow Bush down a bit, but that presumes he is a part of the reality-based community. Let's hope a concern about impeachment doesn't propel Bush into acting even more precipitously regarding Iran while he still can. Let's also hope that the Congress acts swiftly to restrict his actions in regards to Iran - not that Bush would be likely to take heed of any such restrictions. Even if impeachment is not considered regarding the leaks, perhaps a Bush plan to bomb Iran is what will constitute the ultimate showdown with Congress - the final straw - at which point impeachment will finally be seriously considered.
April 9, 2006 9:36 AM | Reply | Permalink
You mean to say no President has been convicted following an impeachment (indictment). Two Presidents have been impeached.
The Framers did, in fact, make Congress supreme, as the branch closest to the People. As I pointed out, Congress confers legitimate authority by legitimating election results, approving appointments, and instituting impeachment. If Congress passes a law the President signs, and the Pres. then disregards that law, who's right? Congress, end of story.
Like the other branches, if they go too far away from public sentiment they lose authority, as happened with the Clinton impeachment. All authority rests on the willingness of the public (and armed forces, etc.) to follow. If the Pres ordered the Army to shut down Congress, it would depend on the Army following orders. Nixon discovered the limits of his authority when he fired the special prosecutor.
If the public decides the Pres. is dangerous, he's gone, legal writing notwithstanding.
April 9, 2006 11:01 AM | Reply | Permalink
Tom...It seems we may be arguing over finer points, when we really agree on the basics.
I get the impression from FindLaw, that the framers of the Constitution envisioned impeachment as a two step process, with the House bringing the charges and the Senate deciding whether or not a president should be convicted and removed from office. I think our difference here was merely semantic, and that we're in agreement on how the process works.
What the framers did was make the Constitution and rule of law supreme, and the Constitution set up a balance of powers between the branches. Again though, it appears we may be more in agreement than not, as I was not at any point arguing that the President has the authority to disregard the law. Congress has been given the authority by the Constitution to make the laws, which the president is required to execute. I don't believe in the idea of the unitary executive, which is the theory Bush/Gonzales have been applying in an effort to seize extra powers for the executive branch. I'm sure we agree on this.
One of the other things the balance of powers does is provide checks and balances so, contrary to what you appear to be asserting, public sentiment is not the sole thing on which decisions are based. (Is this what you're saying? I'm not certain I'm reading you correctly.) That brings us to the other part of what we were talking about initially.
And here is where I do disagree with you, although it's an academic point. The legal justifications for any action taken by the Congress have to be there, just as they have to be there for the executive branch. In a political sense, what you're saying may be true, because of course the Congress is elected by the people and members know they cannot stray too far from public sentiment without risking their seats. We both apparently agree there are legal justifications for impeachment. You think there are four interpretations of the Law of Impeachment that would justify a Bush impeachment; I think there are two and probably three (we both presume he has broken the law; the only question being whether it can be proven to a legal standard).
Since we're in basic agreement on the heart of the matter, why argue?
April 9, 2006 1:30 PM | Reply | Permalink
We agree on goals, surely. No harm in considering tactics and the ramifications of choices.
I have to get my copy of the Federalist Papers back from a friend, as I remember this issue being discussed in there. I have to admit I am the only person I know putting in the above way, but it seems to follow logically from the contemporaneous disussion.
John Conyers pointed to the public connection in the Nixon investigations. He asserts that only when public pressure became convincing did Congress have the courage to take the step of impeachment. I think it is another facet of the genius of the Framers that they left the most difficult questions to Congress. As we now see, there may be problems of executive behavior that are not clear-cut dereliction of duty or treason, etc.
Put another way, if Congress, feeling the will of the people, impeaches the President on any grounds, who can dispute it? The Court cannot invalidate it afterward, and if the executive does not accept it that is a coup d'etat.
Congress should consider the effect of setting precedent, like the Court does, but they didn't seem to worry much about that for Clinton. They did worry about public opinion, and there was no conviction. I trust the system. Congress will not be likely to bring an impeachment without public pressure (or Tom Delay pushing it), but if it is supported, it will happen, and should.
April 9, 2006 3:31 PM | Reply | Permalink
And, like most commentary on Bush's alleged authorization of the Libby leak, largely off-point. The question is not whether Bush has the power to order the declassification of a document but instead whether any order by the president to declassify this particular information was ever (1) given and (2) executed. As mediamatters.org has pointed out, the president clearly cannot declassify information just by, say, crossing his arms and blinking; some type of formally documented procedure has to be followed, and only after that procedure is completed can the information be considered declassified.
No White House spokesman has ever spoken to this issue, and one of the few experts who has spoken to this issue, a former NSA general counsel, has stated "You can't have a government where everything is sort of done in people's heads.."
April 9, 2006 5:16 PM | Reply | Permalink
One can discuss what the framers had in mind until one is blue in the face, but since it is clear they always intended for the power to be discretionary (never mandatory), one should always look at the policy aspects too.
Impeach for lying, even wholesale lying to start a war? This is likely bad policy. One president after another could be impeached when the Congress is controlled by the opposing party. One can make a case for any politician being a liar.
Impeach for imcompetence? Questionable policy for the same reason.
Impeach for blatantly illegal and/or unconstitutional wiretapping (George W. Bush and Richard Nixon)? An entirely different matter. If one does not impeach in this case, what president will feel the need to obey settled law?
My point is not to argue that Bush should or should not be impeached; I am only pointing out that one needs to also consider any precedents that an impeachment will set.
April 9, 2006 5:37 PM | Reply | Permalink
Absolutely. Would that the other guys had considered that.
April 9, 2006 6:55 PM | Reply | Permalink
Larry Johnson today said "these guys are just making it up as they go along" and I think he's pretty much right, and your concern about focus is probably also pretty much right.
But on a conceptual plane there's something interesting:
"alegal" as contrasted with "illegal" or "legal." Bush probably understands that "Ignernce of the law is no excuse", yet feels that as Commander and Chief the law is of no consequence if it interferes with what he wants to do.
Neoboho
April 11, 2006 11:35 AM | Reply | Permalink