Is it not illegal to fail to release the declassified version of NIE after it is delivered to Congress?

You asked about redacted documents Congress had under its control, however you are not clear who/what is failing to release the information: The Congress or the President?

Disclosure Waives Executive Privilege

The President, in transferring this information to another branch, cannot claim the information is privileged. Unclear whether the President through the AG would have a reasonable claim against Members of Congress for disclosing that redacted document, hence McConnel is talking, as opposed to DOJ AG threatening lawsuits for disclosure. Once Congress has access to a non-classified document, Congress may or may not choose to disclose that document. We have to separate branches of government, both with the same redacted document.

NIE Appropriations Language

CRS report refers to the appropriations language mandating NIE for Congress. Under this theory, the NIE isn't something the President owns; it's required as a deliverable to Congress. The issue turns on whether it is a request, which the President is obligated to meet or ignore; or whether, as you ask, whether it is a legal obligation.

The FY2007 Defense Authorization Act (P.L. 109-364, section 1213) specifically requested a comprehensive NIE on Iran.

Once the President agrees to disclose that information, and does disclose the document (despite his assertion he is not required to), then he cannot put the horses back into the barn:

In February 2007 the Intelligence Community also released an NIE on Prospects for Iraq’s Stability in response to a congressional request. From

However, this does not mean the President cannot ignore an agreement with Congress; or that Congress, despite that Presidential refusal will take action to force the President to provide the data; or that Congress will attempt to punish anyone who prosecutes those disclosing the redacted document.

State Secrecy

The issue may be one of whether a claim of secrecy, state secrets or privilege can be asserted on documents which the President creates, redacts, discloses to Congress as agreed. The issue depends on the specific language of the Congressional language; and what the President's already done with the NIE on Iraq. As far as classification of that document, he cannot classify something when the objective of that classification isn't to protect secrets (impossible with a redacted version), but more intended to hide evidence of incompetence, mal administration.

Classification Guidelines

The President cannot rely on classification standards to hide documents which have had all classified information removed; and the terms of the declassification have been met. Declassification is up to the original classification authority. It depends on how the original NIE were classified; and whether, even with information redacted, the NIE was still classified as not being releasable to foreign nationals.

Legal Inquiry Into Continued Supression

If the President chooses to hide redacted reports, a reasonable inquiry would be whether that subsequent refusal to disclose, transfer, provide, or permit access was related to an improper objective unrelated to a bonafide Presidential issue of state secrets, national security, or privilege.

Reynolds isn't support for classification of the redacted document in that there are, arguably, "no" national security issues in the redacted document; and there is no substantial national security interest in preventing disclosure.

Arguably, if there were, after redaction, still a "substantial national security interest" in hiding the documents, the redaction would not be complete, and a dubious claim. It's a separate issue whether Congress or anyone attempts to enforce the law or appropriations language which may discuss the President's disclosure of the Iraq NIE to Congress.

Title 50 refers to "products" when discussing NIEs.

(i) National Intelligence Council product For purposes of this section, the term “National Intelligence Council product” includes a National Intelligence Estimate and any other intelligence community assessment that sets forth the judgment of the intelligence community as a whole on a matter covered by such product.

432 F. Supp. 2d 81 supports the claim that the NIE disclosure or non-disclosure is an issue for the court to adjudicate.

The question is whether there is, as asked, a question of law, which narrowly applies to the alleged improper disclosure of the NIE; and the need to acquire NIE-related material:

"since the legality of the defendant's disclosures of the NIE will not be at issue in this case, documents relating to it and its declassification need not be produced."

The NIE could be compelled as evidence if there was an issue of legality which hinged on the NIE being introduced as evidence.

This would go back to the original appropriations language: Were any of the disclosures improper; and conversely, would a permitted disclosure create an enforceable civil right. Improper disclosures are subject to criminal review; but whether the improper classification is illegal relates to what the court determines is the real motive for the continued shielding.

Arguably, if the document, despite redaction, is still not being disclosed, it could be argued that the continued suppression is for an improper purpose. Whether a court would agree or disagree is one for the court to adjudicate.

Holland v. CIA, Decided 1992. The NIE, even after it were disclosed and re-suppressed, could be challenged on the basis of an invalid, or bad faith affidavit.

In the case of the Iraq NIE, it would appear, after redaction and original disclosure, someone would have to rely on a conclusory affidavit to suppress what they had previously permitted disclosed.

Rather, the issue would turn on whether the court concluded that the original redaction was improper; or there were problems with the original declassification process. This could suggest illegal activity, warranting investigation.

By reclassifying this NIE on Iraq, they are calling attention to the very thing they supposedly want to hide; and raising additional questions about the management's statements, their reviews, and internal controls. Not a good thing.

Something "Less Than" an NIE

As with the FISA-NSA illegal activity, Congress appears to be moving the standard, rather than enforcing the existing requirement. Congress may be outside its authority to accept something other than a full NIE. Recall the lessons of the FISA briefings: Congress 'agreed' to something less than the full FISA-requirements. That agreement was not lawful, and violated FISA. The same approach can be taken on the Iraq NIE.

Look at the Congressional language on the Iraq NIE. It is unlikely Congressional language permits something less than an NIE. The NIE can be subject to a FOIA. If Congress imposed the requirement on the President to give them an NIE, Congress needs to explain why it is not enforcing that requirement. To the public.

This is the same non-sense we saw with the FISA requirements: Congress and the President, after the fact, agreeing to something other than the law required. The public can reasonably ask for all information related to the decision of Members of Congress and the President to jointly agree, between branches, to something than a full report.

Congress and the President cannot claim "this agreement for something other than a FOIA" is protected by privilege. It is arguably evidence of an unlawful agreement not to fully comply with the statute calling for a full Iraq NIE.

This smacks of the same "agreement" Congress and the President made to not fully comply with the FISA requirements. This 'agreement' itself, between Congress and the President to accept something 'less' than a full NIE, could be subject to a FOIA. If the President signed Congressional language agreeing to a full NIE, it may not be lawful for Congress and the President to agree to something 'less than' a full NIE. A redacted form of the NIE could be compelled during a FOIA request.

- Why is Congress willing to permit this change?

- Why isn't Congress willing to enforce the requirement on the President to provide a full NIE to Congress?

- Does everyone see the similarities between the Iraq NIE "agreement to a lesser standard" as those which occurred when the President and Congress agreed to violate FISA, without judicial review?

- Is Congress going to hide the memoranda and discussion notes DoJ OLC sent to Congress related to this "something other than a full NIE"?

What is the language related to the original NIE: Did the statute call for a full NIE? If so, Congress and the President, without an act of Congress, can agree, in secret, to something other than the law requires.

The langauge appears to support the conclusion the Congress expected a full 2008 NIE on Iraq, with changes and revisions that reflected concerns about the full 2007 NIE on Iraq Here is a comment in the FY08 bill: Disappointments with the 2007 NIE on Iraq:

The January 2007 Iraq National Intelligence Estimate (NIE) included several unclassified Key Judgments that identified a wide range of political, social, economic, and security conditions that will, in the Intelligence Community's collective judgment, lead the security situation in Iraq to continue to deteriorate. The NIE provided some important insights; however, the Committee believes that the NIE did not adequately address the likelihood that increased coalition military activities in Baghdad could lead to an increase in violence elsewhere in the country--a phenomenon which appears to have occurred as the Baghdad security plan began to be implemented in the Spring of 2007. The Committee is also disappointed that the NIE assessed the security implications of a rapid withdrawal of U.S. forces but failed to evaluate the impact of a gradual drawdown of troops, along the lines of proposals endorsed by a majority of Congress. The NIE's assessment of only the most extreme troop redeployment option available presented the impression that the United States has an ``all or nothing'' choice between current troop levels or total rapid withdrawal. If the Intelligence Community offers assessments of the impact that U.S. government policy decisions may have on stability in Iraq, it should offer a nuanced analysis of the several alternatives actually under consideration, not solely the most extreme and unlikely option.

Also the minorty report, does mention cancelling the FY08 NIE on Iraq:

The majority attempts to influence the priority and output of analysis by the intelligence community by suggesting a specific analytical framework, selectively citing elements of a careful and balanced National Intelligence Estimate to suit its political objectives. Specifically, the majority faults the Intelligence Community for not providing intelligence assessments of the implications of various ways Democrats have proposed that the United States withdraw from Iraq. This criticism amounts to political pressure on the intelligence community. Intelligence analysts should follow the evidence where it leads them and draw the appropriate conclusions. They should not be subjected to criticism-- unrelated to any authorization or legislative text of the bill--because they did not write papers that conform to the foreign policy assumptions and positions of the majority.

Is it the intent of DNI to provide something "less than" a full Iraq NIE to avoid:

- Accountability reviews within intelligence community?

Section 401. Requirements for accountability reviews by the Director of National Intelligence. From

It was with the NIE, and the fact that it was provided to the GOP, that generated these comments. This sounds more like the President doesn't want to go on the record about Iraq. He just gave speeches about Iraq.

- What in the formal NIE on Iraq would show the President was lying: The spreading civil war?