Leaker in chief

Just one more disaster in a week full of them. To be fair, I think that the people I listen to on Air America have made an amazing leap which, so far, at least, is not justified by the evidence – namely, that because Dubya authorized the leaking of the NIE, he is ipso facto guilty of outing Valerie Plame. (This, on an affiliate that calls itself “the voice of reason.”) Of course, the news makes it obvious that he’s at the very least a hypocrite and a liar, since even if he didn’t authorize that specific leak, he certainly could have guessed where it came from. Even he isn’t that stupid.

However, here is a meme that the White House’s media stenographers have been very effective in getting out, this time in Newsweek, although I have seen it in story after story since the news came out.

Legally, Bush did nothing wrong. The president can declassify a document any time he wants. Indeed, a sanitized version of the document in question—a National Intelligence Estimate compiled by the CIA and other agencies—was formally declassified and made public only 10 days after some of its contents were leaked by Libby to New York Times reporter Judith Miller in July 2003. But the administration was unquestionably playing games with reporters, whether or not the president was directly involved.

Only problem is, it’s not true. At least, not everyone agrees on the issue. John Dean (uh, former White House counsel, who might reasonably be expected to know something about it) writes the following on the Findlaw website:

In addition, conventional wisdom - if that label fits the consensus information that is surfacing on radio and television news shows - has it that this information does not reveal that the President or Vice President did anything illegal. But that claim, too, is not necessarily accurate.

At a minimum, the filing indicates that the President and Vice President departed radically, and disturbingly, from long-set procedures with respect to classified documents - and that the Vice President, in particular, exceeded his declassification authority. And it may indicate that they, too, ought to be targets of the grand jury.

This is what I would love to know – what did Dubya and Dick tell the FBI when they were interviewed? If they told the “truth,” or what they claim now is the truth, shouldn’t that have cleared up the investigation? And if they did nothing wrong, why cover it up?

More from Dean:

Assuming that Libby's testimony is accurate, did the President do anything wrong by so declassifying the NIE? Given the fact that the national security classification system is created by executive order of the president, it would appear logical that the president has authority to unilaterally and selective declassify anything he might wish. However, that is not the way any president has ever written the executive orders governing these activities. To the contrary, the orders set forth rather detailed declassification procedures.

In addition, there is law that says that when a president issues an executive order he must either amend that executive order, or follow it just as others within the executive branch are required to do. At present, we have so few facts it is difficult to know what precisely Bush did and how he did it, and thus whether or not this law is applicable. There is also the problem that no one has standing in court to challenge a president's refusal to follow his own rules. But voters may take note of the disposition of this administration to play by the rules, and put a Democratic Congress in place to keep an eye on the last two years of the Bush/Cheney presidency.

What is apparent, however, based on Fitzgerald's filing, is that no one other than Bush, Cheney, Libby and apparently Addington was aware of this unilateral and selective declassification - if, indeed, the NIE was declassified. The secrecy surely suggests cover-up. For example, Fitzgerald notes that Libby "consciously decided not to make [then Deputy National Security Adviser] Hadley aware of the fact that defendant [Libby] himself had already been disseminating the NIE by leaking it to reporters while Mr. Hadley sought to get it formally declassified." (Also, CIA Director George Tenet apparently was not aware of the partial declassification by Bush.)

Whatever authority Bush may or may not have had, however, it is crystal clear that Vice President Cheney did not have any authority to unilaterally and selectively declassify the NIE.

Recently, Cheney made the public claim (to Brit Hume of Fox News) that he had authority to declassify national security information. Learning of this, Congressman Henry Waxman asked the Congressional Reference Service of the Library of Congress, which issues non-partisan reports, whether Cheney was right. CRS found that the Vice President has limited declassification authority, generally speaking. And their report shows Cheney had no authority in this instance - only in situations where the Vice President had been the authority to classify the material in the first place, could the Vice President have the authority to unilaterally declassify it.