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Cheney’s Power to Declassify Information

by Pamela Leavey

In his interview with Brit Hume on Fox News last night, Dick Cheney said that he had “the power under a presidential executive order” to declassify information. Cheney offered this information when asked by Hume about Scooter Libby and the recent court filing in which Special Counsel Patrick Fitzgerald revealed “Libby’s assertions to a grand jury that superiors had authorized him to spread sensitive information from a National Intelligence Estimate.”

I’ve certainly advocated declassification and participated in declassification decisions,” he said, but he would not say whether he had done so unilaterally.

Cheney was referring to an executive order on classification of information first signed by President Bill Clinton in 1995. In March 2003, just days after ordering U.S. troops into Iraq, President Bush amended order to, among other things, give the vice president the same classification power as the president.

MoxieGrrrl questioned this morning whether Cheney actually had this power.

Can someone please tell me where it is written that Vice Presidents are legally authorized to declassify information at his discretion?

One comment on MoxieGrrl pointed to this piece by Byron York on the National Review which refers to Executive Order 13292.

“Cheney was referring to Executive Order 13292, issued by President Bush on March 25, 2003, which dealt with the handling of classified material. That order was not an entirely new document but was, instead, an amendment to an earlier Executive Order, number 12958, issued by President Bill Clinton on April 17, 1995.

At the time, Bush’s order received very little coverage in the press. What mention there was focused on the order’s provisions making it easier for the government to keep classified documents under wraps. But as Cheney pointed out Wednesday, the Bush order also contained a number of provisions which significantly increased the vice president’s power.”

I’m no legal expert, but it does appear to me that Executive Order 13292 does have strict guidelines about revealing “the identity of a confidential human source.”

If I am interpreting this Executive order correctly, any declassified information would have to go through the Director of the Information Security Oversight Office; and under “Sec. 5.5. Sanctions. (a)” of Executive Order 13292, “If the Director of the Information Security Oversight Office finds that a violation of this order or its implementing directives has occurred, the Director shall make a report to the head of the agency or to the senior agency official so that corrective steps, if appropriate, may be taken.”

Was the Director of the Information Security Oversight notified that Cheney or whoever made the decision to declassify Valerie Plame’s identity? It certainly does appear that a broad interpretation of the power to declassify information was taken in this case and that none of Libby’s superiors should have been authorizing him to “disclose in July 2003 the contents of a National Intelligence Estimate on Iraq.”

“Sources familiar with the matter have told The Washington Post that Cheney was one of those superiors, but it was unclear whether Libby meant classified or unclassified information.”

Be it classified or unclassified information that Libby was referring to, it appears to me that in last night’s interview when Cheney admitted to advocating “declassification and participated in declassification decisions” — and in doing so he let the cat out of the bag.

Robert Ray, former Whitewater independent counsel said, “If the focus is off the defendant and on to somebody else, generally for the defense that’s a good day. If it turns out that Cheney was actively involved in decisions related to the disclosure of a CIA officer’s identity and if the truth of it is that he was orchestrating the disclosure of information to the media, it seems to me that’s a fundamentally different case than one centered around the activities of Libby.”

The indictment against Libby says Cheney advised his chief of staff on June 12, 2003, that the wife of Bush administration critic and former U.S. Ambassador Joseph Wilson worked at the CIA in the counterproliferation division.

Libby understood that the vice president had learned this information from the CIA, according to the indictment, which says Libby also learned of Wilson’s wife’s identity from the CIA and the State Department.

On July 14, 2003, the CIA identity of Valerie Plame _ the maiden name of Wilson’s wife _ was published by columnist Robert Novak. Eight days earlier, Wilson had accused the administration of twisting prewar intelligence to exaggerate the Iraqi threat. Wilson concluded it was highly doubtful that a purported sale of uranium yellowcake by Niger to Iraq in the late 1990s had ever taken place.

This is all so convoluted, but this disclosure by Cheney last night certainly does lead one to think that Cheney haphazardly answered Senator Kennedy’s call for full disclosure in “Who Authorized the Leaks?” Even with the power to declassify information, there are stringent guidelines on declassifying the identity of a confidential sources — such as Valerie Plame. Giving Cheney “executive power” to declassify information, does not give him the power to break the law doing so.

The Washington Note has more on this here and Ron has more on Cheney’s powers here.

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