Classified Information

OK, here's the Murray Waas article, "Libby Says Bush Authorized Leaks," that started the latest round in the Plame controversy. And here is Patrick Fitzgerald's court filing on The Smoking Gun as web pages and in .pdf format.

The subsequent claims of the executive branch -- that classified information was instantly declassified before leaking or releasing it officially -- made me go back again to study the history of the whole process. I'm sharing the results with you here.

Wikipedia's article, "Classified information in the United States," will give you a nice overview of the way the system is supposed to work.

If you want to jump to a decent legal analysis of the declassification controversy as it existed in mid-February, read georgia10's post on Daily Kos, "Cheney & Classification." Georgia10 was arguing that, despite Bush's grant of co-extensive classification authority to the Vice President, Cheney was obliged to send a request for declassification to the originating agency for review of "whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure." Arguments like hers and subsequent revelations in court filings seem to have resulted in the ultimate White House position that Bush himself authorized the declassification and disclosure.

Given the White House's outing of a covert CIA agent and disclosing cherry-picked intelligence for political purposes, we the people might wish that even the President himself would follow the procedure prescribed for "any other entity within the executive branch that comes into the possession of classified information." However, this White House has repeatedly cited a 1988 Supreme Court decision as authority for its claims that the President can control access to classified national security information however he likes, even in derogation of oversight statutes passed by Congress.

A little history is in order, and we will consider the version offered by the Supreme Court in that 1988 opinion, Department of Navy v. Egan, wherein the Court decided that the Merit Systems Protection Board did not have authority to review the Navy's decision to deny a security clearance to a shipyard employee. From Part III of the opinion:

The President, after all, is the "Commander in Chief of the Army and Navy of the United States." U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant....

Since World War I, the Executive Branch has engaged in efforts to protect national security information by means of a classification system graded according to sensitivity.... After World War II, certain civilian agencies, including the Central Intelligence Agency, the National Security Agency, and the Atomic Energy Commission, were entrusted with gathering, protecting, or creating information bearing on national security. Presidents, in a series of Executive Orders, have sought to protect sensitive information and to ensure its proper classification throughout the Executive Branch by delegating this responsibility to the heads of agencies. See Exec. Order No. 10290 [Truman, 1951], 3 CFR 789 (1949-1953 Comp.); Exec. Order No. 10501 [Eisenhower, 1953], 3 CFR 979 (1949-1953 Comp.); Exec. Order No. 11652 [Nixon, 1972], 3 CFR 678 (1971-1975 Comp.); Exec. Order No. 12065 [Carter, 1978], 3 CFR 190 (1979); Exec. Order No. 12356 [Reagan, 1982], 4.1(a), 3 CFR 174 (1983).

Later executive orders on classification are: Clinton's No. 12958 of April 17, 1995; his October 17, 1995, designation in the Federal Register of the Vice President and five others in the Executive Office of the President as Top Secret classification authorities; and Bush's No. 13292 of March 25, 2003, adding the Vice President "in the performance of executive duties" as an original classification authority within the executive order itself. (This copy shows Bush's changes to Clinton's 1995 order; and this document discusses those changes.)

To bolster its "unitary executive" theory, the Bush administration has included language adapted from the Egan case -- "flows from the Constitution and does not depend upon a legislative grant of authority" -- in its signing statements on defense appropriations laws of 2002 and 2005 (requiring advance notice to Congress before covert actions are commenced), to the effect that the President reserves the "right" not to so inform Congress.

Georgia10 at Kos described statements in this part of the Egan opinion as "dicta." Perhaps she was advancing the possibility they might be mere obiter dicta -- that is, peripheral statements in a case, not part of the holding and thus not precedential; but they seem an important part of the Court's reasoning in reaching its result in Egan and appear to be ratio decidendi of some precedential value.

However, the President never recites this sentence from later in Part III of the Egan opinion:

[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs. (emphasis added)

Four years before President Harry Truman issued the first executive order on classified information, he signed into law the National Security Act of 1947, which "realigned and reorganized the United States' armed forces, foreign policy, and intelligence community apparatus in the aftermath of World War II." This act remains in force today, as amended, and provides for general Congressional oversight of current and planned intelligence activities, § 413, and a presidential duty to keep [the entire membership of] congressional intelligence committees fully and currently informed of all covert actions, § 413b. Subsection (c)(2) of 413b is where we find the President, "to meet extraordinary circumstances affecting vital interests of the United States," can limit access to the required written intelligence "findings" to the "Gang of Eight." (Sections 421, 422, and 426 of the Intelligence Identities Protection Act of 1982 codified nearby are the provisions providing criminal penalties for disclosing the identity of a covert agent.)

Requirements of the 1947 Act were referenced in the Truman and Eisenhower executive orders on classified information linked above; and the Clinton and Bush orders both contain identical language in (now) Section 6.2, General Provisions:

(a) Nothing in this order shall supersede any requirement made by or under the Atomic Energy Act of 1954, as amended, or the National Security Act of 1947, as amended.

And yet, on October 5, 2001, Bush issued this order to the Secretaries of State, Treasury, and Defense, the Attorney General, and the Directors of the CIA and the FBI:

The only Members of Congress whom you or your expressly designated officers may brief regarding classified or sensitive law enforcement information are the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the Chairs and Ranking Members of the Intelligence Committees in the House and Senate.

The strategy ever since 9/11 seems to be to use § 413b(c)(2) to limit the entire Congressional intelligence oversight process to the Gang of Eight, under a purportedly continuous state of "extraordinary circumstances affecting vital interests of the United States." And the Congress we have now is rolling over for it.

UPDATE: The New York Times editorial, "A Bad Leak."

UPDATE: Outed CIA agent was working on Iran

UPDATE: Specter On Domestic Spying:

Yesterday, Bush said this in his weekly radio address:

"The intelligence activities I have authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat."

Senate Judiciary Committee Arlen Specter (R-PA) disagreed with that assessment this morning. On Face the Nation, Specter said that Bush and others in the administration “still haven’t complied with the act to inform the full intelligence committees as required by law.”

UPDATE: Bush agrees to review of spy program:

The White House, in an abrupt reversal, has agreed to let the full Senate and House of Representatives intelligence committees review President George W. Bush's domestic spying program, lawmakers said on Tuesday.

The Republican chairmen of the Senate and House panels disclosed the shift two days before a Senate confirmation hearing for Air Force Gen. Michael Hayden as the new CIA director, which is expected to be dominated by concern over the program.
. . . .
The White House has sought to avoid full committee oversight by limiting briefings to subcommittees from each panel. Initially, the administration shared program details only with the chairmen and vice chairmen of the committees and party leaders in the House and Senate.

"It became apparent that in order to have a fully informed confirmation hearing, all members of my committee needed to know the full width and breadth of the president's program," Sen. Pat Roberts of Kansas, who heads the 15-member Senate Select Committee on Intelligence, said in a statement.

UPDATE: Murray Waas take 2, "Bush Directed Cheney To Counter War Critic":

President Bush told the special prosecutor in the CIA leak case that he directed Vice President Dick Cheney to personally lead an effort to counter allegations made by former Ambassador Joseph C. Wilson IV that his administration had misrepresented intelligence information to make the case to go to war with Iraq, according to people familiar with the president's interview.

Bush also told federal prosecutors during his June 24, 2004, interview in the Oval Office that he had directed Cheney, as part of that broader effort, to disclose highly classified intelligence information that would not only defend his administration but also discredit Wilson, the sources said.

But Bush told investigators that he was unaware that Cheney had directed I. Lewis "Scooter" Libby, the vice president's chief of staff, to covertly leak the classified information to the media instead of releasing it to the public after undergoing the formal governmental declassification processes.

Bush also said during his interview with prosecutors that he had never directed anyone to disclose the identity of then-covert CIA officer Valerie Plame, Wilson's wife. Bush said he had no information that Cheney had disclosed Plame's identity or directed anyone else to do so.

Libby has said that neither the president nor the vice president directed him or other administration officials to disclose Plame's CIA employment to the press. Cheney has also denied having any role in the disclosure.