Friday, February 17, 2006

Cheney's real crime

Yesterday, Cheney claimed in a televised interview that he may on his own authority make public classified documents. This assertion comes in the wake of accusations made in Grand Jury testimony by Cheney’s former Chief of Staff, I. Lewis Libby, that he was “authorized” by his “superiors” to release to Judy Miller and other reporters a classified CIA National Intelligence Estimate (NIE) related to Iraq WMDs issued the previous October.

The Vice President is quoted by AP as stating during an interview on Fox News last night: “There's an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.'' See, AP, 02/16/2003, “Cheney Says He Has Power to Declassify Info”


A review of relevant laws, executive orders, and presidential directives reveals that the Vice President has no lawful power to unilaterally declassify CIA documents. Court documents released last week revealed that Dick Cheney stands accused of having told his aide to release a secret National Intelligence Estimate (NIE) ten days before it was declassified by the Agency. See, ;

Cheney appears to be referring here to Executive Order 13292, issued March 25, 2003 which gave the Vice President the authority to request the classification of his own documents, and to exempt some of these from release under the Freedom of Information Act. See, E.O 13292, Sec. 3.5 (03/25/2003)

However, there is nothing contained in that Order, or any other law, executive order or presidential directive that gives the Vice President the power to unilaterally de-classify secret agency documents, or to authorize others to do so on his behalf. Such a power by the Vice President simply has never been provided for in any written statute, executive order, presidential directive, or agency regulation. It simply didn’t exist as part of American law until Cheney announced it yesterday.


Quite to the contrary. Federal law states that it is a felony for officials to disclose the contents of classified documents to persons who aren’t authorized to receive them. It is a separate offense to disclose the identity of an undercover intelligence officer. If the Vice President desires that his subordinates desire to make such disclosures, Executive Order spells out the precise procedures whereby any official must first request that a document be declassified, and recisely who in the government has the authority to carry out declassification. As before, that authority rests with the head of the “originating” agency, which in this case is the Director of Central Intelligence.

At that time, Cheney would have first had to request that George Tenet authorize Agency declassification. There is no record that such permission was ever sought or obtained. Tenet resigned a year later without explanation.

Since the beginning of the Bush Administration, EOs have been published and posted at the White House website, and are not classified. / Additionally, there is a second category of presidential orders, National Security Presidential Directives (NSPDs), the contents of some of which are classified. But even these have been numbered and indexed, and NSPDs issued since February 13, 2001 are posted by the Federation of American Scientists.

A series of EOs spell out the precise procedures whereby any official may request that a classified document may be declassified, and who has the authority to carry out declassification. The Executive Order prescribes a uniform system for classifying, safeguarding, and declassifying national security information. The first one still in effect was issued on April 17, 1995 and took effect on October 14, 1995. E.O. 12958 was amended with E.O. 12972, dated September 18, 1995, E.O. 13142, dated November 19, 1999, and E.O. 13292, dated March 25, 2003.

As before, that authority rests with the head of the “originating” agency, which in this case is the Director of Central Intelligence. While the President may overrule the head of the agency regarding declassification, the matter must first be considered by the CIA Director or his designate. That is clear from the language of the controlling document. In this particular, Executive Order 13292, Sec. 3.5 (03/25/2003) remains the lawful directive for declassification of CIA documents. See,

“Sec. 3.1. Authority for Declassification. (a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.
(b) It is presumed that information that continues to meet the classification requirements under this order requires continued protection. 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.
(c) If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification. Any such decision by the Director may be appealed to the President through the Assistant to the President for National Security Affairs. The information shall remain classified pending a prompt decision on the appeal. “


Definition of terms is essential to a full understand in of what is meant here. As before, these terms contained in the 1995 Order remain operative. Consider the following, and it become clear that Mr. Cheney was not following the law when he told Mr. Libby to reveal the contents of the NIE to Ms. Miller.

(e) "Classification" means the act or process by which information is determined to be classified information.
(f) "Original classification" means an initial determination that information requires, in the interest of national security, protection against unauthorized disclosure.
(g) "Original classification authority" means an individual authorized in writing, either by the President, or by agency heads or other officials designated by the President, to classify information in the first instance.
(h) "Unauthorized disclosure" means a communication or physical transfer of classified information to an unauthorized recipient.
(i) "Agency" means any "Executive agency," as defined in 5 U.S.C. 105, and any other entity within the executive branch that comes into the possession of classified information.
(j) "Senior agency official" means the official designated by the agency head under section 5.6(c) of this order to direct and administer the agency's program under which information is classified, safeguarded, and declassified.
(k) "Confidential source" means any individual or organization that has provided, or that may reasonably be expected to provide, information to the United States on matters pertaining to the national security with the expectation that the information or relationship, or both, are to be held in confidence.
(l) "Damage to the national security" means harm to the national defense or foreign relations of the United States from the unauthorized disclosure of information, to include the sensitivity, value, and utility of that information “


As one should expect with such bureaucratic matters, the law is not in the least bit vague about the steps that government officials are required to take before they can release classified documents to the public. The Vice President is no exception.

In Mr. Cheney’s case, there is no evidence that he requested the Director of Central Intelligence to declassify the NIE before its contents were revealed by his aide, Scooter Libby, to Judy Miller of the New York Times on July 8, 2003. That document was not in fact declassified until ten days later. Dick Cheney and any other official who might have issued such an authorization was thus in violation of law in carrying out that disclosure. There is no murky presidential delegation of powers, as has been suggested by some, that might change that fact.

Therefore, the Vice President should be prosecuted for this.

MARK G. LEVEY, 2006.


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