Libby: Bush OK'd Secret Intel Leak

[CapelDodger]

I was meaning the strategic objective - not the tactical one. It's the difference between "the Great Crusade to liberate Europe" and another reconnaissance in force such as Dieppe. The value of that information is clearly demonstrable in that both XX and the FUSAG deception operations continued to convince Hitler that the real invasion was still impending and that Normandy was a feint.

The value was apparently nil, since the Nutcase-in-Chief simply fitted it into his existing fantasy - that Normandy was the diversion. The Brits announced it at the same time and it made no difference. Nobody anywhere near Normandy needed confirmation. So this isn't really an example of a President choosing to declassify information in order to justify a policy, which is the main subject. It's more a diversion.

Truman released this information to Stalin at Potsdam before the bombing ...

A significant new weapon was mentioned, not the details (which Stalin had from other sources).

... and was the first to inform the Japanese that it was an atomic bomb that was used. The Japanese did not have this information at the time.

It hardly made any difference how it was done, the doing of it was all too obvious.

Can you provide an example of U2 imagery that was declassified prior to the Kennedy address? They use this very example in the various intelligence schools to underscore the concept of this executive power.

This I recognise as a valid comparison. In that case, Kennedy was revealing information that really did motivate his policy, to inform rather than simply persuade. Bush Minor's declassification was apparently designed to persuade rather than inform of the Bushies real motivations.

Who exactly do you claim has the Constitutional power to classify and declassify national security information?

I don't dispute that the President can declassify information. I just think there's a big difference between declassification after the event and declassification before.

 

[davefoc]

And that is the crux of it, really, not whether the Prez has the right to declassify no?

Uusually when you declassify information you do it openly, and you go with the actual information. You don't do it sneakily, concealing your involvement, through a single reporter, and secondhand. No reason for all that if what you're doing is honest and ethical. Amazes me how the true believers can continue to defent this kind of thing.

That seems like a pretty good summary to me.

It seems like the true believers don't have much cover on this one. What is left is the routine parsing and weasling about what Bush actually knew and when he knew it. In this case it doesn't seem like there's much play in that line although I guess somebody will have a go at it.

The other possible Bush apologist line is the idea that all presidents lie or that lying to protect presidential credibility in a time of war is a reasonable policy.

I might be a lot more sympathetic to the second line of defense except that the purpose of this lying was to cover up past lies that were used as the primary justification for the initiation of a war.

 

[Cylinder]

I don't dispute that the President can declassify information. I just think there's a big difference between declassification after the event and declassification before.

What do you think the legal obligation for authorized disclosure and the process for declassification is exactly?

 

[davefoc]

What do you think the legal obligation for authorized disclosure and the process for declassification is exactly?

I don't know exactly where you are going with this question, but I have wondered whether the absolute authority of the president to declassify whatever he wants whenever he wants and release it in anyway that he wants to is more limited than has been suggested.

At some point, the issue of treason would come up. So there is at least that minimal restriction. Are there any more restrictions? Suppose that the president decided that sharing ABM secrets with the Russians was in the national interest and the congress had decided that it wasn't and had passed specific legislation to restrict the president's ability to distribute ABM engineering data. Could the president ignore congress and do what he thought was in the national interest legally?

Suppose the president declassified portions of a document with the intent of misleading congress so that they would be supportive of a war that they might not otherwise support. Is intent the sole arbiter of legality here? If the president did it to promote something he believed was in the American interest it would be legal but if the president did it knowing that it was against American interests it would then be illegal because it would then be treason?

Could the president decide to release the personell files of everybody that works at the post office?

 

[Cylinder]

I don't know exactly where you are going with this question...

I am rebutting the claim that those portions of the NIE were declassified after they were disclosed to Miller. To make that claim, one obviously first needs to know how the President's authority works under US law.

...but I have wondered whether the absolute authority of the president to declassify whatever he wants whenever he wants and release it in anyway that he wants to is more limited than has been suggested.

It's not a blank check, but it is one so broad as to cover the vast majority of instances. The President's power over classified national security information is fairly clearly enumerated by statute. 18 USC 798 defines the crime of unauthorized disclosure of classified. In doing so it also defines who an unauthorized person is:

The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

Stated conversely, a person authorized to receive classified is whoever the President says it is. The same power is again asserted in 50 USC 435 which establishes procedures for the protection of classified by the executive branch:

Not later than 180 days after October 14, 1994, the President shall, by Executive order or regulation, establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government.

Notice that this power is not retained by Congress nor is it delegated to the courts, the New York Times or CBS News. Executive Order 13292, issued on March 25, 2003, currently governs the protection of classified national security information:

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.

March 2003, you say? So close to the authorization for disclosure that it must have been issued CYA. I have already established that the President has sole authority to change the rules via executive order (see 50 USC 435) but what the hell, let's play. The previous executive order which was superseded by EO 13292 was Executive Order 12958, issued by President Clinton on April 17, 1995, which contained the following directive:

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 national security that might reasonably be expected from disclosure.

Looks somehow familiar, right? President Clinton's order superseded to one issued by President Reagan in 1982, which did not contain that language explicitly, but clearly also designated the President as the supreme classification and declassification authority. That order superseded EO 12065 issued by President Carter on June 28, 1978. Guess what? Our old friend is back:

In some 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.

Enough of that.

At some point, the issue of treason would come up. So there is at least that minimal restriction.

Treason is a separate crime which does not per se limit the statutory powers of the President. I agree that declassification could be used as the overt act required to meet the statutory definition of treason. This ain't one of those cases.

Are there any more restrictions?

I am less familiar with the provisions of the Atomic Energy Act of 1954. It may impose real restrictions on the President.

Suppose that the president decided that sharing ABM secrets with the Russians was in the national interest and the congress had decided that it wasn't and had passed specific legislation to restrict the president's ability to distribute ABM engineering data. Could the president ignore congress and do what he thought was in the national interest legally?

Congress does not have that power unless the provisions of the release were outlined by treaty - which the Senate could reject. The POTUS is the sole organ of foreign affairs. The Senate cannot enter into a treaty without the President first presenting it to that body.

Suppose the president declassified portions of a document with the intent of misleading congress so that they would be supportive of a war that they might not otherwise support.

Does not apply. Congress had access to the October 2002 NIE. All members of Congress hold security clearances which allow them access to non-compartmentalized information such as that contained in the NIE.

Is intent the sole arbiter of legality here?

No and yes. Putting nuclear secrets and cryptography for a second, the POTUS is the sole class/declass authority. Article II Section 2 of the US Constitution is the arbiter of that authority. All other authorities stem from his person authority as commander-in-chief. By executive order, "an exercise of discretion" is the standard for declassification in the public interest. That may meet your definition of intent.

If the president did it to promote something he believed was in the American interest it would be legal but if the president did it knowing that it was against American interests it would then be illegal because it would then be treason?

Treason != all actions against American interests. 18 USC 2381:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

Article III Section 3 of the US Constitution is the basis for this statutory definition.

Could the president decide to release the personell files of everybody that works at the post office?

No. The personnel files for the USPS is not classified and is not national security information. Article II Section 8 of the US Constitution grants Congress the power "to establish post offices and post roads."

 

[davefoc]

...
It seems like the true believers don't have much cover on this one. What is left is the routine parsing and weasling about what Bush actually knew and when he knew it. In this case it doesn't seem like there's much play in that line although I guess somebody will have a go at it.....

It looks like there's enough play in the "president was not aware of the report defense" that the whitehouse thought they'd try it out.

From a New York Times editorial:

The White House says Mr. Bush was not aware of that report, and was relying on an assessment by the Central Intelligence Agency and the Defense Intelligence Agency. This is hardly the first time we've been told that intelligence reports contradicting administration doctrine somehow did not make it to Mr. Bush's desk. But it does not explain why he and Mr. Cheney went on talking about the trailers for weeks, during which the State Department's intelligence division — about the only agency that got it right about Iraq — debunked the mobile-labs theory.

http://www.nytimes.com/2006/04/16/o...585bf27c6&ei=5090&partner=rssuserland&emc=rss

Is the notion of honesty amongst high ranking officials just a quaint, naive idea? Is the truth that they got there by lying and once they get there the lying is so deeply ingrained that truth is something only to be used when it is their interest? In this case, the vast majority of interested people realize that the administration is lying. The opponents see it as another sign that their judgments about this administration are correct. The defenders accept it as just routine misrepresentation necessitated by the needs of putting the best face forward for their guy.

I wonder though if the constant need by the whitehouse to spin and misrepresent hasn't begun to make them consider the possibility that if this much lying is required to make us look ok, that maybe the truth is that we are just a bunch of corrupt, incompetent bozos. Or maybe they know that already.

 

[davefoc]

Cylinder, your knowledge of this obscure area has been impressive and I have enjoyed reading your responses.

Cylinder wrote:

I am less familiar with the provisions of the Atomic Energy Act of 1954. It may impose real restrictions on the President.

Originally Posted by davefoc :
Suppose that the president decided that sharing ABM secrets with the Russians was in the national interest and the congress had decided that it wasn't and had passed specific legislation to restrict the president's ability to distribute ABM engineering data. Could the president ignore congress and do what he thought was in the national interest legally?


Congress does not have that power unless the provisions of the release were outlined by treaty - which the Senate could reject. The POTUS is the sole organ of foreign affairs. The Senate cannot enter into a treaty without the President first presenting it to that body.

These two answers go to what I was really curious about and your answers seem to be a bit contradictory with the idea of unlimited presidential power to use and release military secret information as he sees fit.

There is the constitutional idea of the president as commander in chief. This seems to give hem pretty much unlimited power to run the military as he sees fit, however congress controls the money so conceivably congress could have stopped something like the Iraq war by refusing to fund it. But it sounds like the president, as part of his commander in chief powers can use classified military information in any way that he sees fit with the only limitation being that he is doing it in the American interest.

All right, but it seems like you are referring to two possible areas where the president's power to use classified military information in any way that he thinks is in the American interest are limited.

In one case you refer to the Atomic energy act of 1954. Could congress even pass a legal bill that would restrict the ability of the POTUS to declassify atomic bomb secrets?

In the second case, you refer to the idea that a treaty might restrict the ability of the POTUS to use classified military information in the way he sees fit. Is the POTUS bound to abide by treaties? How would a treaty affect his legal ability to release classified information?

It seems like the congress has the absolute ability to restrict the president from declassifying non-military secret information. Do you think this is correct. For instance in the case of the post office personell files, even though the post office is controlled to some degree by the president the president can still not violate congressional laws with regard to post office secret information.

 

[Cain]

Davefoc writes:

When is it ethical for the executive branch to mislead the public and congress by selectively releasing classified information?

And don't forget that Libby wanted Miller to identify him as a "former Hill staffer" to make it appear as though the information was coming from the bureaucracy rather than the White House.

The editorial in today's NYT (cited above) is quite good.

the version of the facts that Mr. Libby was authorized to divulge was so distorted that it seems more like disinformation than any sincere attempt to inform the public.

 

[Cylinder]

Sorry for the delay in response.

In one case you refer to the Atomic energy act of 1954. Could congress even pass a legal bill that would restrict the ability of the POTUS to declassify atomic bomb secrets?

It's one of those gray areas with competing interests.Chapter 41 of 50 USC establishes the National Nuclear Security Administration and codifies procedures related to access to nuclear energy secrets. In this context, I intend that term to include nuclear weapons.

50 USC 2426(c):

(c) Reports on changes in classification of special access programs
(1) Whenever a change in the classification of a special access program of the Administration is planned to be made or whenever classified information concerning a special access program of the Administration is to be declassified and made public, the Administrator shall submit to the congressional defense committees a report containing a description of the proposed change, the reasons for the proposed change, and notice of any public announcement planned to be made with respect to the proposed change.
(2) Except as provided in paragraph (3), any report referred to in paragraph (1) shall be submitted not less than 14 days before the date on which the proposed change or public announcement is to occur.
(3) If the Administrator determines that because of exceptional circumstances the requirement of paragraph (2) cannot be met with respect to a proposed change or public announcement concerning a special access program of the Administration, the Administrator may submit the report required by paragraph (1) regarding the proposed change or public announcement at any time before the proposed change or public announcement is made and shall include in the report an explanation of the exceptional circumstances.

Congress seems to have delegated the declass authority to a member of the executive branch without also delegating that power to the President himself. What seems to clear to me at least is that the President has the power to declassify at least certain aspects military programs dealing with nuclear weapons, such as the Reagan revelations about the so-called neutron bomb (I'm working off the top of my head here) under his authority as CINC. Every President since 1954 has acknowledged the limits of the AEA in its executive order concerning the protection of classified national security information.

Only two areas of information are classified by statute - nuclear weapons secrets and cryptographic methods. It is even less clear (in my mind at lest) who has the power to declassify this information. Declassification authority in practice resides with the original classification authority which in this case seems to be Congress (sort of). Nowhere do they explicitly assert this authority.

In the second case, you refer to the idea that a treaty might restrict the ability of the POTUS to use classified military information in the way he sees fit. Is the POTUS bound to abide by treaties? How would a treaty affect his legal ability to release classified information?

A treaty cannot really restrict the President's authority as CINC under the Constitution. Treaties like the North Atlantic Treaty set guidelines for the treatment of certain shared information, but treaties are not self-executing - that is, to be enforced in US Court they need to be codified.

It seems like the congress has the absolute ability to restrict the president from declassifying non-military secret information. Do you think this is correct.

It really is a gray area. Nowhere does Congress assert the authority to declassify any information and they only assert the power to classify in the instances of nuclear energy and cryptographic methods.

For instance in the case of the post office personnel files, even though the post office is controlled to some degree by the president the president can still not violate congressional laws with regard to post office secret information.

That's really not a good analogy because in the case of personnel files, they are not classified as CONFIDENTIAL. They are exempt from FOIA requests due to personally identifying information - which is sometimes referred to as confidential (lowercase) personal information.