The Declassification of Dick Cheney

A guest on MSNBC’s Hardball stated his belief that Vice President Cheney had the authority to declassify CIA NOC Valerie Plame’s identity earlier this week. This led to some discussion of if this were indeed true, or if perhaps the guest intended to say that VP Cheney may have believed he had the authority to declassify parts of the National Intelligence Estimate which he had I. Liar Libby share with Judith Miller and other journalists. The issue of how (and why) the NIE was declassified is worth taking a closer look at.

In the Libby criminal trial, the prosecution has not charged Scooter with violating the law when he shared NIE information with Miller. However, Mr. Fitzgerald has not accepted the position of Team Libby that the NIE was definitely declassified before Scooter "shared" it with others.

Some of the most interesting information regarding the differences are found in Document 80 (filed 4-5-06) and Document 82 (filed 4-12-06). Exhibit C of Doc. 82-2 is a seven page letter from Mr. Fitzgerald to Attorneys Jeffress, Wells and Tate, which reads in part:

"At this time we do not intend to offer evidence of ‘other crimes’ … As we discussed during our telephone conversation, Mr. Libby testified in the grand jury that he had contact with reporters in which he disclosed the content of the National Intelligence Estimate (‘NIE’) to such reporters in the course of his interaction with reporters in June and July 2003 (and caused at least one other government official to discuss the NIE with the media in July 2003). …We are not obligated at this time to disclose impeachment material of Mr. Libby should he testify in his defense."

The topic of declassification is of interest not only to the federal court hearing the criminal charges against Libby. It has also been the focus of significant interest to Congressman Henry Waxman and the House Committee on Government Reform. He has authored and co-authored several letters to President Bush and other senior administration officials regarding the abuse of classifying and declassifying material, including the NIE that Scooter used with Miller and others.

These letters include:
1-14-04: Rep Waxman to Condoleezza Rice (then National Security Advisor to President Bush).
2-10-04: Reps Waxman and Conyers to President Bush.
7-14-05: Rep. Waxman to WH Chief of Staff Andrew Card.
7-18-05: Rep Waxman to President Bush.
11-9-05: Rep. Waxman to WH Counsel Harriet Miers
4-6-06: Rep. Waxman to President Bush

Most, or perhaps all of these letters can be found at FindLaw.com.

Congressman Waxman requested that Harold Relyea, Specialist in American National Government, of the Congressional Research Service, determine if the Vice President was authorized to disclose "classified information to journalists on a selective basis?" At issue was President Bush’s Executive Order 13292 (3-25-03), which amended E.O. 12958. In his March 10, 2006 response, Relyea noted that prior to 1982, no vice president "participated in the security classification program." From the time the security classification program started on March 22, 1940, until Reagan issued E.O. 12356 on April 2, 1982, the vice presidents didn’t play a role. Reagan changed this to allow VP Bush the authority to classify material as Top Secret, Secret, or Confidential.

In general, documents are declassified or downgraded by the official who authorized the classification, if that official is still in office; the person who replaces that official; those who supervise the said official; or an official who has been delegated, in writing, that authority by the agency head responsible for the administration of the agency or department.

Bush’s order, which took place in the same month that the first "work up" on Joseph Wilson was held in VP Cheney’s office, granted "the Vice President with authority coequal to that of the President to security classify information originally. While the definition of ‘Declassification authority’ remained unchanged, it is not clear if the change in classification authority for the Vice President in any way modified the declasification authority of the Vice President.

"… The Vice President appears to have some limited declassification authority. However, it appears that the Vice President is not otherwise authorized to disclose or to direct or to approve the disclosure of security classified information to persons not not authorized to receive it."

In other words, VP Cheney did not have the authority to direct Libby or Wolfowitz to share the NIE to journalists on a selective basis. Yet this is exactly what Cheney did, in the period before back-tracking and having President Bush declassify the NIE.

Thus, in his 4-6-06 letter to President Bush, Congressman Waxman wrote, "Mr. Libby reportedly testified that ‘the Vice President had advised (Libby) that the President had authorized (Libby) to disclose relevant portions of the NIE.’Mr. Libby also reportedly testified that Vice President Cheney himself ‘authorized him to leak classified information to a number of journalists …’ Both claims raise serious questions. …

"If Mr. Libby’s testimony is accurate, there are serious unanswered questions about what authority Vice President Cheney was operating under when he directed his staff to leak this classified information."

The White House ignored all of Congressman Waxman’s letters on this topic, from 2004 to 2006. Progressive democrats from the grass roots should support his efforts to get answers in 2007.