Decision ‘08

Does The Vice President Have the Authority to Declassify Information? - Part 2

Recently, with the help of our good friend Jacques, we tried to untangle the question of whether Cheney can declassify information (Jacques was good enough to point us to Executive Order 13292, which he stated allowed the Vice President to do so only if secretly authorized by the President, if the information originated somewhere besides the Vice President’s office - see below). The Vice President appeals to an executive order to claim he does, in fact, have the authorization to declassify:

Q Let me ask you another question. Is it your view that a Vice President has the authority to declassify information?

THE VICE PRESIDENT: There is an executive order to that effect.

Q There is.

THE VICE PRESIDENT: Yes.

Q Have you done it?

THE VICE PRESIDENT: Well, I’ve certainly advocated declassification and participated in declassification decisions. The executive order –

Q You ever done it unilaterally?

THE VICE PRESIDENT: I don’t want to get into that. There is an executive order that specifies who has classification authority, and obviously focuses first and foremost on the President, but also includes the Vice President.

Byron York looks at Executive Order 13292 in this article at National Review, but thanks to the heads-up given us by Jacques, we can point out a very obvious point: all the changes York obsesses on are dealing with the authorization to classify, not declassify.

Steve Clemons notes the distinction here, but the Vice President could still be telling the truth. How? Well (hat tip to Jacques) there may a secret executive order giving Cheney that right. Note that Cheney did not say Executive Order 13292; his exact words were, “There is an executive order to that effect.”

Alternatively, however, EO 13292 can be seen as exempting the Vice President with a little teasing. How? Section 3.5(a) lays out the requirements for mandatory declassifation review by the originating agency, but leaves an out (emphasis mine):

Sec. 3.5. Mandatory Declassification Review. (a) Except as provided in paragraph (b) of this section, all information classified under this order or predecessor orders shall be subject to a review for declassification by the originating agency if:

(1) the request for a review describes the document or material containing the information with sufficient specificity to enable the agency to locate it with a reasonable amount of effort;

(2) the information is not exempted from search and review under sections 105C, 105D, or 701 of the National Security Act of 1947 (50 U.S.C. 403-5c, 403-5e, and 431); and

(3) the information has not been reviewed for declassification within the past 2 years. If the agency has reviewed the information within the past 2 years, or the information is the subject of pending litigation, the agency shall inform the requester of this fact and of the requesters appeal rights.

And what does Section 3.5(b) say about information that is exempt?:

(b) Information originated by:

(1) the incumbent President or, in the performance of executive duties, the incumbent Vice President;

(2) the incumbent Presidents White House Staff or, in the performance of executive duties, the incumbent Vice Presidents Staff;

(3) committees, commissions, or boards appointed by the incumbent President; or

(4) other entities within the Executive Office of the President that solely advise and assist the incumbent President is exempted from the provisions of paragraph (a) of this section.

So, does that mean Jacques was wrong?

Jacques, wrong? - Of course not. Our original discussion was about whether Cheney could declassify the National Intelligence Estimate that Scooter Libby claims he received authorization to leak. A surface reading of the Executive Order says Cheney could not do that without a secret EO from the President, because the CIA was the originating agency.

However, as we have seen, in matters where the Vice President (or his staff), while acting in an ‘executive capacity’ (let’s just leave that one alone for now - this is long enough already), originates classified information, Cheney explicitly has the authorization to declassify…

8 Responses to “Does The Vice President Have the Authority to Declassify Information? - Part 2”

1 Andy Says:
February 16th, 2006 at 9:56 pm
Or if Tenet declassified it…granted, that would appear to be an elaborate rope-a-dope scheme. However, given Occam’s Razor, it could be that Tenet did tell Cheney and whatever logic they had planned for fell apart as the MSM spiraled this into a “treasonous leak”.

Even tho I still don’t believe that outting Plame violated the letter of the law, since she was well past her 5 years. Nothing else, it would only mean that she couldn’t go undercover again. Then again, given her deliberate politicization of her position and attempts to sabotage the administration, the CIA would be dumb to send her out again in any sensitive role. So blowing her cover effectively retires her without having to deal with her “incompetency”.

Nevertheless, even if there is a secret EO that allowed Scooter to talk, would not that same order exempt Scooter from prosecution for ‘lying’? Of course the admin won’t lay that trump card out until Fitzgerald lays his cards down first.
2 peter Says:
February 16th, 2006 at 10:06 pm
I think you are having trouble distinguishing Occam’s Razor from a Gilette Blue Blade.

1) The media spiralled it into a treasonous leak? George H W Bush defined outing a CIA agent as the highest form of treason. I guess that doesn’t apply when it’s done by Republican administrations.

2) Why is it that whenever the Bush administration does anything wrong, the media are always to blame?

3) What exactly did Plame do which was a “deliberate politicization of her position?”

4) And what did she do which deliberately sabotaged the administration?
3 Mark Says:
February 16th, 2006 at 10:10 pm
Well, Andy, remember, though, that Libby’s claim is that Cheney gave him permission to leak the NIE, not the identity of Valerie Plame - though that is the assumption many are going by, it hasn’t been alleged by any of the parties involved at this time…
4 Gwedd Says:
February 16th, 2006 at 11:02 pm
Comrade Peter,

Actually, the law applies to “outing” a covert agent, not a CIA employee… Valerie Plame was NOT a covert agent, nor was she anything other than an employee of the CIA. Her hausband had introduced her at social functions as an employee of the CIA. it was common knowledge amongst their neighbors and social acquaintantces who she worked for. Thus, she was not covert. She could not be “outed”. The charges brought by the IC had nothing to do with the primary direction of the investigation, and only resulted in a single charge of purjery….

Regardless, my former postings regarding the VP’s ability to declassify classified information still stands in light of the releases. When acting “in the performance of executive duties”. In other words, when acting on behalf of, or under the direction of, the President of the United States, the VP has the right to declassify information.

brings up some interesting scenarios, however.

Respects,

Gwedd
5 peter Says:
February 16th, 2006 at 11:10 pm
From Patrick Fitzgerald’s news conference:

“Valerie Wilson was a CIA officer. In July 2003, the fact that Valerie Wilson was a CIA officer was classified. Not only was it classified, but it was not widely known outside the intelligence community. Valerie Wilson’s friends, neighbors, college classmates had no idea she had another life.”

Seems pretty dispositive to me –
6 Andy Says:
February 17th, 2006 at 12:46 am
Peter,

1) Outing an covert agent WITHIN 5 years is treasonous regardless of administration. In her case, she wasn’t covered, altho rationally speaking, exposure would blow her chances of going back into the field at a later date. However,since she’s proven herself to be a partisan, may as well cut her career short as an example to others.

2) Why is it that whenever the Clinton administration does anything wrong, the media always appears to rationalize it? To wit, cHillary giving up Vince Foster’s suicide note 30 hours after the fact. If the MSM were ‘conservatively’ biased, speculation would abound along two memes: a) enough time to write up a forgery, or in accordance with the current meme du jour, b) for cHillary’s blood alcohol to dissapate, since she was the bait for por Vince.

3) Using her position to deliberately debunk the admin??? Using her husband, a political hack — which the majority of ambassadors are, as opposed to using senior FS’ers to head up the embassies — to “look” into Iraq seeking to get yellow cake?

4) See #3. Here we have Sloppy (I believe there was an attempt before I believe there wasn’t an attempt) Joe in order to help destroy the admin’s case.

Mark, mea culpa — sitting in this sandbox, I don’t have the luxury of getting the straight news as much as I’d like. The implication from the breathless talking heads was that Scooter’s confession had everything to do with Plame — one and the same– altho I suspected otherwise when Fitz stated what he stated. Sometimes, I wish the military here would can CNN like the Brits did BBC for the overt sandbagging.

Oh well, time to go duck & cover again

Ciao
7 peter Says:
February 17th, 2006 at 10:14 am
Uh, no.

1) Valerie Plame was, in fact, a covert agent and she met the criterion of serving overseas within five years:

“Former CIA officer Larry C. Johnson attempted to clear up the confusion surrounding Plame’s status in a column responding to Max Boot: “The law actually requires that a covered person ’served’ overseas in the last five years. Served does not mean lived. In the case of Valerie Wilson, energy consultant for Brewster-Jennings, she traveled overseas in 2003, 2002, and 2001, as part of her cover job. She met with folks who worked in the nuclear industry, cultivated sources, and managed spies. She was a national security asset until exposed by Karl Rove and Scooter Libby.” It was confirmed that she was a covert operative early in the investigation by acting intelligence officials, setting the matter to rest.”

You are correct in writing that “outing an covert agent WITHIN 5 years is treasonous regardless of administration.” Valerie Wilson was a covert agent, operating undercover, with an identity which was unknown to her friends and family. In addition, the front operation she worked for was also covert (and its usefulness ended with the leak), By your definition, the Bush administration acted with treason in exposing her identity.

2) Vince Foster committed suicide. Hillary Clinton had nothing to do with it. What’s your point? And what does this have to do with Valerie Plame?

3) Valerie Plame did not send her husband to Niger — she recommended him and he was sent by others. You can call Wilson whatever you want, but the fact is that he had several decades’ experience in the foreign service in senior positions, and he was, in fact, correct. Bush’s statement in the SOTU address about Niger was, in fact, wrong.

4) Why is it that whenever the Bush administration does something which is indisputably wrong — in this case, using false evidence to lead the nation to war — that those who point it out are slimed? Whether it is former officials (Paul O’Neill, Eric Shinseiki), Wilson and Plame, or the media, fingers are pointed at everybody except those who are accountable for the actions in the first place.
8 All Things Jennifer » Blog Archive » RINO SIGHTINGS! (day after President’s Day Haiku Version) Says:
November 8th, 2006 at 4:57 pm
[…] What Would Cheney Do? Part Two on authority… to declassify. […]