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A while back I did a post on the Big Orange about Congressman Tom Davis' curious attempt to expand Vice Presidential power. You see, at Waxman's Plame hearing, Congressman Paul Hodes got both Bill Leonard–the nation's expert on classification and declassification, and James Knodell–the Administration's designated fall guy for this particular hearing, to agree that unauthorized declassifcation of the National Intelligence Estimate is a crime. But then Leonard explained that Bush can do whatever he pleases: his ability to classify and declassify things is absolute.

Congressman Tom Davis (whom the GOP no doubt calls "Waxman's full time minder" by now) apparently realized the danger of Leonard's explanation. The record doesn't show that Bush declassified Plame's identity the NIE. The only evidence we have shows Cheney telling Libby Bush had insta-declassified "it," whatever it is, but thus far no proof Bush did so. So Davis pulled out a nice bit of jujitsu to try to invent a Vice Presidential right to declassify into the record. (starting at 2:56:55 on CSPAN)

Davis: Mr. Leonard, let me ask. Does the President or the Vice President have the authority to declassify on the spot?

Leonard: As I mentioned earlier, Mr. Davis, the President’s authority in this area is absolute, pursuant to the Constitution, …

Davis: So they can do it on the spot. Can they declassify for limited purposes?

Leonard: Absolute is absolute.

It is clear: Davis is asking about what "they," the President and the Vice President, can do. But Leonard has only answered as it relates to the President.

I thought it was awfully shifty so I decided to get a clarification from Mr. Leonard himself. Here's a direct quote from our email exchange:

[emptywheel] In response to a question from Congressman Hodes, you stated unequivocally that the President has absolute authority to declassify information. Then, Congressman Davis asked you a follow-up question regarding the ability of the President and the Vice President to declassify. In your response, you simply repeated your earlier answer, that the President has absolute authority to declassify information. Does the Vice President have the ability to declassify information beyond that for which he is the original owner? If so, under what circumstances? Would there be any paperwork if he had done so? Would he need back-up from the President if this occurred?

[Leonard] Reply: My comments at the hearing with respect to the President's authorities dealt with classified national security information as established in Executive Order (E.O.) 12958, as amended. The Vice President's declassification authority for such information beyond which he authorized the original classification would depend upon the extent to which he has been delegated that authority by the President. [my emphasis]

In other words, if Dick Cheney didn't classify something originally, then he can only declassify it if Bush delegates authority to him specifically to do so. So when Dick said the following when he was setting the agenda with Tim Russert, he lied.

THE VICE PRESIDENT: I have the authority as Vice President under an executive [order] issued by the President to classify and declassify information. And everything I've done is consistent with those authorities.

Bush must delegate such authority before Cheney can declassify information–like Plame's identity the NIE–that Cheney didn't originally classify.

The reason this is so important is that Scooter Libby was pretty damned vague in his descriptions of how Plame's identity the NIE got declassified.

Q. Okay. Now, can you fix the date when you first spoke to the Vice President about trying to get the facts out on the NIE, the National Intelligence Estimate, and then you in that conversation expressed your reservations because it as a classified document?

A. No.

[snip]

A. I was very — I didn't use those words, but I was very clear. Can the, can the Vice President — can the President declassify a document just by telling us to talk — and that's how he put it. If the President tells you to talk about a document, it's declassified. [my emphasis--Libby's a bad one with Freudian slips]

[snip]

Q. And do you know when the Vice President talked to the President to get the permission for you to discuss this with the press and in effect in your mind declassify the document?

A. No, sir.

Q. And were you present for that conversation?

A. No, sir.

Q. What did the Vice President tell you about that conversation?

A. He told me he had talked to the President and we should go ahead and, you know, talk to the press about the NIE.

Q. And do you know if the Vice President told the President what the legal issue was in terms of sharing classified information?

A. I don't know what happened in that conversation. But the Vice President knew that we needed to have the President's authority to talk about the document, or that section of the document.

Q. And was anyone else present with you when you discussed with the Vice President the issue of whether or not you could be authorized to discuss classified material withthe press or the public?

A. No, sir, but I referred him to the conversation with David Addington.

Q. So as far as you know, did the Vice President and David Addington discuss that issue?

A. I don't know.

Q. And do you know if the Vice President and the President talked about it in person or by telephone?

A. I don't know.

Q. And do you know how long before your July 8th meeting with Judith Miller that conversation took place?

A. I don't. My sense was that it was within a few days, but I don't really know.

Q. Could it have been the day before, July 7th, as far as you know?

A. Could have been, or it could have been some time at the end of the previous weekend. I mean, excuse me, I misspoke. End of the previous week, before the weekend. It could have been any day in that period. 

It appears very likely that there's no record–none–of Bush declassifying Plame's identity the NIE. Libby can't place it in time. He's not sure whether it happened over the phone or in person. And there are no witnesses. Just, so far, Libby's second-hand assurances that the President insta-declassified Plame's identity the NIE. I sincerely believe that, if Fitzgerald ever gets around to proving that it was Plame's identity, and not the NIE, that Libby leaked to Judy with Dick's authority, Dick intends to claim he declassified it. Gotta protect the President, don't you know (besides, it's distinctly possible that Cheney never did ask Bush to declassify Plame's identity the NIE). But, contrary to what Dick told Tim Russert, there is no basis in law for Dick to declassify things he hasn't specifically been authorized to declassify by Bush.

Of course there are two more pieces of evidence that might show what went on: the transcripts of Bush's and Cheney's interviews with Patrick Fitzgerald. Which, of course, are not grand jury materials, since Bush and Cheney were too chicken to go before the grand jury. 

All the more reason for Congressman Waxman to request the transcripts of those interviews.