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Media left unanswered questions about NIE disclosure
On April 5, special counsel Patrick J. Fitzgerald filed court documents alleging that I. Lewis "Scooter" Libby, former chief of staff to Vice President Dick Cheney, testified that Cheney told Libby in July 2003 that President Bush had authorized Libby to disclose the key judgments of a classified National Intelligence Estimate (NIE). According to Fitzgerald, Libby further testified that "he brought a brief abstract of the NIE's key judgments" to a July 8, 2003, meeting with New York Times reporter Judith Miller and that Libby "understood that he was to tell Miller, among other things, that a key judgment of the NIE held that Iraq was 'vigorously trying to procure' uranium." According to Fitzgerald, Libby testified that this disclosure was intended to rebut former Ambassador Joseph C. Wilson IV, who had charged that the Bush administration distorted intelligence about Iraq's supposed nuclear weapons program in making the case for war.
In 2005, Libby was indicted for obstruction of justice, perjury, and false statements in connection with the Bush administration's alleged disclosure that Wilson's wife -- Valerie Plame -- was a CIA operative.
Immediately following The New York Sun's publication of an April 6 article breaking the story about Libby's testimony, many in the media have simply asserted as fact that what Bush is alleged to have done is legal, without any discussion of the implications or consequences of such a position. Media Matters for America has prepared a partial list of questions arising from the revelation of Libby's claims -- questions that the simple assertion of the legality of the president's alleged actions doesn't begin to answer.
1. Is there a process that the president must go through in order to have national security information declassified? If so, was that process followed? For example, are there any documents that the president must sign or officials that must be contacted before information can be made public? Must the president coordinate with or inform the agency that produced the information?
Presidents Reagan, Clinton, and George W. Bush all signed executive orders pertaining to the declassification of national security information. At least one legal analyst -- Fox News senior judicial analyst Andrew P. Napolitano, a former New Jersey state judge -- has argued that Bush "would be violating his own order" if he declassified parts of the NIE without following certain procedures.
From the April 6 edition of Fox News' The Big Story with John Gibson:
GIBSON (host): All right. So, then, what does this story mean, that President Bush revealed classified information? He is the president. Can he unilaterally declassify something and release it?
NAPOLITANO: Yes. He can unilaterally declassify what he has ordered to be classified. He has to go through certain steps in order to do that. He can't say, "Hey, Dick, tell Lew he can tell this to Judy." He has got to sign certain documents. It's got to go through a procedure, a procedure set up by President Clinton and reinforced by President Bush. The president does not commit a crime if he says, "Hey, Dick, tell Lew he can talk to Judy." He would be violating his own order.
2. If there is no process that the president must follow, what is to prevent him from authorizing the disclosure of classified information to undermine administration critics or political opponents? What would have prevented the president from authorizing members of his administration to disclose Valerie Plame's identity as a CIA operative?
3. According to Fitzgerald, Libby testified that Cheney "advised him that the President had authorized defendant [Libby] to disclose the relevant portions of the NIE." In doing so, did Bush "declassify" the NIE's key judgments or did he authorize only that its contents be disclosed? If the latter, does he have the legal authority to do that?
4. Libby approached David Addington, then-counsel to the vice president and Cheney's current chief of staff, who, Libby testified, "opined that presidential authorization to publicly disclose a document amounted to a declassification of the document." Given that Libby was uncertain enough about the president's authority that he sought an opinion from Addington, why are the media treating as open and shut the question of whether Bush's authorization of the leak constituted declassification consistent with his authority to declassify information?
5. When the president declassifies national security information, doesn't the public have the right to know that such declassification has occurred? If the information has been declassified, shouldn't the public have access to the information itself? Should the president inform other government officials -- for example, the director of central intelligence or the national security adviser -- that the information has been declassified?
According to Fitzgerald, Libby testified that at the time he disclosed the key judgments of the NIE to Miller, Libby "understood that only three people -- the President, the Vice President and defendant [Libby] -- knew that the key judgments of the NIE had been declassified." According to Fitzgerald, Libby "testified in the grand jury that he understood that even in the days following his conversation with Ms. Miller, other key officials -- including Cabinet level officials -- were not made aware of the earlier declassification even as those officials were pressed to carry out a declassification of the NIE."
6. If the president's authorization of the disclosure of the NIE's key judgments constituted "declassification," why did White House press secretary Scott McClellan say at a July 18, 2003, press conference -- 10 days after Libby met with Miller -- that the information in the NIE "was just, as of today, officially declassified"?
Rep. Henry Waxman (D-CA) raised this issue in an April 6 letter to Bush, noting that "on July 18, 2003, some time after Mr. Libby leaked this classified information to reporters, your Administration formally declassified portions of the NIE for public release, suggesting that the information had not been declassified until that time."
7. Libby testified that his July 8 meeting with Miller was "the only time he recalled in his government experience when he disclosed a document to a reporter that was effectively declassified by virtue of the president's authorization that it be disclosed." Are there any other examples where documents were declassified and given to a reporter solely on the president's authorization? Are there any other examples of declassified national security information being revealed only to a reporter?
8. On the April 6 broadcast of ABC's World News Tonight,Walter E. Dellinger III described Bush's apparent authorization of Libby's disclosure as an "abuse of the classification process" while asserting that "the president has raw constitutional authority to do it." If what the president authorized does indeed amount to a legal course of declassification, do legal and national security experts believe the law should be altered so that this is no longer the case?