CNN's David Ensor, reporting on the revelation that President Bush "authorized" the disclosure of classified portions of the 2002 National Intelligence Estimate pertaining to Iraq's purported weapons of mass destruction, simply asserted without elaboration that unnamed "experts" say Bush's actions were "legal," and that the president has "the right" to declassify such information. Similarly, Fox News' Brit Hume said that both Bush and Vice President Dick Cheney "have the legal authority under an executive order signed by the president to make public classified information. So that takes the unauthorized out of it." Neither Ensor nor Hume challenged the notion that the president has the authority to leak classified information, questioned whether Bush -- assuming he has that authority -- properly declassified the information, or made any effort to explore the ramifications of the president's exercise of that alleged authority.
On the April 6 edition of CNN's Live From..., national security correspondent David Ensor, reporting on the revelation that President Bush "authorized" the disclosure of classified portions of the 2002 National Intelligence Estimate (NIE) pertaining to Iraq's purported weapons of mass destruction (WMD), simply asserted without elaboration that unnamed "experts" say Bush's actions were "legal," and that the president has "the right" to declassify such information. Similarly, on the April 6 edition of Fox News' DaySide, Fox News Washington bureau managing editor Brit Hume said: "[B]oth he [Vice President Dick Cheney] and the president have the legal authority under an executive order signed by the president to make public classified information. So that takes the unauthorized out of it." Neither Ensor nor Hume challenged the notion that the president has the authority to leak classified information, questioned whether Bush -- assuming he has that authority -- properly declassified the information, or made any effort to explore the ramifications of the president's exercise of that alleged authority.
The revelation that Bush approved this disclosure of classified material was drawn from court papers regarding federal prosecutor Patrick J. Fiztgerald's investigation of Cheney's former chief of staff I. Lewis "Scooter" Libby, who was indicted in October 2005 on five counts of perjury, obstruction of justice, and making false statements to the FBI relating to the leaking of CIA operative Valerie Plame's identity. According to those papers:
Defendant's [Libby] participation in a critical conversation with [then-New York Times reporter] Judith Miller on July 8 (discussed further below) occurred only after the Vice President advised defendant that the President specifically had authorized defendant to disclose certain information in the NIE. Defendant testified that the circumstances of his conversation with reporter Miller - getting approval from the President through the Vice President to discuss material that would be classified but for that approval - were unique in his recollection.
Ensor reported on April 6 edition of Live From... that "[t]he president does have the right to decide when and how to declassify documents, so experts are saying this was entirely legal," and "the president had the right to order his staff to disclose certain limited information from that classified document." Hume, on the April 6 edition of DaySide, said: "And so far as I understand it -- and I asked the vice president about this back in February -- both he and the president have the legal authority under an executive order signed by the president to make public classified information. So that takes the unauthorized out of it."
In fact, the papers never state that Bush "declassified" the documents but, rather, that he authorized the disclosure of their contents. According to the papers, Libby testified that Cheney "advised him that the President had authorized defendant to disclose the relevant portions of the NIE." The papers also state that Libby approached David Addington, then-counsel to the vice president and Cheney's current chief of staff, who "opined that Presidential authorization to publicly disclose a document amounted to a declassification of the document." The court papers further state that Libby testified to the uniqueness of this situation:
Defendant testified that he thought he brought a brief abstract of the NIE's key judgments to the meeting with Miller on July 8. Defendant 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. Defendant testified that this July 8th meeting 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.
In contrast with Ensor's and Hume's summary conclusion that Bush's alleged conduct was legal, National Journal investigative reporter Murray Waas's April 6 article on the court papers seems to suggest that the normal declassification procedures were not adhered to in this case:
Libby also testified, Fitzgerald asserted in the court papers, that "at the time of his conversations with Miller and Cooper, he understood that only three people -- the President, the Vice President and [Libby] -- knew that the key judgments of the NIE had been declassified.
"[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, the report about Wilson's trip and another classified document dated January 24, 2003."
Absent from Ensor's or Hume's reporting were any of the important questions that arise from this development. For example: Is there a process that the president must go through in order to have information declassified? If so, was that process followed? Are there any documents that the president must sign or officials that must be contacted before information can be made public? Ensor and Hume apparently took for granted Addington's theory that the president has the power to secretly declassify information on a whim and with no documentation -- through the simple act of leaking it or authorizing it to be leaked. While Ensor and Hume seem to take this for granted, it is worth noting that Libby apparently did not think it was so obvious; otherwise, he would not have sought Addington's approval.
Finally, if the president does have the authority to declassify information in this way, Ensor and Hume did not address the ramifications of that conclusion. For example, what's to prevent the president from retroactively absolving White House aides for leaking Plame's identity by simply claiming that he had given his unwritten approval?
From the April 6 edition of CNN's Live From...:
FREDRICKA WHITFIELD (anchor): For more on this story let's turn to CNN national security correspondent David Ensor. And what's the reaction, David?
ENSOR: Well, Fredricka, as you say, the government's answer to a request for documents from lawyers for Scooter Libby, the vice president's chief of staff, made public today is where we find this. And it says that Vice President Cheney told Libby the president himself had authorized Libby to disclose portions of a then-classified intelligence document on Iraq's weapons of mass destruction programs. The document says, quote, "Defendant," that's Libby, "testified that the vice president advised him that the president had authorized the defendant to disclose the relevant portions of the NIE," that's the National Intelligence Estimate, the document prepared by U.S. intelligence in the run-up to the war that has been widely discredited since then, since no meaningful WMDs have been found in Iraq.
Now, the president does have the right to decide when and how to declassify documents, so experts are saying this was entirely legal. But it does show that the Bush White House campaign had responded to its critics, people like Ambassador Joseph Wilson, who is the husband of the former CIA officer Valerie Plame Wilson. That campaign was apparently directed from the very top. The revelation comes in the government's response to the effort of Libby's lawyers to gain access to additional classified documents that they say they will need to defend him against all the charges you just mentioned. So it is not to suggest that the president had any involvement at all in the illegal leak of Valerie Plame Wilson's identity as a clandestine CIA officer, but simply that he did authorize, according to Mr. Libby's testimony and according to this government description of it, that certain portions of a then-classified document be declassified.
WHITFIELD: Now, what about reactions potentially from Joe Wilson or his wife, Valerie Plame? We know up to recently Joe Wilson, the former U.S. ambassador, has been very outspoken, saying that it was his great suspicion that these instructions were coming straight from the top but the White House would say -- especially President Bush -- would say we are looking into this and as soon as we are able to learn who might have revealed this information we'll take the necessary steps, ah, take them very seriously.
ENSOR: But we have to be careful to separate two things here, Fredricka. The leaking of the name of Valerie Plane Wilson, which was against the law, and concerning how that was done, as you mentioned, Scooter Libby has been charged with perjury, obstruction of justice, and so forth in connection with that. And the separate matter of the decision to disclose, and thus leak, certain information to The New York Times that came out of a classified document having to do with weapons of mass destruction in Iraq. These are two different things. Ah, the president had the right to order his staff to disclose certain limited information from that classified document. Nobody have the right, however, to disclose the name of Valerie Plane Wilson, which was the original crime about which this whole scandal has shaped around. And that still, there is no suggestion here that the president authorized that or that he even really knew what was happening.
From the April 6 edition of Fox News' DaySide:
JULIET HUDDY (co-host): We're talking about a different story that we start off the show with, the situation with the president, according to Scooter Libby, authorizing a leak. Now Brit, how bad does this look for the president, if bad at all?
HUME: Well, I don't understand how the president can be said to authorize a leak. A leak is an unauthorized disclosure of classified information. The president is among the people who is -- has the authority to declassify information and make it public if he chooses to do so. He's the principal --
HUDDY: Why are some legal experts saying that that's not the case, though?
HUME: I'd like to know what legal experts are saying that. I don't hear any legal experts saying that. Look, I think it is clear that the Libby defense team is trying to suggest here that anything he may have said about Valerie Plame was, to some extent, in the line of a possibly -- of a possibly legal disclosure. And he's citing examples where classified information is sometimes made public by the authority of the president. I'm not sure this helps the Libby defense team very much, but it may help some. But I think before we go charging off after the idea the president or vice president leaked something, we ought to figure out whether it was an authorized or an unauthorized leak. And so far as I understand it -- and I asked the vice president about this back in February -- both he and the president have the legal authority under an executive order signed by the president to make public classified information. So that takes the unauthorized out of it.