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This week's explosive news that President Bush personally authorized the leak of classified intelligence to New York Times reporter Judith Miller raises serious questions to which media should demand answers.
A court filing by special counsel Patrick J. Fitzgerald, disclosed just this week, refers to testimony by former vice presidential chief of staff I. Lewis "Scooter" Libby that he disclosed portions of a classified National Intelligence Estimate (NIE) to Miller only after being authorized to do so by Bush.
There is no indication, however, of exactly how the president declassified the NIE -- no indication of what, if any, procedures the president is required to follow when he declassifies a document, and no indication of whether Bush followed those procedures.
Without explicitly addressing the declassification process, the filing does hint that Bush may have done nothing more than simply say to Vice President Dick Cheney that Libby could tell Miller about the NIE. According to the filing, after Vice President Cheney told Libby that the president had authorized the disclosure, Libby sought guidance from then-Cheney counsel (and now Cheney chief of staff) David Addington, who advised him that "that Presidential authorization to publicly disclose a document amounted to a declassification of the document."
Libby's testimony that he sought Addington's advice strongly suggests that there was no formal declassification of the document; that it wasn't marked "declassified" or entered into the database of declassified material the government is required to keep. Addington's advice seems to suggest that he believes the president can simply cross his arms and blink and information is instantly declassified -- no need for any documentation of the decision, no need for a signature, no forms to fill out, nothing.
Addington's theory of absolute presidential power to secretly declassify information without telling anyone, so that even the most senior administration officials believe it to remain classified, may well be true. But we've seen no indication that it is, other than Addington's reported say-so.
But that hasn't stopped several reporters from flatly asserting it to be true, often while referring to the opinion of "legal experts" who are either unnamed and unquoted, or named, but not quoted saying anything of the kind.
CNN's David Ensor, for example, asserted during one April 6 report that "Now, the president does have the right to decide when and how to declassify documents, so experts are saying this was entirely legal." But he didn't name any of those "experts." And while few, if any, argue that the president lacks the "right" to decide when to declassify documents, it's an open question whether he can decide how to declassify, or whether there is a procedure that must be followed. Ensor offered no support for his contention that the president "does have" this right.
Later, Ensor went further, telling viewers: "It is the executive branch, headed by the president, that decides what is classified and what is not. Most recently, the rules governing declassifying material were updated in a 2003 executive order signed by President Bush. There are complex rules for lesser mortals, but the order makes clear that the president and the vice president can order aides, such as Mr. Cheney's chief of staff, 'Scooter' Libby, to give any classified material they want to a reporter."
But the 2003 executive order does not make clear anything of the kind. Indeed, one assumes that if the order really did clearly state, as Ensor asserts, that the "complex rules for lesser mortals" don't apply to the president, Ensor would have quoted the order. He did not. Nor has anyone yet quoted any portion of the order that says that the president can declassify information simply by deciding the disclose it, without any record or documentation of the declassification.
Immediately following Ensor's assertion, he played a clip of former CIA general counsel Jeff Smith, apparently intending the clip to support his contention. But it did not. Ensor showed Smith saying, "Frankly, the president and the vice president have that right if they so choose to declassify something and put it out in public." It isn't clear whether Smith meant that the president can declassify anything he wants, or that the president can declassify whatever he wants however he wants, without following normal procedures.
Now, intelligence officials say most commonly when administration officials want to declassify something, they will check with the relevant intelligence officials to make sure nothing they want to make public would compromise sensitive intelligence sources or methods. But that is not legally required, and it is not always done. So no laws were broken here, but the revelation by 'Scooter' Libby that the president authorized a leak puts Mr. Bush in an awkward position. After all, in public, he has always denounced leaks.
And that's how the segment ended: with Ensor's assertion, unsupported by any facts, that it "is not legally required" for administration officials to check with "the relevant intelligence officials" before declassifying, and that "no laws were broken here."
Ensor wasn't alone in such assertions, or in curious presentation of expert opinions. The Chicago Tribune reported:
The president's authority to keep and reveal secrets also is inherent in his constitutional powers, says J. William Leonard, director of the National Archives' Information Security Oversight Office, and the president does not have to follow any particular procedure in declassifying information.
"It's his authority in the first place," Leonard said.
The Tribune does not quote Leonard saying the president does not have to follow any procedure in declassifying information; it paraphrases him, then presents a quote from him that is so vague as to be nearly meaningless. The Tribune continued:
While Bush's use of classified information may create a political problem, it's not a legal issue, said Mark Zaid, a Washington lawyer who often represents CIA employees and others involved in national security issues. As the author of the executive order governing how information is classified, Bush can declassify something simply by declaring so, Zaid said.
"Since the president is the one who issues the order, ergo he obviously has the authority to classify and declassify information," Zaid said Thursday.
Again, the Tribune asserts that a legal expert says the president can declassify "simply by declaring so" -- but, again, the Tribune doesn't actually quote the expert saying anything of the kind, and the quote that is presented doesn't necessarily back up the Tribune's paraphrase. Continuing directly, the Tribune added:
Bush had exercised his authority in cooperating with journalist and author Bob Woodward in the writing of "Bush at War," Woodward's account of the response to the attacks of Sept. 11, 2001. "That book is replete with classified information" that Bush declassified by discussing it with Woodward, Zaid maintains.
Once again -- for the third time in one article -- the Tribune does not actually quote the expert saying what it asserts he said. In every case, the important part of the argument is not made by the legal expert, but by the Tribune paraphrasing what the expert says. Do Zaid and Leonard actually think the president doesn't have to follow any procedure at all in declassifying information? Who knows? A Tribune reader can't be sure -- and can't help but be suspicious at the way the paper presents the quotes.
Similarly, ABC's Jake Tapper seems to have found a legal expert who thinks the president can declassify without following any procedures. But did he really? On the April 6 edition of Nightline, Tapper reported:
TAPPER: A senior administration official tells ABC News that by definition, the president cannot leak. He has the inherent authority to declassify something. It's like accusing a shopkeeper of shoplifting from himself. Other experts agree. Partly.
WALTER DELLINGER (former solicitor general): The president has the legal authority because classification is done by his executive order. But the fact that the president has raw constitutional authority to do this does not mean that it's free from criticism or censure because it is an abuse of the classification process.
Tapper's setup suggests that Dellinger agrees that "the president cannot leak" -- that as soon as the president decides to disclose something, it is declassified. But Dellinger doesn't actually say that -- not in the clip Tapper played, anyway. Dellinger could well have been saying the president has the legal authority to declassify -- if he follows the relevant procedures.
So what's the story? Do these legal experts think the president has to follow a declassification procedure or not? We don't know, but it certainly is strange that in every news report we've seen that purports to offer expert opinion that the president needn't follow a procedure, that opinion is not actually quoted. Some, like the Tribune, Ensor, and Tapper, quote experts not quite saying what they claim the experts said.
Others, like The Washington Post, don't bother to do even that. One April 7 Post article claimed, "The White House refused to comment directly on the court filing, except to point out that Bush's very decision to disclose classified information means he declassified it -- an assessment shared by independent legal experts." That article contained no further reference to any "independent legal experts."
Another Post article reported, "Legal scholars and analysts said yesterday that the president has the authority to selectively declassify intelligence reports" -- but that article didn't further refer to those "legal scholars and analysts."
A third Post article, headlined "Experts: Tactic Would Be Legal but Unusual," offers some hope. Surely here, at last, the Post will actually present an "expert" who says that "Bush's very decision to disclose classified information means he declassified it"? Well, not quite. The article refers to exactly two legal experts, and doesn't quote either of them saying anything of the kind. Indeed, it quotes former National Security Agency (NSA) general counsel Ronald D. Lee seeming to say the opposite: "There is an institutional interest and ultimately a public interest in having these decisions documented. ... You can't have a government where everything is sort of done in people's heads."
We've seen exactly one legal expert who has directly and explicitly spoken to whether or not the president must follow a declassification procedure: Fox News senior judicial analyst and former judge Andrew P. Napolitano:
JOHN GIBSON: 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 Lou he can tell this to Judy." He has got to sign certain documents. He'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 Lou he can talk to Judy." He would be violating his own order.
Finally, it's worth noting that, during his April 7 press briefing, White House press secretary Scott McClellan was directly asked if the president can ignore the normal declassification process. He refused to give a direct answer:
QUESTION: I want to see if I can sort out with you what you described earlier, sort of talking past each other earlier. There's a process for declassification, and the president has declassification authority.
McCLELLAN: That's correct.
QUESTION: When the president determines that classified information can be made public without jeopardizing sources and methods, that it's an appropriate thing to do, is that -- can that supplant the declassification process? Is that, in effect, an immediate act? Is it de facto declassified by that determination?
McCLELLAN: The president can declassify information if he chooses.
QUESTION: So, if a declassification --
McCLELLAN: It's inherent in our Constitution. He is the head of the executive branch.
QUESTION: Is it possible, then, for a declassification process to be under way, or perhaps not yet even started, but perhaps in the middle of it, the president can say this is declassified and -- or this is something that is worthy of the American people seeing, and it can happen on separate tracks?
McCLELLAN: I want to be careful here, because that is touching on something that is brought up in the legal proceedings. And I've got to stay out of that.
QUESTION: Well, it's a question more about administrative policy and how the White House would handle it.
McCLELLAN: But the president is authorized to declassify information as he chooses.
All that said, there are some questions the media should get to the bottom of:
- Is there a process the president must follow in order to declassify a document?
- If so, was that process followed in that case?
- If not, what authority, law, or executive order gives him the ability to ignore the normal declassification process? What is the specific language that gives him that ability?
- If the president does not have to follow any process and can simply declassify a document or information without telling anyone, that means that the rest of the government -- including, for example, the national security adviser, the secretary of defense, and the director of central intelligence -- will continue to think the material is classified. Is that conducive to effective government? Is it a tenable situation for the highest-ranking officials in our government to have different understanding of what is and what is not classified?
During his July 18, 2003, "gaggle," Scott McClellan told reporters that the NIE "was just, as of today, officially declassified." Later, a reporter asked, "When was it actually declassified?" McClellan replied: "It was officially declassified today."
But according to Libby's testimony, he told Miller about the NIE -- at President Bush's direction -- on July 8, 2003. Ten days before it was "officially declassified," according to McClellan.
How does McClellan explain the discrepancy?
Asked about it during his April 7 press briefing, McClellan replied: "[M]y recollection is that I was referring to the fact that, yes, it's officially declassified today. ... But that doesn't get into the issue of when everything was declassified."
The word "today," according to McClellan, doesn't answer the question of "when." Apparently he wants us to believe that "today" answers the question of "who." Or maybe "where."
Questions reporters should pursue:
- If Bush declassified the document before Libby met with Miller on July 8, 2003, why did it need to be declassified again on July 18?
- McClellan says the material was declassified because "[i]t was in the public interest that this information be provided, because there was a debate going on in the public about the use of intelligence leading up to the decision to go into Iraq. This is regarding prewar intelligence. And there was a lot of misinformation being put out. There were accusations being leveled against the president and against this White House and this administration that intelligence was misused or manipulated."
- Given that the administration thinks it is in the public interest to provide information relevant to the debate about the use of intelligence leading up to the decision to go into Iraq, will it now publicly release the one-page NIE summaries prepared for Bush that one "senior official" reportedly described as the "one document which illustrates what the president knew and when he knew it"? Or does the administration think only information that seems to support its contentions is "in the public interest"? The summaries reportedly told Bush that the Energy Department and the State Department's Bureau of Intelligence and Research believed that Saddam Hussein's "procurement of high-strength aluminum tubes" was "intended for conventional weapons" -- not, as Bush told the country, for the development of nuclear weapons.
Media Matters has many more unanswered questions that should be asked.
On the topic of those aluminum tubes ... here's Washington Post reporter Shailagh Murray dismissing a reader's suggestion that maybe the Post should cover new indications that Bush knew he was lying about the evidence that Hussein obtained the tubes in order to make nuclear weapons:
Rochester, N.Y.: Last week Murray was (sic) reported in the National Journal that Bush was explicitly warned that portions of the case for WMD was likely faulty -- specifically the part about the infamous aluminum tubes. This seems important, because it strengthens the argument that Bush intentionally misled the country about this issue. Is The Post planning on following up on this? Or do you have your hands full with puff pieces about how the President's new, more open style is winning audiences over?
Shailagh Murray: Just a sec, let me check with the White House reporters -- nope, they're working on profiles of the twins and that cute dog Barney.
Readers are herein instructed to check out the National Journal piece.
Does anyone out there really doubt at this point that Bush had some indication that the intelligence on the tubes was faulty?
There was a time when Washington Post reporters thought it wasn't enough for everyone to know that a president had done something wrong: that it was important to also understand exactly what happened and how and why it happened -- so it wouldn't happen again. There was a time when Washington Post reporters sought the truth rather than turning a blind eye to evidence of presidential wrongdoing.
That time is apparently long gone.
Back in January, we noted that The Washington Post and The New York Times had run far fewer articles about the Bush administration's NSA-operated warrantless domestic spying operation than they did about President Clinton's relationship with Monica Lewinsky. At the time, we asked:
So, some questions for the Times, and the Post, and ABC, and CBS, and NBC, and CNN, and Time, and Newsweek, and other leading news organizations:
1) How many reporters, editors, and researchers did you assign to the Lewinsky story when it broke? How many remained assigned to that story one month later?
2) How many reporters, editors, and researchers did you assign to the NSA story when it broke? How many remained assigned to that story one month later?
3) How do you explain the disparity?
We didn't get an answer. Now, we see the Post and the Times getting beaten to explosive stories like Murray Waas's National Journal articles about the Bush administration's manipulation of prewar intelligence and Josh Gerstein's New York Sun report about Libby's testimony. And we see a Washington Post reporter essentially say she doesn't think new evidence that the president lied about the need to go to war is newsworthy.
So, we'll ask again -- and we hope readers will join us in doing so: How many reporters, editors and researchers are assigned to ongoing investigation and coverage of the Bush administration's use of prewar intelligence? How many to the NSA story? How does this compare to the allocation of resources during the Lewinsky matter?
But if you ask Murray, be prepared for a hostile response. Not only did she flippantly dismiss the reader's question about whether the Post would follow up Waas's aluminum tube story, she recently responded to a perfectly polite reader question about Post ombudsman Deborah Howell by attacking readers:
Ann Arbor, Mich.: Hello and thanks for this discussion,
In yesterday's Ombudscolumn, Deborah Howell wrote: "There's one big intangible in all this: a paper's connection with its readers. Readers who feel respected and who love their newspaper don't depart easily. If Post journalists write every story, take every photo, compose every headline and design every page with readers in mind, and the newspaper is printed well and delivered on time, The Post will be fine."
Is this meant to be ironic? If she means this, why does she not respond to reader e-mails and concerns, or respond disdainfully when she does? Does The Post have some plans to improve the reader-advocacy situation that she is foreshadowing? I think a lot of long-time readers have been turned off by her aloof approach to the ombudsman position and feel anything but respected and loving towards The Post.
Shailagh Murray: I thought I'd end with this comment, in defense of Deborah and to vent for just ONE MINUTE about the absolutely overwhelming volume of hate mail that floods our way when a story irritates the bloggers. Let's just say it creates a distorting picture. I know I speak for my colleagues in saying I love hearing from readers; like these chats, it's interesting and useful to know how people interpret stories and news events, and to hear ideas that occur to them in their reading, etc. Unfortunately, normal readers now share the stage (or at least the inbox) with people who, let's just say, aren't open to other viewpoints, don't read newspapers to be informed, and who are predisposed to thinking reporters are biased, ignorant, or worse. When I was a reporter years ago in Florida, I lived next door to a great family; the husband was a detective, the wife drove a school bus, and every story I wrote, I knew they would read. That was a very useful image to keep in mind. The media world is obviously in the throes of huge changes, and our "base," to put it in political terms, isn't so easily defined.
The reader simply asked why the Post's ombudsman often does not respond to reader emails, and that when she does respond, she does so "disdainfully." And Murray, rather than answering a polite question, chose to ignore it entirely and rant instead about "hate mail." We don't like "hate mail" either, and we hope Murray never sees another piece of it.
But it strikes us that a pretty good way for her to guarantee that she continues to get her share is to lash out at politely worded questions, ranting about "hate mail" rather than answering the question. Lump polite questions in with "hate mail" and "people who ... aren't open to other viewpoints [and] don't read newspapers to be informed" is a pretty good way to turn those polite questioners into hate-mail authors. On the other hand, answering polite questions politely might cut down on that hate mail. Just a thought.
During an April 4 interview, CNN's Wolf Blitzer asked Democratic National Committee chairman Howard Dean, "Why are you, the Democrats, having such a hard -- tough time convincing Americans that you do have a set of policies for the country?"
Regrettably, Dean didn't answer, "Because of you, Wolf. Because we do have policies, and we do everything we can to draw attention to them, but you ignore it. Because on March 29, Democrats unveiled our new national security agenda -- and you, Wolf, you and your network virtually ignored it. You showed two minutes of House Democratic Leader Harry Reid speaking at the press conference -- and nearly two hours of President Bush speaking. We have a hard time 'convincing Americans' that we have 'a set of policies' because you, Wolf, ignore those policies -- then assert that we don't have any."
Later, Blitzer teased a replay of the interview by declaring: "Plus, Democratic Party chairman Howard Dean. He's also in The Situation Room. With the Republicans facing so much trouble, why does it seem that Democrats can't get their act together? I'll ask him."
Why does it seem that Democrats can't get their act together? The same reason that Democrats have a "tough time convincing Americans" that they have a "set of policies" -- because of Wolf Blitzer and his colleagues. A new AP-Ipsos poll finds that:
By a 49-33 margin, the public favors Democrats over Republicans when asked which party should control Congress.
That 16-point Democratic advantage is the largest the party has enjoyed in AP-Ipsos polling.
How much more does Blitzer think Democrats can get their act together? If they open up a 20-point lead, will he finally conclude that they have their act together? How about 25 points? Thirty?
Last week, we noted that amid all the recent discussion in the media of their coverage of the Iraq war, we didn't see any mention of the possibility that the media is sanitizing the war:
Neither [Washington Post media writer Howard] Kurtz nor [Wolf] Blitzer seemed aware of the possibility that progressives, or people opposed to the war, might also be angry at the media. And that's a characteristic of nearly all of the media's navel-gazing about their coverage of the Iraq war -- the question addressed is almost always whether war supporters' claims that the media are too negative have merit. Where is the CNN segment exploring whether the media are adequately covering Murray Waas's revelations about the Bush administration's cover-up of evidence that Bush lied to the nation about the Iraq war? Where is the CNN segment about whether the media are sanitizing the war?
Yet when the media assess their own performance in covering the Iraq mess, they don't talk about these things. Instead, they consistently focus on complaints from conservatives and war supporters -- complaints that their coverage is too negative, never that it's too positive.
The way [Washington Post ombudsman Deborah] Howell and Kurtz and [CNN's Candy] Crowley and Blitzer and the rest of the media cover the coverage of the Iraq war, you'd think Rotello was all alone in his belief that the media are sanitizing the war. But he isn't. A CBS News poll conducted earlier this month found that 24 percent of Americans think the media are "making things in Iraq sound better than they really are," compared to 31 percent who think the media are "making things sound worse than they really are."
Is it news when nearly three years after 'Mission Accomplished,' the charred body of a U.S. soldier gets dragged around by taunting Iraqi insurgents and videotaped for the world to see? According to most American television news outlets the answer is no.
News of the upsetting videotape surfaced Wednesday morning and by the afternoon Pentagon officials, emphasizing to reporters they were outraged about the online video, had all but confirmed the contents of the clip, which showed the burning wreckages of a U.S. helicopter, as well as pictures of a dead, charred pilot being dragged through a field.
But just because it was authentic didn't mean the videotape was newsworthy. In the 12 hours after the story broke, CNN, for instance, mentioned the downed helicopter just once, which was one time more than MSNBC, CBS, or ABC. Interestingly, Fox News was the most aggressive in reporting the story on Wednesday, giving it 16 mentions according to TVEyes.com, but being quick to announce the channel would never actually air the images. NBC Nightly News aired a detailed piece Wednesday night about the video, and actually broadcast blurred images of the U.S. corpse being abused. But NBC was also careful to couch the story as one about Iraqi "propaganda," not about what it meant that insurgents were shooting U.S. copters out of the sky seemingly at will three years after Iraq was supposedly liberated.
Boehlert went on to point out that, when Bill Clinton was president, "most major American television outlets aired a grotesque news clip of a bloated U.S. soldier's corpse being dragged through the dusty streets of Mogadishu, Somalia, after rebels there shot down American helicopters and killed a dozen soldiers. The incident became the basis for the book and movie, Black Hawk Down."
Nobody wants to see flag-draped coffins or, worse, bloody and corpses. We certainly don't. But the question is: Can the American people reach informed decisions about the war without seeing actual pictures of it? Do we get desensitized to the death and suffering because the media reduces it all to numbers? Should we see the images that none of us want to see?
And if the answer is "no," what has changed between 1993 and 2006? What has changed between Somalia and Iraq?