When All EOs Are Pixie Dust, It Means Dick Can Declassify Anything He Wants

Brit Hume once asked Dick Cheney whether he had declassified "information" in response to Joe Wilson’s op-ed. Cheney claimed he had the ability under an Executive Order to declassify such "information."

HUME: On another subject, court filings have indicated that Scooter Libby has suggested that his superiors — unidentified — authorized the release of some classified information. What do you know about that?

CHENEY: There’s nothing I can talk about, Brit. It’s an issue that’s been under investigation for a couple of years. I’ve cooperated fully, including being interviews done by a special prosecutor. All of it’s now going to trial. Scooter is entitled to the presumption of innocence. He is a great guy. I worked with him for a long time. I have tremendous regard for him. I may well be called as a witness at some point in the case and it is therefore inappropriate for me to comment on any facet of the case.

HUME: Let me ask you another question. Is it your view that a vice president has the authority to declassify information?

CHENEY: There is an executive order to that effect.

HUME: There is.


HUME: Have you done it?

CHENEY: Well, I have certainly advocated declassification. I have participated in declassification decisions.

HUME: Have you —


CHENEY: I don’t want to get into that. There’s an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.

But the EO in question–EO 12958 as modified by EO 13292–says no such thing. The modified EO gives the Vice President to classify information. Read more

Bush Turned His EO on Classified Information into Pixie Dust, Too

Yesterday, I expanded on the reasons why the OLC opinion holding that Presidents aren’t bound by their own Executive Orders is so scary. It means that every Executive Order may have been turned to Pixie Dust by the President–and we’d never know it.

Unless, of course, there were persistent, unpunished violations of what we believed to be the Executive Order. If there were an Executive Order that the Executive branch was publicly flouting, we might assume that Bush had turned that EO, too, into Pixie Dust.

And that is apparently what happened with EO 12958. It governs the treatment of classified information: what can be classified, when it should be declassified, what records one should keep of classification and declassification, and who can declassify classified information, and how classified information should be protected.

It’s an EO that Vice President Cheney has had epic difficulties with.

In 2003, for example, Vice President Cheney (and the President’s Foreign Intelligence Advisory Board) stopped providing the National Archives with data describing his office’s classification and declassification activities. No explanation, he just stopped doing so.

Then, in 2004, the National Archives prepared to do an inspection of OVP, as it is mandated to do. Yet OVP refused to let the NA conduct the inspection.

Finally, when Bill Leonard of ISOO appealed to DOJ for a ruling on Cheney’s refusal to submit to the plain text meaning of Bush’s EO, he was told (six months later) that the EO had turned to Pixie Dust. Specifically, he was told four years after the fact that President Bush did not intend for OVP to be an agency under the EO.

On July 12, 2007, the Counsel to the President wrote a letter to Congress stating that "[t]he President has asked me to confirm to you that … the Office of the Vice President … is not an ‘agency’ for purposes of the Order." … That statement on behalf of the President resolves the question you presented to the Attorney General. Therefore, the Department of Justice will not be providing an opinion addressing this question.

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When All Executive Orders Turn to Pixie Dust

I promised to respond to Marty Lederman’s response to Sheldon Whitehouse’s speech today; though I should admit right away that the Libby non-appeal has changed my approach dramatically. So you won’t see everything today.

Marty assesses the three propositions that Whitehouse has had declassified and is unimpressed.

The Administration has now permitted Whitehouse to talk about three aspects of the OLC Opinions, and that’s what he did yesterday. He expressed incredulity about all three. But there’s a reason the Administration gave him the green light on those three matters — because the OLC statements in question are boilerplate, and fairly uncontroversial (with one possible, important exception, noted below). There are undoubtedly very audacious and disturbing aspects of many of those OLC memos — such as the arguments that the AUMF superseded FISA and that the President has a constitutional right to violate FISA; and almost certainly descriptions of how much broader and more indiscriminate the NSA program was before Jack Goldsmith reined it in a bit in early 2004 — but the three statements Whitehouse identified, standing alone, are not terribly noteworthy, at least not from a constitutional perspective. [my emphasis]

Marty is assessing these, of course, as a former OLC lawyer. And he finds, for the most part, the three propositions are constitutional. Let me be clear that, as a non-lawyer, I’m assessing the propositions by what they suggest about Bush’s activities, which is part of the difference between Marty’s calm and my outrage. I’m going to come back and look at the two propositions Marty is least excited about (numbers 2 and 3 in Senator Whitehouse’s list). For now, though, let me jump ahead to the one that both Marty and I were most troubled by: Read more

Bush’s Direct and Constant Knowledge of the NIE Intelligence

Peter Baker and Dafna Linzer have an article that answers most of our questions on the genesis of the NIE. What they don’t say–though their article shows–is that Bush was much more cognizant of the development of the NIE than he has let on. Not only did he keep the US people in the dark about the new intelligence on Iraq, he also kept our European allies in the dark (and, I wonder, perhaps even Condi?), even while he was demanding they impose more sanctions.

The article starts with the news that not just Dick this time, but Bush himself, has been meeting with analysts on Iran directly.

They call them "deep dives," special briefings for President Bush to meet with not just his advisers but also the analysts who study Iran in the bowels of the intelligence world. Starting last year, aides arranged a series of sessions for Bush to "get his hands dirty," in the White House vernacular for digging into intelligence to understand what is known and not known.

Those deep dives led directly to the discovery of the new Iran intell. As with Dick Cheney, when he claimed he never got an answer to his questions about uranium in Niger, Bush has been telling us no one informed him of the answer to questions he, himself, posed. Uh huh. Read more

The NIE and Israel

In my banana republic thread, MinnesotaChuck asks the $64,000 question.

I wonder if the withdrawal of the resolution, which went down several days ago, had anything to do with the release of the NIE yesterday.

That–or rather the reverse scenario–seems pretty darn likely to me. Consider these data points:

November 26: Per Seymour Hersh, Bush tells Ehud Olmert what’s in the NIE.

November 27: The Annapolis Peace Conference

November 28: The day Hadley claims Bush was briefed on the NIE; Bush meets with Olmert again

November 29: Khalilzad submits a resolution endorsing Annapolis at UN; Condi calls Khalilzad in the middle of the meeting to ask WTF he’s doing

November 30: A Khalilzad deputy withdraws the UN resolution while Khalilzad is in "previously scheduled" meeting in DC with Condi

December 3: Unexpected public release of NIE showing Iran has given up nuke program

December 4: Israelis say the NIE is wrong; Bush announces his first trip to Israel as President (h/t Laura); both Annapolis and Iran’s purported nukes are on the agenda; Khalilzad calls the claim that he had submitted the resolution without vetting it bull

All of which makes me all the more curious how–and when–the NIE got declassified. Because it sure looks like Israel is only going to let Condi have her Annapolis-based legacy if she allows them to continue to war-monger in Iran. Read more

August 2007 PDB: Iran Not Determined to Get Nukes

ThinkProgress reports Stephen Hadley’s claim that George Bush only learned of the Iran intelligence–judging they have had no nuclear weapon program since 2003–"a few months ago."

QUESTION: Steve, what is the first time the president was given the inkling that something? I’m not clear on this. Was it months ago, when the first information started to become available to intelligence agencies? […]

HADLEY: [W]hen was the president notified that there was new information available? We’ll try and get you a precise answer. As I say, it was, in my recollection, is in the last few months. Whether that’s October — August-September, we’ll try and get you an answer for that.

TP is right: Bush almost certainly continued to war-monger against Iran after learning his war-mongering claims were not true. But I’m equally troubled by the timing of when Bush is purported to have learned this news.

As I noted yesterday, the NIE states that the key piece of intelligence–verifying that Iran had no active nuke program–dates to "mid-2007."

We assess with moderate confidence Tehran had not restarted its nuclear weapons program as of mid-2007, but we do not know whether it currently intends to develop nuclear weapons. [my emphasis]

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Waxman Still after Fitz’s FBI Files

Well, it turns out that Waxman has been no happier than we are about Bush obstructing justice pardoning commuting Libby’s sentence. Turns out he asked Fitzgerald for his FBI files (that is, testimony not before the Grand Jury and therefore not subject to secrecy laws) back in July, not long after the commutation. But Bush won’t let him have the files. So now Waxman has sent Mukasey a letter asking for some help getting the files.

I’ll update this shortly, once I make sure the new digs are working…

[Shew, they’re working]

So here’s the key detail from Waxman–defining what he wants, and what he has already gotten:

Transcripts, reports, notes, and other documents relating to any interviews outside the presence of the grand jury of any of the following individuals:

  • President George W. Bush
  • Vice President Dick Cheney
  • Andrew Card
  • Stephen Hadley
  • Karl Rove
  • Dan Bartlett
  • Scott McClellan

Since the Committee’s letter was sent on July 16, Mr. Fitzgerald and his staff have cooperated with the Committee’s investigation and have produced a number of responsive documents to the Committee. Among the documents that Mr. Fitzgerald has produced to the Committee are "FBI302 reports" of interviews with CIA and State Department officials and other individuals.

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