FireDogLake is doing a masterful job following the Libby trial-- not just in the liveblogging, which itself is ground-breaking, but in the analytical blogs and comments on those blogs.
The whole investigation of Patrick Fitzgerald of the 'leak' of Valerie Plame's status with the CIA is predicated on the idea that it was illegal. Libby's trial is not grounded on the fact that he leaked the information, but that he lied about it. Fitzgerald as scrupulously avoided the issue of the leak itself, which would inevitably bring up questions about whether or not the leak was legal.
A case can be made that President Bush-- or the Vice President, acting on his behalf-- declassified Plame's status so that it was not technically illegal to leak her status. Around the same time, parts of the current NIE were "declassified" in order to leak them to the press. The trial of Scooter Libby has added new evidence to the public record of such activities. Were they legal?
First of all, it is helpful to review the timeline. For a fully detailed time-line up until the beginning of the Libby trial, see the Plame Resources Timeline and the dKosopedia article on Plame.
Relevant timeline:
February 2002 The CIA decides to send Joseph Wilson to Niger to investigate the uranium issue, which was the cornerstone of claims by the Bush administration that Saddam was building nukes, leading to Condi Rice's infamous threat of mushroom clouds. The only reason anyone cares about Niger and uranium in the first place is because of the forged documents and/or foreign intelligence reports that are only supported by the forged documents-- and because they provided support for Bush's desire for war with Iraq.
March 2002 INR published and disseminated an intelligence assessment, Niger: Sale of Uranium to Iraq Is Unlikely.
Sept. 9-17, 2002 Senators Durbin (D-IL), Graham (D-FL), Feinstein (D-CA), and Levin (D-MI) request a National Intelligence Estimate (NIE) on Iraq.
October 2002 The Bush administration releases a document to help build public support for war. It is based on the recently completed, classified NIE on Iraq (heavily redacted PDF; declassified PDF of its "Key Judgements"). The sales pitch has the intended effect. Congress approves the "Authorization to Use Military Force against Iraq Resolution" and Bush makes it Public Law 107-243 on October 16.
January 2003 At the Pentagon's request, the National Intelligence Council's officer for Africa issues a memo saying "The Niger story [is] baseless and should be laid to rest."
Jan. 24, 2003 (Friday) Date of a mysterious classified document mentioned in Fitzgerald's "Response to Defendant's Third Motion to Compel Discovery" (PDF). The Response says, "officials were pressed to carry out a declassification" of this document along with the October 2002 NIE and the Wilson-trip report.
Jan. 28, 2003 (Tuesday) Bush gives the State of the Union address, including the infamous "16 words" that it later retracted.
Feb. 5, 2003 (Wednesday) Powell gives his presentation at the U.N. He does not mention uranium from Niger.
March 8, 2003 (Saturday) Joe Wilson appears on CNN and speaks about the Niger forgeries, "I think it's safe to say that the U.S. government should have or did know that this report was a fake before Dr. ElBaradei mentioned it in his report at the U.N. yesterday." According to Wilson, the Office of the Vice President began, "to take a close look at who I was and what my agenda might be," after this appearance.
March 19, 2003 (Wednesday) The invasion of Iraq began.
March 25, 2003 (Tuesday) Executive order 13292 gives Cheney declassification authority.
However, this executive order does not just give Cheney to wave his magic wand and blab to his heart's content. As "cinnmonape" noted in Comment #84 over on FireDogLake, in response to
FDL Book Salon: Anatomy of Deceit on the NIE By: emptywheel,
and a query by "flounder" at comment 28,
February 18th, 2007 at 3:55 pm
flounder @ 28
What I want to know is, as the chief executive, Bush can claim he can instantly declassify, but where would Cheney’s authority come from? He is not the Chief executive. Where would instant declassification begin and end on the staffing chart? Does Bush’s authority on this include delgating it? I mean if he said, you can do whatever you need to do, it wouldn’t overide the statutory limits on such things if he told, for instance, me to do it.
Presumably it would derive from assertions that the Executive Order March, 25 2003 granting the VP the power to CLASSIFY material in his "executive function" [Sec. 1.3 c.2-4] (which I read to mean within his office).
From this they somehow construe that he can DECLASSIFY materials in other Agencies and Departments. But that isn’t what it says...and certainly doesn’t give him the ability to insta-declassify. In fact, I don’t think the President can do this.
http://www.fas.org/...
There is a stipulation in that Executive order allowing agency heads to authorize someone else to Declassify materials [Declassification authority Part 6:l.4]
But in all cases of declassification where there another Agency that has a role in being affected by that declassification there is a process of notification and an appeal system specified Part 5.3).
Bush, as the Senior Officer to Tenet, can declassify materials according to process. But it doesn’t seem that he is exempt from the process - after the appeals Committee has decided, Tenet can veto, and then someone who wants material declassified can then appeal to the President. But you can’t simply cut through the Procedures...and nothing in the Executive Order would give CHENEY the power to act in lieu of the President as the final arbiter. Even if he was authorized to declassify materials in writing, other authorized officials who were the Original Classification Authorities could appeal, then Tenet could veto the Intra-Ageny Security Classification Appeals Panel decision, whereupon the PRESIDENT could then overrule THAT decision. Cheney does not have the authority to take the Presidents role in being the ultimate arbiter, any more than a WH clerk could if Bush gave HIM the declassification authority.
Then the record of that declassification, including the date, is preserved in the National Archives (Part 3.7).
In addition, the Executive Order also states, quite clearly at the bottom Part 6.1.4), tht nothing in that Order can be used to violate existing Statutes and Laws in regards to National Security and Privacy.
Later on (February 18th, 2007 at 7:51 pm), in the same thread, at Comment 135, Big Mitch wrote:
As I wrote on April 9, 2006 on the Schapira blog, What we know so far ... in a note entitled, Where is this all going?:
A logical question that may be asked is whether or not, President Bush complied with Sec. 4.1(e) of Executive Order No. 13292, which may be found at Fed. Reg. Vol 68, No. 60, Page 15325 (March 28, 2003).
In case you don’t remember what it says, or don’t have easy access to the Federal Register, here it is:
"Persons authorized to disseminate classified information outside the executive branch shall ensure the protection of the information in a manner equivalent to that provided within the executive branch."
Well, obviously, that doesn’t apply to documents that were declassified. So before you close your Federal Register, take a gander at Sec. 1.5(h) of Executive Order No.13292:
"Prior to public release, all declassified records shall be appropriately marked to reflect their declassification."
Ibid. at Fed. Reg. Vol 68, No. 60, Page 15317 (March 28, 2003).
Did this occur? I doubt it.
Don’t get me wrong. I think it is plenty despicable the President of the United States was a party to leaking selected parts of the NIE, which parts were selected to be misleading. I think it is unconscionable that the administration did so as part of "a ‘concerted action’ by ‘multiple people in the White House’ — using classified information — to ‘discredit, punish or seek revenge against’ a critic of President Bush’s war in Iraq," according to Special Counsel Patrick Fitzgerald, as reported in the Washington Post. I think there is not any doubt about that.
It’s just that I am also concerned about the fact that everyone in the media, and even those who would be presumed to be King George’s harshest critics are not examining the assertion that the President "declassified" the NIE before George Tenet did. (End extended quote from my earlier note.)
If you had filed a freedom of information request about the NIE after Scooter’s breakfast with the royal stenographer, what do you think would have been the response? If you had obtained it and published it, do you doubt that the Party of Bush would prosecute you for breaching national security?
This insta-de-classification crap is nonsense.
Let's take it as given, for the moment, that because of this Executive Order Cheney actually can declassify documents. If so, he still has to follow the stipulated procedures, and if he failed to do so, wouldn't that constitute an impeachable offense?
Who has the standing to take him to court? You're not going to see any member of this administration do that. Can Fitzgerald do it? I think maybe he can, but the WH will no doubt withhold critical evidence on National Security grounds.
I think impeachment is the only way to do it.
Am I missing anything?
========================
Incidently, the term "insta-declassification" was coined by the marvelous Marcy Wheeler, a.k.a. "emptywheel", in a blog last year on this subject dated July 3. Marcy is one of FireDogLake's indefatigable live bloggers, who has written a book, Anatomy of Deceit: How the Bush Administration Used the Media to Sell the War and Smear a Critic, that is getting rave reviews from those following the Libby trial.
Bob in HI