Bush, Libby, Declassification, and Order 13292

Crossposted to The Leiter Reports and For the Record

Was it legal for Bush to authorize Libby to leak bits of the Iraq National Intelligence Estimate? Here's an argument that it was: (1) Bush declassified the relevant bits of the NIE; (2) Bush did so legally; and since there's nothing illegal about authorizing someone to leak legally declassified information, Bush's act was legal.

But neither (1) nor (2) stands up to examination.

First, a bit of background. The rules for classification and declassification of US govt secrets are controlled by Executive Order 13292, fiated by Bush on 25 March 2003 (prior to Libby's conversations with Miller on 8 July in which the NIE info was revealed).

What gets classified according to 13292?

From sec. 1.2(a), information is subject to classification only if it can be reasonably expected to cause "damage", "serious damage", or "exceptionally grave damage" to the "national security that the original classification authority" -- the person who declares it classified in the first place -- "is able to identify or describe". Merely damaging information gets classified as "confidential", seriously damaging information as "secret", and exceptionally gravely damaging information as "top secret".

From sec 1.3, among those who have the power to declare information classified in the first place -- those who "may" "exercise" "the authority to classify information originally" -- are the President, as well as various others.

What about declassification? The following paragraph, section 3.1(b), is the only paragraph relevant to discretionary declassification:

It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.

So the rule is clearly not "once classified, always classified". So did Bush have the authority to declassify the NIE, as per (2)?

According to 3.1(b), sometimes whether classified information should remain classified is up to the "discretion" of "officials" -- including, presumably, those who may exercise the authority to classify information originally, such as the President.

But use of "discretion" doesn't mean "anything goes". 3.1(b) seems to me to set a pretty high bar for discretionary declassification.

By 1.2(a), information should be classified in the first place iff its disclosure would cause at least damage to the national security. Since the NIE got classified in the first place, it can be presumed to meet this condition. 3.1(b) demands that the declassifying authority weigh the extent of damage to national security against the public interest in the information's being declassified. Not just any bit of public interest is enough -- 3.1(b) is explicit that the public interest should outweigh the national security concerns only in exceptional cases. The presumption seems to be that national security comes first -- public interest winning out will be the exception. Exceptional cases are surprising: one who asserts a certain case to be exceptional is expected to be able to back this up with a strong justification.

How strong is evidently a grey area, up to the courts and ultimately public opinion. Still, two points are worth bearing in mind. First, Bush has offered no justification for this precipitous act, even keeping it secret from other classifying authorities. Second, those versed in the making of FOIA requests are doubtless aware of cases in which the weight of public interest against national security was still greater, and the Bush Gang refused declassification.

So it's far from obvious whether Bush used his discretion correctly in this case in declassifying the NIE.

Still, a prior question is whether Bush did in fact declassify the NIE, as per (1). That's not so obvious either. Sneaking classified information into the public ear is not the same as declassifying it, clearly.  Which side did Bush's act fall on?

Order 13292 contains a pair of illuminating passages concerning how info is to be treated once declassified:

1.6(h) Prior to public release, all declassified records shall be appropriately marked to reflect their declassification.
3.7(a) The Director of the Information Security Oversight Office, in conjunction with those agencies that originate classified information, shall coordinate the linkage and effective utilization of existing agency databases of records that have been declassified and publicly released.

Declassification requires a ceremony of sorts: it's not enough to declassify information to go blabbing it around, one needs to publicly declare it declassified. This declaration takes the two forms specified in 1.6(h) and 3.7(a): namely, rubber-stamping the relevant pages with a stamp saying "declassified" (or whatever), and altering the status of the document in a big database -- or, presumably, if you're Pres and too busy to do this personally, issuing an order that someone do this.

Bush didn't. Josh Marshall writes:

Okay, Paul Kiel found the part of the new court papers that answers part of the question. This was a declassification that only President Bush, Vice President Cheney and Scooter Libby were allowed to know about.

So I maintain that Bush failed to meet the implicit publicity requirements in Order 13292 for declassification of the NIE. So he did not in fact declassify the NIE. Rather, he instructed his lieutenant to go blabbing classified information around town. That's illegal.