[Note: Re-titled from "Josh Bolten's Role in Plame Leak Coverup"]
Following testimony last Friday by James Knodell, Director of the White House Office of Security, Rep. Henry Waxman (D-California) released a letter addressed to Bolten demanding an explanation for the lack of corrective action following the leak of Valerie Plame Wilson’s CIA identity. In fact, Bolten may have been involved in a complex White House scheme to shield leakers from strong penalties.
While Bolten was Director of the Office of Management and Budget (OMB), President Bush gave him oversight authority over security clearance processes. Bush also altered security clearance and information security laws so as to potentially shield leakers on Cheney's staff. The timing of each suggest that a whitewash was conducted in the last months of 2005.
Waxman's Letter to Joshua Bolten
In his March 16 letter to Joshua Bolten, Rep. Waxman writes (emphasis added):
The testimony of Mr. Knodell appears to describe White House decisions that were inconsistent with the directives of Executive Order 12958, which you signed in March 2003. Under this executive order, the White House is required to "take appropriate and prompt corrective action" whenever there is a release of classified information. Yet Mr. Knodell could describe no such actions after the disclosure of Ms. Wilson's identity.
The use of "you" suggests that Waxman was directing his remark to the President, because Executive Orders, including E.O. 12958, are signed by the President. But, the close of the letter specifically tasks Bolten:
(1) to investigate how the leak occurred;
(2) to review the security clearances of the White House officials implicated in the leak;
(3) to impose administrative or disciplinary sanctions on the officials involved in the leak; and
(4) to review and revise existing White House security procedures to prevent future breaches of national security.
Unfortunately, Democrats regained the majority in Congress only recently. While the public and Fitgerald were slowly learning what was going on, the White House was busy revising classification and security clearance laws, making it possible to shield White House leakers, and giving Joshua Bolten a central role.
ADMINISTRATION CHANGES TO LAWS AND GUIDANCE ON ACCESS TO NATIONAL SECURITY INFORMATION
1. Bush Revises Classification/Declassification Authorities to Allow the Vice President to Delegate Authorities to His Staff - March 25, 2003
Context: After Bill Moyers interviewed Joseph Wilson on February 28, a meeting was held in the office of the Vice President, on March 9, where a decision was made to discredit Wilson. [dkosopedia]
On March 25, 2003, Bush issued Executive Order E.O. 13292, amending E.O. 12958, "Classified National Security Information." In combination, the orders describe how national security information is properly classifed, safeguarded and declassified; however, the focus is on document classification. Bush's version differs in several respects from the original order signed by President Clinton on April 17, 1995. Among other things, Bush's order grants the Vice President specific authority to classify (and declassify) information.
Some have said that Bush's revision is insignificant because vice presidents for years have classified documents. Clearly, a President can delegate classification authority to his VP. But, a person with delegated authority cannot re-delegate that authority to someone else. By specifically naming the Vice President as someone with native authority to classify documents, Bush laid the groundwork for giving the Vice President authority to delegate authority to someone else - perhaps Karl Rove or I. Lewis "Scooter" Libby.
Here is the critical paragraph in Bush's E.O. 12958:
"Top Secret" original classification authority may be delegated only by the President; in the performance of executive duties, the Vice President; or an agency head or official designated pursuant to paragraph (a)(2) of this section. [emphasis added]
Note that the revised order includes a curious restriction on the Vice President, who (unlike anyone else) is restricted to using his authority only in the "performance of executive duties." This begs the question: What kind of activity by Cheney would involve security clearance delegation but would not involve "executive duties?" Was Bush giving himself legal cover if Cheney or his staff were convicted of illegal activities?
Another provision of the amended order gives "emergency" authority to disclose classified information to virtually anyone, depending on how one defines "emergency."
In an emergency, when necessary to respond to an imminent threat to life or in defense of the homeland, the agency head or any designee may authorize the disclosure of classified information to an individual or individuals who are otherwise not eligible for access.
These changes to E.O. 12058 appear to have Cheney's staff well covered, at least as far as access to classified information is concerned.
2. Bush Moves Oversight of Security Clearance Investigations From Agencies to an Office inside the White House - June 27, 2005
Context: A week earlier, Bloomberg News reported Libby's grand jury testimony that Tim Russert told him of Valerie Plame Wilson's identity; and, on June 27, 2005, the Supreme Court refused to consider Miller's and Cooper's appeal,thus forcing the reporters to testify before the grand jury. [dkosopedia]
E.O. 12958, as amended, lays out (in part) the rules for handling classified information; but, it says little about how one determines who should have access to the information. That subject is covered in detail in other documents, including E.O. 12968, "Access to Classified Information," adjudicative guidelines, and E.O. 13381, signed by President Bush on June 27, 2005.
E.O. 13381, "Strengthening Processes Relating to Determining Eligibility for Access to Classified National Security Information," proposes to make access to classified information "appropriately uniform, centralized, efficient, effective, timely, and reciprocal" by empowering the Director of the Office of Management and Budget to take the following actions, to...
...assign...to the head of any agency...any process relating to the determinations of eligibility for access to classified national security information...subject to...such terms and conditions as the Director determines appropriate.
...carry out any process that the Director does not assign to another agency
...after consultation with the Secretary of State, Secretary of Defense, the Attorney General, the Secretary of Energy, the Secretary of Homeland Security, the Director of National Intelligence (DNI), and the Director of the Office of Personnel Management, issue guidelines and instructions to the heads of agencies to ensure appropriate uniformity, centralization, efficiency, effectiveness, and timeliness in processes relating to determinations by agencies of eligibility for access to classified national security information. [Note: Dependent clauses have been eliminated where necessary to clearly show the central points.]
Prior to Bush's release of E.O. 13381, oversight of security clearance processes were not centralized; the Office of Personnel Management (OPM) handled investigations, and adjudication was spread among various government departments. Many authorities, primarily relating to classification and declassification, belonged to the Director of the Information Security Oversight Office (ISOO), per a November 19, 1999, executive order by President Clinton. The OMB is an administrative component of the Executive Office of the President. But, the ISOO, according to its website, "is an administrative component of the National Archives and Records Administration," an "independent establishment" whose employees are covered by the Whistleblower Protection Act of 1989 [emphasis added], as are employees of most federal departments.
a) How E.O. 13381 Entangles Bolten in Leak Investigation
From June 27, 2005, to April 16, 2006, when he left to become Chief of Staff, Joshua Bolten had authority to "carry out any process," including investigations and determinations, regarding access to classified information by White House staff. Here, I think, is where Rep. Waxman has Bolten's feet to the fire.
If Bush is considered the "head" of his agency, the Executive Office of the President, then he would be responsible for oversight of an investigation of a leak and any adjudication of security clearances, which would be implemented, logically, through the White House security director. But, Friday’s testimony by the White House security director indicates that he was out of the loop. At first glance, it would appear that no investigation was done.
However, four months after Bolten received his new authority, President Bush said on November 5, 2005 that White House staff would receive refresher training on the handling of classified material. The Washington Post reported:
According to a memo sent to aides yesterday, Bush expects all White House staff to adhere to the "spirit as well as the letter" of all ethics laws and rules. As a result, "the White House counsel's office will conduct a series of presentations next week that will provide refresher lectures on general ethics rules, including the rules of governing the protection of classified information," according to the memo, a copy of which was provided to The Washington Post by a senior White House aide.
The mandatory ethics primer is the first step Bush plans to take in coming weeks in response to the CIA leak probe that led to the indictment of I. Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, and which still threatens Karl Rove, the deputy White House chief of staff. Libby was indicted last week in connection with the two-year investigation. He resigned when the indictment was announced and on Thursday pleaded not guilty to charges of lying to federal investigators and a grand jury about his conversations with reporters.
Refresher training is an available alternative to security clearance revocation where a leak is considered to be the result of inadequate training (versus a deliberate leak). The training, ordered by Bush, strongly suggests that some kind of investigation was done. The lack of involvement by the White House security officer, per his testimony last Friday, suggests that someone outside the White House, but with authority in security clearance matters, was directing the operation. The most likely person would be Joshua Bolten.
Using his new authorities, Bolten could assign to the head of an agency (i.e., Bush) any process relating to the determinations of eligibility for access to classified national security information – subject to "such terms and conditions" as Bolten determined appropriate. Or, Bolten could simply "carry out any process" by not assigning it to the head of the agency (Bush). This would appear to get Bush neatly off the hook; but, would leave Bolten in the hot seat for explaining to Congress why more aggressive action was not taken (assuming that’s correct). The best protection Bush could provide Bolten would be to bring Bolten closer to him, to strengthen any claim of executive privilege that might become necessary to block Congress from forcing Bolten to testify. Indeed, a few months after the refresher training was completed, Bush appointed Bolten his Chief of Staff. It doesn’t get any closer than that.
3. Guidelines for Granting and Revoking Access to Classified Information Revised to Give Adjudicators Greater Flexibility - December 29, 2005
Context: Two weeks ealier, "Scooter" Libby submitted a discovery request for documents. [dkosopedia]
On December 29, 2005, the administration issued new guidelines for granting, denying or revoking security clearances. December 29, of course, falls in the week between Christmas and New Years, when Congress is out of town, government offices are deserted, and public attention is on festivities. In the federal government, no one does anything important that week except to address a matter of extreme urgency or to slip and an obnoxious regulation quietly under the door. In this case, it may have been both.
Executive Order 13381 authorized the Director, OMB, to revise the guidelines. Therefore, an irregularity occured when the revised guidelines went out under the signature of Steven Hadley, the President's National Security Advisor, and not OMB Director Bolten. When government officials ignore procedure, often it is done to cover up something else.
The new guidance, titled, Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, allowed adjudicators of clearance applications and revocations to take into account the "whole person," by giving consideration to factors such as the frequency and recency of the conduct. Independent reviewers have complained that the revised Guidelines are sufficiently vague that adjudicators can be strict or lenient, as they choose. Moreover, adjudicators can now rely on information that previously was banned--for good reason.
Under the [previous] Adjudicative Guidelines, the disqualifying conditions under Guideline C: Foreign Preference all relate to actions taken by the applicant (e.g., voting in a foreign election). The Revised Adjudicative Guidelines, however...also identify as a disqualifying condition "any statement or action that shows allegiance to a country other than the United States...Although the Revised Adjudicative Guidelines go on to identify some examples that are seemingly appropriate...this new disqualifying condition appears to open up the issue of "loyalty" to the United States and raises the potential for claiming political opposition as a factor for adjudicating security clearances.
The revised Guidelines utilize a favorite tactic of the Bush administration for avoiding oversight and accountability: invocation of a "state secrets" privilege.
Procedurally, under Guideline B: Foreign Influence of the Revised Adjudicative Guidelines, the government will be permitted to rely on "counterintelligence information, that may be classified" in supporting its case against issuing a clearance. If information is classified, it normally is not available to the Applicant or Applicant’s counsel so as to permit meaningful cross-examination and rebuttal, but could still be determinative. This is a significant reduction of due process rights from the [previous] guidance. Under the [previous] guidelines, the use of classified information is specifically prohibited in a security clearance adjudication hearing, except under special (and seldom used) circumstances where use of classified information requires approval by the Secretary of Defense
.
Vagueness and secrecy are useful for an administration that desires the "flexibility" to turn a blind eye to wrongdoing or truth, as they find convenient. (See also Raw Story's detailed analysis of the Guidelines.) In this case, they might have been useful in making a final adjudication in the Plame leak, which likely occurred in this time frame, if at all. (Remember, the refresher training was ordered only a month earlier.)
Bolten's Role in the Unitary Executive
It's ironic that Bolten has been pulled into the Plame leak investigation. If anyone in the Bush administration should understand the importance of protecting the identity of a covert agent, it is Joshua Bolten - the son of a covert CIA operative, who carefully avoided revealing his father's identity. The Daily Princetonian writes, "He told his friends that his father [Seymour Bolten] worked at the Pentagon, not the CIA, in accordance with the policy of the agency."
That secretive upbringing may explain Bolten's low-profile manner.
Even if you follow the machinations of Washington closely, you might never have heard of Bolten. And until recently, that's exactly the way he wanted it. Before he took on the very public role of defending the President's budget, he had made anonymity a career as a staffer at the White House and before that in Congress and at the State Department. "In this job I have more [of] a public role, which I don't mind," he said, "But I don't particularly seek it either."
The Bush administration's changes to document classification and security clearance adjudications created a centralized system of control located inside the White House. Joshua Bolten's role, as designated caretaker of that system, makes him a critical figure in the Congressional investigation.
President Bush made clear how he intended for Bolten to implement his responsibilities. In the following paragraph (emphasis added) from E.O. 13381, Bush tasked the Director, OMB and other heads of agencies with ensuring that:
...all actions taken under this order are consistent with the President's constitutional authority to (i) conduct the foreign affairs of the United States, (ii) withhold information the disclosure of which could impair the foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties, (iii) recommend for Congressional consideration such measures as the President may judge necessary or expedient, and (iv) supervise the unitary executive branch. [Section 3(b)]
We don't yet know the extent to which Joshua Bolten used his authorities in support of Bush's vision of a "unitary executive;" but, the early signs are troubling. Potentially, Bolten might have a lot to reveal in his response to Waxman's letter; perhaps even evidence implicating the President in a cover-up. In any case, Bolten's low-profile days are clearly over.
