Flag the post! Last week, we noted that Scooter Libby had not been indicted on charges of deliberately divulged classified information--despite court filings that showed he leaked a 2003 National Intelligence Estimate (NIE) on Iraq. We believe that one reason Special Prosecutor Patrick Fitzgerald passed on those charges is because the senior leaders of the executive branch have the right to declassify information and disseminate it as they see fit. From our post of 10 February 2006:
"Officials at the highest levels of the executive branch (read: The President and Vice-President) are understood to have "declassification authority" for any type of classified material....The development of the B-2 bomber, for example, was a closely-guarded, black world program back in the 1970s until President Carter decided to discuss it in a speech, as proof that he wasn't weak on national defense. In the matter of a few sentences, the B-2 moved from the black world into the white world, with an official budget "line," public relations hand-outs and all the other trappings of an "official" program. Why wasn't Carter investigated? As commander-in-chief, he had the authority to "declassify" the B-2 program in a public address.
"Accordingly, every chief executive has had the authority to "move" information from the classified to the unclassified realm, through speeches, comments, and leaks. As we noted yesterday, every administration has played the leak game to some degree, and the Bush White House is no exception.....If Bush or Cheney authorized the declassification and dissemination of portions of the NIE, it was probably legal, even if there isn't an accompanying paper trail. So much for security.
In yesterday's interview with Brit Hume on FNC, Vice-President Cheney expouded on this authority a bit, noting that there is an executive order that grants declassification authority to both the president and the VP. Cheney didn't cite the specific order, but it's been on the books (in various forms) for decades. The executive power that allowed Jimmy Carter to declassify the Stealth Bomber is the same authority that allowed the Bush Administration to declassify the Iraq NIE.
As we've noted previously, arbitrarily declassifying or leaking information for political reasons is not a sound security practice. But all administrations play this game (to some degree), and thanks to executive power, it's perfectly legal.
As former Clinton aide Paul Begala observed: "Stroke of the pen, law of the land, kind cool."
And remember, we told you that President Bush and VP Cheney had declassification authority one week ago. Welcome to the game, Drudge, AP, and others.