It's ironic, really. Vice President Dick Cheney, arguably the most secretive man in the U.S. government (he has had the google satellite map of his home classified), is asserting his right to reveal secrets.
During a recent Fox News interview (transcript from CNN), Cheney asserted that he has the right to declassify information, while refusing to specify whether he had done so. When asked whether he thought the Veep had the right to declassify, he referred to an executive order that permits it. He would cop to having "advocated declassification and participated in declassification decisions", but not to having done so "unilaterally".
The subject came up in a short exchange regarding court filings in the trial of I. Lewis "Scooter" Libby's, which suggested that Libby's superiors had authorized him to release classified information. Libby is being prosecuted for perjury and obstruction of justice by Patrick Fitzgerald, the federal prosecutor investigating the Plame leak.
It was an impressive display of Clintonian parsing because he managed to convey three separate false impressions with one technically correct assertion (that the EO permits the Vice President to declassify information). By invoking his power to declassify in response to a question about whether Libby's superiors may have authorized the leak, he implied that he:
1) had the right to selectively declassify Plame's identity;
2) had the right to delegate that privilege to Libby; and
3) may have already done so, rendering Libby's disclosure legal.
It was a very neat bit of misdirection, because Cheney's authority under the EO is irrelevant to Libby's claim. Here's why:
The executive order that Cheney is referring to is Executive Order 12958, implemented by President Clinton in 1995, which was intended to safely and automatically declassify as much government information as possible. It was amended by Executive Order of President Bush in March of 2003 (EO 13292) in order to add anti-terrorism information to the categories of information that are protected from automatic declassification, and to make some procedure changes. (Full text of the amended EO)
While Section 1.3 of the EO does technically grant the VP the authority to classify (and to declassify) information, it is a qualified authority, exercisable only within the context of his executive duties (a distinction not made for the President, by the way). I doubt that the disclosure of a NOC's name, or the information about a classified National Intelligence Briefing to the press can be taken to be a function of the VP's executive duties.
Section 3.1 specifically relates to declassifying authority. It says that information that no longer meets the criteria for classification gets declassified, but information that meets the criteria is presumed to need protection. Protected information could then be declassified only when "the need to protect such information may be outweighed by the public interest in disclosure of the information...[w]hen 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." Section 3.1 also defines "Declassification authority" as "the official who authorized the original classification, if that official is still serving in the same position" or "the originator's current successor in function". Taken together, this means that Plame's identity and the NIE would have to have been classifed by Cheney (or a preceding VP) in the first place in order for him to have discretion in this matter.
Even if you assume that he did, his authority did not extend to Scooter Libby. Section 1.3 also provides for some redelegation of classification authority, but:
1) it is "limited to the minimum required to administer this order";
2) delegators "are responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise this authority"; and
3) "[e]ach delegation of original classification authority shall be in writing and...shall identify the official by name or position title".
Clearly, Libby's need to disclose Plame's identity to the press does not further the effective execution of the EO, so the delegation would not be legal. Had written delegation to Libby existed, surely it would have been provided to head off the trial to begin with.
Finally, it is clear that he had not already declassified the information in question, because then Libby's defense would not be that he was authorized to release classified information. It instead would have been that the information wasn't classified in the first place.
The only question left unanswered now is how long it will take Cheney to get around to classifying this post.
