covering the Scooter Libby trial for alleged perjury and obstruction of justice
had bothered to read President Bush's Executive
Order 12958 of March 28, 2003 – entitled "Classified National Security
Information" – they would know that it does not give the vice president
the authority to declassify anything.
In particular, it does not give Cheney the authority to
declassify portions of the "highly classified" October 2002 National
Intelligence Estimate on Iraq's WMD capabilities.
And that Executive Order Directive most certainly does not – could not
– give anyone the authority to willfully violate the Intelligence
Identities Protection Act of 1982, which states
"Whoever, having or having had authorized access to classified information
that identifies a covert agent, intentionally discloses any information identifying
such covert agent to any individual not authorized to receive classified information,
knowing that the information disclosed so identifies such covert agent and that
the United States is taking affirmative measures to conceal such covert agent's
intelligence relationship to the United States, shall be fined not more than
$50,000 or imprisoned not more than ten years, or both."
And yet, Pete Yost reported in the Chicago
Sun-Times on Feb. 16, 2006,
"When Special Counsel Patrick Fitzgerald revealed Libby's assertions
to a grand jury that he'd been authorized by superiors to spread sensitive information,
the prosecutor did not specify which superiors.
"But in an interview, Cheney said there is an executive order that
gives the vice president the authority to declassify information.
"'I have certainly advocated declassification. I have participated in declassification
decisions,' Cheney said.
"Asked for details, he said, 'I don't want to get into that. There's
an executive order that specifies who has classification authority, and obviously
it focuses first and foremost on the president, but also includes the vice president.'"
What "sensitive information" was Libby claiming he was authorized
Yost apparently assumes the sensitive information Cheney was talking about
was Valerie Plame's identity as a covert CIA operative.
"Former Whitewater independent counsel Robert Ray said Cheney's ex-chief
of staff could point to authorization as part of his strategy.
"'If it turns out that Cheney was actively involved in decisions related
to the disclosure of a CIA officer's identity and if the truth of it is that
he was orchestrating the disclosure of information to the media, it seems to
me that's a fundamentally different case than one centered around the activities
of Libby,' Ray said."
And it looks like Libby's the way the case is – perhaps inadvertently – shaping
up that way.
But on the basis of Libby's just released grand
jury testimony, it appears he was then referring to having authorization
to leak still classified portions of the 2002 NIE on Iraq's WMD capabilities
with the intention of discrediting former ambassador Joe Wilson, the State Department's
Bureau of Intelligence and Research, as well as the director-general of the
International Atomic Energy Agency.
Now, Libby could argue – perhaps successfully – that the National Security
Information he was leaking should never have been classified in the first place
or was no longer was deserving of such classification.
National Security Information is classified as "Top Secret" if its
unauthorized disclosure could reasonably be expected to cause "exceptionally
grave damage" to national security.
National Security Information is classified as "Secret" if its unauthorized
disclosure could reasonably be expected to cause "damage" to national
The NIE itself, produced by the National Intelligence Council, was given an
overall classification by the director of central intelligence of "Top
However, even some of the individual key findings in it didn't merit qualify
as top secret, or even secret, classifications.
In particular, when it came to the "intelligence" about Iraq seeking
"yellowcake" from Niger, according to the report
of the Senate Select Committee on prewar Iraqi intelligence,
"The uranium text was included in the body of the NIE but not in the
key judgments. When someone suggested that the uranium information be included
as another sign of reconstitution, the INR [State Department's Bureau of Intelligence
and Research] Iraq nuclear analyst spoke up and said the he did not agree with
the uranium reporting and that INR would be including text indicating their
disagreement in their footnote on nuclear reconstitution.
"The NIO [National Intelligence Officer coordinating the preparation
of the NIE] said he did not recall anyone really supporting including the uranium
issue as part of the judgment that Iraq was reconstituting its nuclear program,
so he suggested that the uranium information did not need to be part of the
"He told Committee staff he suggested that 'We'll leave it in the paper
for completeness. Nobody can say we didn't connect the dots. But we don't have
to put that dot in the key judgments.'"
So if the vice president had asked DCI George Tenet to declassify the "uranium
issue" portion of the still top secret NIE, Tenet would no doubt have obliged.
After all, Tenet had already authorized a non-classifed
version of the NIE.
But what could the top secret NIE contain in a footnote that could possibly
counter what IAEA Director-General Mohamed ElBaradei had already said in his
absolutely devastating March 7, 2003, report
to the UN Security Council?
"The IAEA has made progress in its investigation into reports that
Iraq sought to buy uranium from Niger in recent years. The investigation was
centered on documents provided by a number of States that pointed to an agreement
between Niger and Iraq for the sale of uranium between 1999 and 2001.
"The IAEA has discussed these reports with the Governments of Iraq
and Niger, both of which have denied that any such activity took place. For
its part, Iraq has provided the IAEA with a comprehensive explanation of its
relations with Niger, and has described a visit by an Iraqi official to a number
of African countries, including Niger, in February 1999, which Iraq thought
might have given rise to the reports. The IAEA was also able to review correspondence
coming from various bodies of the Government of Niger, and to compare the form,
format, contents, and signatures of that correspondence with those of the alleged
"Based on thorough analysis, the IAEA has concluded, with the concurrence
of outside experts, that these documents – which formed the basis for the reports
of recent uranium transactions between Iraq and Niger – are in fact not authentic.
We have therefore concluded that these specific allegations are unfounded."