Secrets Bush and
Cheney Can’t ‘Declassify’

If “reporters” 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 to spread?

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 security.

The NIE itself, produced by the National Intelligence Council, was given an overall classification by the director of central intelligence of “Top Secret.”

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 key judgments.

“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 procurement-related documentation.

“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.”

Author: Gordon Prather

Physicist James Gordon Prather has served as a policy implementing official for national security-related technical matters in the Federal Energy Agency, the Energy Research and Development Administration, the Department of Energy, the Office of the Secretary of Defense and the Department of the Army. Dr. Prather also served as legislative assistant for national security affairs to U.S. Sen. Henry Bellmon, R-Okla. -- ranking member of the Senate Budget Committee and member of the Senate Energy Committee and Appropriations Committee. Dr. Prather had earlier worked as a nuclear weapons physicist at Lawrence Livermore National Laboratory in California and Sandia National Laboratory in New Mexico.