Ensor, Podhoretz misrepresented executive orders to absolve Bush of NIE leak scandal

CNN's David Ensor claimed that a 2003 executive order “makes clear that the president and the vice president can order aides,” such as Vice President Dick Cheney's former chief of staff, I. Lewis “Scooter” Libby, “to give any classified material they want to a reporter.” Similarly, in his New York Post column, John Podhoretz, citing a 1982 executive order, claimed that President Bush “can declassify a document merely by declaring it unclassified.”

On the April 6 edition of CNN's Lou Dobbs Tonight, national security correspondent David Ensor claimed that a 2003 executive order “makes clear that the president and the vice president can order aides, such as Mr. [Vice President Dick] Cheney's [former] chief of staff, [I. Lewis] 'Scooter' Libby, to give any classified material they want to a reporter.” Similarly, in his April 7 New York Post column, John Podhoretz, citing an executive order drafted in 1982, claimed that President Bush “can declassify a document merely by declaring it unclassified.” Ensor, however, did not provide any text from the executive order. He instead referred to the order as “complex rules for lesser mortals” -- belying his claim that it “makes clear” Bush's authority -- and quoted a former CIA general counsel asserting that the president and the vice president have the right to declassify information, a point that is not under contention. Similarly, the portion of the 1982 executive order Podhoretz quoted in no way bolstered his assertion that Bush “can declassify a document merely by declaring it unclassified.”

Ensor and Podhoretz were responding to the April 6 revelation that Bush, according to court documents pertaining to the federal investigation of Libby, authorized Libby to disclose to the media classified portions of the October 2002 National Intelligence Estimate (NIE) dealing with Iraq's purported weapons of mass destruction.

From the April 6 edition of CNN's Lou Dobbs Tonight:

ENSOR: It is the executive branch, headed by the president, that decides what is classified and what is not. Most recently, the rules governing declassifying material were updated in a 2003 executive order signed by President Bush. There are complex rules for lesser mortals, but the order makes clear that the president and the vice president can order aides, such as Mr. Cheney's chief of staff, “Scooter” Libby, to give any classified material they want to a reporter.

JEFF SMITH (former CIA general counsel): Frankly, the president and the vice president have that right, if they so choose to declassify something and put it out in public.

ENSOR: Now, intelligence officials say most commonly when administration officials want to declassify something, they will check with the relevant intelligence officials to make sure nothing they want to make public would compromise sensitive intelligence sources or methods. But that is not legally required, and it is not always done. So no laws were broken here, but the revelation by “Scooter” Libby that the president authorized a leak puts Mr. Bush in an awkward position. After all, in public, he has always denounced leaks.

Smith, however, was simply reiterating a general point not in dispute -- the president and the vice president do indeed have the right to declassify information. Smith's statement in no way indicated that Bush's authorization of Libby to disclose portions of the NIE adhered to proper declassification procedures, as Ensor suggested.

Podhoretz wrote:

And this “leak” wasn't a leak in any case. A “leak” is the unauthorized release of government information. The leak of classified information is a crime. But according to Scooter Libby, the former chief of staff to the vice president who gave the information from the NIE to a reporter, he only released it because he was authorized to do so by the president himself.

Constitutionally, the authority to declare documents “classified” resides with the president. So, under the terms of an executive order first drafted in 1982, he can declassify a document merely by declaring it unclassified.

The language of the executive order reads as follows: “Information shall be declassified or downgraded by the official who authorized the original classification, if that official is still serving in the same position ... [or] a supervisory official.” In the executive branch, the president is the ultimate “supervisory official.”

Podhoretz quoted Executive Order 12356, made effective April 2, 1982. But, once again, the quote he provided merely reaffirmed an uncontested point: that the president has the authority to declassify information. It does not indicate in any way that the president may do so simply “by declaring it unclassified,” as Podhoretz put it.

In fact, Executive Order 12356 established guidelines for the declassification of information, such as a “mandatory review for declassification.” According to the executive order:

(a) Except as provided in Section 3.4(b), all information classified under this Order or predecessor orders shall be subject to a review for declassification by the originating agency, if:

(1) the request is made by a United States citizen or permanent resident alien, a federal agency, or a State or local government; and

(2) the request describes the document or material containing the information with sufficient specificity to enable the agency to locate it with a reasonable amount of effort.

According to Section 3.4(b)'s exception for the mandatory review: “Information originated by a President, the White House Staff, by committees, commissions, or boards appointed by the President, or others specifically providing advice and counsel to a President or acting on behalf of a President is exempted from the provisions of Section 3.4(a).” These guidelines remain unchanged and were incorporated into Executive Order 12958 on “Classified National Security Information,” issued on April 17, 1995; and into Executive Order 13292, issued on March 25, 2003, which amended the 1995 order.

Therefore, according to these executive orders, classified information is exempt from review only if it originated within the White House or the Cabinet. The NIE, however, was a product of the CIA, suggesting that it would have been subject to a mandatory review by the CIA prior to declassification.

Moreover, if the NIE had been officially declassified by Bush's authorization to disclose its contents -- as Ensor and Podhoretz claimed -- then why was then-deputy national security adviser Stephen J. Hadley attempting to get the NIE declassified after Libby had already leaked its contents to the media? According to the court papers released on April 6:

As part of his effort to justify in essence “open file” discovery concerning the NIE, defendant [Libby] notes that “Mr. Hadley was active in discussions about the need to declassify and disseminate the NIE . . . .” Defendant fails to mention, however, that he consciously decided not to make Mr. Hadley aware of the fact that defendant himself had already been disseminating the NIE by leaking it to reporters while Mr. Hadley sought to get it formally declassified. There is no reason to root around in the files of the NSC or CIA or State Department given that no one at any of those three agencies was aware of any declassification of the NIE prior to July 18, 2003. Since Mr. Hadley was involved in efforts to declassify what Mr. Libby testified had already been declassified, Mr. Hadley's files will create confusion rather than providing context. The government is producing to defendant Mr. Hadley's notes of meetings and conversations in which both defendant and Mr. Hadley participated, and in which the potential declassification of the NIE was discussed.

Also, during a July 18, 2003, press briefing, White House press secretary Scott McClellan stated numerous times that the NIE had just been declassified that day. That briefing, however, took place 10 days after Libby had reportedly received word from Cheney that Bush had authorized him to disclose portions of the NIE to former New York Times reporter Judith Miller. If Bush had declassified the NIE on July 8, why was McClellan telling the press 10 days later that it had been declassified that day?

From the July 18, 2003, press briefing:

REPORTER: Scott, why did the administration put out all the information that the senior administration official put out today on the intel --

McCLELLAN: No, well, we always want to share facts with the American people. And this information was just, as of today, officially declassified, and it was an opportunity to share with them some information that showed the clear and compelling case that we had for confronting the threat that Saddam Hussein posed.

REPORTER: Does the White House think that this should end the case, the discussion? Are we done with this after --

McCLELLAN: Well, first of all, I think we always welcome the opportunity to discuss and talk about the safety and security of the American people. It's the President's highest priority. This was, as I said, an opportunity to share some important facts with the American people that had recently become declassified. And that's what we did earlier today.

REPORTER: Did some of the documents that came out undercut some of the argument, like State Department documents about things being “highly dubious” and all?

McCLELLAN: I think that when you look at the information that was released, it shows further how clear and compelling this case was regarding the threat that we faced in Iraq, and that we ended in Iraq. Saddam Hussein is gone and his regime is no longer a threat of using these weapons of mass destruction.

REPORTER: Why, Scott, was the cable that was -- that derived from the debriefing of Joe Wilson not included among the declassified documents?

McCLELLAN: Well, we always want to share as much information as we can. There is some classified information that -- well, there's some information that remains classified for national security reasons. But we felt that this information -- which is what the State of the Union statement was originally based on -- was important to share with the American people, because it could be declassified.

REPORTER: When was it actually declassified?

McCLELLAN: It was officially declassified today.