posted
I know that the vice-president has had a tough week, but this news item caught my eye.
Apparently the vice-president said on Wednesday during an interview on the Fox News Channel that he has the power to declassify classified government information. He claimed that there is an executive order that gives both the president and the vice-president the authority to declassify such information. He said in the interview that he advocates declassifiction and that he has "participated in declassification decisions." When he was asked for more details on the subject, he declined to elaborate, saying, "I don't want to get into that."
This poses a number of questions, I think:
Is there such an executive order?
If so, when was it made? Was it made by George W. Bush or by some other president?
If such an executive order does exist, why is Cheney seemingly unwilling to state a reference (such executive orders are usually referred to by number) or to detail which classified information he was involved in declassifying?
Is this an attempt on Cheney's part to lay the groundwork for a defense in light of Scooter Libby's contention that he had been authorized by his "superiors" (which definitely included Cheney) to leak Valerie Plame's name and employment by the CIA to the press?
Edit: to correct two typos.
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That's from '95 and is too long and has too much legalese for me to understand, but it seems like a good place to start.
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posted
"He said in the interview that he advocates declassifiction..."
Oh, that's rich, coming from Cheney.
Thanks for the link, Juxtapose. I did repeated Google News searchs tonight and failed to find any serious analysis of the vice president's authority to declassify. If only journalists would get some teeth!
After skimming your link, I looked for other EOs and came up with EO 13292 which amends 12958. Bush's EO was dated March 25, 2003...Hmmm. Three days after we invaded Iraq?? What a coincidence.
A key change is the addition
quote: Sec. 1.3. Classification Authority. (a) The authority to classify information originally may be exercised only by:
(1) the President and, in the performance of executive duties, the Vice President;
The power to classify information was granted to the VP in the new EO--in the Clinton EO that line was just the president. Whether this means the VP can declassify anything for any reason, including political damage contol, is debateable.
Specifically, the EO does not supersede the National Security Act of 1947. That law forbids the outing of undercover intelligence operatives, which Plame may or may not have been at the time.
quote: 6.2(c) Nothing in this order limits the protection afforded any information by other provisions of law, including the Constitution, Freedom of Information Act exemptions, the Privacy Act of 1974, and the National Security Act of 1947, as amended.
posted
I'm not clear on the in-and-outs of the treatment of classified information, but I'd pretty suprised if even the President can just up and decide to out an uundercover agent by deciding that this information should no longer be classified and have it be okay.
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quote:Originally posted by Morbo: The power to classify information was granted to the VP in the new EO--in the Clinton EO that line was just the president. Whether this means the VP can declassify anything for any reason, including political damage contol, is debateable.
Specifically, the EO does not supersede the National Security Act of 1947. That law forbids the outing of undercover intelligence operatives, which Plame may or may not have been at the time.
quote: 6.2(c) Nothing in this order limits the protection afforded any information by other provisions of law, including the Constitution, Freedom of Information Act exemptions, the Privacy Act of 1974, and the National Security Act of 1947, as amended.
In looking at Executive Order 13292 (Bush's revision), as you said, Morbo, the president and vice president (maybe [probably?] only when acting as president) have the authority to classify information. Additionally, (per section 3.5(b)(1), in the information on declassification) information classified by the president or vice president is exempted from automatic declassification review.
I could see no provision that specifically grants the president or vice president the authority to declassify, with the possible exception, per this provision, of information they classified in the first place. In any case, this would not include Valerie Plame's name or her position with the CIA, so I don't see how any of this would help Cheney out if he was the one who okayed Scooter Libby's leak of her name to the press.
Anyway, Bush's executive order prohibits classification of information, among other reasons, in order to conceal violations of the law or, even more to the point, to "prevent embarrassment to a person, organization, or agency" (section 1.7(a)(1) and (2)). There is no similar provision to prohibit declassification of information for these reasons, but I think a reasonable person might infer that if one cannot classify information for those reasons, one would not be able to declassify information for those reasons, either.
Oh, on a slightly more frivolous note, and something I've been wondering for awhile...why in the world would an adult male allow anyone, except perhaps their mother, to call him "Scooter"?
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quote:I could see no provision that specifically grants the president or vice president the authority to declassify, with the possible exception, per this provision, of information they classified in the first place. In any case, this would not include Valerie Plame's name or her position with the CIA, so I don't see how any of this would help Cheney out if he was the one who okayed Scooter Libby's leak of her name to the press.
You're right, littlemissattitude. I skimmed the section on declassifaction and didn't see anything relevant to the vp. Also, I missed the importance of the word "originally" in 1.3 (a)--it may mean that clause is irrelevant to this case involving declassifaction.
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posted
A breakdown of some changes between the Clinton classification EO and the Bush EO amending it.
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posted
I have read that the President has been 'legislating' through the use of Executive Orders. There has also been a long standing rumor that Cheney is really the one running the country. This new information will certainly do nothing to help the image of the current administration. Quite the opposite.
posted
Thanks for the link, Morbo. It raises some interesting questions itself, going back to the very serious question of when , exactly, the vice-president is entitiled to act in an executive capacity. More specifically, has Cheney been acting in an executive capacity even in the absence of a letter from the president handing over that power to him when the president is going to be incapacitated. Which, I might add, I always thought was necessary for the vice-president to do any of the things that are the president's job.
Or is there a letter sitting somewhere that Bush has signed designating Cheney as officially allowed to classify whatever he wants to? Even if there is, I still maintain that the wording of the executive order means that he can only legally declassify what he has originally classified. This would still mean that Cheney would have had no business saying that it was okay to "out" Valerie Plame, if that is indeed what he did.
Oh, and one more question - I seem to be full of them the past couple of days, don't I?
Is Cheney's reference in the interview to having "participated in declassification decisions", or however he put it, not an admission that he authorized the Plame leak but an admission that he is the one who has really been running things this whole time?
And I'm only half-joking about that last question.
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posted
There are a LOT of Executive Orders out there... I remember reading that this administration has set a new record for EOs.
Are the 'Liberal' rumors of Cheney being the 'man behind the curtain' true? If anyone is interested, it would be interesting to know how many EOs 'pass on' Presidential Powers to the VP. I wouldn't begin to know where to look them up.
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Bush has signed about 40 per year (13396 - 13197 = 199, 199 divided by 5 years = aproximately 40 per year). I'd need to double check the math to be sure, but that's less than any president per year back through and including Carter. All but Carter are in the 40s; Carter is about 80 per year.
quote:Originally posted by Silkie: If anyone is interested, it would be interesting to know how many EOs 'pass on' Presidential Powers to the VP. I wouldn't begin to know where to look them up.
Executive Orders can be found in the Federal Register, published daily. They also appear in Title 3 of the Code of Federal Regulations (CFR), beginning with Executive Order 7316, issued on March 13, 1936. Both publications are available on the internet. The Federal Register is here, or at least you can get there from here, and the CFR can be found here. The CFR is published periodically, so if you are looking for the most recent Executive Orders, it would probably be best to check the Federal Register first.
Both publications can also be found in any Federal Depository Library. I don't know about other states, but in California many if not all CSU and UC libraries are Federal Depository Libraries, as are many county law libraries and central libraries in various library systems. For example, here in Fresno County, the Madden Library at CSU, Fresno is one, as are the law library in the county courthouse and the central library in the Fresno County Library System. Where you live, you could probably call up your local library and find out where the closest Federal Depository Library is located.
Edited to add some information that I should have thought to include in the first place.
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posted
Constitutionally I believe the VP only has three jobs anyway; wait for the P to die, preside/delegate his presidingness over Senate proceedings, and cast tie-breaking votes in said body. Could it be argued that any executive authority given to the VP is unconstitutional?
Unclassifying stuff must be hard. I would like to say, though, that there are safeguards, and that there are some things that can't be declassified on a whim, no matter who you are.
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quote:Constitutionally I believe the VP only has three jobs anyway; wait for the P to die, preside/delegate his presidingness over Senate proceedings, and cast tie-breaking votes in said body.
He also wields the executive power when the President is incapacitated, which technically a different power than that of succession.
quote:Could it be argued that any executive authority given to the VP is unconstitutional?
The case that it would be unconstitutional is stronger under the unitary theory. Posts: 26071 | Registered: Oct 2003
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posted
The unitary theory is the one supported by the plain language of the constitution. I still haven't heard a convincing counter-argument to that.
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posted
The augmented powers granted to the Executive branch through the irresponsibility of Congress over the past hundred years or so was not provided for by the Constitution. Presidents have crossed the line numerous times thanks to the broad strokes that the words "Commander in Chief" were written with. But that's just my libertarian, strict constructionist, high school education, non-Law studying side coming out into the open.
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posted
The Federal Register is an interesting place. Thanks littlemissattitude. (LOVE your name!)
Dag, I don't see where Bush did more, either. I did find the 'dueling Executive Orders' content amusing ... EOs cancelling or modifying the previous admin's EOs.
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