Experts in national security law say a decision by President Bush to authorize the leak of classified information to a reporter probably would not be illegal.
But if Bush did so -- as a former top White House aide has testified he did -- there could be significant damage to the credibility of a president who has repeatedly and publicly expressed his abhorrence of leaks.
News of the testimony that Bush approved a 2003 leak of prewar intelligence assessments of Iraq sparked sharp criticism from Democratic lawmakers Thursday. Some suggested that, if true, the president acted above the law in an effort to defuse charges that he had exaggerated the danger posed by dictator Saddam Hussein before the 2002 Iraq invasion.
“Leaking classified information to the press when you want to get your side out or silence your critics is not appropriate,” said Rep. Jane Harman (D-Venice), a member of the House Intelligence Committee. “If I had leaked the information, I’d be in jail. Why should the president be above the law? I am stunned.”
Several legal experts, however, said the law clearly would be on the side of the chief executive in disputes over the disclosure of secret material.
“The president can do this,” said Ronald Lee, former general counsel at the National Security Agency. “The president is the head of the executive branch, which is the one that decides what’s a secret, how big a secret it is, and when to say it’s no longer a secret.”
But the experts also said that if the testimony of I. Lewis “Scooter” Libby was true, Bush’s actions violated a traditional unwritten understanding that any declassification decision would be made in close consultation with intelligence officials.
“He doesn’t have a legal obligation to check with the CIA, but he certainly has a professional obligation to check with the CIA,” said Jeffrey Smith, former general counsel at the intelligence agency.
Although legal experts agree that the president has broad authority to declassify information, there are limits. For example, it is unclear whether a president can override laws designed to protect certain categories of sensitive information, such as a 1982 statute that makes it unlawful to expose the identity of an undercover CIA officer.
“If a statute says the executive branch or anybody can’t do something, it’s not clear to me that the president’s inherent declassification authority would be enough to overcome that,” Lee said.
Libby, Vice President Dick Cheney’s onetime chief of staff, is under indictment on charges stemming from the ongoing investigation into the illegal disclosure to reporters of the identity of CIA officer Valerie Plame in 2003.
Libby is charged with perjury, obstruction of justice and lying to federal agents who were investigating the disclosure of Plame’s name, but it has not been alleged that he was the one who leaked her identity. Nor has it been alleged that Bush or Cheney authorized that leak.
Her name was published in a newspaper column shortly after her husband, Joseph C. Wilson IV, wrote in an op-ed piece that the Bush administration had “twisted” intelligence on Iraq’s nuclear ambitions. Wilson claimed that the administration had not dealt honestly with his findings on a government trip to Niger that there was little evidence to support the notion that Iraq was seeking uranium for a nuclear weapons program.
The disclosure of Plame’s identity was widely viewed as an effort to discredit her husband and his report by suggesting that his assignment to Niger was the result of nepotism.
The new court filing in Libby’s case referred to his testimony that Cheney, in a discussion of how to respond to Wilson, told him that Bush had approved leaking information from the CIA’s classified National Intelligence Estimate on Iraq’s efforts to acquire weapons of mass destruction. The CIA document said the U.S. intelligence community believed Hussein had sought uranium from Africa in recent years.
The White House declined to comment on Libby’s testimony.
Democrats pressed Bush to respond to Libby’s claim.
“President Bush must fully disclose his participation in the selective leaking of classified information,” said Senate Minority Leader Harry Reid (D-Nev.). “The American people must know the truth.”
Presidents long have been assumed to have the power to approve disclosure of classified information as part of their inherent authority as commander in chief. An executive order signed by Bush in March 2003 spelled out the president’s legal authority to declassify and disclose classified material.
Throughout his presidency, Bush has publicly and privately expressed disdain for government officials who leak information to the media, especially concerning national security.
As the criminal investigation began into the leak of Plame’s identity, Bush at one point promised to fire whoever was responsible for the leak. The investigation has yet to determine the leaker.
Late last year, the administration launched investigations of leaks that led to news stories on the use of overseas prisons to question terrorism suspects and the existence of a National Security Agency domestic eavesdropping program aimed at identifying terrorist operatives in the United States.
Bush called it “a shameful act for someone to disclose” the NSA spying “in time of war.”
Cheney said in a television interview this year that “one of the problems we have as a government is our inability to keep secrets. And it costs us -- in terms of our relationship with other governments, in terms of the willingness of other intelligence services to work with us, in terms of revealing sources and methods.”
One former White House official contacted by The Times said Libby’s testimony ran contrary to the official’s observations about Bush’s position on leaks.
The official, who asked not to be identified because he was discussing matters relating to an ongoing criminal investigation, recalled Bush’s repeated objections to leaks of any kind, even the advance text of speeches on innocuous subjects.
The official said one reason he was skeptical of Libby’s claim was that it made no sense to him that Bush would authorize Libby to leak the prewar assessment concerning Iraq but not reveal that decision to other close aides, such as Condoleezza Rice, then national security advisor; her deputy at the time, Stephen J. Hadley; or Dan Bartlett, then White House communications director.
Ten days after Libby allegedly received his leak authorization from Cheney, all three aides were in meetings working with CIA Director George J. Tenet to declassify the same information that the president allegedly had authorized Libby to share with then-New York Times reporter Judith Miller.
The court filing in Libby’s case said Libby “consciously decided not to make Mr. Hadley aware of the fact that defendant himself had already been disseminating the [intelligence about Iraq] by leaking it to reporters while Mr. Hadley sought to get it formally declassified.”
The information eventually was declassified. And, despite Libby leaking the material to Miller, she did not write articles about it.
(BEGIN TEXT OF INFOBOX)
Comments from the top
What President Bush and Vice President Dick Cheney have said about leaks of classified information and the case of I. Lewis “Scooter” Libby, Cheney’s former chief of staff, who faces charges related to the outing of a CIA operative:
‘My personal opinion is, it was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy.... We’re at war. And we must protect America’s secrets.’
to reporters on Dec. 19, 2005, when asked about the disclosure of the National Security Agency surveillance program in the New York Times
A leak ‘gives information to our enemies about how we go about collecting intelligence against them. It also raises questions in the minds of other intelligence services about whether or not they can work with the United States intelligence service, with our CIA, for example, if we can’t keep a secret.’
VICE PRESIDENT DICK CHENEY
commenting on the disclosure of the surveillance program in a Feb. 3, 2006, radio interview
‘I want to know the truth. I want to see to it that the truth prevails.’
to reporters, Oct. 7, 2003, on determining the identity of the leaker in the CIA case. He said his staff was cooperating
in the investigation.
‘I would like this to end as quickly as possible. If someone committed a crime, they will no longer work in my administration.’
July 18, 2005, on the CIA leak
‘Scooter has worked tirelessly on behalf of the American people and sacrificed much in the service to this country. He served the vice president and me through extraordinary times in our nation’s history.’
Oct. 28, 2005, the day of Libby’s indictment and resignation
‘I have accepted his decision with deep regret.’
VICE PRESIDENT DICK CHENEY
in accepting Libby’s resignation, Oct. 28, 2005
‘You’re trying to get me to comment on the investigation, which I’m not going to do.’
to reporters on a November 2005 trip to Latin America
‘I will not say any more about it. There will be a time when I can discuss it, but not now.’
VICE PRESIDENT DICK CHENEY
Dec. 18, 2005, during an interview on ABC News, responding to a reporter asking whether he had directed anyone to disclose or cover up disclosure of a CIA agent’s identity
‘I have certainly advocated declassification. I have participated in declassification decisions.’
VICE PRESIDENT DICK CHENEY
Feb. 15, 2006, during an interview on Fox News
Source: Associated Press