Scott Johnson contrasts the NYT’s silence on the David Rohde kidnapping to protect the safety of their reporter with “the Times’s illegal exposure of the NSA terrorist eavesdropping program in December 2005, as well as its exposure of the Treasury Department’s terrorist-finance tracking program in June 2006. Whereas the reporting of Rohde’s apprehension may have endangered his life, the disclosure of the NSA terrorist eavesdropping and terrorist finance tracking programs only threatened the security of the United States.”

First, the assertion that what the NYT did in publishing classified information was “illegal” is quite dubious for reasons I explained in my January 2006 post “Can NYT Be Prosecuted for Publishing Classified Info?” (itself a response to an article by Johnson).  See also my related post “Leaks, Whistleblowers, and Media Shield Laws.”

Further, while the juxtaposition had occurred to me as well, the cases are clearly different.  In the Rohde situation, there was clear and compelling reason to believe that a man’s life was in danger:

“From the early days of this ordeal, the prevailing view among David’s family, experts in kidnapping cases, officials of several governments and others we consulted was that going public could increase the danger to David and the other hostages,” said Bill Keller, the executive editor of The Times. “The kidnappers initially said as much. We decided to respect that advice, as we have in other kidnapping cases, and a number of other news organizations that learned of David’s plight have done the same. We are enormously grateful for their support.”

No such information existed with regard to the eavesdropping story.  What was put at risk was the secrecy of a government program, the legality of which is still being debated.  The “security of the United States” was put in danger only to the extent that 1) the program was effective and 2) the public knowledge that such a program existed undermined the program’s effectiveness.   Both of those are, at best, highly debatable.

While I may well have decided against publishing the story had I been the publisher of the NYT, I can certainly understand running it given the strong questions about the propriety of the program, including a seeming gross violation of the 4th Amendment rights of a wide swath of Americans.  Weighed against a highly questionable “national security” claim, that’s a pretty compelling reason to publish.   Otherwise, we’re left with a situation where the president is free to flout the law so long as he asserts a “national security” rationale and stamps a project Top Secret.

UPDATE: Marc Danziger weighs in with a much better point than Johnson’s.   Revisiting the old Mike Wallace thing about how he’d simply film a story of a American soldiers being ambushed rather than helping them because he’s not there as an American but only as a journalist, he muses,

And I can imagine how, when Rohde’s saw the uniforms of the US troops and knew that meant he was now safe, his heart must have lifted. And what’s wrong with that, of course is that he wants – as the Col. Connell suggests – to be able to claim sanctuary from his countrymen. Now I don’t know Rohde’s work, and I’m not going to claim that he’s remotely where Wallace claimed to be while sitting in the comfort of a videotaped seminar. But his institution is. And that’s a problem to me. Because it was US soldiers who gave Rohde’s sanctuary, not some mercenary force fighting in the name of the NY Times or international journalism.

The other problem is, if anything, more serious. And it is the simple fact that we are increasingly living in a society that plays by Ottoman rules; meaning that what the rules are depend – of course – on who you are. That’s not something we will survive for long, and simply put, it needs to be exposed and stamped out anywhere we see it.

So I’m glad that the NY Times and journalists could sit on an exciting story to help save one of their own. In the future, will they do this to save some random civilian, or some US soldier?

It’s an interesting question, indeed.

The FBI headquarters complex has a wee problem:

“The Hoover Building does not meet the Interagency Security Committee’s criteria for a secure Federal facility capable of handling intelligence and other sensitive information,” the Senate Appropriations Committee observed in a new report on the 2009 Commerce, Justice and State Appropriations bill.

“The Committee finds these conditions unacceptable and directs the Government Accountability Office [GAO] to review the Hoover Building and associated off-site locations, and provide a analysis of the FBI’s ability to fulfill its mission and security requirements under the present circumstances,” the report said.

Given that the FBI is the lead agency in domestic counterterrorism, either the rules or the building need changing, stat.  Steve Aftergood reports that they’ve come up with a bizarre work-around:

The FBI is in the process of constructing a Central Records Complex outside of Washington, DC. When completed, it will provide secure, centralized storage for classified intelligence, consistent with the security requirements of Director of Central Intelligence Directive (DCID) 6/9 and related guidelines.

Now, I’m all for moving sensitive information and, indeed, most federal bureaucratic activities, outside DC and, preferably, the National Capital Region for reasons I won’t get into here.  But one would think the FBI headquarters building ought to be properly equipped to handle classified information.  Alternatively, if there is no reason to think that it isn’t, then we should quit inventing arbitrary rules that require massive expenditures to achieve unnecessarily restrictive standards.

Steven Aftergood has an interesting look at a proposal from Jane Harmon to formalize the concept of “controlled unclassified information” (CUI) that the White House rolled out on a trial balloon basis last month.

Aftergood is dubious of the so-called “The Improving Public Access to Documents Act” and I mostly defer to him on this matter.

[I]t is tactically unwise to lock into statute an executive branch “framework” that still remains largely undefined and that may be subject to significant modification in the course of its projected five-year implementation period. The CUI Office at the National Archives that is supposed to develop the implementing regulations referenced in the bill does not even have its own funding this year, and has also missed the funding cycle for next year.

Among other questionable features (and some positive ones), the bill regrettably endorses the executive branch view of the Freedom of Information Act as the proper channel for public access to agency information on homeland security and related topics. Thus, the bill says, “The Department [of Homeland Security] should start with the presumption that all homeland security information that is not properly classified, or marked as controlled unclassified information and otherwise exempt from disclosure, should be shared with the public pursuant to section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act’).”

This is not a “presumption” — disclosure of non-exempt information pursuant to FOIA is already required by law — and it would not “improve public access.” To the contrary, by presenting disclosure under FOIA as the primary alternative to classification or control, the bill would place an impossible burden on the FOIA process, and would diminish agency responsibility to unilaterally disclose homeland security information that has not been formally requested.

Fair enough. Our goal should be making it easier, not harder, for journalists, scholars, and other interested citizens to get access to information about how their government operates.

In theory, though, a bill could be written that would actually achieve the titular objective. A regulatory scheme that provides rules for internal handling and dissemination of information but that stops short of formal classification is, theoretically, a good idea. Once something is classified, it’s ridiculously hard to overcome inertia even if it only needed to be held close for a very short period of time. Ending the practice of stamping that sort of material — including huge documents with only a sentence of such material — “classified” could be a boon.

My suspicion, unfortunately, is that the bill which actually emerges — at least after the bean counters lard it with “clarifying” regulation — will further the tendency to treat routine operating information as sensitive and thus not sharable with the public because those who would do us harm could cobble together something damaging from bits and pieces of information that, in isolation, are innocuous.

The United States government is thinking about coming up with a coherent system for dealing with classified information. Steven Aftergood has details.

U.S. intelligence agencies have embarked upon a process to develop a uniform classification policy and a single classification guide that could be used by the entire U.S. intelligence community, according to a newly obtained report (pdf) from the Office of the Director of National Intelligence.

The way that intelligence agencies classify information is not only frustrating to outsiders, as it is intended to be, but it has also impeded interagency cooperation and degraded agency performance.

[...]

“The definitions of ‘national security’ and what constitutes ‘intelligence’ — and thus what must be classified — are unclear,” the review team found. “Many interpretations exist concerning what constitutes harm or the degree of harm that might result from improper disclosure of the information, often leading to inconsistent or contradictory guidelines from different agencies.” “There appears to be no common understanding of classification levels among the classification guides reviewed by the team, nor any consistent guidance as to what constitutes ‘damage,’ ’serious damage,’ or ‘exceptionally grave damage’ to national security… There is wide variance in application of classification levels.”

Among the recommendations presented in the initial review were that original classification authorities should specify clearly the basis for classifying information, e.g. whether the sensitivity derives from the content of the information, or the source of the information, or the method by which it is analyzed, the date or location it was acquired, etc. Current policy requires that the classifier be “able” to describe the basis for classification but not that he or she in fact do so.

Coming up with a less lousy system shouldn’t be hard but Steven is rightly skeptical:

First, it assumes that consistency in classification is intrinsically desirable and should therefore be imposed by a community-wide classification guide. But consistency is at most a secondary virtue. When a classification policy is poorly justified, it is preferable for it to be inconsistently applied, as in the case of intelligence budget secrecy (see below).

Second, the review does not touch upon what is probably the single most necessary change in intelligence classification policy, namely the need to narrow the definition of intelligence sources and methods that require protection. Almost anything can serve as an intelligence source or method, including a subscription to the daily newspaper. But not every intelligence source or method requires or deserves classification or other protection from disclosure.

It’s axiomatic that coming up with system that is both standardized and lousy is a bad thing. But the second issue is really the key: Too many things are deemed classifiable and, once that decision is made, it’s hard to unclassify the material because of bureaucratic inertia.

Researching my dissertation in the early 1990s, I did archival research of military documents from 1943-1948 relating to the “roles and missions” debate (that is, what the proper roles of the Army, Navy, Air Force and Marines were vis-a-vis one another). An amazing amount of that material had only recently been de-classified even though none of it should ever have been classified. There were no technical details involved in these documents that would have been of value to the enemy; it was nothing more than bureaucratic infighting about whether the Navy should be permitted to keep its airplanes now that there was a Navy, whether the Marines should continue to be allowed to maintain, in effect, a second land Army, and so forth. Indeed, even press releases that were to be published in the New York Times a few hours hence were classified. That’s simply nonsense.

Sometimes, incidentally, the reverse error occurs. As the leader of a rocket artillery firing platoon in the closing days of the Cold War, I had a “battle book” containing maps with the detailed locations to which my unit would initially deploy for war. It contained the locations of my three launchers, my fire direction center, the other platoons in the battery, the battery tactical operations center, the other firing batteries, and the battalion headquarters. I was classified SECRET, which is the lowest level anyone bothers to pay attention to.

Recently released schedules of Hillary Clinton’s eight years as First Lady document that she was mostly engaged in frivolous, unrelated activities during foreign policy events for which she has claimed “experience.” Or do they?

The NYT lede:

When the World Trade Center was attacked for the first time on Feb. 26, 1993, President Bill Clinton flew to New York to be briefed on the attack and the response by city, state and federal authorities. According to newly released White House calendars of Senator Hillary Rodham Clinton’s time as first lady, Mrs. Clinton stayed behind in Washington to attend a photo shoot with Parade magazine and a performance of “Jesus Christ Superstar.”

Seven years later, in October 2000, Mr. and Mrs. Clinton were enjoying a quiet weekend at their new home in Chappaqua, N.Y., when word came that the Cole, an American destroyer, had been attacked in a Yemen port. Mr. Clinton rushed back to the White House to deal with the crisis. Mrs. Clinton returned to the campaign trail in her run for the Senate.

Her supporters argue this is unfair:

Mrs. Clinton’s aides argued that the calendars backed up her argument that her time as first lady was marked by substantial foreign policy experience, although they emphasized that the calendars only show her public events and do not reflect the wide sphere of influence she had with her husband and others. “The schedules are only a guide for Senator Clinton’s time in the White House and by their nature don’t include a lot of the very kinds of things that gave her deep experience in her eight years there — calls with world leaders, impromptu meetings and strategy sessions are all omitted from the schedule,” said Jay Carson, a Clinton campaign spokesman. “And some of her greatest influence and experience was as the president’s trusted adviser — precisely the kind of thing that is invaluable but doesn’t make it on a daily schedule.”

Melanne Verveer, Mrs. Clinton’s top aide in the White House, said that she served as “her husband’s closest adviser.” “She was the first lady,” Ms. Verveer said. “She was not the commander in chief or the director of counterterrorism. But she certainly saw what her husband was going through and had a ringside seat for all these crises. And often, as in the case of the Macedonian border issue, had an active role.”

But by this standard, Nancy Reagan won the Cold War.

And this is simply laughable:

A top White House aide said that after the terrorism episodes, Mrs. Clinton made a concerted effort to maintain her normal schedule to avoid giving the impression of panic or tip off possible targets of retaliation.

So, she helped bring peace to Northern Ireland by going to Disneyland?

Still, she has clearly had a longstanding interest in public policy and her informal position gave her tremendous access:

But a former senior Clinton White House official who supports Mrs. Clinton’s candidacy but is not authorized to speak for it, said that Mrs. Clinton routinely called top White House and administration officials to inquire about policy matters or make her views known. Top aides to Mrs. Clinton also participated in high-level policy and political sessions from the first days the Clintons moved into the White House, he said. “If there was something that she was interested in weighing in on, I don’t think she ever hesitated to go ahead and call,” the aide said. He said her interests and advocacy ranged across the entire domestic and foreign policy landscape. He said she participated in various ceremonial duties, both in the United States and abroad, but foreign leaders took her seriously as an emissary of the American government.

Surely, though, she didn’t have a Top Secret clearance? If not, anyone briefing her using classified information was committing a crime. So, any input she was giving on national security policy was that of an interested outsider.

Via Alex Massie, who gives Hillary (and the NYT) less credit than I do.

D.C. Madam Deborah Jeane Palfrey is claiming a state secrets privilege because she provided services to Muslims, Carol Leonnig reports.

The woman accused of being the D.C. Madam now argues that the fact that Muslim men used her elite, Washington-based escort service before the Sept. 11, 2001, terrorist attacks might have played a role in the government’s effort to prosecute her.

Deborah Jeane Palfrey says she might need to divulge classified information that has sensitive national security implications — perhaps including the identities of Middle Eastern customers — to defend herself against the charges. She is asking a federal judge for a hearing behind closed doors to discuss the information as it relates to the government’s charges.

Prosecutors, who have charged Palfrey with running an illegal prostitution ring in the District from 1993 to 2006, have declined to comment on Palfrey’s newest claims. Previously, Palfrey unsuccessfully argued that the attorney general needed to appoint a special counsel to investigate her case because the Justice Department might be covering up information that former prosecutors were customers of her escort service.

You’ve got to hand it to her for creativity. “Jihad me at Hello,” indeed.

And what’s up with the “alleged” and “accused” business? Palfrey is making no bones about the fact that she ran a call girl ring. Indeed, her various arguments concede that openly.

A federal judge has backed the CIA’s bid to keep Valerie Plame Wilson from disclosing the length of her CIA service, despite it being publicly available information.

Valerie Wilson may be the best known former intelligence operative in recent history, but a federal judge in New York ruled Wednesday that she was not allowed to say how long she worked for the Central Intelligence Agency in the memoir she plans to publish this fall.

Although the fact that Ms. Wilson worked for the C.I.A. from 1985 to 2006 has been published in the Congressional Record and elsewhere, the judge, Barbara S. Jones of Federal District Court in Manhattan, said Ms. Wilson was not free to say so. “The information at issue was properly classified, was never declassified and has not been officially acknowledged by the C.I.A.,” Judge Jones wrote.

[...]

Judge Jones acknowledged that the C.I.A. “does not contest that the information is, in fact, in the public domain,” adding that “the public may draw whatever conclusions it might from the fact that the information at issue was sent on C.I.A. letterhead by the chief of retirement and insurance services.”

But she said a classified court filing from Stephen R. Kappes, the deputy director of the C.I.A., which lawyers for Ms. Wilson and her publisher were not allowed to see, contained a reasonable explanation for the agency’s position. Judge Jones did not reveal it, saying only that Mr. Kappes has persuaded her of “the harm to national security which reasonably could be expected if the C.I.A. were to acknowledge the veracity of the information at issue.”

The judge’s ruling is almost certainly legally correct, although the result seems bizarre. Obviously, Kappes hasn’t shared his reasoning with me. I can’t fathom, however, what it might have been.

Book Blog had this coverage back in January:

The [CIA's Publications Review Board] refused Plame permission to even mention that she worked for the CIA because she served as a “nonofficial cover” officer (or NOC) posing as a private businesswoman, according to an adviser to Plame, who asked not to be identified discussing a sensitive issue. “She believes this will effectively gut the book,” said the adviser. Larry Johnson, a former colleague, said the agency’s action seems punitive, given that other ex-CIA undercover officers have published books. But even Plame’s friends acknowledge that few NOCs have done so. CIA spokesman Mark Mansfield said the panel was still having “ongoing” talks with Plame to resolve the dispute. “The sole yardstick,” he said, is that books “contain no classified information.”

That she worked as a NOC is public information, solely because the CIA chose to make it so. Therefore, keeping it classified appears awfully silly.

Were Plame/Wilson seeking to publish juicy details of classified ops, reveal trade secrets, or the like, they should obviously be allowed to stop her. But the dates of her employment? Even aside from the Congressional Record, her retirement announcement received worldwide attention.

via Taegan Goddard

Senator Hillary Clinton, a member of the Senate Armed Services Committee, has been asking the Pentagon for months to brief her on the status of planning for a withdrawal of forces from Iraq. Her requests had been ignored until now but they were met by a stern rebuke yesterday from Undersecretary of Defense for Policy Eric Edelman.

AP reports they have a copy of the letter:

“Premature and public discussion of the withdrawal of U.S. forces from Iraq reinforces enemy propaganda that the United States will abandon its allies in Iraq, much as we are perceived to have done in Vietnam, Lebanon and Somalia,” Edelman wrote. He added that “such talk understandably unnerves the very same Iraqi allies we are asking to assume enormous personal risks.”

[...]

Edelman’s letter does offer a passing indication the Pentagon might, in fact, be planning how to withdraw, saying: “We are always evaluating and planning for possible contingencies. As you know, it is long-standing departmental policy that operational plans, including contingency plans, are not released outside of the department.”

While neither Clinton nor any other Member of Congress is in the chain of command, the Defense Department, like all other bureaucracies, is expected to answer reasonable inquires in order that Congress may conduct oversight and complete the budgetary process. Treating a request for information contemptuously is not only politically stupid — Clinton will be voting on budget requests and her colleagues are likely to be outraged about this response as well — but beyond the boundaries of a mere cabinet deputy. As Steve Benen puts it, Edelman’s response was “a) wrong; b) rude; and c) breaking protocol.”

As might be expected for a presidential candidate, Clinton is grandstanding for maximum political mileage.

Clinton spokesman Philippe Reines called Edelman’s answer “at once outrageous and dangerous,” and said the senator would respond to his boss, Defense Secretary Robert Gates.

[...]

Clinton aides said the letter ignored important military matters and focuses instead on political payback. Redeploying out of Iraq with the same combination of arrogance and incompetence with which the Bush administration deployed our young men and women into Iraq is completely unacceptable, and our troops deserve far better,” said Reines, who said military leaders should offer a withdrawal plan rather than “a political plan to attack those who question them.”

It gets better:

“I deeply resent the administration’s continuing effort to impugn the patriotism of those of us who are asking hard questions,” Clinton told ABC News.

Clinton said she heard from a former Pentagon official “that there was intense pressure from the vice president’s office and other places that the kind of detailed planning that’s necessary to take our troops out safely was just not a priority.” The letter from Edelman, she said, gave the impression “that it’s none of my business as to whether or not the Pentagon is doing what needs to be done to secure the safety of our troops.”

Now, of course, nobody here questioned Clinton’s patriotism. Rather, Edelman was pointing out the obvious. Of course the clamoring in Congress for “reinforces enemy propaganda that the United States will abandon its allies in Iraq.” It has already done so. The problem here isn’t with the statement but with the source. That’s a fight that should be carried on by equals.

Clinton’s rhetoric is having its desired effect. MyDD’s Todd Beeton accused Edelman of saying “dissent is anti-American” and “not so subtly questioning Sen. Clinton’s patriotism and, ultimately, her fitness to be commander in chief.” The problem with this line of reasoning is that it was a private letter sent to Clinton, not a press release. Presumably, it was Clinton’s office that released the letter to the press and made it an issue.

So, to recap: While it was doubtless politically motivated, Clinton’s request of the Pentagon was perfectly reasonable given that withdrawal is likely to happen and that the administration has a history of being ill prepared for contingencies. Edelman’s response was idiotic on a whole number of levels and people should be outraged at Pentagon officials thumbing their nose at Congress. The manufactured controversy over the administration’s “questioning of patriotism,” “stifling dissent,” and “using the Pentagon to influence the outcome of elections,” however, is silly.

UPDATE: Josh Marshall has an actual copy of the letter here. Reading Edelman’s response in context, it would seem this controversy is wildly overblown.

The letter is actually quite respectful. And Edelman makes it clear he’s responding on SECDEF’s behalf, not on his own accord.

Marshall’s copy is a photograph, not a PDF, so I can’t cut-and-paste. Here’s a screencap of the controversial portion in context:

This is not a rebuke of Clinton’s question. After spending several paragraphs outlining the plan currently in place, he explains why the administration does not want to publicly discuss plans for withdrawal. The explanation, while succinct, strikes me as reasonable: The Iraqis we are counting on to side with us to defeat the militias and terrorist elements quite rightly fear that we will soon withdraw and leave them vulnerable. If Pentagon officials are going before Congress outlining plans for withdrawal, that perception will be, quite understandably, reinforced. This would undercut the plan that’s currently underway.

Despite that, Edelman assures Clinton that, of course, the Pentagon is working on all contingencies. Since the letter mentions several times that there is no guarantee of success, that presumably includes various plans for withdrawal based on given scenarios.

The only real problem here is the statement that “it is long-standing departmental policy that operational plans, including contingency plans, are not released outside the Department.” I’m certainly unaware of such a policy, let alone that it is “long-standing.” Certainly, though, members of key oversight committees are entitled to demand briefings on at least the broad outlines of these plans under the condition that they be handled as classified information.

Given that AP’s report was supposedly based on “A copy of Edelman’s response,” it’s outrageous that they released quotes out of context to give the appearance of a totally different response than was actually given. Presumably, since Josh Marshall has a copy, the other major news outlets reporting on this story also had a copy of the letter.

UPDATE: Amusingly, Penelope Trunk explains why, “It Doesn’t Matter that Journalists Misquote Everyone.”

Here’s my advice: If you do an interview with a journalist, don’t expect the journalist to be there to tell your story. The journalist gets paid to tell her own stories which you might or might not be a part of. And journalists, don’t be so arrogant to think you are not “one of those” who misquotes everyone. Because that is to say that your story is the right story. But it’s not. We each have a story. And whether or not someone actually said what you said they said, they will probably still feel misquoted.

So, while the quotes from Edelman’s letter totally misrepresented his exchange with Clinton, they were truthful in the context of the story Clinton and the journalists in question wanted to tell.

The White House says that the president’s and vice president’s staff was always intended to be exempt from a presidential order describing the handling of classified documents, Josh Meyer reports.

The White House said Friday that, like Vice President Dick Cheney’s office, President Bush’s office is not allowing an independent federal watchdog to oversee its handling of classified national security information. An executive order that Bush issued in March 2003 — amending an existing order — requires all government agencies that are part of the executive branch to submit to oversight. Although it doesn’t specifically say so, Bush’s order was not meant to apply to the vice president’s office or the president’s office, a White House spokesman said.

The president, as the sole authority for issuing Executive Orders, has an absolute right to exempt whomever he wishes from the. Still, it’s a horrible idea to exempt the Executive Office of the President and Office of the Vice President from this scrutiny, since they represent the probably the greatest breach threat in the Executive branch: people who have not spent their whole careers dealing with Sensitive Compartmented Information who are presumably dealing with the mostly highly sensitive materials.

[Democratic Congressman Henry] Waxman and J. William Leonard, director of the Information Security Oversight Office, have argued that the order clearly applies to all executive branch agencies, including the offices of the vice president and the president.

The White House disagrees, [White House spokesman Tony] Fratto said. “We don’t dispute that the ISOO has a different opinion. But let’s be very clear: This executive order was issued by the president, and he knows what his intentions were,” Fratto said. “He is in compliance with his executive order.” Fratto conceded that the lengthy directive, technically an amendment to an existing executive order, did not specifically exempt the president’s or vice president’s offices. Instead, it refers to “agencies” as being subject to the requirements, which Fratto said did not include the two executive offices. “It does take a little bit of inference,” Fratto said.

Steven Aftergood, director of the Federation of American Scientists’ government secrecy project, disputed the White House explanation of the executive order. He noted that the order defines “agency” as any executive agency, military department and “any other entity within the executive branch that comes into the possession of classified information” — which, he said, includes Bush’s and Cheney’s offices.

Aftergood’s interpretation of the language of the Order is reasonable enough. Still, if the president decides that the orders he issues don’t apply to himself, his staff, or Bob in Accounting, that’s his call. It’s a bad call, in my judgment, but one that’s his to make.

Yesterday afternoon, Justin Rood broke the strange story of Dick Cheney’s claim of Vice Presidential immunity from executive orders.

Vice President Dick Cheney has asserted his office is not a part of the executive branch of the U.S. government, and therefore not bound by a presidential order governing the protection of classified information by government agencies, according to a new letter from Rep. Henry Waxman, D-Calif., to Cheney.

Bill Leonard, head of the government’s Information Security Oversight Office (ISOO), told Waxman’s staff that Cheney’s office has refused to provide his staff with details regarding classified documents or submit to a routine inspection as required by presidential order, according to Waxman.

This morning, WaPo’s Peter Baker looked into this in a page 1 piece.

Since becoming vice president, he has fought attempts to peer into the inner workings of his office, shielding an array of information such as the names of industry executives who advised his energy task force, costs and other details about his travel, and Secret Service logs showing who visits his office or official residence.

The aggressive efforts to protect the operations of his staff have usually pitted Cheney against lawmakers, interest groups or media organizations, sometimes going all the way to the Supreme Court. But the fight about classified information regulation indicates that the vice president has resisted oversight even by other parts of the Bush administration. Cheney’s office argued that it is exempt from the rules in this case because it is not strictly an executive branch agency.

LAT’s Josh Meyer observes,

Some legal scholars and government secrecy experts noted the irony in Cheney’s stance that his office is not fully part of the executive branch, given his claims of executive privilege when refusing to provide information requested by Congress.

Indeed.

Now, I’ve recently defended Cheney’s claim that the OVP is not a purely Executive agency given his Constitutional role as president of the Senate, so I’ll take some small exception to Steven Taylor’s statement that “the assertion that the veep’s office is not part of the executive branch is perhaps the most absurd thing that I have heard in some time.”

The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The Vice Presidency performs functions in both the legislative branch (see article I, section 3 of the Constitution) and in the executive branch (see article II, and amendments XII and XXV, of the Constitution, and section 106 of title 3 of the United States Code).

It’s an interesting claim that has merit from an intellectual, analytic perspective.

John Aravosis is right, though:

What Cheney is doing isn’t some esoteric battle over protocol. He’s refusing to let the national security watchdogs make sure that his staff isn’t being sloppy with classified information. He is quite literally risking our national secrets during a time of war. These rules exist for a reason, the oversight exists for a reason. People are sloppy, and sometimes they’re even evil. When you’re dealing with classified information, information that can quite literally get someone killed, you need several layers of protection to ensure that the information doesn’t slip out, by intent or neglect. That’s why we have inspections of offices and individuals who receive and retain classified information, to make sure that their sloppiness (or worse, duplicity) isn’t putting our nation, and our troops, at risk.

Now, because of separation of powers, the president could not enforce an Executive Order requiring Members of Congress or the Supreme Court to submit to these protocols. That could be accomplished only by passage of a law or by the agreement of those branches. But Cheney, despite being the head of a legislative house, is not a Senator. So, of course, he has to comply with Executive Orders, unless the president specifically exempts him.

Initially brought to my attention by Cernig, who has much more.

UPDATE: Some good discussion below, including some worthwhile contributions from OTB co-authors Chris Lawrence and Dave Schuler. The latter asks, “what’s the theory on which the Vice President is any more subordinate to the President than the members of the Congress or Supreme Court are based on?” He gives some good reasons to think there is no such basis.

And that’s why it’s an interesting debate, even though I ultimately think Cheney’s claims don’t bear scrutiny in these circumstances.

We’ve always thought of the VP as a member of the president’s team and, increasingly, he’s been used that way. He has numerous statutory duties in the Executive Branch, including a seat on the National Security Council. But, theoretically at least, he’s a Constitutional official elected independently of the President and removable only by impeachment. And his main duties, aside from being a “spare tire,” are in the legislative branch.

Conversely, his legislative duties have evaporated. The designation of the VP as President of the Senate was always, I think, a matter of giving him something to do rather than a major power. Indeed, the rationale, as I understand it, was that serving as the Master of Ceremonies was beneath a Senator and would distract him from serving his constituents.

Few of the Constitutional arrangements, though, reflect the way the VP has been used over the last half century and, especially, since 1977. Jimmy Carter and all subsequent presidents have given their VPs substantial day-to-day duties. And those are, by their nature, Executive duties.

UPDATE: The Decider Guy has Cheney’s back: White House Says Classification Order Doesn’t Apply to Bush or Cheney

Day three of testimony began with the resumption of cross-examination of Craig Schmall, the CIA manager who briefed Scooter Libby and Dick Cheney during the period in question.

Live blogging below the fold with any breaking news also in separate posts.

Court began precisely at 9:30, as scheduled. Judge Walton is amazingly prompt, having begun all sessions my four days here exactly on time.

Reiteration that Schmall had “no independent memory” of the events in question, having only some very rough notes and the table of contents to jog his memory. Nor are there any emails or a briefing report, as would have been customary for something he considered particularly important.

Schmall reiterates that at the time he briefed Libby and Cheney about Mrs. Wilson, he had no information about her status as a covert agent.

Even after he had given sworn statements to the FBI and testified before the grand jury, he only vaguely remembers events that he has been involved in vis-a-vis this matter. Again, he’s been busy with his day job.

Cross-x ends at 9:40.

Redirect begins immediately.

During the first FBI interview, did you tell them about any conversations about the Kristoff and Pincus articles? “I didn’t have any independent memory of that.”

Concludes 9:43

Questions from the jury?

After a ridiculously long (over 30 minutes) pause, the judge finally called a recess at 10:15.

At return at 10:26, Judge Walton is denying a request from the jury to enter Schmall’s annotated table of contents into evidence, as it is not relevant to either side’s case. A modified version of the document, stripped of classified information, has already been admitted.

This is resulting in a lengthy back-and-forth with the defense insisting that it should be entered into evidence because it goes directly to Schmall’s credibility. The government contends that it is merely a back door way of getting in to the “memory defense,” which they are not legally permitted to do unless Libby testifies. It strikes me as obvious that the reason the defense wants to emphasize the document is, in fact, to point out how people’s memories of important things diminishes over time.

At 11:17, the judge instructed the jury that the questions about the content of the memo by Mr. Klein during cross-x are not evidence, only the responses by Mr. Schmall.

Walton also asked a question from a juror: “What do you mean when you say ‘independent recollection.’” “Yes sir. That’s recollection without reference to notes I have written.”

Another question from a juror: “Who wrote the notes on the documents.” “That was my handwriting, sir.”

Another question about what the “T” annotation meant. It referred to a tasker. The “T” visible on the memo in question was in reference to a redacted item, not the Wilson matter. “There are a lot of questions that I’m asked that I don’t put into a formal tasker.”

Witness dismissed at 11:21

“My name is Ted Wells and I speak for Scooter Libby.” He is “totally innocent.” “He is an innocent man and he has been wrongly and unjustly and unfairly accused.”

No witness, no document, no scientific evidence will be produced saying that Scooter Libby lied, told them he was about to lie, or that he had lied. “It’s a weak, circumstantial evidence case about ‘He said, She said.’”

“People do not lie for the heck of it. When people tell an intentional lie it’s because they had done something wrong.” Scooter Libby had “no reason to lie.”

“Scooter Libby was not out pushing any reporters to write any stories about Valerie Wilson.”

“Scooter Libby did not have ANY KNOWLEDGE that Wilson’s job was covert” before Bob Novak’s column came out.

Scooter Libby was not concerned about any punishment but about “being a scapegoat” and “being set up” by “people in the White House” trying to “protect Karl Rove.”

Cheney note: “Not going to protect one staffer + sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others.” Wells asserts that Karl Rove was the “staffer” in question.

Libby’s job normally didn’t involve dealing with reporters. He was consumed with “the most important national security issues of this country” every single day. He “got thrown into the meatgrinder” of dealing with this “16 word controversy” but “al Qaeda didn’t go away.”

Wilson’s identify only became a big deal once the criminal investigation kicked in. “In real time–in June and July–in terms of Scooter Libby, Ms. Wilson, where she worked, was no big deal to him.”

Libby forced to talk to FBI without being able to talk to his staff to refresh his memory, under specific instructions to that effect from the FBI, on October 14–months later. “He did his best” to tell the truth and recall as best he could “three telephone calls” that took place in June “with specificity and with details” some “snippets” that might have been “20 seconds.”

Neither Russert nor Cooper have any notes about the conversations and Miller admits her memory is fuzzy and her notes are minimal, maybe “two words.” And the dispute is over varying recollections of a few words.

Confirmation is very important to reporters. The fact that Cooper and Russert didn’t write anything down is proof that “He did not confirm ANYTHING.”

This man has “always been ‘Scooter’” because “he’s always on the move.”

Scooter Libby had TWO JOBS – chief of staff and national security advisor for the VP. He had an incredible amount on his plate. To even go in to the details of what he did could “hurt the country,” so we won’t do that. But just remember, “he had a day job” in addition to “going into the meatgrinder.”

Libby did not leak to Robert Novak. “That is the article that said to the world ‘Ambassador Wilson’s wife works for the CIA and put it in the public domain.” There is “no dispute” on the fact that “Richard Armitage, who worked at the State Department” was Novak’s source. “It was Libby’s understanding that the investigation was about WHO LEAKED TO ROBERT NOVAK.” “He did not get that understanding from a dream” but rather from the Justice Department memo outlining the investigation.

“Was Cheney mad? You doggone betcha.” Because he was being accused on something he didn’t do. “Vice president Cheney is 100% correct” when he says he didn’t know anything about the Wilson Niger trip before Nick Kristoff referred to it obliquely in May 6, 2003.

Wilson “outs” himself in the July 6 NYT op-ed. No longer “unnamed ambassador.” Wilson claimed to have been sent my Cheney–which may have been his legitimate understanding–but it was not in fact the case. Cheney had no idea he had gone, let alone gotten a report. Wilson’s MTP appearance that morning went much further.

This is “how it has come that Mr. Libby is talking to various reporters” — he was on orders from the VP to rebut the idea that Cheney was hiding information from the Wilson-Niger report.

The Novak article comes out on July 14, revealing that Wilson’s wife worked at CIA. Much later learned that Powell deputy Richard Armitage was his source.

Novak had actually completed the article on July 11th and sent out to his syndicator so that it could be published. “Sent to over 85 newspapers.” “So this so-called secret…is in approximately 85 newsrooms.”

All the conversations under dispute here started on or after July 12th.

Break for lunch until 1340.

Court resumed precisely at 1340 with the prosecution taking issue with two things from the opening arguments made so far by the defense: the statement that “I can’t say what her status is” and a statement to the effect that there were things about which the government has said that the defense can’t bring out because of the classified nature of the information.

The judge ruled that the first issue is no big deal but that he was slightly concerned about the second. Wells said he would “fix it” in the remainder of his opening statement and the judge has reserved the right to make an additional statement if he still thinks there’s an issue.

Wells resumed his statement at 1:48 by returning to the Timeline of Events, which was accompanied by a graphic. The emphasis, with big red arrows and bright yellow font, is that the FBI testimony was 3 months and the grand jury testimony was 9 months after the phone calls in question.

This is not a case of, as the prosecutor put it, “learning something on Tuesday and forgetting on Thursday.”

In the first 15-20 minutes of Libby’s discussion with the FBI, he stated categorically on October 14 that he has learned it from the vice president and had a note to that effect.

Wells compares Libby’s recollection that Russert asked him on July 10 or 11 about Valerie Plame with Russert’s statement that he didn’t know until he read it in Novak’s column 3 days later. He points out that neither Libby nor Russert have any notes on the conversation and that their recollections were from three months after the fact. Given that other NBC reporters (David Gregory and Andrea Mitchell) already knew, it’s not at all unlikely that Russert would have heard something.

Gregory learned from Ari Fleischer on July 11. Mitchell stated on October 3 “it was widely known among the reporters who covered the intelligence community that Amb Wilson’s wife worked for the CIA” well before the Novak column.

“It makes no sense” to “cook up a story” involving “one of the most respected newsmen in America.”

There was no “protected conversation” with Russert because he wasn’t calling as a source but rather to make the equivalent of a “customer complaint” to Russert in his capacity as head of NBC News’ political bureau.

Further, there is a “Maybe Russert is Right and Libby is Wrong” [slide title] scenario that are still is not a lie: He confused Russert with another reporter with whom he had similar conversations that week, Robert Novak and Matthew Cooper.

The consensus in the media room is that the chain of people involved here is so confusing that there’s no way the jury is following it. As one reporter observed, “If Fitzgerald doesn’t keep it simple, he’s f****d.”

The phone call between Libby and Cooper took place while Libby was trying to board Air Force 2 on a Saturday when Libby is taking his family to see the commissioning of the USS Ronald Reagan. It’s his son’s 10th birthday. “A day off.” He’s not focused too much on talking to Cooper, just doing it because Cooper had been bugging the press secretary.

Cooper took notes but there’s “not a word about the wife — not a word.” “The notes don’t support Mr. Cooper’s recollection.” Further, Cooper didn’t mention Plame in an email report about the conversation to his editors. Conversely, Cooper’s notes about his conversation with Karl Rove extensively talk about “the wife.”

Judith Miller “testified repeatedly that her memory was bad.” “I’m just speculating.” “My memory is fuzzy.” “I might have been confused.” Further, Miller admits she might have brought up “Victoria Wilson” to trick Libby into confirming information.

“The Evidence Will Show The Russert Story Was Unnecessary” [slide title] Not only “illogical but intellectually flawed.” On the same day he talked with Russert, he had been told by Karl Rove that Novak has already written the story. So, he could have said “I heard it from reporters” by using Novak rather than making up a “false, phony story” about Russert. Prosecution’s theory “is just stupid.”

“There is a difference between Wilson’s charges and Wilson’s wife.”

Libby was known around the office as having a bad memory–smart as hell but a lousy memory. “He lived by his notes” which were copious. “In hundreds of pages of Libby’s notes, there is one line about Wilson’s wife.”

Several slides were introduced and then read verbatim about the Government’s stipulations as to the complexity and importance of issues Libby worked on as part of his duties as Cheney’s natsec advisor. This was stipulated to avoid having to introduce classified information. Buzzwords included AQ Khan, nuclear weapons, terrorism, al Qaeda, anthrax, Turkey, Iraq, and others. This is the crux of the defense’s case that Libby was so busy with incredibly important affairs of state that it’s easy to see how he could have forgotten some details about “the wife.”

During the week in which the phone conversations in question took place, Libby was distracted with worries about nuclear attacks, al Qaeda attacks, assassination attempts on the president and his staff, etc.

Summation: Libby didn’t lie and had no reason to lie. All the evidence is circumstantial.

The opening statement is concluded. The court is taking a ten minute recess. It’s not clear whether testimony will commence or court will adjourn after the return.

Following return from recess, the prosecution objected to the defense’s repeated reference to the fact that he was under restrictions pertaining to classified information as if the government was not. Judge Walter notes that the executive branch can rule on what is permissible to declassify or not, so are not hampered in a similar way. He does, however, think it “unfair” to suggest his “hands are tied” based on his own interpretation of the law.

The government is also concerned about Wells’ closing statement that “The only way you convict my client is if you violate your oath” went too far. The judge will instruct the jury that counsel’s personal views on what the evidence means is not relevant, only the jury’s conclusions.

Judge Walton got things going at precisely 9:30.

I’ll live blog the morning’s voir dire below, posting anything particularly newsworthy separately.

The first candidate is a young white guy who admits to having worked against Bush (letter writing campaigns for MoveOn.org) but says he can be fair. His impressions based on the news accounts he read was that he was “surprised that’s all [Fitzgerald] found after all that time.” That got a chuckle from some in the media room, as did his admission that he was once tried for underage drinking. He grew up with a parent in the Foreign Service but has never been to Niger. He thinks Bush and company were honest but misguided in their public statements leading up to the war.

For a guy who claims to have very limited impressions about the case, he seems to have a very detailed knowledge. He knows that Bob Novak and Judith Miller are major components of the case and that Richard Armitage was the first leaker. It may just be a DC thing; that’s more than the man on the street knows. Then again, his answers seem rather lawyerly in that he’s definitely trying to not get thrown off the jury.

It apparently worked: He didn’t get thrown off for cause and they’re moving on to the next potential juror.

The second guy is a fairly young man who works in some capacity for some intelligence agenc(y/ies) as a contractor for a software company. He grew up in DC and has a masters in telecom from a prestigious local university. He seems, oddly enough, to have virtually no clue about the facts of this case, though. He pretty much just reads the business section of the paper.

They’re now at sidebar so that he can divulge which intelligence agencies he’s done work for. They’re broadcasting loud static for dramatic effect. After several minutes of this, he retook the stand and it turns out that the CIA is not among the agencies for which he worked. He says his experience with the intel community would not influence his view of the credibility of IC witnesses. He asserts that the fact he has a security clearance will not make him bring his own personal experiences into judging how classified material should be handled.

He also made it past the first round.

The third candidate is a young white woman with little interest in the news or knowledge of this case. She works at the World Bank as a project manager. She canceled her subscription to WaPo after having a baby and deciding she didn’t have time to read a newspaper.

Judge Walton asked her whether she has any relationship with World Bank President Paul Wolfowitz, since he might be tangentially related to the trial as a former DoD official. She does not and that, frankly, she doesn’t follow politics at all. Someone in the media room said, “Welcome to the Libby jury.” I suspect they’re right.

The prosecutor asked her, as he did the previous candidate, how they would go about distinguishing a lie from an honest difference in recollection. She says “I don’t consider anyone a liar. That’s a pretty strong word.” She likes to see both sides.

She made it.

The fourth candidate was a middle aged black woman who grew up in DC. She thinks there’s “some possibility” Cheney and others lied about the war. She made it past the first round.

The fifth candidate is a 30-something black woman who works at a law firm. She has previously worked in the probation office in this courthouse. She tends to think disagreements over factual recollection are “honest disagreements” or “bad memory” vice dishonesty. “I don’t judge people.” She made it past the first round, too.

Candidate six is a young white guy who thinks there’s been “a lot of dishonesty” from the Bush administration and who admits that he could not give them a fair trial. He was dismissed by the judge before attorney questioning.

Candidate seven was a black woman in late middle age who was also quickly dismissed for the same reason.

Candidate eight is a 40ish white guy with partial hearing loss corrected by a hearing aid. He has many friends in the legal and intelligence community and has had access to classified information at various times in his career as a government economist (PhD, MIT).

He reads the papers regularly but mostly business and technology news. He “skimmed the headlines” about this case but has no strong impressions.

He was added, meaning we have reached the magic number of 36.

Candidate nine is a youngish black woman. The audio was briefly lost, so I don’t know what her background is. She thinks most disagreements over fact are liars. People who “played a bad part in the situation” are especially likely to lie. She was, oddly enough, not struck.

That concludes this portion. Because things went much quicker than anticipated, the judge had told the rest of the pool not to come back until 3.

We now have a 10 minute recess. It’s not clear whether the peremptories will start right away.

I’m live in the media room at the Prettyman Federal Courthouse awaiting the resumption of voir dire in the Scooter Libby trial.

AP’s Michael Sniffen reports that the jury selection should end today, although the problems that have plagued it remain.

Libby’s lawyers, Theodore Wells and William Jeffress, have labored to keep opponents of the Iraq war and the administration off the jury. Libby, a former aide to President Bush and Vice President Dick Cheney’s former chief of staff, is the highest-ranking member of the current Republican administration to face criminal charges. The potential jurors are drawn from a city where registered Democrats outnumber Republicans by more than 9-to-1.

Defense lawyers asked every juror whether the administration lied about intelligence to push the nation into war in Iraq and whether administration officials are believable, particularly Cheney. He is to be a defense witness. Special Prosecutor Patrick Fitzgerald objected repeatedly during the first three days that Wells and Jeffress were portraying this as a trial about politics and the war. Fitzgerald argued that “the jury will not be asked to render a verdict on the war or what they think of the war.” Defense questions were so political that one juror even volunteered that she had voted for Bush, Fitzgerald complained to the judge.

Unfortunately, this trial is inextricably linked to the most controversial political issues of our time. Libby’s attorneys are rightly concerned about that, given the political tenor of the town. Fitzgerald, too, has an interest in ensuring the jury isn’t packed with rabid Bush supporters. Given the pool, though, Wells and Jeffress have the odds stacked against them.

Neil Lewis of the NYT says the relationship between the press and its sources is at stake, too.

[A] handful of reporters for major news organizations will testify for the prosecution. They will be asked to recount conversations they had in 2003 with Mr. Libby, then Vice President Dick Cheney’s chief of staff, that were undertaken with some understanding that they were confidential.

The highly unusual spectacle of journalists giving testimony at a criminal trial about their reporting is a result of the intense investigation into the disclosure of the identity of a Central Intelligence Agency operative. Previous leak investigations typically ended in failure as reporters were able to fend off prosecutors’ efforts to delve into what they learned from government sources. But in trying to determine how Valerie Wilson, who was known by her maiden name, Valerie Plame, came to be identified as a C.I.A. operative in a newspaper column in July 2003, the prosecutor, Patrick J. Fitzgerald, successfully pressed reporters to testify before a grand jury, threatening jail if they refused. In the case of one, Judith Miller, formerly of The New York Times, Mr. Fitzgerald, with the backing of the courts, succeeded in having her jailed for 85 days until she relented.

Rodney A. Smolla, the dean of the University of Richmond Law School and an authority on the First Amendment, said the Libby investigation had made clear that any promise of confidentiality from a reporter now comes with an asterisk. “This has undercut the assumptions that existed for several decades that a reporter’s promise of confidentiality is not only sacrosanct as a matter of journalistic ethics but relatively secure as a matter of law,” Dr. Smolla said. “Now it’s clear that the legal system will try to break that promise, and the sources and reporter appear much more vulnerable, at least in the federal system, than was thought to be just a short time ago.”

Prosecutors and the courts should certainly make every reasonable effort to avoid compromising reporter-source confidentiality. In cases where the issue is illegal leaks of classified information to the press, however, the press is obviously going to have to testify. Reporters have an important role in our society and should be protected; they are, however, members of society first.

The CIA Publications Review Board is denying Valerie Plame permission to write about her work for the Agency, or even mention that she did so, Michael Isikoff reports in the latest Newsweek.

The panel refused Plame permission to even mention that she worked for the CIA because she served as a “nonofficial cover” officer (or NOC) posing as a private businesswoman, according to an adviser to Plame, who asked not to be identified discussing a sensitive issue. “She believes this will effectively gut the book,” said the adviser. Larry Johnson, a former colleague, said the agency’s action seems punitive, given that other ex-CIA undercover officers have published books. But even Plame’s friends acknowledge that few NOCs have done so. CIA spokesman Mark Mansfield said the panel was still having “ongoing” talks with Plame to resolve the dispute. “The sole yardstick,” he said, is that books “contain no classified information.” A spokesman for Simon & Schuster, Plame’s publisher, declined to comment.

While there is a certain delicious irony in this, as Plame and her husband, Joe Wilson, have waged a public battle for years protesting that her cover was blown. Still, the decision seems rather silly if she is not revealing sources and methods. That she was a CIA NOC is, after all, hardly a state secret these days.

My guess is that this is more of a classic Catch-22 bureaucratic decision than punitive action. After all, the CIA itself initiated the procedures that shined public light on an otherwise innocuous aside in a column by Robert Novak. They can hardly be angry at Plame for getting outed.