Can Presidents Leak Classified Information?

With yesterday’s revelations that President Bush and/or Vice President Cheney authorized Lewis “Scooter” Libby to release certain classified information to the New York Times to help buttress their case for the Iraq War, critics are coming out of the woodwork claiming that President Bush is breaking the law or, at very least, being incredibly hypocritical. While Media Matters and some of the hard core lefty blogs are at taking it to the extreme, even reasonable sources are on that tangent.

For example, Slate‘s John Dickerson has a piece cleverly headlined, “We’ve Found the Leaker in the White House! It’s the president.”

President Bush has always made his view of leakers perfectly clear. Before, during, and after the Valerie Plame and NSA wiretapping leaks that have bedeviled his presidency, Bush has insisted that leakers thwart the proper functioning of government. In certain cases, they commit “treason.” He has described leakers as low-level, frustrated bureaucrats who feed their own egos by passing along juicy tidbits to mangy reporters. […] Now we learn that the president himself is a leaker. We’ve always known that the commander-in-chief’s distaste for leaking didn’t stop it from happening (as it has in every administration), but this is the first time we appear to have direct evidence that Bush had his hand on the siphon.

Later in the piece, though, Dickerson admits,

The press corps—and bloggers—will likely compile a yards-long list of occasions when the president has denounced leaking, but it’s worth asking the philosophical question: Can the president even be a leaker? For a leak to be real, it has to be unsanctioned. Once a piece of secret information gets unwrapped (by the president no less), it’s not a leak, it’s part of a communications strategy. It’s national policy. So, maybe he’s not a leaker.

He quickly follows this with,

But he is certainly a hypocrite. It’s one thing to declassify information; it’s another thing to present information to a reporter as though it were classified to preserve the shadow authenticity that comes with a leak. Bush wanted to have the information out there but not have to account for it or explain it.

All presidents engage in this hypocrisy, but Bush has made it Texas-sized by putting on such a show about leaks during his time in office.

Kevin Drum agrees and adds,

Cheney and Bush and Addington all supposedly believed they could declassify the NIE on Bush’s say-so, but for some reason they continued with the normal declassification process anyway. In fact, “Defendant testified in the grand jury that he understood that even in the days following his conversation with Ms. Miller, other key officials — including Cabinet level officials — were not made aware of the earlier declassification even as those officials were pressed to carry out a declassification of the NIE.” It was just a private little declassification between the three of them that even Karl Rove didn’t know about.

Needless to say, this doesn’t make sense. Documents are either declassified or they’re not, and the president can either declassify them with a mere verbal flick of his wrist or he can’t. Which is it?

Yet, as Michael Fletcher explains in today’s WaPo,

Legal experts say that President Bush had the unquestionable authority to approve the disclosure of secret CIA information to reporters, but they add that the leak was highly unusual and amounted to using sensitive intelligence data for political gain. “It is a question of whether the classified National Intelligence Estimate was used for domestic political purposes,” said Jeffrey H. Smith, a Washington lawyer who formerly served as general counsel for the CIA.

That’s the right formulation, I think. Still–aside from the Plame matter which, so far at least, appears not to have been done at the behest of the president–releasing information buttressing the already public case that Iraq had WMD is hardly “domestic political gain” in the usual sense. That’s far different from, say, using the FBI or CIA to get dirt on one’s enemies.

Byron York puts it in the proper context:

Also, it’s useful to remember what was happening at the time of the so-called leak. There was an enormous clamor over the “16 words” in the State of the Union address, and about pre-war intelligence in general. The administration was in the process of declassifying various pre-war intelligence matters. In the midst of that came the specific accusations of Joseph Wilson in the pages of the July 6, 2003 New York Times. How was the White House to answer them? On pages 23 and 24 of the motion, Fitzgerald describes what Libby was authorized to tell reporter Judith Miller during their July 8, 2003 meeting, two days after Wilson’s op-ed was published:

    Defendant testified that he thought he brought a brief abstract of the NIE’s key judgments to the meeting with Miller on July 8. Defendant understood that he was to tell Miller, among other things, that a key judgment of the NIE held that Iraq was “vigorously trying to procure” uranium….Defendant advised Miller that Wilson had reported that he had learned that in 1999 an Iraqi delegation visited Niger and sought to expand commercial relations, which was understood to be a reference to a desire to obtain uranium. Later during the discussion about Wilson and the NIE, defendant advised Miller of his belief that Wilson’s wife worked at the CIA.

Now the fact that an envoy had been sent to Africa, that that envoy was Joseph Wilson, that he had been exploring possible Iraqi overtures to obtain uranium, and that he had reached some conclusions about the matter — all that was pretty much out of the bag by the time Libby met Miller on July 8, wasn’t it? And, by the way, who had let it out of the bag? That’s not to say that Joseph Wilson leaked classified information; he did not reveal, for example, all of his contacts during the trip, and apparently those remain classified. Of course, Libby didn’t leak that, either. In any event, the basic facts of the trip and Wilson’s conclusions — precisely the matters Libby wanted to discuss with Judith Miller — were quite public.

Quite so.

As to the “hypocrisy” angle, Austin Bay covers that pretty nicely:

CNN is exploring another angle: that the White House is “hypocritical” because it has come down hard on leaks. But a word is missing in this accusation: “unauthorized.” The White House has indeed come down hard on anyone leaking classified information. The White House has also been tough on executive branch employees who pass information via unauthorized leaks. The president wants to control the dissemination of information and has made that clear. The information released today said that what Libby leaked as declassified and authorized — but try getting that clear on atv squawk show where the game is gotcha. The hypocrisy allegation, unlike the criminal innuendo, is certainly within rational bounds.

Or, as I put it succinctly in discussion with readers yesterday, “If the president, the highest authority over such matters, orders the information’s release, it ain’t a leak.'”

Drum’s point that “Documents are either declassified or they’re not, and the president can either declassify them with a mere verbal flick of his wrist or he can’t,” is reasonable enough. With respect to the second part: He can. But it’s not so simple as “Documents are either declassified or they’re not.” The classification system is somewhat confusing.

A document or grouped collection of documents has the same classification level as the most sensitive bit of information contained in the document. Theoretically, one could have a thousand page document compiled entirely from open source (i.e., publically available, totally unclassified) information that either has one tiny bit of Top Secret information added in or–and this is a doozy–even without a single bit of classified information, that same document could be deemed “Secret,” “Top Secret,” or “Top Secret-(Codeword)” because, in the judgment of a competent authority, the information taken in its totality in an official document would give an adversary an unsafe amount of information. Either way, the whole document would have to be handled with procedures appropriate to information of the assigned classification level.

The classifiying authority could nonetheless authorize the release of numerous specific pieces or information–or some specified collection of information–from that document and still leave the document itself classified. That appears to be what happened in this case. One could not show a still-classified document to the New York Times without violating the law. But one could, with authorization from the classifiying authority (let alone the President) release of material deemed releasable.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. legion says:

    “Unauthorized”? That’s the defense?

    God, I dearly hope George Bush goes on national TV and spouts off about how it wasn’t really a leak because it was “authorized”. He’s gonna make Bill Clinton and his “definition of ‘is'” bullshit look like a paragon of virtue.

    And it still doesn’t address the fact the the NIE, by the gov’t’s own records, wasn’t actually declassified until a full 10 days _after_ Libby spun up Judy Miller. Even if Bush could declassify the info at whim, he can’t do so retroactively – there’s still plenty of felony counts (and hypocracy) in the mix here.

  2. Bithead says:

    Cliff May does a fair job of dispelling all of this:

    If the President of the United States doesn’t have the power to declassify information — who does? The Pope? The ACLU? The Daily Kos?

    As Andy has pointed out, there is nothing unusual about releasing the NIE — with some sections remaining classified to protect methods and sources. We have no reason to believe that anyone authorized Libby to leak any sections that would remain classified.

    It also is standard practice for every administration to leak to select reporters in advance information that later will be released to the press corps as a whole.

    Why? Because that ensures better coverage: When the New York Times gets it first and exclusively they are more likely to put it on the front page and run it big. And a second wave comes later because the other media have to play catch up.

    Every reporter in Washington knows this is how it works. If they donâ??t reflect that in their stories, they are feigning ignorance â?? either to make a better story or to stick it to Bush; or both.

    Likely, just sticking it to Bush.
    Again.

  3. MrGone says:

    More legal technicalities and apologies. Just like the NSA spying. Unfortunately for Bush, most people have a pretty good idea of what it means when the POTUS says he doesn’t know anything about this and then turns out to be the one who authorized it. “We the people” don’t care about technicalities. At this point it doesn’t matter whether it was legal or not, the verdict will be delivered in the next poll, that is if it’s possible for him to go any lower.

  4. Bithead says:

    Yeah, McGone… don’t go and let mere facts spoil your rantings.

    Sheesh.

  5. MrGone says:

    Bite me bithead! Why is it that you can’t address a statement? All I was pointing out is that the public sees through these legal maneuvers. You may agree or disagree, but I would hardly call my post “ranting.” So please, next time you respond to someone, have a POINT.

  6. Fersboo says:

    Why don’t you attempt to illustrate your point a little more clearly McGone? Maybe a few cites or a link or two. Otherwise everyone will think you’re just a ranting member of the public with BDS.

  7. tee bee says:

    While I don’t share the notion that there’s a corollary between NSA spying and this declassification, I think there were too many missteps. There never was a broad declassification, which weakens the select exposure case.

    But the extended investigation and subsequent indictment and fall of Scooter Libby are what make this hardest of all to justify, along with the probable track the Dems will drag this along toward possible impeachment.

  8. slickdpdx says:

    Hypothesis: A leak and a scoop are each more attractive to a reporter than a press release.

    You can still have a rational argument whether the Bush administration showed good judgment by blowing the cover (?) of one of its agents. (I take the pro-“leak” side. CIA plays with fire it gets burned by its boss.)

  9. Bithead says:

    SLick;
    Correct; that’s simply the way it’s done.
    Anyone who’s been on the other end of the mike for any amount of time knows this.

  10. Ben There says:

    Since legion is defending the indefensible, let us not forget the Clintoon hypocritical charging of various and sundry military and diplomatic folks with sex offences while Slick Willie was getting the spit shine. Then again, Democrats never do look any farther than their noses when it’s their nose.

  11. Roger says:

    MrGone has a good point. Well stated. Easy to understand. Who gives a crap about the legality argument? That Bush is scum is clear enough however you want to classify it.