Thursday, February 16, 2006

Executive Privileges 

Courtesy of Zemblan patriot K.Z.: You have undoubtedly read elsewhere the allegations by Patrick Fitzgerald, special prosecutor in the Plame case, that various potentially relevant e-mails from the offices of Messrs. Bush and Cheney had been deleted in violation of standard White House protocol. Jason Leopold of Truthout now claims that there is another group of administration e-mails Mr. Fitzgerald has been unable to review -- for the simple reason that Alberto Gonzales, the President's mouthpiece, refuses to turn them over:
Sources close to the investigation into the leak of covert CIA agent Valerie Plame Wilson have revealed this week that Attorney General Alberto Gonzales has not turned over emails to the special prosecutor's office that may incriminate Vice President Dick Cheney, his aides, and other White House officials who allegedly played an active role in unmasking Plame Wilson's identity to reporters.

Moreover, these sources said that, in early 2004, Cheney was interviewed by federal prosecutors investigating the Plame Wilson leak and testified that neither he nor any of his senior aides were involved in unmasking her undercover CIA status to reporters and that no one in the vice president's office had attempted to discredit her husband, a vocal critic of the administration's pre-war Iraq intelligence. Cheney did not testify under oath or under penalty of perjury when he was interviewed by federal prosecutors.

The emails Gonzales is said to be withholding contained references to Valerie Plame Wilson's identity and CIA status and developments related to the inability to find weapons of mass destruction in Iraq. Moreover, according to sources, the emails contained suggestions by the officials on how the White House should respond to what it believed were increasingly destructive comments Joseph Wilson had been making about the administration's pre-war Iraq intelligence.

Gonzales, who at the time of the leak was the White House counsel, spent two weeks with other White House attorneys screening emails turned over to his office by roughly 2,000 staffers following a deadline imposed by the White House in 2003. The sources said Gonzales told Fitzgerald more than a year ago that he did not intend to turn over the emails to his office, because they contained classified intelligence information about Iraq in addition to minor references to Plame Wilson, the sources said.

He is said to have cited "executive privilege" and "national security concerns" as the reason for not turning over some of the correspondence, which allegedly proves Cheney's office played an active role in leaking Plame Wilson's undercover CIA status to reporters, the attorneys said.
On a related note: many bloggers have written at length on Dick Cheney's startling assertion yesterday, to Brit Hume of Fox News, that the vice president is empowered to classify and declassify information at will. That authority, he claimed, derives from an executive order signed in 2003 by Mr. Cheney's sock puppet; an examination of the full text of Executive Order 13292 confirms that the power to classify is indeed, for the first time in the history of the republic, within the vice president's purview. However -- as our illustrious colleagues Josh Marshall and Jane Hamsher have pointed out -- when it comes to declassification, the document is rather more ambiguous. From Steven Aftergood of Secrecy News:
Declassification authority is defined in Section 6.1(l) of E.O. 13292. It is granted to: "(1) the official who authorized the original classification...; (2) the originator's current successor in function; (3) a supervisory official of either; or (4) officials delegated declassification authority in writing by the agency head or the senior agency official."

So the Vice President has authority to declassify anything that he himself classified. He also clearly has authority to declassify anything generated in the Office of the Vice President, which he supervises.

But is the Vice President, like the President, "a supervisory official" with respect to other executive branch agencies such as the CIA? Did the 2003 amendment to the executive order which elevated the Vice President's classification authority also grant him declassification authority comparable to the President's?

"The answer is not obvious," said one executive branch expert on classification policy.
Elsewhere, Daily Kos diarist Georgia10 looks at the date of the executive order -- March 25, 2003 -- and notes that the campaign to smear Valerie Plame's husband, former ambassador Joseph Wilson, originated that same month:
So the decision was made to smear the Wilson by leaking the information about his wife. Such a leak could not originate from the President's office--too dangerous, its members too high-profile, and we know that the dirty deeds have been orchestrated by the vice-president's office in the past. Did the President and the Vice-President conspire then to alter the exective order to give the Vice-President the authority to orchestrate the smear?

Perhaps that is why
Bush was able to say with such a straight face the following: "He added that he did not know of 'anybody in my administration who leaked classified information.'"
Do what thou wilt shall be the whole of the law . . . .

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