Can Cheney be His Own Declassification Machine?


In my view, the law says “No”. . .but I have little doubt Alberto Gonzales and his minions will construct a rationale that says otherwise.
But I have run across some interesting information — and have some questions that we should all pose to those at the helm in the White House.
Executive Order 12958 on “Classified National Security Information” was promulgated by President Clinton on April 17, 1995.
This Executive Order “prescribes a uniform system for classifying, safeguarding, and declassifying national security information.”
In this 1995 Executive Order, the VICE PRESIDENT is mentioned only one time — and only in such a way that the automatic, 25-year declassification of historically important documents can be preempted if declassification would “impair the ability of responsible United States Government officials to protect the President, the Vice President, and other individuals.”
Now, let’s move to the March 25, 2003 Executive Order by President Bush, No. 13292, that amends President Clinton’s Executive Order on National Security Information.
The Vice President’s “presence” in the Executive Order increased by 1000%. Instead of just one mention in the Executive Order, Cheney’s office is referred to eleven times.
This hyping of Cheney’s and his staff’s role in the management of secrets is a further testament to the historically unique power that Cheney’s vice-presidency amassed in the period after 9/11/2001.
Briefly, in the amended Executive Order, Dick Cheney and presumably future VPs are affected by this National Security Information presidential order in the following ways:

1. The Vice President, in the context of his duties, has the authority to “classify” information;
2. The Vice President, in the context of his duties, can give a “top secret” classification to information;
3. The Vice President can give a “secret” or “confidential” classification to information;
4. Like in the previous 1995 Executive Order, the automatic, 25-year declassification of national security information can be preempted if it would impair the ability to “protect” the Vice President from physical harm;
5. Mandatory declassification review (by a designated process) is required of information originating from the Vice President;
6. Mandatory declassification review is required from the Vice President’s staff;
7. Access to certain national security information can be provided to individuals who occupied policy-making positions appointed by the Vice President (or President of course)
8. Rules barring access to certain classified national security information will be waived for the Vice President;
9. Waivers to rules of access to classified national security information will only apply to Vice Presidential appointees in areas of their policy work while working as an Executive Branch appointee;
10. This mention of the VP only relates to the above line saying that access to classified national security information will only be provided to Presdidential and Vice Presidential appointees in the area of his or her policy work that was done during the tenure of that respective President or Vice President;
11. “‘Original classification authority’ means an individual authorized in writing, either by the President, the Vice President in the performance of executive duties. . .” This is a definitional item in the Executive Order.

There is NOTHING HERE that indicates that the Vice President has any embedded authority to be a declassification machine unto himself.
This matter is important because Vice Presdident Cheney slipped into his interview with Brit Hume yesterday his belief that he has the ability to declassify national security information — and implying that there is an Executive Order that allows him to do it.
Here is the exchange:

Q Let me ask you another question. Is it your view that a Vice President has the authority to declassify information?
THE VICE PRESIDENT: There is an executive order to that effect.
Q There is.
Q Have you done it?
THE VICE PRESIDENT: Well, I’ve certainly advocated declassification and participated in declassification decisions. The executive order —
Q You ever done it unilaterally?
THE VICE PRESIDENT: I don’t want to get into that. There is an executive order that specifies who has classification authority, and obviously focuses first and foremost on the President, but also includes the Vice President.

Vice President Cheney is right that he has the ability to classify materials; that is clear from the Executive Order.
It is also clear, however, that the rules and processes for CLASSIFYING national security information are completely different than DECLASSIFYING information. That is evident from reading the structure of the Executive Order itself.
So, Cheney is engaged in Executive Branch over-reach again, implying he has a power that is not designated.
This is the issue that the nation should be focused on — and in TWN‘s view, it is far more important than Cheney’s hunting accident and even his obsession with making the White House opaque to this country’s citizens.
If Cheney authorized Scooter Libby to leak classified national security secrets, then Cheney broke the law and should be investigated. GOP presidential hopeful George Allen agrees.
One lucid observer shared with me the thought this morning that there may, in fact, be “classified” aspects to the March 2003 Executive Order that we mere members of the public are not privy too.
But let’s warn the White House now: Secret Orders that give the President or Vice President secret new powers are not consistent in any way with democracy and this nation’s heritage.
TWN doubts that the authority to classify or declassify information would have been issued in a secret way — as it is clear that one of the purposes of the 2003 Executive Order amendment was to give Vice President Cheney and his office much more presence in the management of secrets — and the White House wanted to make VP Cheney’s role overt, not hidden.
— Steve Clemons
(Ed. note: Many thanks to GP for sending the EO links.)
Update: Here is an excellent link to thoughtful commentary whether the VP has declassification authority to out covert agents or to release classified sections of the national intelligence estimate.
Here are two links — link one & link two — that add a bit more information about the empowerment of the Vice President’s role in the executive orders on national security information.
One other factoid is that President Clinton did amend his Executive Order to give the Vice President “original classification authority,” but this is still not relevant to “declassification authority.” Just want to have all the correct information out there.
More later.
— Steve Clemons