In his interview with Brit Hume on Fox News
yesterday, Vice President Dick Cheney not only admitted to drinking before before shooting Whittington, but also - and more pertinently - claimed that, in relation to leaking classified information in relation to Valerie Plame, he had the executive authority to do so:
HUME: On another subject, court filings have indicated that Scooter Libby has suggested that his superiors — unidentified — authorized the release of some classified information. What do you know about that?
CHENEY: There's nothing I can talk about, Brit... I may well be called as a witness at some point in the case and it is therefore inappropriate for me to comment on any facet of the case.
HUME: Let me ask you another question. Is it your view that a vice president has the authority to declassify information?
CHENEY: There is an executive order to that effect.
HUME: There is.
Cheney was apparently referring to Executive Order 13292
, issued by President Bush on March 25, 2003. More on that in a moment...
HUME: Have you done it?
CHENEY: Well, I have certainly advocated declassification. I have participated in declassification decisions.
HUME: Have you —
CHENEY: I don't want to get into that.
In fact, having just watched a rebroadcast of the interview, there was
no crosstalk. Hume cut in on the Vice President with a very clear question.
The question that the Fox News
transcript omits is, fortunately, correctly transcribed at the Chicago Sun-Times
, as follows:
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.
So Vice President Cheney claims that he has the authority to declassify information - any
information - that there is an executive order granting him that authority, and that he has advocated declassification and participated in such decisions. But, when it comes to whether or not he's acted unilaterally in declassifying any information, he dodges the question and reiterates that the vice president is included in an executive order addressing classification authority.
Having read the Executive Order, he is correct on that last point - the Vice President has
been "included" in the order: "the authority to classify information originally
may be exercised only by the President and, in the performance of executive duties
, the Vice President" as well as agency heads and other designated officials. [emphasis mine]
Some (such as Byron York at the National Review
are reacting as though this "little-known" order designates an "enormously consequential expansion of vice-presidential power". But does it?
As far as I know, the only "executive duties" that the Constitution affords the VP are "when the President is unable to discharge the powers and duties of his office" and the Vice President becomes Acting President. The VP's only other constitutional responsibility, the Presidency of the Senate, is a "legislative duty".
Further, Executive Order 13292 specifies that declassification
is effected by "the original classification authority"
. It would follow that only the National Intelligence Board or the Director of National Intelligence, as "the original classification authority", could declassify a National Inteligence Estimate. In other words, by my reading, if the Vice President ("in the performance of his executive duties") didn't classify
the information, he can't declassify
And even if he could, classified information can only
be declassified when the conditions set at the time of the classification are met - usually "a specific date or event for declassification based upon the duration of the national security sensitivity of the information". As the default date for the duration of classified status is "10 years from the date of the original decision" (and up to 25 years depending on "the sensitivity of the information"), I'm uncertain as to what "event" may have warranted and enabled declassification of information about the National Intelligence Estimate by the Vice President for members of the press.
But perhaps I'm misreading the Order.Does Executive Order 13292 authorize the Vice President to unilaterally declassify and disseminate confidential, secret, and/or top secret information at will?