The biggest surprise from the shooting of Harry Worthington was Dick Cheney’s announcement that he is entitled to declassify national security secrets. Such declassifications raise the question of whether the president and vice president possess unlimited discretion to manipulate the information Americans receive. And if Cheney does not actually possess the new prerogative he claims, he could risk impeachment if he invokes this power as a shield in the trial of his former chief of staff.

Near the end of the softball interview on the Worthington shooting, Brit Hume asked Cheney: “Is it your view that a vice president has the authority to declassify information?”

      CHENEY: There is an executive order to that effect.

 

      Q: There is?

 

      CHENEY: Yes.

 

      Q: Have you done it?

 

      CHENEY: Well, I’ve certainly advocated declassification and participated in declassification decisions. The executive order—

 

      Q: You ever done it unilaterally?

 

    CHENEY: 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.

Hume had asked Cheney about the upcoming trial of Scooter Libby. Cheney replied, “It’s nothing I can talk about. … I may well be called as a witness at some point in the case. And it’s, therefore, inappropriate for me to comment …”

Cheney may have uncorked this surprise in response to the revelation in court papers the week before that Libby had “testified that he was authorized to disclose information about the NIE [National Intelligence Estimate on Iraq] to the press by his superiors.” This NIE contained the soul of the allegations about Iraqi WMD that the Bush team invoked to justify attacking Saddam. At the time Libby leaked the information to journalists, the report had not been declassified. There is no evidence that Libby was taking orders from the secretary of agriculture or even the postmaster general, so “superiors” means Dick Cheney. (Cheney has never been accused of a laissez-faire management style.)

Cheney claims he is authorized to disclose secrets because of Executive Order 13292, issued by Bush just after the invasion of Iraq. This order amends an executive order issued by President Clinton in 1995 governing national-security information. Bush’s executive order greatly increased the prerogative of the vice president to lock away information from public view. It was largely ignored at the time because most of the American media were embedded, at home and abroad, in the glorious race to Baghdad.
But, though Bush did greatly expand Cheney’s prerogative to classify information, there was nothing in the executive order that specified that the vice president can declassify secrets on his whim. As Steve Clemons of the New America Foundation observed, “the rules and processes for classifying national security information are completely different than declassifying information.” The agency that classifies information presumptively has jurisdiction over declassifications. Eugene Fidell, a Washington lawyer, told NPR, “You have to ask who the original classification authority is. And under the executive order that Mr. Bush issued, the declassification authority is either the official who originally classified or the successor in office of that official or a supervisory official of either one.”

Perhaps the vice president assumes that the power to classify automatically includes the power to declassify—the same way that the president’s right to start a war naturally includes the right to make peace. But this interpretation scorns established laws and procedures. Attorney Mark Levey observed, “Cheney would have first had to request that George Tenet authorize Agency declassification. There is no record that such permission was ever sought or obtained.” Levey concluded that Cheney violated the law by authorizing the disclosure of confidential information: “There is no murky presidential delegation of powers, as has been suggested by some, that might change that fact.”

Also, there is a specific federal law—enacted at the behest of George H.W. Bush—that makes it a crime to disclose the name of an undercover CIA agent. Because an executive order cannot overturn a law of the land, Order 13292 can provide no safe harbor for either Cheney or Libby.

The “my wish is the law’s command” attitude towards disclosure and secrecy has permeated the Bush administration. From shortly after 9/11, the Bush team sought to drop an Iron Curtain around the federal government. Attorney General John Ashcroft issued a ruling severely weakening the Freedom of Information Act in October 2001. The following month, Bush issued an executive order that makes it far more difficult for the public to gain access to presidential papers. The administration took an extreme position in the confidentiality of Cheney’s Energy Task Force, and the Supreme Court swallowed the argument. Jay Leno lampooned the Bush administration’s view of separation of powers: “That means that people who don’t have any power shouldn’t be allowed to find out what the people who do have power are doing.”

Yet when it serves Bush’s interests, information is speedily disclosed. While Bush battled for almost two years to prevent Congress or the 9/11 Commission from seeing the President’s Daily Brief from Aug. 6, 2001—warning that bin Laden was planning to attack the United States—hand-picked Bush biographer Bob Woodward was shown copies of other President’s Daily Briefs.

Bush administration disclosures of sensitive information are often handed on a silver platter to pliant journalists the same way that Cheney chose Fox News for his post-shooting interview. Newsweek’s Richard Wolffe explained the Bush White House modus operandi: “They declassify when they feel like it. I’ve been with senior administration officials who have just decided to declassify something in front of me because it’s bolstering their argument.” New York Times columnist Maureen Dowd, who labeled Cheney “the Great Declassifier,” noted, “the entire Iraq war was paved by its leaks. Cheney & Co. were so busy trying to prove a mushroom cloud was emanating from Saddam’s direction, they could not leak their cherry-picked stories fast enough.”

Bush administration officials sometimes deceive people when selectively disclosing information. Judith Miller agreed to portray Scooter Libby as a “former congressional staffer” instead of saying that he was in the White House or working for the Bush administration. As the Boston Globe noted, “Declassifying information for the purpose of sharing it with trusted journalists who then attribute it to anonymous sources taints the process and provides yet more proof that the disclosure was politically motivated.”

From his endless false claims about a meeting in Prague between 9/11 hijacker Mohamed Atta and Iraqi government officials to his brazen and false denial that he had ever met John Edwards before their vice-presidential debate to his assertions that all those locked up at Guantanamo are “bad people” (despite U.S. government findings to the contrary), Cheney has never let facts stand in the way of political aggrandizement. Extreme secrecy gives him a right to trample the truth and then hide the corpse.

The more information the government withholds, the easier it becomes to manipulate public opinion with whatever “facts” government does release. The government tilts the playing field in favor of ignorance and then, with well-timed revelations, stampedes the media in the direction it wants them to go.

If Cheney’s interpretation of the law is correct, then there is no limit to the amount of mischief he could inflict. Here we have the most powerful vice president in American history and someone full of venom for critics and anyone who does not support his warmongering. The federal government is vacuuming up far more personal information on Americans than ever before. If Cheney is entitled to leak the identify of an undercover CIA agent, there is no reason he could not leak information about other critics of his policy—regardless of whether such leaks violate privacy laws or other prohibitions.

The views on secrecy and selective leaking are keystones to the Bush-Cheney view of presidents’ right to absolute power. Cheney’s new chief of staff, David Addington, champions the doctrine that the president is above the law. Rep. Jane Harman, the top Democrat on the House Intelligence Committee, has heard Addington’s comments on presidential power and torture during classified briefings; Harman told the Washington Post that Addington “believes that in time of war, there is total authority for the president to waive any rules to carry out his objectives.” Addington was heavily involved in writing the 2002 memo on torture that revised the American political catechism by proclaiming, “criminal statutes are not read as infringing on the president’s ultimate authority.” Addington has been very aggressive against State Department and Pentagon officials who opposed torture. He may also be heavily involved in thwarting congressional oversight or investigations of the National Security Agency wiretaps that Bush ordered.

Perhaps it is time for someone to ask Cheney what, if any, laws still apply to the vice president. Cheney made it clear in his speech to the Conservative Political Action Conference that the Bush administration aims to use its warrantless wiretapping as a bragging point in this year’s congressional campaigns. Does the rule of law, 2006, now mean that whatever rules the president or vice president proclaim are the law of the land?

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James Bovard is author of the just published Attention Deficit Democracy and eight other books.