There's the business end of a hockey stick, and the other end that's never supposed to come into play. It's increasingly clear that the White House has been playing rough politically with both ends of a big stick, it's authority to declassify, or to not declassify, documents. In fact, Bush&Co. have violated the Executive rules of declassification both going and coming. Even if it does not mean legal peril, the abuse of power looks very bad for the President.
Democrats have been saying this for years to no avail, but recent reports have suddenly brought the spotlight within range of the issue. If today's story in the LA Times is an indication, the abuse of declassification may finally become the talk of pundits. Not a moment too soon.
This entry is longer and maybe harder than your average hockey stick. My only excuse is that the subject merits it.
Here is the LA Times story. Half-way through, the authors segue nicely to the topic of the negative abuse of declassification.
[Scott McClellan] accused Democrats of failing to grasp the distinction and of "engaging in crass politics."
Democrats have been fuming over what they say are repeated refusals by the White House to release information that would not compromise national security.
In 2004, for example, the White House rejected a request by eight Democrats on the Senate Intelligence Committee for a one-page "president's summary" of a National Intelligence Estimate about Iraq's alleged weapons of mass destruction.
The lawmakers noted in their request that the document contained no sensitive material beyond information that had been released publicly a year earlier.
The LAT story then points out, as Waas reported last month, that the Summary in question was politically sensitive precisely because it undercut Bush's assertions about aluminum tubes. This is what I would call negative abuse of declassification.
From here, the LAT piece then branches out to the question of the positive abuse of declassification:
More examples were cataloged in February by Sen. John D. Rockefeller IV of West Virginia, the senior Democrat on the Senate Intelligence Committee. Writing to John D. Negroponte, the director of national intelligence, Rockefeller pointed to a pattern of "abuse of intelligence information for political purposes."
The LAT then examines the following examples in detail:
* Bush's speech on Feb. 9, which abruptly revealed that an (alleged) plot to blow up the Library Tower in LA had been foiled. At the time, Bush was trying to defend his (illegal) NSA spying. Such potentially sensitive info was exposed for political advantage, both Rockefeller and the journalists imply.
* The leaking of classified info in 2002 to help Bob Woodward with his puff-book, Bush at War. The authors quote Rockefeller as saying that the administration's approach to leaks is "extraordinarily hypocritical."
"Preventing damage to intelligence sources and methods from media leaks will not be possible until the highest levels of the administration cease to disclose classified information on a selective basis for political purposes," Rockefeller said.
The contours of the LA Times story are encouraging, I'd say. It begins by discussing McClellan's tacit admission that Bush authorized Libby to leak information from the NIE, and ends up looking at the political motives behind the positive abuse of declassification. But the fulcrum of the discussion is the illegitimate refusal to declassify. This is the most remarkable thing, because it's the element that so far has been absent from news reporting.
It could become the most critical single element in the public perception of Bush's abuse of power. It will be hard to convince Bush's supporters that the declassification of the NIE and other intel was harmful to national security. Likewise, they're minds would explode before admitting that when officials blurt things out willy-nilly, it constitutes anything other than de facto and legitimate declassification; procedures be damned, you can be sure they'll insist.
Yet the negative abuse of declassification is different. It will be hard for Bush&Co. to put a positive spin upon a conspiracy to keep some docs classified, even while other docs on which they're based have been
outed declassified. Since the Presidential Summaries in question are highly abbreviated by nature, it will be difficult to claim that they include new details. What's more, once journalists begin to focus on the negative abuse of declassification, they will almost certainly have to discuss the legal directives that apply.
Fortunately federal rules on declassification are relatively straightforward in principle. They are governed by Executive Orders 12958 as emended by 13292. For our purposes, the most significant sections of 13292 read:
Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security....
Sec. 3.1. Authority for Declassification.
(a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.
The legal issues concerning positive and negative abuse of the authority to declassify are admirably laid out in an April 6 letter by Henry Waxman to the President. (PDF file; hat tip to Terre's excellent diary for this link.)
His letter, like this diary and the LAT story, is predicated largely upon three explosive reports in the last month by Murray Waas (see below). Waxman's letter states:
Two recent revelations [by Waas] raise grave new questions about whether you, the Vice President, and your top advisors have engaged in a systematic abuse of the national security classification process for political purposes. News accounts suggest that the White House both (1) leaked classified intelligence information to further its faulty case for war and (2) improperly concealed information regarding your personal knowledge of serious doubts about this intelligence....
The thrust of these new revelations is that you and your advisors at the White House have been engaged in a much wider and systemic [sic] effort to undermine and flout the classification provisions of your own executive order. On one hand, you and your advisors appear to have selectively released classified information in an attempt to support your case for war and blunt the criticisms of Ambassador Wilson. On the other hand, you and your advisors seem to have improperly concealed information indicating that you were warned that intelligence on Iraq's nuclear program was challenged by experts in your own Administration.
Sure, the question of the administration's motive for preserving the classification of the Summaries is slightly more complex than the legal issues. The basic point is not hard to grasp, though: Bush does not want the public to learn that he knew before the war that intelligence agencies challenged some of the most important grounds for war that he spent half a year trumpeting.
Here is where journalists will actually need to do a little thinking, and maybe a little digging too. If they get apprised of Waxman's letter, however, they'll discover that much of the essential synthesis has been done for them. I hope that other bloggers will join me and keep pushing the letter to the fore, until journalists pay attention.
The declassification process was used by the White House as a weapon. And there's a simple way to demonstrate that in their eyes it was a weapon, rather than a simple hockey stick: the fact that they used the butt end of it to keep documents classified merely because their release would be politically embarrassing.
To conclude, I'd like to encourage everyone to read all three reports by Waas. I've seen quite a bit of confusion over the last month about what these actually reveal, and how they fit into wider issues such as the Plame case.
March 2, 2006: What Bush was told about Iraq. This reveals that Bush received and read one-page Presidential Summaries in Oct. 2002 and Jan. 2003, which stated that federal agencies did not agree with major parts of the case for war he was making. That contradicts statements made by Bush's top advisors in July 2003, to the effect that Bush never knew about any dissents within government. See my diary for a lengthier analysis of this report, which is the most important of the three.
March 30, 2006: Insulating Bush. This reveals that Rove and Hadley initiated a high-level conspiracy in July 2003 to keep the aforementioned Presidential Summaries secret at least until after the 2004 election, fearing that their disclosure could sink Bush's re-election chances. I had some things to say about it in this diary.
April 6, 2006: Libby says Bush authorized leaks. This reports on the court filing by Fitzgerald, which says Libby has testified that in summer 2003 Cheney said Bush authorized leaks of info from the NIE. More importantly, it reveals that "Libby has also asserted that Cheney authorized him to leak classified information to a number of journalists during the run-up to war with Iraq." The latter has largely been overlooked so far.