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I've got a secret

The news that the CIA has fired an employee for leaking classified information to a reporter, and may be considering criminal charges, has some on the left all atwitter. Doesn't that make Bush (and, by extension, his supporters) hypocritical, because Bush hs been accused of releasing classified information, either directly or through intermediaries? Shouldn't Bush be fired, impeached, or arrested?

In a word, no. And to toss around such ideas is to betray a gross ignorance of how the Constitution works.

The power to classify and un-classify material is pretty much the sole province of the Executive Branch of our federal government. The military, the intelligence agencies, the State Department, the Department of Energy, the Justice Department, all have their own reasons and methods for keeping information they deem sensitive out of public hands.

And it's apparently readily forgotten that the Executive Branch of government derives all its power from the President, and pretty much every action they take is done at his direction, directly or indirectly, and in furtherance of his agenda.

In essence, the President IS the Executive Branch, as far as the Constitution is concerned. Through Constitutional mandate, law, and custom, that tremendous power over an entire branch of our government is diffused through lesser officials, offices, and the like, but in theory the president can personally assume almost any power and any authority delegated to any part of the Executive Branch, simply by reclaiming that delegated power.

In fact, I can only think of two exceptions off the top of my head, and both are in the Constitution: In Article I, Section 3, the Vice President is named as the President of the Senate, and in the 25th Amendment, Section 4, the Vice President and the Cabinet are granted the power to declare the President "unable to discharge the powers and duties of his office" and make the Vice-President the Acting President. The President cannot preside over the Senate, nor can he involuntarily remove himself from power.

But back to my point: certain government officials have the power to classify and declassify information. And the whole reason they have that power is that is has been delegated to them by the President.

In the aftermath of Watergate, President Richard Nixon gave a series of interviews to David Frost in which he spelled out his rationale for his actions in the scandal the brought down his administration. Nixon can be considered in executive power; he served two terms as Vice President, and one and a half as President, and is often considered one of the most intelligent men to ever hold the Oval Office. He justified his secret measures, using the official arms of the government for his own political ends, with a singularly concise phrase:

"Well, when the president does it that means that it is not illegal."

Like all good deceptions, it's based on truth. In certain areas, it is literally true: if the President does something, then by definition it is not illegal, even though it would be against the law for other officials to do so. This is not because the action is in and of itself illegal, but reserved solely for the President and those he should designate to possess it. In short, in nearly every case, if it is legal for an executive branch official to do something, it is also legal for the President to do it as well.

Classifying and declassifying information is one such power.

The motivations, the politics, the circumstances of a disclosure of specific information is certainly fodder for a fair debate. But anyone who challenges the fundamental legality is only professing their own ignorance.


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Comments (14)

True. And it actually goes ... (Below threshold)
ztp:

True. And it actually goes far beyond that. I hear many people saying that things like the NSA spying program were illegal, and they admit that the president has the constitutional power to do it, but was supposed to do it in the congressionally mandated FISA fashion. This is also nonsense, as congress cannot limit the power of the executive due to seperation of powers. Further, President Clinton even went so far to say, and most likely rightly so, that congress cannot pass things such as the war powers act requireing a president to gain congresses approval to be at war more that (is it 90?) days. He actually broke this in Bosnia, but no one cared. Congress would probably have lost anyway in the court, and almost definatly with the new court.

If by any constitutional mi... (Below threshold)
unlikely candidate:

If by any constitutional miracle,I become the president of the united states, I definatly will appoint JAYTEA as my political advisor. Just so I have a clue what is going on

Jay I don't think that Bush... (Below threshold)
Steve Crickmore:

Jay I don't think that Bush is completely off the hook, with his exercise of discretionary executive privilege. Though it may be perfectly legal for the President to declassify information on his own, he still has to it in a proper legal and orderly fasinon. As John Dean former legal counsel to Nixon says "there is law that says that when a president issues an executive order he must either amend that executive order, or follow it just as others within the executive branch are required to do. At present, we have so few facts it is difficult to know" (what occurred)...Also "Whatever authority Bush may or may not have had, however, it is crystal clear that Vice President Cheney did not have any authority to unilaterally and selectively declassify the NIE" as he said to Brit Hume of Fox.

No not at all Steve , thoug... (Below threshold)
virgo:

No not at all Steve , though it may have been legal? there is no may? only it is legal!
And i suppose it was totally legal for Gore to release classified weapons systems technology to China to help them "hit their target" more accurately because He cares so much about the Environment right, Now I know what Gore means by We are responsible for global warming! He meant Nuclear Weapons generate an awful lot of heat..

Where the hypocrisy lies is... (Below threshold)
Lee:

Where the hypocrisy lies is in the realization that in both instances the leaks were motivated by political gain.

Both instances are an abuse of the security of the United States, and both parties should receive equal treatment.

This is also nonsense, a... (Below threshold)
sean nyc/aa:

This is also nonsense, as congress cannot limit the power of the executive due to seperation of powers.

You are confusing the power itself and the execution of said power. You are absolutely correct that Congress cannot limit a power, but they absolutely can modify the execution of said power. Read Article I, Sect 8.

For instance, the president has the power to conduct foreign surveillance, no one denies that. But Congress also has the power to define the methods which are allowed for surveillance to be conducted. If Congress outlaws some form of surveillance technique (hypothetically, an involuntary implant of a locating device or bug in a prisoner who is then released) then the President cannot use that method to surveil.

Similarly, if Congress has outlawed foreign to US citizen electronic surveillance without a warrant, then the president is forbidden from doing that. The extremity of such methods are vastly different, but legally the same.

The only way Bush might get out of this is if there is some entirely new technology being used that is not explicitly covered by FISA (like Clinton and physical searches). But electronic surveillance is covered by FISA, which albeit is very general, but undoubtedly electronic logically emcompasses phone and computer surveillance. Additionally, after 9/11, FISA had been changed to accomodate new surveillance capabilities. If there was really no "bad intent" as Specter has said is required for censure, then why did the president not immediately have this surveillance made within the law.

All in all, avoiding FISA and not having the program addressed when FISA was being amended only gives this operation the appearance of having sinister motives. Now, this very well might not be the case, but viligance by the people of this country is required to make sure our elected officials don't overstep their authority and stay within the law. Otherwise, where does it end.

What do you know, Wizbang d... (Below threshold)
jp2:

What do you know, Wizbang defends the President on leaking info for political purposes.

"The very process which the administration and their followers claim to despise -- feeding classified information to the press -- is the primary tactic the administration used in order to convince Americans that Saddam was a danger and that we needed to go to war." -GG

Pound for pound, this best blogger in the world.
http://glenngreenwald.blogspot.com/

-jp2

Its been said before, but I... (Below threshold)

Its been said before, but I'll repeat others' words:

The POTUS has the final say of what is classified and what is not. NOT CONGRESS. When he directs "leak" of information, that's within his power. He decisions, made for reasons that he considers for National Security, do not suddenly become illegal when opponents characterize the reasons as political.

Everyone else who acts without executive direction to release said information is violating law. Period.

epador,I don't thi... (Below threshold)
sean nyc/aa:

epador,

I don't think anyone here or elsewhere has said anything about Congress declassifying info or their ability to limit the president's power with respect to this issue.

What people are questioning is the motives behind the President's decision to declassify info. Specifically, the decision to declassify parts of the NIE which supported his position that Saddam had pursued uranium from Niger, which has NOT a key finding of that report (the only info that should logically be seen as a valid conclusion from the report), and not to declassify info in the same report which refuted the info he chose to declassify. In other words, the President pushed aside the conclusions decided upon in NIE and selectively chose intel to declassify at his discretion, which is legal, but far from normal practice in a democracy. That is the definition of cherry-picking and not something the president should be doing with respect to issues of war and peace.

The Congressional powers argument was raised by ztp with regard to FISA. My previous comment was addressing that comment, not the subject of the post.

People seem to be getting c... (Below threshold)

People seem to be getting confused on this. Motive has nothing to do with legality. Jay Tea looked at the leaks from a legal perspective; he didn't say anything substantial about motive. If you want to argue motive and ethics, fine, but don't confuse the issue with misleading political rhetoric about legality.

sean, Yes you ... (Below threshold)
ztp:

sean,

Yes you are correct that congress can pass laws regulating certain aspects of executive branch execution, but not if they infringe and inhibit the president from carrying out his executive power. The lines do get blurred and acquiescence is sometimes interpreted as legal precedence.
I believe that any fight over this would come down to interpretation of the constitution, and with two newly appointed SCOTUS justices, the president would most likely win a fight over this.

"The President cannot...inv... (Below threshold)

"The President cannot...involuntarily remove himself from power."

I'm trying to think of how he would if he could...perhaps hiccup his way? Hold himself hostage until he signs a forced resignation?

[email protected] sean nyc/a... (Below threshold)
ed:

Hmmmm.

@ sean nyc/aa

You are confusing the power itself and the execution of said power. You are absolutely correct that Congress cannot limit a power, but they absolutely can modify the execution of said power. Read Article I, Sect 8.

Oh for God's sake. Here the f**k we go again.

To save me the time of having you dance around this crap, why don't you post the actual text of Article I, Section 8 that you *think* gives Congress the power to regulate intelligence gathering.

Because there's not a damn thing in Section 8 that actually defines Congress's role in gathering intelligence.

What people are questioning is the motives behind the President's decision to declassify info.

I can't believe I have to point out that the declassification happened AFTER Wilson did his Op-Ed in the NYT. I.e. there was no frigging point in not declassifying those portions of the NIE since Wilson blabbed about it all over the NYT.

Hmmm.Hold... (Below threshold)
ed:

Hmmm.

Hold himself hostage until he signs a forced resignation?

A la Blazing Saddles?

"Ok don't nobody move or the President gets it!"
"Oh do what he say! Do what he say!"




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