Cheney & Classification 
The Executive's authority to classify or declassify information does not come from Congressional statute. Rather, Presidents have long held that it is part of the President's inherent authority. Courts have concurred.
THE PRESIDENT HIMSELF HAS BROAD AUTHORITY IN CLASSIFICATION DECISIONS
In 1951, President Truman signed Executive Order 10290 (pdf), the President relied on his Constitutional authority as President of the United States to enact a classification scheme.
In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court stated in its dicta that the authority to control access to sensitive information is vested in the President of the United States. Accordingly, an argument can be made that the President need not "ask permission" from the CIA or NSA or anyone when it comes to classifying or declassifying information. This is because the CIA or NSA do not have any power to deal with classified information that does not emanate from the President himself:
The President, after all, is the "Commander in Chief of the Army and Navy of the United States." U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U.S. 886, 890 (1961). This Court has recognized the Government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U.S. 507, 509, n. 3 (1980). See also United States v. Robel, 389 U.S. 258, 267 (1967); United States v. Reynolds, 345 U.S. 1, 10 (1953); Totten v. United States, 92 U.S. 105, 106 (1876). The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.Since World War I, the Executive Branch has engaged in efforts to protect national security information by means of a classification system graded according to sensitivity. See Note, Developments in the Law - The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1193-1194 (1972). After World War II, certain civilian agencies, including the Central Intelligence Agency, the National Security Agency, and the Atomic Energy Commission, were entrusted with gathering, protecting, or creating information bearing on national security. Presidents, in a series of Executive Orders, have sought to protect sensitive information and to ensure its proper classification throughout the Executive Branch by delegating this responsibility to the heads of agencies. See Exec. Order No. 10290, 3 CFR 789 (1949-1953 Comp.); Exec. Order No. 10501, 3 CFR 979 (1949-1953 Comp.); Exec. Order No. 11652, 3 CFR 678 (1971-1975 Comp.); Exec. Order No. 12065, 3 CFR 190 (1979); Exec. Order No. 12356, 4.1(a), 3 CFR 174 (1983).
It should be obvious that no one has a "right" to a security clearance.
Notice the passivity of such agencies. They're "entrusted" with national secrets and are "delegated" authority by the President. But such authority rests only in the President. Keep that in mind as we now go through President Bush's executive orders on classification.
More below...
Now, let's examine the current policy in the Bush administration with respect to classified information:
Sec. 1.3. Classification Authority. (a) The authority to classify information originally may be exercised only by:
(1) the President and, in the performance of executive duties, the Vice President;
This section deals with classification authority. Does it include declassification as well? If the President and Vice-President have the discretion to unilaterally classify information, would it not follow that they have the discretion to unilaterally declassify it?
Part 3 of the order deals with declassification. Plame's identity and occupation were classified and should have remained classified. But, Cheney may have an escape route in this section:
3.1(b) It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.
How do we know Cheney will cling to this provision for dear life if his authority to declassify is indeed challenged? Because this has been his office's defense since Day 1. Notice that the standard is "public interest in the disclosure of information." An extremely broad standard which provides more than enough wiggle room for Cheney to claim he authorized the leaking of Plame's identity and name to "set the record straight" and minimize the damage Wilson was doing to the case for war. Note that this section of the Executive Order does not speak to motive. I'd also note that particular section is not new but was first enacted under President Clinton in Executive Order 12356, signed in 1995.
Up until this point, it looks like Cheney is in the clear, at least legally speaking. But let's examine another section pertaining to declassification, Sec. 4.1. General Restrictions on Access:
4.1(c) Classified information shall remain under the control of the originating agency or its successor in function. An agency shall not disclose information originally classified by another agency without its authorization. An official or employee leaving agency service may not remove classified information from the agency's control.
It reads that "an agency" shall not disclose information without authorization. Does "an agency" include the Vice-President of the United States? Yep. In the definitional section of the order:
(i) "Agency" means any "Executive agency," as defined in 5 U.S.C. 105, and any other entity within the executive branch that comes into the possession of classified information.
So, if we accept that "entity" includes individual entities like the Vice-President, it looks like Cheney should have asked permission from the "originating agency" (the CIA) before authorizing Libby to leak.
COVERING UP?
Prior to March 25, 2003, the authority to unilaterally classify and perhaps declassify info was vested solely in the President. However, with Executive Order 13292, President Bush greatly expanded Vice-Presidential power. He changed many sections throughout his original order, each time granting Cheney the authority to exercise the same power as the President. Basically, any time the order stated that the President had authority to do something (which, as explained above, that authority is derived from the Constitution), Bush tacked on the phrase "and in the performance of executive duties, the Vice President". Bush essentially then delegated that Constitutional authority granted solely to him as Commander-in-Chief to the Vice-President of the United States.
As A Patriot points out, the timing of the March 25, 2003 order is incredibly suspicious. Why did the President chose March 2003 to enact such a starking aggrandizemnet of Vice-Presidential power? It was in March, as we all know, that the decision to smear Wilson was made:
Wilson connects Cheney to the events involving his wife through a meeting he said occurred in March 2003. He charged that Cheney's staff -- with at least the "implicit" involvement of the vice president -- met and decided to investigate his background. The investigation, he said, uncovered his wife's role at the CIA."The office of the vice president, either the vice president himself or more likely his chief of staff, chaired a meeting at which a decision was made to do a 'work-up' on me," Wilson wrote in The Politics of Truth.
So the decision was made to smear the Wilson by leaking the information about his wife. Such a leak could not originate from the President's office--too dangerous, its members too high-profile, and we know that the dirty deeds have been orchestrated by the vice-president's office in the past. Did the President and the Vice-President conspire then to alter the exective order to give the Vice-President the authority to orchestrate the smear?
Perhaps that is why Bush was able to say with such a straight face the following:
He added that he did not know of "anybody in my administration who leaked classified information."
Because of the changes to his order, it's possible Bush thinks that the information wasn't "leaked," but rather was "declassified" by the newly vested authority by the Vice-President. Libby, as his defense claims, didn't leak "classified" information. They read over the Intelligence Identities Protection Act and concocted the perfect defense. The act reads in part:
Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.
Cheney was the one with authorized access. He disclosed that information to one authorized to receive classified information. But at that moment, the information, according to Cheney, was no longer classified, giving Libby the cover to disseminate the info at will. That explains why the Bush administration has embraced a "fine, go ahead, investigate us" attitude. They believe that, by virtue of Bush's cover-up amendments, that they have all the legal cover they need.
The defense all along was to set this up as an authorized disclosure. This tactic is not surprising at all. Break the law, then bend the law to cover up your lawlessness.
Do you recall that when it became clear Rove had leaked the information to reports, there was a flurry of articles about how "upset" Bush was, that he felt betrayed by Karl? In the New York Daily News (yes, I know) there was a hint that the anger wasn't at the disclosure, but at the fact the Office of the President was tied to the leak:
A second well-placed source said some recently published reports implying Rove had deceived Bush about his involvement in the Wilson counterattack were incorrect and were leaked by White House aides trying to protect the President."Bush did not feel misled so much by Karl and others as believing that they handled it in a ham-handed and bush-league way," the source said.
That's because, as this whole conspiracy illustrates, the plan was to confine the smear to the Office of the Vice-President. That is why the order was amended to give Cheney the power to smear. That is why Libby was the main leaker. When Rove's deviousness tempted him to play along, he screwed up the plan by tainting the Office of the President with the leak.
The Vice-President's decision to declassify this information may not be judged in the courts, but rather in the court of public opinion. Courts long have been hesitant to question the President's discretion in dealing with classified materials. Does such deference extend to the Vice-President? Even if the legal cover-up here withstands or avoid judicial review, what will the public make of the fact that Vice-President Cheney committed a crime, but President Bush chauffeured the getaway car?
KEYWORDS: Vice-President Dick Cheney, President George W. Bush, Valerie Plame, Joe Wilson, Executive Orders
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