White House defends right to declassify

THE BALTIMORE SUN

WASHINGTON -- The White House sidestepped allegations yesterday that President Bush single-handedly declassified an intelligence report, while steadfastly maintaining that he has the power to do so. But some intelligence professionals and security experts questioned whether the president could know the implications of such a step without going through the normal declassification procedures.

The politically charged debate quickly turned into a he said-she said dispute between the White House and Democratic critics over whether the president had played politics with sensitive intelligence reports.

Court papers filed Wednesday detailed grand jury testimony in which Vice President Dick Cheney's former chief of staff I. Lewis "Scooter" Libby said he had been directed to share intelligence information with reporters. The instructions, from the vice president, had been authorized by the president to rebut criticism of the war in Iraq, according to the court records.

Questioned by reporters yesterday, White House spokesman Scott McClellan refused to comment on Libby's testimony. Instead, during two contentious news briefings, McClellan explained that the administration's rationale for declassifying the report and publicly releasing it 10 days after Libby disclosed the information to a reporter was to promote "the public's interest."

Asked whether Bush had the power to unilaterally and immediately declassify information, McClellan said he did. "The president can declassify information if he chooses. It's inherent in our Constitution. He is the head of the executive branch," he said.

Intelligence experts, however, questioned the wisdom of such a decision. Even ardent supporters of declassification, such as Steven Aftergood of the Federation of American Scientists, said that while the president might have the legal authority to declassify information, he might not have enough information to decide on his own whether it was in the public interest.

"There are nuances; there are details that might seem insignificant to a layman or a nonspecialist that nevertheless could result in the disclosure of sensitive information," he said.

A former senior intelligence official, speaking on condition of anonymity, put it more bluntly: If the president declassified intelligence without consulting the government's top intelligence official, "it is inconceivable to me, irresponsible and outrageous."

The court papers were filed as part of negotiations between I. Lewis "Scooter" Libby, Cheney's former aide, and prosecutor Patrick Fitzgerald, who is charging that Libby lied about how and when he learned the identity of covert CIA agent Valerie Plame and the circumstances under which he discussed her with reporters. The document the president allegedly directed Libby to disclose did not contain Plame's name but is part of a dispute over Libby's access to classified documents to defend himself in court.

Libby, according to the court papers, said that he disclosed information about an intelligence report on Iraq's weapons capabilities to New York Times reporter Judith Miller on July 8, 2003, only after he was assured by Cheney that Bush had authorized the disclosure of that classified information. Libby said Cheney's counsel also told him the presidential authorization amounted to a declassification.

The court papers note that then-deputy national security adviser Stephen Hadley did not know about Libby's disclosures and that Libby believed that only he, Bush and Cheney knew of the declassification at the time.

Hadley was attempting to get the document, known as the National Intelligence Estimate, declassified through regular channels while Libby was telling selected reporters the information. Libby "consciously decided not to make Mr. Hadley aware of the fact that the defendant himself has already been disseminating the NIE," the papers said.

But in statements McClellan made to reporters on July 18, 2003 - 10 days after Libby disclosed information from the intelligence report to Miller and other reporters - he said the White House had not declassified the material until that day.

"This information was just, as of today, officially declassified," McClellan said then.

McClellan sought yesterday to distance himself from that statement. He repeatedly refused to say when the report was declassified or whether he still maintains the report was declassified on July 18, 2003.

Meanwhile, intelligence professionals and security experts warned that while the president may have the authority to declassify information on his own, it has rarely if ever happened because the president is not in a position to know the potential impact of the disclosure on sources and methods.

"I can't think of any instance where that happened," said one former intelligence official who spent decades at the CIA. "If the president decided he wanted to do it, there would be a consultation" with the director of central intelligence.

Historically, declassification has been done by the agency that collected it, said Ronald Lee, former general counsel at the National Security Agency, because it is "in the best position to know" the security impact.

The issues at play here are about policy and politics, not the law, he said. "The law is not that murky," he said. "It's a difficult issue because of everything that is wrapped up in it: Who decides what is in the public interest, and why are some decisions made at this level and others are not?"

The former senior intelligence official said the release of the information as described amounted to "willy-nilly declassification for political reasons" that "would be pushing to the extreme any interpretation of the president's authority to declassify."

Even attorneys who usually fight overclassification of documents raised concerns. "It sets a terrible example for those who are truly protecting classified information because it diminishes the integrity of the classification-declassification system," said national security lawyer Mark Zaid.

The report had supported the argument that Iraq had weapons of mass destruction. At the White House, McClellan sought to contrast the president's declassification of it with other leaks of classified information, such as the revelation of the National Security Agency's warrantless wiretapping program. The president has repeatedly said that the NSA disclosure harmed national security.

Democrats were quick to criticize the White House yesterday.

House Democratic leader Nancy Pelosi of California pointed to the executive order governing classified information, which requires "a uniform system for classifying, declassifying, and safeguarding national security information." She asked, "Why didn't President Bush follow this protocol before authorizing the selective leak of highly sensitive intelligence?"

Other Democrats charged Bush with hypocrisy, noting his statements denouncing leaks.

In September 2003, Bush commented on the leak of Plame's name, saying "there are too many leaks of classified information in Washington. ... And if there is a leak out of my administration, I want to know who it is. And if the person has violated law, the person will be taken care of."

On the Senate floor yesterday, Democratic leader Harry Reid of Nevada charged that the White House has a pattern of misleading Americans.

"In light of this disturbing news, we need to hear from President Bush which of these is true: his comments in 2003 or the statements made by the vice president's chief of staff," he said. "He must tell the American people whether the Bush Oval Office is the place where the buck stops or the leaks start."

siobhan.gorman@baltsun.com

Sun reporter Julie Hirschfeld Davis contributed to this article.

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