They begin their story with this assertion:
WASHINGTON - Experts in national security law say a decision by President Bush to authorize the leak of classified information to a reporter probably would not be illegal.
Perhaps someone can tell me how it would ever be legal for a President to leak the identity of an undercover CIA agent. Oh wait. The LA Times found one lawyer who seems to think this is some sort of grey area:
Although legal experts agree that the president has broad authority to declassify information, there are limits. For example, it is unclear whether a president can override laws designed to protect certain categories of sensitive information, such as a 1982 statute that makes it unlawful to expose the identity of an undercover CIA officer.
"If a statute says the executive branch or anybody can't do something, it's not clear to me that the president's inherent declassification authority would be enough to overcome that," Lee [Ronald Lee, former general counsel at the National Security Agency] said.
Before I continue let me make it clear that Bush, according to Libby's testimony in the Plame Affair, which was revealed yesterday, has not been named as the person who leaked Plame's name. Libby told prosecutor Patrick Fitzgerald that Bush had taken it upon himself to declassify a National Intelligence Estimate (NIE), which was then used for political purposes to attack Ambassador Joe Wilson's claims that Iraq had not sought yellowcake from Niger.
Still with me? Okay. Moving on from there, I still cannot fathom any inherent presidential authority that would allow treason - which is what the leak of a covert CIA agent's identity is - especially during a time of war when that agent had been working on the most sensitive of subjects: WMD issues.
Further, some unnamed "official" told the LA Times this:
The official said one reason he was skeptical of Libby's claim was that it made no sense to him that Bush would authorize Libby to leak the prewar assessment concerning Iraq but not reveal that decision to other close aides, such as Condoleezza Rice, then national security advisor; her deputy at the time, Stephen J. Hadley; or Dan Bartlett, then White House communications director.
Ten days after Libby allegedly received his leak authorization from Cheney, all three aides were in meetings working with CIA Director George J. Tenet to declassify the same information that the president allegedly had authorized Libby to share with then-New York Times reporter Judith Miller.
The court filing in Libby's case said Libby "consciously decided not to make Mr. Hadley aware of the fact that defendant himself had already been disseminating the [intelligence about Iraq] by leaking it to reporters while Mr. Hadley sought to get it formally declassified."
Now, IANAL (I Am Not A Lawyer), but this assertion flies in the face of common logic. Just because Libby said that Hadley wasn't aware, that doesn't mean one can then logically conclude that other Bush aides did not know what Bush had done. Common sense, anyone?
The LA Times piece also offers the impression, via its sources, that Bush simply violated some sort of etiquette when it came to choosing to declassifying the NIE. There are specific protocols involved in such matters and they are expressly laid out in an Executive Order that Bush signed in March, 2003.
(h) Records containing information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies shall be referred for review to those agencies and the information of concern shall be subject to automatic declassification only by those agencies, consistent with the provisions of subparagraphs (e)(3) and (e)(4) of this section.
The declassification process involves more than just a phone call from a president to an agency head asking if it's okay for him to change the classification. We don't yet know exactly how Bush handled this matter, but it is incumbent upon the White House to reveal how it was handled. They have refused to comment on this issue so far, citing the fact that there is an "ongoing investigation" into the outing of Plame's name, but there is no reason they can't explain why Bush declassified the NIE - which does not directly speak to the Plame leak.
Read the transcript of how White House press secretary, Scott McClellan, handled reporter's questions about the declassification procedures today here. It's clear that there are very valid concerns about the process and the WH is refusing to give specific answers, even though to do so would not impact Fitzgerald's investigation into the leak of Plame's name.
It seems some reporters, like those at the LA Times who wrote this article, don't seem to get that.
UPDATE: John Podhoretz is a wanker. Leak? What leak?
Yes, Podhoretz, the president can leak and he can authorize a leak. Your argument that most of what was in that NIE was known by some people is irrelevant. It wasn't publicly declassified until 10 days later. Ergo, it was leaked beforehand to Libby.
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