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In a court filing by prosecutor Patrick Fitzgerald, it has now become public that, according to Scooter Libby, George Bush authorized the Vice President’s chief of staff in July 2003 to disclose previously highly confidential information — to leak this information — in order to help make Bush’s case for war. The information is said to have come from a supersecret 90 page document called a National Intelligence Estimate. The leaked information is a particular part of the Estimate which supported going to war, though one gathers that other parts, that were not released, were contrary in import and did not support going to war.
Because Bush is said to have authorized disclosure of — leaking of — a part of the report which supported his decision for war, the claim is being made that it was not unlawful for Libby to have told one (or more?) reporters about the information. The President, it is said, has broad authority to declassify information, and did so here. What is more, it is said that this was opined to Libby by a true creep, Cheney’s right wing wacko lawyer, David Addington, whom Libby regarded as an expert on national security law. And, as a general matter, both now and previously the media, with the exception of a recent editorial in The Times, seems to have automatically swallowed the notion that a high level official with power over classification can authorize disclosure on the spot, as it were, of previously classified information: the issue arose a while back, when it was thought Cheney might have been the one who authorized disclosure regarding Valerie Plame and Bush’s action was not yet publicly known.
There is one point which jumps out at me, even though the (incompetent) media has so far been blind to it. Does the governing rule really provide, is it intended to provide, can it truly be lawful for it to provide, that the President can, on the spot, authorize disclosure of previously classified information that supports his position, while withholding disclosure of classified information which opposes it, even information in the very same document or conceivably on the very same page? Is this what classification is really all about? Is this what it is supposed to accomplish or is intended to accomplish? Why am I dubious? Why do I think that, at least as embodied in law, as opposed to the evil chicanery that is an every day matter in Washington, this is not the purpose of classification and must be, indeed, a horrible abuse of it? — in all justice probably a literally criminal abuse of it.
One recognizes, of course, that what Bush did is, as indicated, just another example of the abuses and moral corruption that have become standard among politicians in our country. In this sense Bush’s action is related to the need for a third party because the current two parties have unalterably become moral and ethical cesspools. And one is further aware that the commonness of political abuses in Washington is why the media appear to regard Bush’s action as just more business as usual, even if a particularly hypocritical example of the same. Yet it remains obvious, does it not, that if the kind of chicanary being discussed here is the intention or result of the classification system, then that system gives the Executive an awesome power to fool the entire citizenery and Congress, as appears to have been done here by the lies about WMDs. For the Executive will simply reveal, one sidedly, the classified information which supports its desires while keeping secret the classified information that undercuts them, all of which was done here. Congress and the public will know only one side of the facts, will correspondingly lack knowledge of the other side, will be disabled from making knowledgeable decisions, and, incidentally, the first amendment’s purpose of fostering knowledgeable discussion and decisionmaking will largely be thwarted. All of which happened in large degree here with regard to WMDs and going to war.
It has been as well, an unforgettable irony, and an example of the abuse of power and moral corruption which a double standard brings, that George Bush has set the feds to work to investigate and punish leading whistleblowers who have opposed his actions by revealing things he did not want revealed, e.g., the NSA’s secret spying on civilians, while he has himself authorized leaks of secret information that serves his political purposes.
When Bush authorizes leaks, his henchmen say, it is in the national interest–even if it involves efforts to mislead Congress and the people into an insupportable war.
But when others do it, the henchmen say, it jeopardizes national security–even if it involves whistleblowing on secret spying on American citizens, or whistleblowing on the CIA’s abominable use of secret prisons overseas.
So it strikes me that the kind of double standard we are discussing here simply cannot legitimately be the intent of the classification system. The system cannot legitimately have the intent or purpose of allowing the President to authorize disclosure on the spot of classified information which supports his desires, while withholding information contrary to his desires which can be in the same document or even on the same page, and of thereby allowing him far more easily to bend Congress and the people to his will by denying them information about the other side of the issue and denying them the ability to know and knowledgeably debate both sides of the matter.
One wonders: Has the prosecutor, Mr. Fitzgerald, considered it? If he has, what is his conclusion (which we could find out in due course if there were further indictments or in the course of a trial). If he has considered the matter, has the prosecutor determined that the classification system is intended to permit the kind of gravely abusive double standard being discussed here? Has he determined that the classification system isn’t so intended, or that it isn’t so intended but that leaks are nonetheless so ubiquitous in Washington, are so much a part of the morally corrupt political/journalistic life there, that they should not be punished even though they are crimes? Has he considered the possibility that Bush has committed a criminal act and should be brought to justice for a deliberate legal violation of the classification system? Has he considered this and rejected it? What does Fitzgerald think anyway?
LAWRENCE R. VELVEL is the Dean of Massachusetts School of Law. He can be reached at firstname.lastname@example.org.