John Dean has a new column at FindLaw that separates fact from assumption about Bush’s role in Plamegate. In particular, Dean challenges the assumption made by most news reports that the President didn’t do anything illegal when he authorized leaks as Scooter Libby alleged. Later in this post I point to allegations from Knight Ridder reporters that the right-wing media echo chamber, in particular Stephen Hayes of The Weekly Standard, was a participant in a White House disinformation campaign. But I want to address the legal/illegal question first.

The new leak revelation “has been accompanied by a number of public misstatements, which call for correction,” writes Dean. One of these misstatements is that Bush authorized the release of Valerie Plame’s covert status at the CIA. I haven’t personally seen anyone make that claim, but I guess Dean has. In fact, Fitzgerald’s filing says on page 27 that the President didn’t know what Libby and Cheney were up to regarding Plame (see “plausible deniability“). “The filing does indicate that the President authorized the release of classified information,” Dean says, “but it was different information — a National Intelligence Estimate that had been classified pursuant to an executive order.” Dean also notes that what Libby told the Grand Jury about what Bush allegedly said to Cheney is hearsay.

On the other hand …

Dean says it is not necessarily true that the President didn’t do anything illegal, as many news stories claim. Here’s the critical part of Dean’s column:

Assuming that Libby’s testimony is accurate, did the President do anything wrong by so declassifying the NIE? Given the fact that the national security classification system is created by executive order of the president, it would appear logical that the president has authority to unilaterally and selective declassify anything he might wish. However, that is not the way any president has ever written the executive orders governing these activities. To the contrary, the orders set forth rather detailed declassification procedures.

In addition, 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 precisely Bush did and how he did it, and thus whether or not this law is applicable. There is also the problem that no one has standing in court to challenge a president’s refusal to follow his own rules. But voters may take note of the disposition of this administration to play by the rules, and put a Democratic Congress in place to keep an eye on the last two years of the Bush/Cheney presidency.

What is apparent, however, based on Fitzgerald’s filing, is that no one other than Bush, Cheney, Libby and apparently Addington was aware of this unilateral and selective declassification – if, indeed, the NIE was declassified. The secrecy surely suggests cover-up. For example, Fitzgerald notes that Libby “consciously decided not to make [then Deputy National Security Adviser] Hadley aware of the fact that defendant [Libby] himself had already been disseminating the NIE by leaking it to reporters while Mr. Hadley sought to get it formally declassified.” (Also, CIA Director George Tenet apparently was not aware of the partial declassification by Bush.)

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.

Recently, Cheney made the public claim (to Brit Hume of Fox News) that he had authority to declassify national security information. Learning of this, Congressman Henry Waxman asked the Congressional Reference Service of the Library of Congress, which issues non-partisan reports, whether Cheney was right. CRS found that the Vice President has limited declassification authority, generally speaking. And their report shows Cheney had no authority in this instance — only in situations where the Vice President had been the authority to classify the material in the first place, could the Vice President have the authority to unilaterally declassify it.

There’s more. Fitzgerald’s filing implies that the NIE was not declassified at the time it was leaked, but retroactively (boldface mine):

Fitzgerald reports that Libby “testified that he was specifically authorized … to disclose the key judgments of the classified NIE to Miller” because the information “was ‘pretty definite’ against Ambassador Wilson… and that the Vice President thought that it was ‘very important’ for the key judgments of the NIE to come out.”

When Libby raised the problem of discussing the NIE with Miller because of its classified status, the filing reports that Libby “testified that the Vice President later advised him that the President had authorized” Libby to disclose the relevant portions of the NIE. (Emphasis added.)

The word “later” here, in the filing, is crucially ambiguous: Did the President authorized Libby’s actions before Libby actually revealed the classified information to Miller, or afterward? The distinction may make a large difference in Libby’s defense: If the authorization was retroactive, then Libby initially revealed classified information without permission to do so; thus, he would have reason to lie.

In addition, Cheney’s counsel (now Chief of Staff) “opined that Presidential authorization to publicly disclose a document amounted to a declassification of the document.” (Emphasis added.)

Again, the language here is telling. The filing says that the President’s actions “amounted to” declassification, not that the President had unilaterally declassified the material. To the contrary, it appears the material was not declassified for several days.

So, based on what we know so far, we cannot say whether the President did or didn’t do anything illegal when he authorized the NIE information to be released. It appears Cheney, on the other hand, exceeded his declassification authority.

Even if the President was within the law, that doesn’t mean he was within the right. Warren Strobel and Ron Hutcheson of Knight Ridder write that the new revelation is part of “a pattern of selective leaks of secret intelligence to further the administration’s political agenda.”

Bush, Vice President Dick Cheney and other top officials have reacted angrily at unauthorized leaks, such as the exposure of a domestic wiretapping program and a network of secret CIA prisons, both of which are now the subject of far-reaching investigations.

But secret information that supports their policies, particularly about the Iraq war, has surfaced everywhere from the U.N. Security Council to major newspapers and magazines. Much of the information that the administration leaked or declassified, however, has proved to be incomplete, exaggerated, incorrect or fabricated.

In other words, they selectively leak lies and misinformation to throw media off the scent of what they’re really up to.

On Friday, White House officials said that the administration declassified information to rebut charges that Bush was manipulating intelligence.

Without specifically acknowledging Bush’s actions in the Libby case, White House spokesman Scott McClellan told reporters: “There were irresponsible and unfounded accusations being made against the administration suggesting that we had manipulated or misused that intelligence. We felt it was very much in the public interest that what information could be declassified be declassified.”

Except that what the Administration selectively declassified (if indeed it was declassified) and leaked was false, and the “irresponsible and unfounded accusations” were, in fact, true. And the Bush Administration knew it at the time. Which means they sure as hell know now, even if they won’t admit it.

Strobel and Hutcheson provide a list of Bushie-generated misinformation that I won’t repeat here. However, I got a kick out of this bit toward the end of the article —

In November 2003, the conservative magazine The Weekly Standard published highly classified raw intelligence purporting to a show a link between Saddam and al-Qaida.

The Pentagon disavowed the report. But in early January 2004, Cheney told the Rocky Mountain News newspaper that the magazine report was the “best source of information” about the Saddam/al-Qaida connection. That connection has never been proved.

I’m pretty sure this is the article in question. I remember this article well; it was linked to robustly by the rightie blogosphere and cited by many other news sources as the definitive proof that Saddam was in league with al Qaeda. But it appears that Stephen Hayes was filling the Judy Miller role for the Weekly Standard — Cheney would dictate to Hayes what to write, and then later Cheney would cite the Hayes article as if it were independent corroboration of his assertions. And the righties embraced it all as gospel.

Who says the Vast Right-Wing Conspiracy is a myth?

Speaking of the VRWC, the Bush Bitter Enders are working overtime to crank out excuses. I haven’t surveyed the entire Right Blogosphere, but the dumbest excuse I’ve seen so far comes from Riehl World View. Truly, the Riehl post is a study in pathological denial, but the best part is from this old NewsMax post about alleged Clinton Administration leaks about Paula Jones and Linda Tripp! Yes, bless us, the Clinton did it too dodge! And, of course, discrediting Linda Tripp about a BJ is so much more significant than spreading disinformation about national security intelligence and a war that is tearing the nation apart. Oh, wait …

See also: The Reaction, “Follow the Mendacity”