Secrecy News

The Vice President’s Declassification Authority

“Is it your view that a Vice President has the authority to declassify information?” Vice President Cheney was asked yesterday by Fox News’ Brit Hume.

“There is an executive order to that effect,” replied the Vice President.

This was a simple answer to a straightforward question, but the matter is actually a bit more complicated.

The executive order in question is E.O. 13292 on classified national security information, issued by President Bush in March 2003.

It states in section 1.3 that “The authority to classify information originally may be exercised only by: (1) the President and, in the performance of executive duties, the Vice President; (2) agency heads and officials designated by the President in the Federal Register…”

Remarkably, the phrase “and, in the performance of executive duties, the Vice President,” which dramatically elevates the Vice President’s classification authority to that of the President, was added to the executive order in 2003.

Prior to that, the Vice President only had classification authority comparable to that of an agency head, having been delegated such authority in a 1995 presidential order.

So much for classification authority. What about declassification?

Declassification authority is defined in Section 6.1(l) of E.O. 13292. It is granted to: “(1) the official who authorized the original classification…; (2) the originator’s current successor in function; (3) a supervisory official of either; or (4) officials delegated declassification authority in writing by the agency head or the senior agency official.”

So the Vice President has authority to declassify anything that he himself classified. He also clearly has authority to declassify anything generated in the Office of the Vice President, which he supervises.

But is the Vice President, like the President, “a supervisory official” with respect to other executive branch agencies such as the CIA? Did the 2003 amendment to the executive order which elevated the Vice President’s classification authority also grant him declassification authority comparable to the President’s?

“The answer is not obvious,” said one executive branch expert on classification policy.

11 thoughts on “The Vice President’s Declassification Authority

  1. Would an organization chart approach lead to a conclusion that since the President sits atop the entire bureaucracy, and certain of his classification authority had been delegated, that the VP by extension also sits atop the classification (declassification) food chain?
    It seems as if the supervisory language could be read narrowly enough to mean a direct line in the chain of command rather than the sort of dotted line that connects the VP to all of the state apparatus.
    Interesting perspective in your post, though, thanks.

  2. You’ve hit on the ambiguity in the apparent elevation of the VP’s status as a kind of surrogate to the President, who ex officio has unilateral power to classify and declassify.

    But the argument will be whether the president has the power to delegate an authority that, even if not unilateral and over-arching, certainly looks that way.

    The parsing would be that if the president has unlimited power in this regard, the VP has powers that are limited but very very wide.

  3. I was wondering whether you might be able to clarify what exactly this dramatic elevation of the VP’s classification authority to that of the President might consist in. Under the Presidential Order of 13 Oct. 1995 the VP received top-secret original classification authority. How, specifically, does EO 13292 increase those powers? In what concrete respects are the VP’s classifying powers now greater than those, say, of the Secretary of State?

    [I think that by granting the VP classification authority on a par with the President, the order enables the VP to classify information anywhere in government, and not only in the Office of the VP. The Secretary of State, like other agency heads, could not do that. –SA]

  4. Are there any other laws or rules that come into play when the information declassified effectively outs a covert CIA agent?

    Shouldn’t this specific case at least require Cheney to clear this with Tenet?

    [Yes, certainly, and I should have made this clear. There are various categories of information that are protected by statute — e.g., the Atomic Energy Act, the National Security Act — not by executive order. And they cannot simply be declassified by executive fiat. –SA]

  5. The phrase “in the performance of executive duties” can’t be contentless. It can’t mean that whenever the VP wants to classify something he’s performing executive duties. Presumably it means that he’s performing executive duties that have been specifically devolved upon him, either by statute or by executive order. (He doesn’t have any executive duties under the Constitution.) If he’s not performing a specific executive duty then presumably he can’t classify or declassify.

    [The prevailing interpretation of this ambiguous phrase is that it is merely meant to exclude the VP’s legislative duties as President of the Senate. –SA]

  6. The legalisms are somewhat beside the point, the real question is: Whom does the Veep have to inform when he declassifies information? No one?
    If he doesn’t have to clear it with the CIA–which he obviously didn’t, does he at least have to tell the president? In which case, the president would know if/whether Cheney was behind the Plame leak.

  7. I thought this excerpt would be useful here; it shows that declassification is just a matter-of-fact thing that is used to bolster Admin arguments about any subject, leaving the public in the dark for any subject.

    from White House Briefing:

    MSNBC’s Keith Olbermann spoke with Newsweek’s Richard Wolffe last night about the reality of declassification in the Bush White House.

    Wolffe: “They declassify when they feel like it. I’ve been with senior administration officials who have just decided to declassify something in front of me because it’s bolstering their argument.”

    At the time that Libby was leaking information from the CIA’s National Intelligence Estimate on Iraq, “Saddam was no longer in power. And I think people felt emboldened to leak information, to declassify stuff, because the regime was no longer there,” Wolffe said. “They were also feeling very insecure, because the case [for war] was falling apart, and they felt the pressure. . . .”

    Olbermann: “I’m just picturing that experience in my mind. Is there a puff of smoke? Is it akin to alchemy when they declassify something?

    Wolffe: “There was a sort of frowning, a reaching into a locked cabinet, a filing cabinet, and the sort of, you know, ‘Should we declassify this? Oh, yeah, let’s go do it. Not a very formal process.’ ”

    And what senior officials could Wolffe be talking about? Earlier, he told Olbermann: “What I know from my own reporting is that in this period, a couple of months after Saddam is toppled from power, really it’s only the vice president’s office that is exercised — excessively exercised — about the holes that are being picked in the case for war, specifically about weapons of mass destruction.”

  8. People, there is no such person as the ‘Vice’ President anymore. I believe the person you are referring to is the ‘Co’ President. But it is confusing. Let me put it to you this way: The Co-President has all the authority of the ‘President’ but none of the responsibility. His function is to set foreign and domestic policy for the United States. He is privy to the intel on all members of the government. This explains why, when confronted by the Co-President, members of Congress suddenly change their stance on a wide range of subjects. So, if you would, please give the man the title he has taken, Co-President. Hail, Cheney.

  9. Wouldn’t such declassification powers require something in writing or a stamp or some such thing? If so, Cheney (or somebody, somewhere) should have evidence that Plame’s identity had been declassified…

  10. If one reads Part 3 of the Executive Order, it is clear that there is no authority in it for the vice president. Indeed, in appeals on declassification the President is the final authority and the VP isn’t even mentioned. One cannot read words into a rule that aren’t found in it.

  11. The Iraq War was justified by Classifying and Declassifying information for political purposes. How can any one person keep classified information that is commonly known. In that case, a President can keep anything he doesn’t like classified, and legally arrest anybody who says anything about it. In a Free Society, information that is “Leaked” must be Automatically declassified, or it can be used to Intimidate and Silence The People. No one person can have the power to keep commonly known information classified.

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