Bush Has Authority to "Leak"

Unsurprisingly, Attorney General Alberto Gonzales informs us that:

[T]he president has the "inherent authority to decide who should have classified information."

That's probably true. The classification of intelligence information is an executive function, and all executive authority derives from the President, so ipso facto the President determines what is and is not classified and who can have it. You can expect conservative commentators and bloggers to emphasize this point repeatedly in the coming days, in an effort to remind us that nothing illegal happened, Bush could do this if he wanted, "inherent authority", yada yada, etc., etc.

They're missing the point.

There's two problems with thinking the analysis ends with the determination that President Bush has that authority. For one, the executive has procedures for determining what is to be classified and what is, and how what's classified should be turned into unclassified information that's available to the public. The President, whoever he may be at any given time, does not normally decide in a conversation between himself and his VP that information can be de-classified, and then allow his VP to go picking out reporters to share that information with. The reason people keep referring to this as a "leak"-even though technically the President can't "leak" information he determines isn't classified-is because what the President did in this circumstance looks an awful lot like a leak; like the distribution of information in secret that the public would not normally have access to. And just because President Bush has the authority to do something doesn't mean it's not possible to abuse that authority, as he's abused his authority pressing the limits of the NSA's ability to spy on us.

The other problem is that Bush appears plainly to be a hypocrite. All this ranting and raving about going after leakers of information, how they're hurting the country, acting as traitors, etc., etc., and now here we have our own President doing pretty much exactly the same thing, except that he technically "de-classified" the information simply by saying it was okay to leak it. In other words, it's not okay for an official-even in good conscience-to leak classified information that he feels the public has a right to know about, but it is okay for our President to suddenly unclassify selected portions of an intelligence report in an effort to defend his administration politically. Howard Kurtz has a great example in his "Media Notes" column I linked to in the original post below: conservatives say there's no problem with what the President has done, and yet would they be okay if Clinton had "leaked" sensitive military intelligence in an effort to justify an itervention in Bosnia? Yeah, I didn't think so either.

So whatever the legalisms that are going around, don't be fooled. No Bush didn't authorize leaking Plame's name (at least, not that we know of.) Yes, he probably has the authority to de-classify information de facto. But it doesn't matter.

And speaking of Gonzales, we find out via Kevin Drum that he had something to say the other day about another little issue we haven't touched on here at TWM in awhile:

Attorney General Alberto R. Gonzales left open the possibility yesterday that President Bush could order warrantless wiretaps on telephone calls occurring solely within the United States — a move that would dramatically expand the reach of a controversial National Security Agency surveillance program.

"I'm not going to rule it out," Gonzales said.

Gonzales previously testified in the Senate that Bush had considered including purely domestic communications in the NSA spying program, but he said the idea was rejected in part because of fears of a public outcry.

You think? I think we can assure ourselves that given the outcry over what they have done, we won't see any expansions of the program in the near future. Nonetheless, this gives you an idea of how far the Bush administration thinks they can stretch this "inherent wartime authority" argument of theirs. If you think that's as far as they've considered going, you should consider this article in US News:

In the dark days after the Sept. 11, 2001, terrorist attacks, a small group of lawyers from the White House and the Justice Department began meeting to debate a number of novel legal strategies to help prevent another attack. Soon after, President Bush authorized the National Security Agency to begin conducting electronic eavesdropping on terrorism suspects in the United States, including American citizens, without court approval. Meeting in the FBI's state-of-the-art command center in the J. Edgar Hoover Building, the lawyers talked with senior FBI officials about using the same legal authority to conduct physical searches of homes and businesses of terrorism suspects--also without court approval, one current and one former government official tell U.S. News

...in a little-noticed white paper submitted by Attorney General Alberto Gonzales to Congress on January 19 justifying the legality of the NSA eavesdropping, Justice Department lawyers made a tacit case that President Bush also has the inherent authority to order such physical searches. In order to fulfill his duties as commander in chief, the 42-page white paper says, "a consistent understanding has developed that the president has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes."

Yeah, that's how far they would push it. We're not talking about listening to Americans talking to suspected terrorists overseas. We're not even talking about listening to Americans talk to suspects in the U.S. (or talking about Osama to each other?) We're talking about physical searches of homes and businesses of terrorist suspects without probable cause, and without a warrant. There's no wrapping this up in legalisms to justify it. For some in the Bush administration, it's Bush v. The Constitution, and the Contitution loses. That's what we're talking about.

UPDATE: This headline in the Post about this morning's press conference is pretty amusing: "White House Testy on Leaks". I would imagine! More interestingly, nobody's denying that Bush did authorize the leak (which is not really a surprise I suppose.) The rationale White House Spokesman McLellan trots out is also no surprise: "Bush is not a hypocrite or a liar because this information wasn't classified because Bush can de-classify intelligence on his own and it's effective immediately and they were only doing it in the public interest anyway so nothing to see here, move on, move on....".