A Layman’s Look at Disclosing State Secrets: Executive Order 12958

OK, let me start off by stating up front: I teach English, U.S. history and government, that’s all. I’m not an attorney and have no expertise in analyzing government directives or documents. But think about it: state secrets are among the most closely guarded assets of any government. That begs the question: wouldn’t declassification be heavily proscribed? Wouldn’t any President create a protocol which would preclude declassification of secrets deemed to remain secret? Moreover, would there ever be a process which would authorize any arbitrary disclosure of classified material? I’ve looked at Executive Order 12958- the one Dick Cheney claims gave him authority to disclose Valarie Plame to Scooter Libby to Karl Rove to Robert Novak- and I just cannot find such authority anywhere.

12958 was signed by Bill Clinton in April, 1995 to create a systematic approach for the classification and declassification of documents. For example, it creates a procedure for automatic declassification unless an agency head declares its continued classification to be necessary. It also states that documents should not be classified unless they fall under some fairly specific guidelines, and never to “conceal violations of law, inefficiency, or administrative error,” or to “prevent embarrassment to a person, organization, or agency,” among other things.

It also sets up a protocol for an individual to challenge a security classification. As I would presume the Vice-President to be among those ‘authorized holders of information’ under Sec. 1.9( a ), he would be “…encouraged and expected to challenge the classification…” he thought to be in error. Sec. 1.9 ( b ) (1 through 3) establishes the procedures for seeking reclassification or declassification, and Sec 5.4 outlines the appeals process should he not be satisfied with the decision rendered under Sec. 1.9 supra.

There is nothing arbitrary about the declassification process. Sec. 5.7( b ) mandates sanctions on “Officers… of the United States Government,” who “disclose… information [which has been] properly classified.” These sanctions can include- among several punishments- reprimands and suspension without pay, but the agency head “…shall, at a minimum, promptly remove the classification authority” of anyone who “demonstrates reckless disregard…” to this Executive Order. In this case, the agency head in charge of Dick Cheney is George Bush.

Section 3.2( b ) states that only a Department Head has the authority to declassify as “…an exercise of discretion…” an item within his or her own department. Section 3.4( b )(2) states that agency heads need not declassify information that would otherwise systematically be declassified if it would “assist in the… use of weapons of mass destruction,” or, under ( b )(6), “impair relations between the United States and a foreign government.” Under 3.4( e ) any declassification must meet with “…a plan for compliance…” within the Executive Order itself. Unless I missed something, that limits the authority to Porter Goss in the case of Valarie Plame. Steven Hadley, as National Security Advisor, can override Goss- but that’s not what Cheney has proclaimed.

The Executive Branch is mandated by Sec. 4.2( d ) to “…assure protection of [classified] information…” and 4.2( b ) states that “classified information shall remain under the control of the originating agency…” in this case, the CIA. 4.2( c ) demands that classified information “… shall not be removed from the premises without proper authorization,” and the only one who could provide such authority besides the President would have been the Director of the CIA.

Now, to be fair, there is a long list of people and offices that can be included in a “special access program” as defined in Sec. 4.4, but the office of Vice-President is not on that list.

An infraction of 12958 includes “…any knowing, willful, or negligent action that could reasonably be expected to result in an unauthorized disclosure of classified information.” So here’s my take on the whole thing. Executive Order 12598 does not authorize anyone to arbitrarily disclose anything that is legally classified. Quite to the contrary, it establishes a systematic procedure and protocol for the declassification of state secrets. From the language of the Order, it seems to be an effort to make transparent the operations of government without compromising national security. Under this Order, documents marked ‘Secret’ during the Korean War can be made public, using specific and explicit guidelines- the most important among them being a systematic review by the agencies involved in the original classification.

Mr. Cheney does not say whether he requested that Valarie Plame and her operations be declassified, or that he had attempted to appeal any adverse decisions on requests he might have made. To the best of my knowledge, neither Tenet nor Goss had declassified Plame’s status nor any of the WMD operations in which she had been engaged. I might be going out on a limb here, but it seems to me that ordering Scooter Libby to leak Plame-related information to the press would seem both “unauthorized” and “willful,” and considering that its purpose was to discredit Joe Wilson, “negligent” also seems to fit. You know, I’m really glad he brought this Executive Order to my attention!