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Questions Raised About Declassification Authority

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Questions Raised About Declassification Authority

Law

Questions Raised About Declassification Authority

Questions Raised About Declassification Authority

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Lawyer Eugene Fidell talks with Robert Siegel about executive orders and the vice president's authority to declassify material. Fidell is a partner at the Washington, D.C., law firm Feldesman Tucker, and heads the firm's military practice group.

ROBERT SIEGEL, Host:

In addition to asking the vice president about the hunting accident in Texas, Brit Hume, of Fox News, tried asking Mr. Cheney about the case of his former chief of staff, Lewis Libby, yesterday. And he did get an answer to a question that's been talked about in Washington a lot over the past week. It emerged in court documents that Libby has claimed that his superiors, presumed to include the vice president, told him to publicize information in the National Intelligence Estimate, information that was classified. It has been said in response that the president and the vice president have the authority to declassify classified documents. So Brit Hume asked Dick Cheney about that.

BRIT HUME: Is it your view that a vice president has the authority to declassify information?

DICK CHENEY: There's an executive order to that effect.

HUME: There is?

CHENEY: Yeah.

HUME: Have you done it?

CHENEY: Well, I've certainly advocated declassification and participated in declassification sessions.

HUME: Have you ever done it unilaterally?

CHENEY: I don't want to get into that. There's an executive order that specifies who has classification authority. And it obviously focuses first and foremost on the president, but also includes the vice president.

SIEGEL: Well, here to help clarify what the vice president was talking about is Eugene Fidell, the Washington lawyer who specializes in, well, in military cases, but you've also dealt with issues of classification and declassification.

EUGENE FIDELL: That's correct.

SIEGEL: First of all, the executive order that Vice President Cheney referred to, what's he talking about?

FIDELL: The executive order that Vice President Cheney was mentioning was issued in 2003 by President Bush, the current president. It replaced or modified an executive order that President Clinton had issued in 1995. And, in fact, Mr. Cheney is correct. The executive order does say that the president and, in the performance of executive duties, the vice president, are classification authorities. In other words, they can classify things.

SIEGEL: Well, is this a case of what goes up can come down? Or does the same person who classifies things also empowered to declassify it?

FIDELL: Here it gets a little complicated. You have to ask who the original classification authority is. And under the executive order that Mr. Bush issued, the declassification authority is either the official who originally classified or the successor in office of that official or a supervisory official of either one.

So the question that really is framed by Mr. Cheney's comments is, who does the vice president supervise? And if the original information was classified by the Director of Central Intelligence, for example, then the question is does the vice president supervise the Director of Central Intelligence?

SIEGEL: Well when Brit Hume asked Vice President Cheney about whether he had been involved in declassifying things, unilaterally, the vice president talked about, he at least alluded to a process. Do we think that somebody can sit and look at a document that he or she classified last year and say I'm going to stamp this one unclassified now? Or do you have to send it to the White House Counsel, or is there some process we understand involved here?

FIDELL: Well there is a process in place where one official holding a document wishes to declassify a document classified by another official. Ordinarily the etiquette between federal agencies is that the holding agency consults with the original classifying authority, so that you don't have a situation where some major issue of policy has been overlooked.

SIEGEL: It wouldn't be very collegial for the vice president to be declassifying wholesale documents for the Secretary of Defense if classified.

FIDELL: That's correct.

SIEGEL: Well does all of this seem to you to be familiar ground that we all know about? Or is there something new here that's emerging from the discussion over declassification?

FIDELL: I think there is, and it's another one of those sort of dark nooks and crannies of government that for most of us, there's no need to explore. For Americans today though, I think what's interesting about this is the light that it sheds on the role played by vice presidents, or this particular vice president in this particular administration. Is the vice president a sort of co-president? Does the vice president share in the authority of the president as Chief Executive? Now there is a doctrine that's gotten a lot of attention lately of the unitary executive. And the concept behind this is that all power to execute the laws of the United States is vested in a single official, namely the President of the United States.

And to the extent that this controversy, if it is one, suggests that the vice president can exercise power that, of supervision, over other federal agencies. That does seem to bump into the notion that there is only one chief executive.

SIEGEL: This is actually, in some respects, a weak president argument if the vice president also shares in supervision of all of the agencies.

FIDELL: Well the Constitution does not provide for co-presidents. It provides for a single president. And indeed the Constitution had to be amended in the last century in order to take account of what might happen if a president were disabled.

SIEGEL: Eugene Fidell thank you very much for talking with us.

FIDELL: My privilege.

SIEGEL: Washington lawyer Eugene Fidell talking with us about classification and declassification and the vice presidency.

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