WASHINGTON — Experts in national security law say a decision by President Bush to authorize the leak of classified information to a reporter probably would not be illegal.
But if Bush did so -- as a former top White House aide has testified he did -- there could be significant damage to the credibility of a president who has repeatedly and publicly expressed his abhorrence of leaks.
News of the testimony that Bush approved a 2003 leak of prewar intelligence assessments of Iraq sparked sharp criticism from Democratic lawmakers Thursday. Some suggested that, if true, the president acted above the law in an effort to defuse charges that he had exaggerated the danger posed by dictator Saddam Hussein before the 2002 Iraq invasion.
"Leaking classified information to the press when you want to get your side out or silence your critics is not appropriate," said Rep. Jane Harman (D-Venice), a member of the House Intelligence Committee. "If I had leaked the information, I'd be in jail. Why should the president be above the law? I am stunned."
Several legal experts, however, said the law clearly would be on the side of the chief executive in disputes over the disclosure of secret material.
"The president can do this," said Ronald Lee, former general counsel at the National Security Agency. "The president is the head of the executive branch, which is the one that decides what's a secret, how big a secret it is, and when to say it's no longer a secret."
But the experts also said that if the testimony of I. Lewis "Scooter" Libby was true, Bush's actions violated a traditional unwritten understanding that any declassification decision would be made in close consultation with intelligence officials.
"He doesn't have a legal obligation to check with the CIA, but he certainly has a professional obligation to check with the CIA," said Jeffrey Smith, former general counsel at the intelligence agency.
Although legal experts agree that the president has broad authority to declassify information, there are limits. For example, it is unclear whether a president can override laws designed to protect certain categories of sensitive information, such as a 1982 statute that makes it unlawful to expose the identity of an undercover CIA officer.
"If a statute says the executive branch or anybody can't do something, it's not clear to me that the president's inherent declassification authority would be enough to overcome that," Lee said.
Libby, Vice President Dick Cheney's onetime chief of staff, is under indictment on charges stemming from the ongoing investigation into the illegal disclosure to reporters of the identity of CIA officer Valerie Plame in 2003.
Libby is charged with perjury, obstruction of justice and lying to federal agents who were investigating the disclosure of Plame's name, but it has not been alleged that he was the one who leaked her identity. Nor has it been alleged that Bush or Cheney authorized that leak.
Her name was published in a newspaper column shortly after her husband, Joseph C. Wilson IV, wrote in an op-ed piece that the Bush administration had "twisted" intelligence on Iraq's nuclear ambitions. Wilson claimed that the administration had not dealt honestly with his findings on a government trip to Niger that there was little evidence to support the notion that Iraq was seeking uranium for a nuclear weapons program.
The disclosure of Plame's identity was widely viewed as an effort to discredit her husband and his report by suggesting that his assignment to Niger was the result of nepotism.
The new court filing in Libby's case referred to his testimony that Cheney, in a discussion of how to respond to Wilson, told him that Bush had approved leaking information from the CIA's classified National Intelligence Estimate on Iraq's efforts to acquire weapons of mass destruction. The CIA document said the U.S. intelligence community believed Hussein had sought uranium from Africa in recent years.
The White House declined to comment on Libby's testimony.
Democrats pressed Bush to respond to Libby's claim.
"President Bush must fully disclose his participation in the selective leaking of classified information," said Senate Minority Leader Harry Reid (D-Nev.). "The American people must know the truth."
Presidents long have been assumed to have the power to approve disclosure of classified information as part of their inherent authority as commander in chief. An executive order signed by Bush in March 2003 spelled out the president's legal authority to declassify and disclose classified material.
Throughout his presidency, Bush has publicly and privately expressed disdain for government officials who leak information to the media, especially concerning national security.
As the criminal investigation began into the leak of Plame's identity, Bush at one point promised to fire whoever was responsible for the leak. The investigation has yet to determine the leaker.