Any Bush OK of Leak Is Probably Legal
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.
