In a tense briefing, White House spokesman Scott McClellan was asked repeatedly to explain his statement from three years ago that portions of a prewar intelligence document on Iraq were declassified on July 18, 2003.which raises the issue of whether the information leaked is still classified if the president authorizes its release. atrios calls it a "metaphysical" question, and the consensus seems to be that the president has the legal power to declassify materials by executive order. but what interests me is the idea that the president might have declassified something orally instead of issuing a written executive order. i'm not sure that's what happened here, but the impression i have is something like this: bush told cheney who told libby to leak the information, and that nothing was ever in writing. at least not at that point (jane hamsher raises a related question: "where's the stamp?")
Ten days earlier, Cheney's top aide, I. Lewis Libby, had leaked snippets of intelligence from the document to New York Times reporter Judith Miller to rebut allegations by Bush administration critic Joseph Wilson, Libby told prosecutors, according to documents revealed this week.
Libby, Cheney's former chief of staff, said he had passed the information to Miller after being told to do so by Cheney, who advised Libby that Bush had authorized it, said a court filing by Special Counsel Patrick Fitzgerald.
let's assume there was no writing and that the president orally authorized the information be declassified. can there be oral executive orders that have the force of law? executive orders are considered to be legally binding (though they have less power than statutes). but for some reason, i have this sense that in order to be legally binding, the law must be in writing.
i'm not sure where this sense comes from. i've looked around a little bit, and can't seem to find a ruling either way on the question. it just seems like common sense. in the american system, our leaders do not make laws by simple pronouncements. it doesn't seem right for the president's voice to have the force of law. it just seems contrary to a system that relies upon the rule of law.
i can at least think of a due process argument against oral executive orders. it is well established that under the due process clauses of the constitution that people are entitled to notice of what the boundaries of acceptable conduct are before they can be charged with violating those boundaries. if a law is on the books, that's considered to be constructive notice of what the law says. in other words, while no one actually reads all of the statutes and regulations that restrict their conduct, all that stuff is public record. so, because you could look it up, that's considered to be "constructive notice", the equivalent to actual notice.
so if there's a written executive order restricting my ability to share information, i may never have read the text of the order. but it's out there. if i wanted to hunt it down and figure out what i can and cannot share, i could do it. or i could hire someone else (i.e. a lawyer) to do it for me. my ability to look it up gives me constructive notice of what i can or cannot do. and because of that constructive notice, i can be held responsible for failing to abide by the terms of the executive order.
with an oral executive order, there is no constructive notice. not only hasn't anyone told me what is classified and what isn't, i couldn't find it out even if i looked. and that would violate my right to due process under the constitution.
my due process argument doesn't help libby at all. if the story quoted above is correct, he received actual notice of what was classified and what wasn't. instead, it's more an issue for everyone else. all the people who had access to the information who were not told that it was no longer classified. they had no way of knowing what they could or could not say. with the president orally declassifying stuff (and maybe classifying stuff as well), how could they know?
i don't know if something like the due process clause argument is where my gut-level objection to oral executive orders comes from. but it's the best i can come up with right now.
