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Waxman: Bush Statement on Rove Conflicts with Executive Order


By Rep. Henry A. Waxman
YubaNet

Monday 18 July 2005

Dear Mr. President:

In June 2004, you said that you would fire anyone found to be involved in the disclosure of Valerie Wilson's identity as a covert CIA agent. [1] Today, you significantly changed your position, stating that you would remove Karl Rove or other White House officials involved in the security breach only "if someone committed a crime." [2]

Your new standard is not consistent with your obligations to enforce Executive Order 12958, which governs the protection of national security secrets. The executive order states: "Officers and employees of the United States Government ... shall be subject to appropriate sanctions if they knowingly, willfully, or negligently ... disclose to unauthorized persons information properly classified." [3] Under the executive order, the available sanctions include "reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions." [4]

Under the executive order, you may not wait until criminal intent and liability are proved by a prosecutor. Instead, you have an affirmative obligation to take "appropriate and prompt corrective action." [5] And the standards of proof are much different. A criminal violation of the Intelligence Identities Protection Act, which Special Prosecutor Fitzgerald is investigating, requires a finding that Mr. Rove "intentionally disclose[d]" the identity of a covert agent. [6] In contrast, the administrative sanctions under Executive Order 12958 can be imposed without a finding of intent. Under the express terms of the executive order, you are required to impose administrative sanctions - such as removal of office or termination of security clearance - if Mr. Rove or other officials acted "negligently" in disclosing or confirming information about Ms. Wilson's identity. [7]

I have enclosed a fact sheet on Karl Rove's Nondisclosure Agreement and its legal implications, which provides additional detail about the President's national security obligations. I urge you to act in compliance with Executive Order 12958 and your responsibility to safeguard national security secrets.

Sincerely,

Henry A. Waxman
Ranking Minority Member

--------------------------------------------------------------------------------

[1] Press Conference: President Discusses Job Creation With Business Leaders (Sept. 30, 2003).
[2] Bush: CIA Leaker Would Be Fired if Crime Committed, Reuters (July 18, 2005); Bush: Any Criminals in Leak to Be Fired, Associated Press (July 18, 2005).
[3] Executive Order 12958, sec. 5.5(b)
[4] Id. at sec. 5.5(c).
[5] Id. at sec. 5.5(e).
[6] 50 USC sec. 421(a).
[7] Executive Order 12958, sec. 5.5(b).

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EO 12958 has been superseded by EO 13292. EO 12958 was signed by Clinton, EO 13292 was signed by Bush. I am disappointed that Rep Waxman did not realize this. Anyone who deals with classified information should know this document in detail. Nonetheless, his analysis is correct.

Part of EO 13292 (http://www.fas.org/sgp/bush/eoamend.html):

(nn) "Unauthorized disclosure" means a communication or physical transfer of classified information to an unauthorized recipient.

(oo) "Violation" means:

(1) any knowing, willful, or negligent action that could reasonably be expected to result in an unauthorized disclosure of classified information;

I recommend that anyone who is interested in how the government controls national security information read this document. Its not that long, but will clear up a lot of the misstatements that have been made in the media recently.

Perhaps I was a little too harsh on Rep Waxman. Technically, EO 12958 is still active as amended. He should have stated in his footnotes: [3] EO 12958, as amended, sec 5.5(b)

Sure it's nitpicking, but neo-cons love jumping on mistakes like these to call liberals liars. Sec 5.5 has significantly different wording and requirements in EO 13292 (or EO 12958 as amended) than in EO 12958. None of the text that he cited existed in the original EO 12958.

Thank you anon for that info. If only the public had ready access to this sort of info, and would use it, then we might have another White House administration altogether!

Hopefully he will correct himself, and re-issue this.

Is it only up to the President to mete out repremands in cases like this? When the executive branch is involved it strikes me as a conflict of interest that the executive branch should be in a position to investigate and "punish." Bush'll stop at nothing to save the ass of his "mommy" Karl Rove. Already they've called Wilson to account and thrown blame at his wife as well, to take focus off of Rove's actions - Isn't the issue here that Valerie Plame was outed by information supplied by Karl Rove and Scooter Libby? Not who sent Wilson to Niger, Not whom Wilson voted for in "04. But the WH is muddying the waters, trying to confuse the fundamental issues in the case. Changing the "I said this" to "I really ment that." (And to think Bush had the audacity to call Kerry "Flip-Flop!")

It shouldn't be up to Bush to determine who gets fired in this case or for what reasons, he's already proven that there is no accountability in his office. Time to take this case away from WH authority and give it to the Justice Department or to Congress.

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