The President's absolute de-classification authority? Let's get this straight once and for all!

Does the President have absolute authority to declassify information? To ask the question should be to answer it, but some people seem to be making fools of themselves by claiming that is the case. Would it be lawful for a President, mad at a general, to leak information for the purpose of having a few thousand soldiers wiped out so the general will be embarrassed? No? Really? Well, then enough is enough with the absolute “Article II powers" nonsense.

The President is required by law – by the Constitution of the United States of America – to execute the laws faithfully. If an action violates that principle – which may or may not be the case in this instance of the NIE leak, and which may indeed be a more complex analysis in the case of a President -- it violates the law, period. Once again, it is up to Congress to make that finding and enforce it, of course, through the impeachment process, and it may well be that a President will be de facto insulated from answerability by political control of Congress. However, the idea that a President cannot act unlawfully because there is no one to stop it is an insidious concept that undermines the very nature of a constitutional government. See my earlier post on this subjecthttp://www.blogger.com/post-edit.g?blogID=18726838&postID=114443056870510997.

The Gadflyer’s Jonathan Weiler seems to be one of the few to get it.

But, there is also the issue of the legal basis upon which the President may declassify material. The President clearly possesses the authority to declassifyinformation. The question is whether there are limits to his doing so. His
supporters appear to believe that when the President decides to disclose something it is, in effect, de facto or automatically declassified. But, as Media Matters notes in a lengthy analysis, while media types appear to leap to such conclusions, the experts they actually quote say no such thing. In fact, one expert, Fox news legal analyst and former Judge Andrew Napolitano, who actually spoke to the de-classification process itself, said the following:

"Yes. He can unilaterally declassify what he has ordered to be classified. He has to go through certain steps in order to do that. He can't say "Hey, Dick, tell Lou he
can tell this to Judy." He has got to sign certain documents. He's got to go through a procedure, a procedure set up by President Clinton and reinforced by President Bush."
…..

[The Executive Order setting out the declassification procedure says the following:] ". . . . It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure."

So, maybe this is provision provides the basis for the President's authority to selectively declassify a document like the NIE. But, the necessary premise for disclosure under the above-stipulated circumstances is that the disclosure is in the "public interest." But, how, in a democratic society, could it possibly be in the public interest for the President, or people acting on his authority, to disclose
information in a way that transparently and willfully misrepresents the substance of the information contained in the underlying classified material.

This is not a close case. There is no "on the one hand," "on the other hand" here. The President does not have absolute power to do anything. (By the way, neither does Congress or the Supreme Court.) It is kinda sick that we are even having this discussion.