Was It Illegal for President Bush to Leak Classified Secrets to Bob Woodward?

In a recent article in the Nation, Eric Alterman stated flatly that President Bush had broken the law when he personally leaked classified secrets to Bob Woodward after 9-11. Alterman wrote:

In his most recent book, Bush at War, Bob Woodward brags that he was given access to the deeply classified minutes of National Security Council meetings. He also noted, not long ago, that the President sat for lengthy interviews, often speaking candidly about classified information. This surprised even Woodward, who observed, "Certainly Richard Nixon would not have allowed reporters to question him like that. Bush's father wouldn't allow it. Clinton wouldn't allow it.'' But George W. Bush does it--breaking the law in the process--and nobody seems to care.

President Nixon famously stated during the Watergate era that when a president does something that means it's not illegal. The courts disagreed and Nixon was forced to resign. But was Alterman correct in his assessment of President Bush's culpability? HNN asked Steven Aftergood, editor of Secrecy News, a newsletter published by the Federation of American Scientists, what he thinks. He told us that Alterman's conclusion that Bush had violated the law "can't be taken at face value," adding, "though I suppose it is within an opinion columnist's editorial license." He went on:

There are several specific categories of classified information that are protected by statute -- communications intelligence, identities of covert agents, nuclear weapons design information, and some others. Those statutes are binding on the executive branch as well as on everyone else.

But most classified information is not protected by law. Instead, its classified status derives from the president's constitutional authority as commander in chief. He has full authority to declassify and disclose it as he sees fit.

The numerous disclosures of classified information made to Woodward probably did not violate the specific statutory prohibitions. (I didn't examine them carefully with this question in mind.)

But what is offensive is that the documents provided to Woodward are still not available to you or me. If they were declassified, fine-- let's have a look at them. But by handing classified documents over to Woodward on a selective basis, Administration officials probably did not break the law. What they did was to undermine the integrity of the whole classification system.

Is leaking the identity of a CIA operative illegal? Yes, under the terms of the Intelligence Identities Protection Act, though some have argued that not even the disclosure of Valerie Plame's identity was a crime. (See Jack Shafer, "Stop the Investigation! Exactly what law did Robert Novak's leakers break?" Slate).

But Aftergood previously has noted that leaks by themselves are not necessarily harmful to democracy, though clearly in Plame's it was. "For better and for worse," he observed, "they are an essential component of the overall economy of news and government information. In many cases, leaks are the most expeditious remedy to arbitrary or irrational government information policies."