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April 07, 2006

Comments

Bush supporters insisted the NSA surveillance program was legal because it didn't target purely domestic communications. Now that we know it does - and if Gonzales is saying it "would," that's as good as saying they've already done so - I anticipate another goalpost shift by Bush supporters, to insist that domestic surveillance is legal, too.

That does again raise the question none of them have answered: if they buy the absolute authority claim Bush has made, then is there anything he can't do "legally"?

Correct me if I'm wrong - I was in grad school and saw most of this through the bottom of a handle of Jack Daniels - but didn't the Clinton administration try to add some sort of chemical tagging agents to fertilizer in 1995 in hopes of avoiding another Oklahoma City-type bombing? And didn't the newly-ascendant GOP Congressional majority go absolutely batspam mental over the government intrusion?

That's the most appalling part of the last six years: the extent to which the "I love my country but I fear my government" crowd has leapt at the chance to throw their vaunted libertarian skepticism under the bus. Not healthy for good politics.

I believe you are thinking of "taggants."

... the extent to which the "I love my country but I fear my government" crowd has leapt at the chance to throw their vaunted libertarian skepticism under the bus. Not healthy for good politics.

Look on the bright side -- it exposes them for who they really are. It's obvious now that what they were saying before wasn't really true. I don't think the "9/11 changed everything" excuse can really cover this.

"That does again raise the question none of them have answered: if they buy the absolute authority claim Bush has made, then is there anything he can't do 'legally'?"

Well, if his intentions are good, i.e., he's doing it to Protect Us From Terrorists, then who wants to let petty legalisms and power-mad Democrats whose only goal is to bring down our great Commander-in-Chief get in the way?

Only a traitorous terrorsymp, I think.

Which is to say, Democrats.

Don't worry; a Powerline post is being written even as I type this that will clearly explain all this to you.

"Look on the bright side -- it exposes them for who they really are. It's obvious now that what they were saying before wasn't really true."

I still really hate talk about They. People are individuals. There is no They on the right, or only as much as there's a They on the left. Which is to say, not so much. People don't get to be responsible for the opinions of others who voted for the same person they did.

My local PBS station broadcast an excellent hour program on Dietrich Bonhoeffer a couple of hours ago (an example of a guy who exemplifies why I find the "religion only brings us bad things" line of thought idiotic), which I commend to all. But I was again reminded by clips of Hitler of how often he spoke in his speeches (and I again mention spending a lot of time again with the writings of Goebbels) of the "liberty of the German people" and the need to preserve it, and how he was fighting for their liberty, and so on.

Just, y'know, sayin'. I really do highly recommend studying Goebbels. Highly.

Sorry, Gary, I was referring to jon's "their."

However, since you want a specific instance, it is instructive to compare Senator Hatch's comments in that linked article to his performance in the recent hearing.

is there anything he can't do "legally"?

IANAL, but I think wedgies are still out of bounds.

Just to be on the safe side, though, I'm designing some undies with breakaway elastic bands.

There's an interesting side-note to the Scotter Libby press today that dovetails with Gonzales' testimony and the idea of Presidential Authority.

Apparently, Libby's lawyer advanced the idea that the President, by telling Libby to leak classified information from the NIE, implicity declassified the document. The argument is a little frightening, as it essentially redefines 'classification' as a transient state that exists only in the President's mind. I've been blogging about it, but needless to say, Lex Rex doesn'e like that much.

Yeah, add it to the list

"The president would never allow his staff to leak classified information"*.

*If the president authorizes his staff to leak it, by definition it's not classified information.

But we're not allowed to see the various memos arguing that "If the President does it, it's not illegal"--oh no. They're classified!

"The argument is a little frightening, as it essentially redefines 'classification' as a transient state that exists only in the President's mind."

This doesn't seem right to me; the legal question would simply be whether the President has the legal right to declassify things, and he certainly does.

Moral questions, as you put it in your post, are another question, as are the political implications, and the policy implications.

But the classification/declassification legality question was well-discussed when Cheney announced that he had the authority to do so equal to the President. That was a highly dubious claim. But Executive Order 13292 is entirely clear about the President's authority. I gather you missed all the news about this back during the Veep-takes-to-shooting-voters thing?

The President's authority over what's classified or declassified is essentially absolute. Among other points:

(l) "Declassification authority" means:

(1) the official who authorized the original classification, if that official is still serving in the same position;

(2) the originators current successor in function;

(3) a supervisory official of either; or

(4) officials delegated declassification authority in writing by the agency head or the senior agency official.

Needless to say, the President is the ultimate "supervisory official" of everyone in the Executive Branch. Further:
(cc) "Original classification authority" means an individual authorized in writing, either by the President, the Vice President in the performance of executive duties, or by agency heads or other officials designated by the President, to classify information in the first instance.
And then go back to who has declassification authority.

I don't point any of this out because I'm looking to defend Bush here; it's just that the facts on this seem to be completely clear. The President doesn't get to make up laws on his own, or decide when it's okay to violate them, but what's classified isn't established by a law written and passed by Congress, but by Executive Order written by the office of the President; the President is free to change an Executive Order at the stroke of a pen, in any way that is not otherwise a violation of law, which is why he gets to write the EO in the first place; EO 13292 clearly gives Bush the authority to rule on what's classified or not, and to change it at whim, and that authority was inherent in the first place; on this single point, the President is the ruling authority, unlike all the crap they're selling about the AUMF and the unitary executive, and all that lying blather. On this one point, though, it is the Executive that makes the rules. Sorry.

Katherine's comment hadn't yet appeared when I started writing the above comment. For more discussion on the Veep's questionable authority, see here, but there was much discussion of this all over back when Cheney gave that interview.

13292 was a modification of 12958 , written by Clinton's office. This isn't something made up by Bush, or something that's ever ever ever been the least controversial; it goes back President after President after President; there's never been a claim that the President doesn't have the power to keep secret some documents and to equally decide to make them unsecret. This has nothing whatever to do with Bush's anti-democratic, illegal, theories of the unitary executive. Sorry, Katherine, it doesn't go on the list. Not unless you want to put FDR and Wilson and Lincoln and probably Washington on the same sort of list, too.

Jeff: Apparently, Libby's lawyer advanced the idea that the President, by telling Libby to leak classified information from the NIE, implicity declassified the document. The argument is a little frightening, as it essentially redefines 'classification' as a transient state that exists only in the President's mind.

Yes. Bushites would doubtless argue that it's okay because the President has the right to declassify information, but then they ignore (as they have to) the months - years - during which Bush blandly claimed he knew nothing about it.

And to try to stave off any confusion, that the President has the power to declassify says nothing about whether we think it's a proper use of his authority to declassify information for political gain, or to use against political opponents. Unsurprisingly, I think it's a terrible misuse of authority.

But that's a political issue, not a legal issue.

This doesn't seem right to me; the legal question would simply be whether the President has the legal right to declassify things, and he certainly does.
Gary, thanks for the link. I'd only read excerpts of the document in question. Frustratingly enough, after reading the document, I see your point. If i understand it correctly, as long as the President is the authority that orders the initial classification, he can classify, declassify, reclassify, and partially declassify anything at will. I suppose the question of whether the NIE was originally classified by the White house, or by the CIA, might be relevant -- it doesn't appear that a classifying authority can declassify something under a DIFFERENT authority's umbrella. But that sounds a bit fuzzy, and honestly I don't think nitpicking will lead far.

I'll clarify that I didn't really intend to focus on the legal aspects in my post. There are interesting questions raised, but the moral, ethical, and machiavelian implications are what interest me the most at the moment.

In this case, I don't think that classification is being used as a political weapon so much as a rhetorical one. It's a means of controlling the landscape of a public debate, which is subtler and disturbing in its own ways.

"Frustratingly enough, after reading the document, I see your point."

Yeah, I hate it when facts get in the way of my opinions and what I'd prefer to believe, myself. :-)

I think, incidentally, that contemporary classification authority may be rooted in statute in the National Security Act of 1947 and the later Atomic Energy Act, but I'm too tired to double-check just now, as I'm about to fall asleep.

Nevermind, the CIA is part of the executive branch, obviously, and thus falls under the President's authority.

I suppose I was under the mistaken assumption that there was an actual process that had to be followed for declassification. How troubling.

"...as long as the President is the authority that orders the initial classification, he can classify, declassify, reclassify, and partially declassify anything at will."

IANAL, but I don't think there's any such limit, actually. My understanding is that in the matter of classification, the President's authority is simply absolute. This is one of the few areas of government in which that can be said, but this happens to be it; as I understand it.

The President wouldn't have the power to issue an EO that violated law, such as the NS Act of '47, or the recent intelligence reorganization bill, and so on. But within those parameters, if he wants to issue an order giving all authority to declassify to dancing bears, but only if they they wear tutus, he can, unless there's something in one of those Acts that prohibits such a thing (and there may be a provision limited such authority to humans; I dunno, though I doubt that dancing bears are specifically discussed).

Again, IANAL, and I could be wrong, but that's my present best understanding, particularly at this level of tiredness. And now, gesundteit. I mean, good night.

"I suppose I was under the mistaken assumption that there was an actual process that had to be followed for declassification."

Except, no, that's right, there very much is. Absolutely. And the EOs I cited regulate it. It's just that the President, as the top "supervisory authority," gets to override the process as he likes.

But, like I said, I certainly don't think the President should be doing it for political purposes (though his defenders will claim it was a reasonable decision and to help protect the nation by correctly helping demonstrate what an evil and traitorous partisan Joe Wilson and Valerie Plame are, or somesuch, of course). But bet your dimes to dollars President Bartlett would never do such a thing!

Maybe the blog is slow. The browser seems to say post. I hope this appears only once.
____________
Next we get to if Bush thought it might be classified, it was; but after he released select officials to unclassify parts of it it was temporarily unclassified then automatically reverted to being classified. If Gonzales omitted specifically saying it was not tapped, it was ok to tap it. And the president probably has thought it is ok to tap what you need to, so the mere thought that the president had that concept is sufficient to do it if it is ok with Gonzales.
I think the vice president's office works more according to protocol and keeps records of programs, but the president has executive authority to think about all these things and lead based on his responsibility to do so proactively; unless, of course congress demurs. But congress is going to keep on an even course here and pass legislation it can implement, and stay clear of executive responsibilities. It is a kind of compliance only seen in times of national stress though. However, the judiciary is inadvertenly becoming involved; organically so; as our tripartite system extrudes the difficult to the court to decide; it may take years, though. I am not sure the executive has defined where it is leadership is heading; but the relationships are altered among the three branches. The president has said a few interesting things recently to provide some cheer; like the US will be in Iraq during the next presidency, or, maybe he meant until the week before the next presidential election; that timeframe; it depicts a sense of continuity of purpose yet juxtaposes it to a will to obtain closure on the effort that put us in that country. And in a reassurance to a questioner the president reportedly said, forget worrying about the searchengine subpoenas, and rejoice you may blog in this new medium, near realtime mirror of the news.

The President has declassification authority, yes. What's missing from the Executive Orders is the procedure for Presidential declassification. Does his office have to issue a declassification guide, spelling out what parts (could be all) of the record are to be declassified? The argument wrt Libby appears to be that the President can declassify any portion of the document at will with no procedural requirements.

That's really pretty stupid. If the procedure is entirely free-form, can he declassify series of words individually (but without rearranging the order in which they appear in the document) and piece them together into sentences like a newspaper-clipping letter? "Iraq" "has" "nuclear weapons"? That would be farcical.

And "http://glenngreenwald.blogspot.com/2006/04/something-doesnt-add-up-here.html>Meanwhile, National Security Counsel staff, unaware of this secret declassification, continued to go through the steps of formally declassifying portions of the document, and finally succeeded ten days later, on July 18, 2003."

I realize Armed Liberal is ambivalent in the rest of the piece about the legality of the President's declassification in this case. My personal benefit of the doubt will be extended at approximately the same time I find (or someone points out to me) the procedures for Presidential declassification spelled out in an order signed prior to 2003.

Until then, fool me four times...

John Lopresti,

Fortunately, yes, it only appeared once.

Can we call them fascist yet?

"Can we call them fascist yet?"

Not until they have the proper footgear, and black leather trenchcoats. Those are the most important defining elements.

"I realize Armed Liberal is ambivalent"

Even about the name: Anonymous, Armed, Actualized, Aesthetic -- pretty much all the same thing.

The WaPo:

Legal experts say that President Bush had the unquestionable authority to approve the disclosure of secret CIA information to reporters, but they add that the leak was highly unusual and amounted to using sensitive intelligence data for political gain.
It's basically a sidebar piece, incidentally, to this.

And, unsurprisingly, this:

"The official said Bush authorized the release of the classified information to assure the public of his rationale for war as it was coming under increasing scrutiny."
See? Just Protecting Us by keeping us assured! As Jeff Goldstein has informed us, scrutiny can damage the war effort!

And while I'm giving everyone the day's WaPo news, has everyone yet heard about Michael Taylor getting in Bush's face?

I knew that our classification laws were stupid, but that's farcical.

My primary point wasn't that it's illegal, though. My point is it's, to use a word discussed earlier, mendacious. It is a reassurance given that sounds like it means something when it means absolutely nothing.

I didn't realize, to be clear, that the Pres. could declassify cherry picked parts of a document for 20 minutes while his aides called the right reporters, and then magically reclassify it again, without any paper trail.

And doesn't FOIA in fact limit this? Otherwise why did they lose some of those lawsuits to the ACLU?

"My point is it's, to use a word discussed earlier, mendacious. It is a reassurance given that sounds like it means something when it means absolutely nothing."

I'm not sure precisely what the "it" refers to, but it's appropriate to so many acts of behavior, and things said, in this general context by President Bush, that you are undoubtedly correct.

"I didn't realize, to be clear, that the Pres. could declassify cherry picked parts of a document for 20 minutes while his aides called the right reporters, and then magically reclassify it again, without any paper trail."

I assume that they will say -- presuming that the White House backs Libby's line, which hasn't been clearly stated yet, I should point out, although there are as yet no indications they'll do otherwise, either, so my guess right now is that they'll back him on this point -- that the President informally declassified that information when he told Cheney it was okay for Libby to say that, but that obviously the formal process still needed to be completed for the NIE to be formally declassified.

I think that's probably entirely legally defensible, though I'm just guessing, and could be wrong. But I don't think that strict legality is remotely the issue here, and I think it's a mistake to focus on that issue, as it's the one issue here they'll be able to knock down, while surrounded by thousands (in the Condi Rice, "figurative sense," you understand) they can't knock down. Why help them by attacking on the single point they can defend themselves on?

Go back to "mendacious"; you're on target there.

The fourth amendment doesn't mean much when your city has been levelled by a terrorist's bomb. You would prefer the hallowed sanctity of imaginary rights, dreamed up by left-wing activist judges, to the safety of yourself and your family. Except that I don't think you really would. I think the reality is that if Clinton had done this, you'd be all for it. Oh, wait, Clinton did to it and there was not one peep from the ACLU crowd at the time.

Simply put: this is just another pretext for the left to attack the man they hate more than any other -- president Bush.

this is just another pretext for the left to attack the man they hate more than any other -- president Bush.

I dunno, I think I hate Cheney more.

The people to whom I have spoken (on-line) who might also characterize themselves as conservatives and Republicans do not appear to have a problem with the President revealing this information to reporters in order to combat the "falsehoods" spread by Wilson. Nearly universally, Bush supporters see no connection between releasing the NIE in this fashion and the outing of Plame. So, in their view, in Sep 2003 the President could not have known there was a connection between the two things, and so his we-will-fire-the-leakers speech (to give it a name) is perfectly honest and forthright.

I can't come to the same conclusion. I don't actually think the President lied, but I do think that in his choice of words he intentionally misled the nation. I listened to him speak, and I did not come away with any nuanced interpretation - what I heard was leaks were bad, leakers were bad, he wanted to find the leakers, and the leakers would be punished appropriately. That is what I came away with. I did not come away with the understanding that the President had authorized the release of the information to Miller and Woodward - and perhaps other reporters such as Novak. I did not come away with the impression that the NIE info release was a separate issue from the Plame case. I took him at his word as I understood it.

One way or another, my mistake, apparently, not his.

Denial. It never goes out of fashion, does it? It's strange days when we can't even tell who is in denail - is it me, or is it the radical right?

Jake

The terrorist bomb is pure speculation, violating 4th amendment rights is real and is now.

I'll take the real and deal with specualation after.

We actually have tons of science that says global warming is an issue, vs squat for intel (then and now)that says Iraq was an issue, yet somehow that threat is not worth considering. We are worried about bombs to which we do not now believe any terrorists have access, but we can't be bothered with hard science discussing a subject which, if accurate, puts literaly hundreds of millions of people at risk, incluing 10's of millions of Americans.

I think war is the difference. You don't get to shoot brown people if you opt to fight global warming, or even world poverty. In fact, if you DON'T fight global warming or world poverty, it is brown people who are most at risk - since worldwide it is mostly poor brown people who wil be affected by global warming. That's like a twofer, isn't it?

Jake

The people to whom I have spoken (on-line) who might also characterize themselves as conservatives and Republicans do not appear to have a problem with the President revealing this information to reporters in order to combat the "falsehoods" spread by Wilson
Precisely the issue that got me thinking about the 'whistleblowers vs. judgement calls' models of justification.

The fourth amendment doesn't mean much when your city has been levelled by a terrorist's bomb.

i really hope the GOP chooses to run on a platform of BE AFRAID!!. tee hee

Oh, wait, Clinton did to it and there was not one peep from the ACLU crowd at the time.

you're either ignorant or lying. the ACLU was certainly concerned about wiretapping during Clinton's term.

and, for a trip down memory lane, go read what the freepi were saying about the issue in 2000. to hell with fair-weather constitutionalists.

You would prefer the hallowed sanctity of imaginary rights, dreamed up by left-wing activist judges, to the safety of yourself and your family.
Darn those left-wing judges, for inventing trials by juries of peers. And writing the Constitution while we weren't looking. Darn them all to heck.
"Can we call them fascist yet?"

Not until they have the proper footgear, and black leather trenchcoats. Those are the most important defining elements.

No, the essential thing is a coloured shirt. I'm not very fussy about the colour; it can be black, brown or blue (though red and pink are out). Trenchcoats are optional in warm weather, but without a coloured shirt a fascist just isn't dressed.

The fourth amendment doesn't mean much when your city has been levelled by a terrorist's bomb.

By this logic, no amendments mean anything when a crime is committed. You want to stay on that train, or perhaps we've approached your stop?

"(though red and pink are out)"

Indeed; a redshirt would be a right bad idea.

In case anyone has forgotten Leonidas is both a troll and an [DELETED]; he's a twofer. Talking to him won't get you anywhere.

Katherine: I didn't realize, to be clear, that the Pres. could declassify cherry picked parts of a document for 20 minutes while his aides called the right reporters, and then magically reclassify it again, without any paper trail.

I can't believe this. I can believe that it would be legal for Bush to sign an EO declaring cherry-picked parts of a document to be declassified, and then 20 minutes later sign a second EO declaring these bits to be classified again, and then a third EO declaring the first two EO's to be classified.

I can also believe that if the President makes use of classified information in a speech or other public statement, it becomes declassified without requiring any EO or other paper trail - that actually makes a certain amount of sense. But it would seem to be the kind of power that could be used only openly and only in one direction (to publicly declassify) and that could not be reversed. That is, I can believe it would be legal for the President to make a statement to the press or the public declassifying anything the President wants to declassify, including Plame's identity as a covert agent or who shot President Kennedy or what illegal WMD: but that isn't what happened in this case.

What happened in this case, from the horse's mouth, was "Bush authorized the release of the classified information to assure the public of his rationale for war as it was coming under increasing scrutiny." (Washington Post, via Josh Marshall.)

So Bush authorized leaking the identity of a covert CIA agent to try and make Joseph Wilson's cogent and accurate criticisms look bad.

Jes, the statement by the WAPO may look like fact, but it is actually a conclusion based on their reading of the facts combined with ther reading of probable administration intent. The actual facts leave room for lots of interpretation of intent.

I agree with the WAPO, but there is room for other interpretations, ones less harsh on the Pres.

Jake

So Bush authorized leaking the identity of a covert CIA agent to try and make Joseph Wilson's cogent and accurate criticisms look bad.

Oops, my bad! NIE report, not specifically Plame's identity.

I was busy yesterday, and had planned to write something about the leak this morning, but since this thread already seem to have become the leak thread, I'll just say it here:

To my mind, the legality of it is only one issue. Illegally leaking any given bit of information is of course worse than leaking it legally, but the wrongness doesn't depend on that, nor do we now lack evidence that this President does not regard himself as bound by the laws. I'm willing to accept that the President can declassify at will -- I don't really know enough, one way or the other. However:

That does not affect the incredible idiocy of leaking information from our national intelligence report on Iraq simply to undercut a political opponent. And I'm not particularly impressed by the fact that this document was declassified in a more normal way a few weeks later: that was also done for political reasons, during the height of the aluminum tubes controversy.

Plus, as if we needed any more evidence of this President's mendacity, consider his claim that he'd fire anyone who was engaged in leaking national security information. We now know that when he said that, he himself had authorized just such leaks.

If our security is worth the sacrifice of the fourth amendment and other "imaginary rights dreamed up by left-wing activist judges", then surely we can expect George W. Bush to suck up a bit of criticism for its sake. (Especially since the criticism in question was justified.)

But Bush has never been serious about our security.

Plus, as if we needed any more evidence of this President's mendacity, consider his claim that he'd fire anyone who was engaged in leaking national security information. We now know that when he said that, he himself had authorized just such leaks.
I certainly agree that the issue is a deeper one than simple legality, though the 'He said he'd fire anyone...' comment looks different when one realizes Presidential powers. What he was effectively saying was, "If I discover that anyone has leaked information that I think shouldn't be leaked, I will fire them."

That's why the on-the-fly whim-based-classification system troubles me a lot.

Jake - from the WaPo article: "A senior administration official, speaking on background because White House policy prohibits comment on an active investigation, said Bush sees a distinction between leaks and what he is alleged to have done. The official said Bush authorized the release of the classified information to assure the public of his rationale for war as it was coming under increasing scrutiny."

Gary's comments are well taken, but I still have a problem.

If I understand the reports, Bush authorized the "declassification" of certain info ... in a leak to ONE reporter. Or, let's say, two or three. Without, it appears, the reporter's being told "hey, this isn't classified any more."

I just don't think that's "declassification" in any legitimate sense of the word. If something is *declassified,* then it's available to the public, not solely to Brenda Starr.

I just don't think that's "declassification" in any legitimate sense of the word. If something is *declassified,* then it's available to the public, not solely to Brenda Starr.
Gary's link to the Executive Order in question is a good one to read, Anderson. Technically, by the letter of the law, one can certainly say that the President DOES have the right to classify and declassify anything in whole or part temporarily or permanently.

Whether this has been DONE before, and whether it has been done for rhetorical purposes rather than security purposes, is another question. I tend to look at this kind of scenerio as 'finding a bug in the system.' It is currently permissible, but that should be fixed.

And, in Fourth-ammendment related news, The EFF has a suite going against AT&T for working with the NSA on a huge data-mining system. According to the press release, "Internal AT&T Documents Had Been Temporarily Held Back Due To Government's Concerns." Since, oh, say, last year.

Gary,

Thanks indeed for correcting the name. Anonymous Liberal (w/ the eponymous site) is Glenn's excellent guest blogger.

The other AL is from war-whoring WoC, of which, the less said the better for a couple weeks. Then their timeline for Iran getting nukes runs out and their wrongheadedness or mendacity is inarguable. My primary point being, my mistake was not a Freudian slip.

So thanks, and yes it is the impressive http://www.anonymousliberal.com/>Anonymous Liberal who has guest blogging controls at Unclaimed Territory.

Illegality is important; morally and politically the Bush administration (and the Republican Congress) approaches burnt toast...yet they still remain extremely powerful and unimpeded. Thy are capable of horrendous atrocities and mind-boggling irresponsibility and simply cannot be slowed down until the Press (the courts and Congress are useless) turns on them with such vehemence that their operations are suspended. Inarguable illegality will be required.

Bush is approaching 30% in the polls and is planning an attack on Iran. The moral highground is completely irrelevant except for martyrs and saints of selfish righteousness, and has been for years. Some tool of brute force is required.

Fitzgerald has been an obvious clown show for a long time, and will be no effective deterrent. No damage save historical will come from him. At any point Bush can pardon and move on.

Wow, Bob. It's only 8:25am for me, and reading your post made feel like downing some whiskey.

If you haven't already read Paul Krugman's book, "The Great Unraveling," do. His thesis is that the neocons' goal is to dismantle American democracy as we know (knew?) it--starting with eliminating the balance of power among the three branches. Once you understand that, it all starts to make a kind of terrible sense . . .

I follow you, Jeff, but I still don't think that telling something to one or two reporters is "declassifying" information in any legitimate sense.

Leaving aside the President's resemblance to a 2d-grader's hopping back & forth over a boundary line: "now I'm in--now I'm out--now I'm in--out--in," etc.

The fourth amendment doesn't mean much when your city has been levelled by a terrorist's bomb.
==========
By this logic, no amendments mean anything when a crime is committed. You want to stay on that train, or perhaps we've approached your stop?

Actually, I thought he was headed towards the Bill of Rights doesn't mean anything if some crime might be committed, some years down the road. I'm not opposed to domestic wiretapping as part of the "war on terror" -- so long as the tappers can show reasonable cause that the taps are material to a real investigation.

bob,

"Thy are capable of horrendous atrocities and mind-boggling irresponsibility and simply cannot be slowed down until the Press (the courts and Congress are useless) turns on them with such vehemence that their operations are suspended. Inarguable illegality will be required."

If the Administration is determined to turn the country permanently away from democracy, why will the press be uniquely able to stop them? Even leaving aside questions of whether the press will stop being "fair and balanced" in the face of inarguable illegality, why would they permit the members of the press to report news damaging to them?

While I can be convinced they are deliberately voiding our Constitutional structure, I think they are doing it because they do believe they are doing what is necessary to preserve our society, without regard to the precedent they are creating. The closest parallel I can think of is Cicero's conduct during Catiline's rebellion, where he took many questionable actions he felt were needed to preserve the state from a conspiracy against it. Unfortunately, other, less scrupulous politicians followed and used similar actions to end the Roman Republic.

It has been rummored that Leonidas is a bomb toting terrorist (and a troll to boot) -- since he has taught me that I should not value the hallowed sanctity of imaginary rights, dreamed up by left-wing activist judges and should instead put the safety of yourself and your family above everything, no matter how irrational the terrorist fears, he should get the Padilla treatment immediately.

Anyone objecting is just another one of those Bush haters.

Jes at 10:29 AM:

"What happened in this case, from the horse's mouth, was "Bush authorized the release of the classified information to assure the public of his rationale for war as it was coming under increasing scrutiny."
(Washington Post, via Josh Marshall.)
How strangely reminiscent of Gary at 07:03 AM:
And, unsurprisingly, this:
"The official said Bush authorized the release of the classified information to assure the public of his rationale for war as it was coming under increasing scrutiny."
I guess there's an echo in here.

I follow you, Jeff, but I still don't think that telling something to one or two reporters is "declassifying" information in any legitimate sense.
Like Gary, I don't want to be misunderstood as defending the ethical and moral aspects of the leak. But I think you're describing it 'backwards' in comparison to the Administration's thinking. The act of leaking the information didn't declassify it. Rather, Bush's decision to declassify it was implied in authorizing Libby to tell the reporters. Thus, it wasn't a leak of classified information -- it was simply Libby sharing some interesting information the President had very recently declassified.

This sort of thinking, while apparently legal under the Executive Order governing classification, is obviously troubling. I'm of the opinion that the President should be able to classify anything he wants to whenever he wants to, but that he should have to go through the same processes for declassification -- BEFORE sharing any information -- that others would have to.

Ultimately, because an executive order governs this stuff, he can do whatever he likes. It's the sort of thing that should probably be handled by explicit legislation. The nice thing about our system is that Executive Orders only hold weight until they conflict with passed legislation.

Jeff, you are probably right, but I'm just not sure I believe in "implied declassification."

I doubt the courts would tangle with the Executive on this one, however.

"And, in Fourth-ammendment related news, The EFF has a suite going against AT&T for working with the NSA on a huge data-mining system."

Not that I expect anyone to study my blog and memorize its contents -- much though that would, of course, be highly educational and useful, as well as put a spring in everyone's step and spare them the heartbreak of psiorasis -- but from back in January: EFF IS SUING ATT OVER CUSTOMER PRIVACY violations for colloboration with the NSA.

I only mention because I do kinda make the effort in the first place, and I can but hope that if I mention again, it's just possible I might increase, ever so faintly, the odds of getting read in the first place, rather than months later.

Carry on.

CMatt: "The other AL is from war-whoring WoC, of which, the less said the better for a couple weeks. Then their timeline for Iran getting nukes runs out and their wrongheadedness or mendacity is inarguable."

Speaking as a guy who for a brief period had posted there until I got too disgusted, for various reasons, and been begged to do so by certain editors of the site on the basis that they "desperately need you, Gary" to be a balancing left/liberal voice, I'd like to point out that while you are fairly characterizing some posters there, they are individuals, with a range of opinions, some of whom specifically argued against the wackiest Iran stuff you are referring to, including specifically, last I looked, Armed Liberal, a guy I have innumerable differences in views with, but whom is nonetheless one of the sanest posters there, unlike, say, Trent Trelenko, who is a complete whackjob.

It's not quite as bad a smear-by-association/generalization as it would be to refer to ObWi as "that site that always goes on about the good news from Iraq," but it's still a lumping together of a bunch of different people with some moderately different views. Though, as I say, you are accurately characterizing more than a couple of frequent posters there. And I'l re-emphasize that while I think quite well of Armed Liberal-the-person, that I do have many differences of opinion with him, even if not remotely as many as with some of the other posters at Winds of Change.

Anderson: "I follow you, Jeff, but I still don't think that telling something to one or two reporters is "declassifying" information in any legitimate sense."

It's certainly fair to say that it's not any traditional or usual or standard sense. It is likely legal. I'm not sure what "legitimate" means in this context. If it's "things we approve of," I'm with you.

Dantheman: "Even leaving aside questions of whether the press will stop being "fair and balanced" in the face of inarguable illegality, why would they permit the members of the press to report news damaging to them?"

Certainly they've shown movement, particularly with the rationale in prosecuting the AIPAC guys, towards demonstrating an interest in prosecuting any reporter, any persons who "receive classified material," and jailing them; we can regard the AIPAC case as a test case in this regard, in which even the judge has raised First Amendment issues, even though it appears that the letter-of-the-law the Administration has found to allow this appears technically valid (this is something I've meant to blog, but been too out of it in recent weeks to get to, unfortunately).

So this is only embryonic, as yet, but in keeping with their multiple investigations -- with criminal prosecutions threatened -- of the leaks about the Program and other such leaks, is certainly highly alarming, and to be watched.

You would prefer the hallowed sanctity of imaginary rights, dreamed up by left-wing activist judges, to the safety of yourself and your family.

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

We hear about constitutional rights, free speech, and the free press. Every time I hear these words I say to myself, "That man is a Red, that man is a Communist. You never hear a real American talk like that."

- Frank Hague: N.Y. World-Telegram, April 2, 1938.

Gary, I meant "legitimate" to have more teeth.

My premise is that if information is declassified, it's declassified for *everybody.*

A secret declassification for the benefit of a journalist, without promulgating the declassification in whatever manner is set by Executive Order or otherwise, *isn't* a "declassification," on my premise.

So I guess the question becomes what "declassified" means.

"My premise is that if information is declassified, it's declassified for *everybody.*"

They did that on the 18th (of July); the information was leaked July 8th. Since the President has the power to declassify, I'm not clear what your premise is based on, beyond "this is how I'd like it to be," I'm afraid.

Maybe there's some procedural or legal hoop they didn't go through, and they can be caught on that because it is an actual violation of law; that would be nice; I don't know of said catch, but IANAL, and it's certainly possible there are details I'm unaware of; beyond that hypothetical, as yet unknown, violation being conceivable, I'm not clear what you're trying to say. That information is declassified doesn't mean a press release has to be put out about it. So I'm kinda scratching my head at what your point is.

Again, I'm not saying any of this because I enjoy saying things that will be taken as defending the Administration; I'm just going with the facts as I understand them. I think the important thing to focus on is that it's wrong to declassify things for political advantage.

"So I guess the question becomes what 'declassified' means."

I'm unclear if you've read the EO in question.

(k) "Declassification" means the authorized change in the status of information from classified information to unclassified information.
Which part do you have a question about?

I think the question is if there such a thing as "selective declassification". ie. Declassifying a piece of information for release to a certain individual (Miller) only, while maintaining classification for everyone else.

Or whatever. I think the legality is a side issue, quite frankly.

"Declassifying a piece of information for release to a certain individual (Miller) only, while maintaining classification for everyone else."

I don't see that that's the only way to look at it, much as it would be convenient for my political preferences if it were.

As I previously indicated, if the notion is that the President declassified it when he authorized Cheney to authorize Libby to pass on the info -- and that's the story they're going with for now -- then that certainly doesn't seem to incur any obligation to put out a news release about it, so where's the "selectivity"? Is there evidence that an FOIA request for the NIE was filed that week, and that such requests are normally answered within a week (answer to the latter: no way; not that that's a good thing, but it's a fact)?

So otherwise, where does "selectivity" come into it, other than in one's head?

They will obviously say that "the normal procedures to formally declassify were ongoing at that time and were completed in an expedited manner within days," I'm sure, and, frankly, I don't really see, off-hand, what's particularly illegitimate about that, per se. Maybe I'm missing something. But I repeat for maybe the fifth or so time: I think the point is that the President shouldn't be declassifying things for purposes of political advantage. (Of course, we already know what their slant is on that, which is what I predicted it would be, but now we're back to politics, and there's no need to adopt their political slant, of course.)

Incidentally, before I forget yet again to mention it, Anderson, I tried to leave a (trivial) comment on your blog some days ago (about add-on agreements re Best Buy, etc.), and couldn't get the server to post; after about an hour of spinning icons, I gave up.

That's Blogger for you, I suppose.

Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

I wonder if any of those conditions might apply in the NIE or Plame matters.

The reports yesterday say that Plame's name was disclosed in a July 2003 column by Robert Novak and that Libby said Cheney said Bush said it was ok -- i.e. Bush declassified it.

Fine. Let's assume that the President can declassify things at will.

However, back up 10 months to when Judy Miller co-published an article called "U.S. Says Hussein Intensifies Quest for A-Bomb Parts". This article anticipated, by a month, all the key judgements of the intelligence agencies about Iraq's nuclear program that went into the 2002 National Intelligence Estimate.

Libby is saying that the leak of the NIE document in September 2002 was authorized by Bush. Not the leak of Plame's name. Fitzgerald looked into stories filed by Miller and found that her 9/2002 article parrots the still-classified, unseen-by-congress NIE documents.

That set off an alarm.

Fitzgerald now knows for sure that Miller is an administration-run mole at the NYT. He had probably heard scuttlebutt about Libby and Miller vis a vis their close relationship. He sees proof that Miller has been leaked classified information in the run-up to the war. He is now assured that Miller is an agitprop conduit for Libby and Cheney. He checks Miller and Libby's phone records. He then contacts Miller and says "I know you were given classified information about this whole Saddam/nuclear material angle back in 9/2002. I know congress didn't get that classified information until 10/2002. You got that information from Scooter Libby. Your phone records show calls before you printed your article. Your attachment to Libby is in cement, dear. Undoubtedly, Libby later contacted you about Plame. Let's talk about how and why you came to be an agent of Scooter Libby's."

And Miller doesn't want to be fully exposed for all of her stenography. She makes a deal that will help Fitzgerald nail Libby for sure on at least one count that is solely based on their July 2003 meetings. As a result, she gets to walk with regard to her previous Libby/Cheney directed agitprop.

But... can the president authorize the leak of classified information that hasn't even been presented to Congress? Information that, after it was leaked, was presented to Congress as classified? Can a president declassify information, then reclassify, then declassify it again?

Because that's what a president would have to do in order to claim that the NIE was not classified when Libby leaked it to Miller. She saw it in 9/2002, Congress saw it in 10/2002 and it was declassified in 6/2003.

It's just retarded to claim it was declassified when leaked to Miller, then reclassified for congress, then declassified in 6/2003.

Info cut-and-pasted from http://www.boomantribune.com/story/2006/4/6/182522/5719 and from http://www.crooksandliars.com/ .


I don't think anyone can seriously believe that the president has the authority to use the powers of the government to attack his political rivals. If you believe that, you believe he could audit the tax records of all donors to the Democratic party. He could've sent the FBI to investigate John Kerry and leak the findings to the public.

What really astounds me is that, if he did authorize the leaks, his reputation for loyalty is completely shot. He's arguing that he declassified national security documents, but then he let Rove and Libby take the fall anyway, just to cover his own ass.

The obove 3 comments were stolen from Kevin Drum's comments.

Juliette Kayyem at TPM:

The declassification part reads like this:

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.

Is that a fair reading?

So otherwise, where does "selectivity" come into it, other than in one's head?

Well, I guess - and you touch on it - the idea would be could any other reporter have asked for the declassified portions of the NIE apres July 8 and have gotten it.

A hypothetical, yes. But we're just shooting the breeze here.

then that certainly doesn't seem to incur any obligation to put out a news release about it

But they were they proactive parties in it's dissemination.

Not that I expect anyone to study my blog and memorize its contents...
Don't worry, Gary. After this exchange i've definitely added yours to my must-read list. :-)
But... can the president authorize the leak of classified information that hasn't even been presented to Congress? Information that, after it was leaked, was presented to Congress as classified? Can a president declassify information, then reclassify, then declassify it again?
It certainly appears that way. Information can be classified, declassified, and reclassified. The issue isn't that so much as whether the President, as the highest classifying authority in the land, and the executive whose order established the system of classification, can circumvent the normally established 'pipelines' for changing the classification status of a piece of information.

From a cursory reading of the document, it does appear that way. Until that is clarified by legislation, it seems that it will remain that way. Now, it's also worth noting that up to this point, I don't think anyone would have nodded and said, 'Oh, yes, that's how it's supposed to work.' It's a flaw in the system, one that does not appear to have been exploited until this point. It should be fixed.

"I wonder if any of those conditions might apply in the NIE or Plame matters."

I don't see how. The NIE was classified because all NIE's are, of course, classified. Plame's being covert was because she was covert. In neither case was either classified for for any of the reasons you cite. This seems kind of obvious.

"Info cut-and-pasted from"

Blockquoting would helpful. All you have to do is use an "<" and an ">" and write "blockquote" between them. It's also helpful to tell people when you start that you're quoting, not when you're done.

"If you believe that, you believe he could audit the tax records of all donors to the Democratic party. He could've sent the FBI to investigate John Kerry and leak the findings to the public."

There are laws against these things. He can't not do them just because we don't like them. Which part of U.S. Code do you have in mind that Bush violated regarding the declassification?

"If you believe that, you believe he could audit the tax records of all donors to the Democratic party."

This is simply factually wrong.

"The obove 3 comments were stolen from Kevin Drum's comments."

For crysake, even if you don't want to blockquote for some reason, have you ever heard of a quotation mark?

Anderson: "Is that a fair reading?"

Offhand, I don't know why not.

Her statement later in the post is odd, though: "...I don't have any solid theories of why Cheney would be discussing it when the hunting accident was of primary concern."

I don't see why any "theory" would be necessary. Cheney was answering a direct question by Brit Hume, and Hume asked the question because the topic was being endlessly discussed in those weeks. Duh. Hume is a Republican tool, but he's still a journalist, and any journalist who didn't ask Cheney that question when they had the opportunity would be doing a horrible job. (And, of course, it served Cheney's purposes to make the claim clearly.) What possible question there could be about this is beyond me.

"Information can be classified, declassified, and reclassified."

To self-link again on this very point (I know, my palms are hairy), you can read about reclassification there.

It's pretty stupid, and I called it "Stalinistic," but it's undoubtedly entirely legal.

I guess I might re-emphasize (not to you specifically, Jeff, since I'm agreeing with you) the general point that it so happens that most stupid, unethical, wrongheaded, things in the world, and in government, aren't illegal, even if it would be convenient for us at certain given moments, or in general, if they were. "Wrong" /= "illegal."

Oh, and I don't think I got around to blogging the followup to that story that subsequently cutbacks in that idiotic reclassification program were announced.

I like the insistence of following a procedure for the President's new absolute powers to declassify information.

Of course, this procedure is classified but it needn't be because at the President's whim it could be declassified or reclassified.

Of course, Congress could pass legislation specifying a 72hr proviso clause on this procedure to demonstrate their tough checks and balances on executive powers.

Of course, this procedure is classified but it needn't be because at the President's whim it could be declassified or reclassified.

Or, on the theories we've seen advanced, the President could disclose classified info at will, thus "inherently altering the declassification procedure."

Pretty cool stuff, that inherence! It slices! It dices!

"why would they permit the members of the press to report news damaging to them?"

It is a question of numbers and a network that can't be shut down. The Press can do it. 1 President, 100 Senators, 435 Congresspersons, what make it up, 1000 powerful judges.....10,000 newspapers and tv stations with news departments. How many blogs? If each of those news outlets can raise the intensity, not just the facts, but the emotional tone and exhortations to action for 1000 people you can have 10 million people engaging in civil disobedience.

The Press is the most powerful institution in the country, they know it and so does everybody else. They take that responsibility seriously, if ten papers report that the gov't is putting thorazine in the drinking water, 1000 will counter. Once in a while they work in relative cooperation, Civil War & slavery, WWII, the early sixties for civil rights and they move the country. It has to get really tough, and Watergate only went about halfway toward what the press can do. The press provides "cover" and permission for the people. The press can incite civil war.

It is a basic faith I have in America and the wisdom of crowds. That we are not Germany, and before the country fell into full dictatorship the media in Des Moines and Phoenix and Seattle would go gonzo and call out the people. I could be wrong.

Anderson, I think that this is a good argument why legislation should be passed to clarify the classification system. Executive Orders have weight where the law has not been written. A President can't write an order making slavery legal again, for example. Until the legislative branch steps up on this issue, though, it will always be a matter of playing a rhetorical game against an opponent who can change the rules at any time.

Pardon my thickness, but does this mean that the president can't disclose classified information? I mean, if he is the final arbiter of what is or is not classified, it seems that his act of disclosure would functionally declassify the information. In other words, he un-classifies information by his act of disclosing it.

That's quite a catch that Catch 22...

Those interested in all this probably want to read this back and forth with Scotty.

Is there any greater putz, shill, ignoramus and administration apologist than Scott McClellan? I don't know whether to feel sorry for him or strangle him (note to the NSA/FBI: kidding!).

In other words, he un-classifies information by his act of disclosing it.

That's quite a catch that Catch 22...

Just so, Xanax. Bush could turn out to be passing every secret in the house to the KGB or al-Qaeda, and it would be okay, because it would be declassified "inherently."

So thinks David Addington, anyway. Big word of advice here, all: instinctively distrust any legal opinion of Addington's that is not black-letter law.

"Is there any greater putz, shill, ignoramus and administration apologist than Scott McClellan?"

Hugh Hewitt?

I'm not at all convinced that McClellan isn't a robot, actually. He certainly might as well be.

Sorry to go OT, but this quote from right field is too good not to share:

All forms of leftism and liberalism are based on an atavistic belief in Black Magic. All are based on the primitive fear of the envious Evil Eye.

I suppose its McClellan's job to be a putz, shill, ignoramus and administration apologist, so it must be Hugh or 90% of the editors at redstate.com.

Back on topic, it seems that each of the Addington theories incorporates, and depends, on unreviewability. That's just to the extent we can know about them at all, secrecy being another inherent feature.

His work is to the rule of law what the tailors of the emperor's magical new suit were to fashion.

Funny way to run a constitutional republic.

"Just so, Xanax. Bush could turn out to be passing every secret in the house to the KGB or al-Qaeda, and it would be okay, because it would be declassified "inherently.""

Y'know, there's absolutely nothing new whatever about this. Are you guys unfamiliar with the fact that Kissinger revealed our best intelligence on the Soviets military stance in their Far East to Mao and Chou en-Lai when he was doing the preliminary negotiations with China, for instance? Do you have any idea how commonly FDR did this with regard to the British, and at times other governments and people, for instance? And on and on and on, endless times.

See this as regards Nixon doing something a hell of a lot more significant than what Bush did in this instance, for example.

Yeah, the President has always declassified stuff when he thinks it's a good idea. Who the hell else is more authorized to make that judgement (right or wrong, and regardless of what we think of the given President)?

Anyone who thinks there's something new here simply, I'm sorry to say, is pretty unfamiliar with the history of classified materials and matters.

I'd be thrilled to add this to the list of Bush's abuses, and absurd theories of the unitary authority of the President, and his illegal notions that he gets to ignore whatever laws he wants, and his claims that he can violate FISA, and had the authority to eavesdrop on anyone and imprison anyone, and do whatever he wants, but this is not one of those cases.

This is a case where it's perfectly well within the President's authority, it's always been in the President's authority, and every President since the concept of secret documents arose has made use of this authority, no matter what we think of the wisdom or correctness or ethics of his abusing his perfectly legal authority.

I don't know how to be plainer about this. That we think so badly of Bush doesn't change the facts here. That David Addington is wrong about everything else doesn't mean that if he says water is wet that he's wrong about that.

Going on as if there's something strange and unique about Bush claiming the right to right Executive Orders, or EOs little different from that of Clinton or of any other President, or in the President making decisions about what should be classified or unclassified is just ignorant. And it's completely unnecessary to asserting that we think the President shouldn't make such decisions for purposes of political gain (though, of course, their line is simply that it was "in the public interest," and putting on my political analytical hat, I think they'll largely get away with that; those of us who are horrified by so many actions and beliefs of this Administration will be disturbed, those not will not be, and there we are).

"I suppose its McClellan's job to be a putz, shill, ignoramus and administration apologist, so it must be Hugh or 90% of the editors at redstate.com."

As soon as I posted that remark, I thought of the mighty intellects at Powerline, and then started running through a list of crazed right-wing bloggers (distinguishing them from the sane and semi-sane right-wing bloggers), and realized that such a list is about infinite, actually. And the little guys aren't even doing it for fame or fortune, and most of them are all even doing it out of conviction (even if that conviction is often based on fear and a desperate desire for security).

GF: "Anyone who thinks there's something new here simply, I'm sorry to say, is pretty unfamiliar with the history of classified materials and matters."

Guilty.

{or if you prefer} "Pardon my thickness" {/or if you prefer}

"or if you prefer} "Pardon my thickness" {/or if you prefer}

No, not at all, and I apologize for being perhaps overly blunt, and rude. I've just been (obviously) getting a little frustrated with folks getting off onto a non-fact-based, non-reality-based, track here, in my view (and to the best of my knowledge, which I don't claim is all-encompassing or not subject to sometimes being in error). I don't think we increase our credibility when we stray away from the facts and into our fantasies and start representing How Things Should Be as How Things Are. That's all. Apologies to anyone offended at my potentially subjunctively calling them "ignorant." (This is a topic I've put a great many thousands of hours into over decades.)

If we want to go back to the original topic of Hilzoy's post, the President's claiming the right to violate FISA, I couldn't be more strong in decrying that as illegal, to be clear where I stand (though surely anyone with even passing familiarity with the 60+ posts I've written on my blog on these topics should know where I stand in opposing the Bush Administration on these issues).

So it's routine, maybe even traditional, that the WH just outs covert agents if it is in their political interests?
Trash those polyanna views of the WH, people, it is a vile office and always has been.
This is a common (and I mean lowdown cheap and nasty) ploy of this administration. Not the offices they hold.

Plame's disclosure is not declared yet and it seems to me to be a deliberate ommission in the briefings to specifically allow for this possibility (and even underlining this view with the note that Bush/Cheney had done nothing illegal). Instead we get a view of their professional ethics and the certainty that documents were disclose/distorted for political ends.
It is something of a moral victory to expose the WH for general unethical conduct for the tiny price of pronouncing it to be legal. Apparently, Addington, Bush, Cheney (and I can't believe Rove has no role) and Libby? (I'm not really sure about him now) thought this was a good deal.
If W's polls slide to 20%, will they still think it's a good deal?

So it's routine, maybe even traditional, that the WH just outs covert agents if it is in their political interests?

more than that, it's downright necessary for the good of the republic(an party)

CharleyCarp: where did that quote come from?

It came from the nutball http://jameswolcott.com/archives/2006/04/flag_wavers_and.php>Wolcott mentions and links. Follow the World of Crap link.

If W's polls slide to 20%, will they still think it's a good deal?

Ah. They believe they will be vindicated by history, polls could go to 0% and they wouldn't care. They know Congress won't pull the plug on Iraq (and query whether they might just ignore Congress, even if there were no funds appropriated for the military). Bush won't be up for re-election. All illegalities will be mooted by a last minute pardon. Bush will leave the White House, kick back, and wait for the accolades. It's their vision.

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