White House Says Classification Order Doesn’t Apply to Bush or Cheney Staff

The White House says that the president’s and vice president’s staff was always intended to be exempt from a presidential order describing the handling of classified documents, Josh Meyer reports.

The White House said Friday that, like Vice President Dick Cheney’s office, President Bush’s office is not allowing an independent federal watchdog to oversee its handling of classified national security information. An executive order that Bush issued in March 2003 — amending an existing order — requires all government agencies that are part of the executive branch to submit to oversight. Although it doesn’t specifically say so, Bush’s order was not meant to apply to the vice president’s office or the president’s office, a White House spokesman said.

The president, as the sole authority for issuing Executive Orders, has an absolute right to exempt whomever he wishes from the. Still, it’s a horrible idea to exempt the Executive Office of the President and Office of the Vice President from this scrutiny, since they represent the probably the greatest breach threat in the Executive branch: people who have not spent their whole careers dealing with Sensitive Compartmented Information who are presumably dealing with the mostly highly sensitive materials.

[Democratic Congressman Henry] Waxman and J. William Leonard, director of the Information Security Oversight Office, have argued that the order clearly applies to all executive branch agencies, including the offices of the vice president and the president.

The White House disagrees, [White House spokesman Tony] Fratto said. “We don’t dispute that the ISOO has a different opinion. But let’s be very clear: This executive order was issued by the president, and he knows what his intentions were,” Fratto said. “He is in compliance with his executive order.” Fratto conceded that the lengthy directive, technically an amendment to an existing executive order, did not specifically exempt the president’s or vice president’s offices. Instead, it refers to “agencies” as being subject to the requirements, which Fratto said did not include the two executive offices. “It does take a little bit of inference,” Fratto said.

Steven Aftergood, director of the Federation of American Scientists’ government secrecy project, disputed the White House explanation of the executive order. He noted that the order defines “agency” as any executive agency, military department and “any other entity within the executive branch that comes into the possession of classified information” — which, he said, includes Bush’s and Cheney’s offices.

Aftergood’s interpretation of the language of the Order is reasonable enough. Still, if the president decides that the orders he issues don’t apply to himself, his staff, or Bob in Accounting, that’s his call. It’s a bad call, in my judgment, but one that’s his to make.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. ken says:

    Still, if the president decides that the orders he issues don’t apply to himself, his staff, or Bob in Accounting, that’s his call. It’s a bad call, in my judgment, but one that’s his to make.

    NO. It is his prerogative to issue another written order to that effect but it is not his prerogative to interpret a clearly written executive order, even one he made, to mean something other than what it clearly means.

    James, you are clearly sympathetic to the use of obfuscation when it protects your people. But don’t you think in matters of national security when the interests of Americans are at stake that you should set aside your partisan ideology and support the nations best interest instead?

  2. Cernig says:

    Doesn’t it look waaaayyy too much like Bush originally intended both his own and Cheney’s offices to comply with the EO, Cheney decided differently, and now Bush is having to backpeddle like mad rather than have a public spat with the VP?

    the difference in stories is telling, to my mind – Cheney says its because his office isn’t in the executive, Bush says it’s because Cheney’s office, while in the executive, is exempt.

    Regards, C

  3. Anderson says:

    Agree w/ JJ and Cernig — they’re backpedaling, it’s an unpersuasive reading of the order, but who’s the last word on what an Executive Order means? I would say that’s the President.

    Congress could pass a statute enforcing the same rules, but Bush would either veto it or add one of his famous signing statements; in the latter case, it might actually get to the courts.

    Just another indication of how frivolous this White House is — how little it cares about keeping America safe, as opposed to flaunting its own power.

  4. ken says:

    The head of the independent office charged with the oversight of classified documents does not take orders from the presidents’ press secretary. He has an important job to do, one that is vital to maintaining classified national security secrets. He has been trying to do his job and the Cheney gang has been fighting him all the way.

    If Bush wants to tell him to lay off Cheney and that both his staff and Cheney’s staff can do whatever they want with classified material then Bush needs to put this in writing. A press spokesman’s word is not enough to change the meaning of a previously issued executive order.

  5. legion says:

    Actually, I’m with Ken on this one… It may very well be that Bush can write an EO that exempts his own staff or the Veep & his staff from compliance. But that is very clearly not the way this particular EO is written, despite what the press office says.

    And while it may be a simple matter of a pen stroke to change it, that pen stroke still has to happen. Cheney absolutely must not be allowed to violate it simply because it’d be simple for Bush to exempt him any more so than random citizens are allowed to violate poorly-written laws. The law (or EO) has to be changed first, or you’re still in violation.

    And I don’t think the question was ever answered in the previous thread – if Cheney really tries to stick to his guns on this, is it impeachable? It’s a pretty damn blatant disregard for the Constitution and the rule of law…

  6. James Joyner says:

    James, you are clearly sympathetic to the use of obfuscation when it protects your people. But don’t you think in matters of national security when the interests of Americans are at stake that you should set aside your partisan ideology and support the nations best interest instead?

    Ken, there are two different issues at stake:

    1. The legal matter of who has to follow an EO and who gets to decide. The White House/VP is right on this one. (Although I fully concede that the WH is likely being disingenuous about the original intent of the EO.)

    2. The public policy matter of whether competent independent authorities ought ensure that WH and OVP staffers are properly handling classified info. On this one, I don’t know how I could be more clear: Of course they should. Even presuming the total honesty, loyalty, and good intentions of all concerned, oversight is absolutely crucial in such matters.

    The president gets to make the call legally; he’s made the wrong one.

  7. James Joyner says:

    if Cheney really tries to stick to his guns on this, is it impeachable? It’s a pretty damn blatant disregard for the Constitution and the rule of law…

    No crime has been committed. President’s can’t pass laws on their own authority. An EO is merely a set of instructions to his functionaries on how to execute the law. There are administrative consequences for violating these orders but, surely, not criminal ones. How on earth could it be constitutional otherwise?

  8. ken says:

    The president gets to make the call legally; he’s made the wrong one.

    Ah James, there you go trying to confuse the issue again.

    The president has not made the call. That implys that a press spokemen can override the clear meaning of a written executive order.

    If the president want to ‘make the call’ and exempt himself and Cheney from oversight then he needs to amend his own executive order which clearly places both his offfice and staff and the vp and staff under the oversight of the independent office in these matters.

    What you and the republicas are saying is clear nonnense and is meant to confuse and obfusticate the issue.

    You might as well be arguing that independent agencies should be taking their orders from Sean Hannity or Rush Limbaugh instead of relying on clearly written executive orders.

  9. James Joyner says:

    The president has not made the call. That implys that a press spokemen can override the clear meaning of a written executive order.

    I’m operating under the assumption that the president’s spokesman is speaking for the president.

  10. Cernig says:

    Steve Benen: perceptive and excellent blogging as ever.

    Perhaps it’s best to take a moment to summarize the questions that need answers:

    * Why did Bush and Cheney abide by the executive order in question in 2001 and 2002, and then stop in 2003? Is it a coincidence they started ignoring the E.O. on handling classified materials just as they started mishandling classified materials?

    * Why did Cheney abide by the E.O. in 2001 and 2002 if he’s not part of the executive branch?

    * Why did the President exempt the Vice President from an executive order he was already following? Why did he later exempt himself?

    * When, precisely, did the White House decide that Bush and Cheney should exempt themselves from their own rules?

    * Does Bush consider Cheney part of the executive branch? Why has the White House thus far refused to respond to this question? Does the President consider this a trick question?

    * In its response to questions about the E.O., why did the White House point to a provision of the E.O. that doesn’t exist?

    * The White House insists, “There’s no question that [Cheney] is in compliance” with the E.O. If there is no oversight, and Cheney is unaccountable, how does the White House know?

    * In yesterday’s press briefing, the president’s spokesperson dismissed the oversight provision of the E.O. as “small” six times. Does the White House believe only “big” provisions need to be followed? How does the administration make the distinction?

    Regards, C

  11. ken says:

    James, here is your argument.

    1) The president issued a clear written order.

    2) The president through a spokeman says that the clear written order means something other than what the clear written order clearly means.

    3) Therefore the president has ‘made the call’ on the tricky question of when do clearly written and widely understood executive orders mean something else entirely.

    You have got to be a committed republican to go along with that reasoning James.

  12. legion says:

    An EO is merely a set of instructions to his functionaries on how to execute the law. There are administrative consequences for violating these orders but, surely, not criminal ones.

    Violating an EO isn’t against the law, true. But mishandling classified info clearly is, and that’s the still-unanswered question that started this whole kerfuffle – Cheney’s refusal to allow any oversight at all of his office’s procedures.

  13. Andy Vance says:

    Violating an EO isn’t against the law, true.

    I can be against the law; just ask Bobby Fischer.

    I don’t think anyone could be prosecuted in this instance, but the White House’s excuses clearly go against the intent of the Counterintelligence and Security Enhancement Act of 1994, which gave impetus to the EO.

  14. Anderson says:

    Legion, if there’s an independent statute that Cheney’s violating, then fine.

    But how on earth do you impeach Cheney for violating an EO that Bush says he’s not violated?

    I’m certainly no Bush defender, but as a pure matter of law, I can’t see how JJ’s wrong on this one. And JJ agrees that exempting OVP is a terrible idea.

  15. ken says:

    But how on earth do you impeach Cheney for violating an EO that Bush says he’s not violated?

    Congress is not dependent upon the president to set the standards for impeachable offense.

    If, in the view of congress, the behavior expected by those covered by the Executive Order in question was behavior that congress had a right to expect from any member of the executive office then non compliance would be an impeachable offense.

    Congress has every right to expect that Cheney guard our national secrets honestly and diligently. If he refuses to do so Congress can remove him from office, if they wish.

  16. cfoster says:

    Hm, Ken, you seem to subscribe to Gerald Ford’s assertion that “An impeachable offense is whatever a majority of the House of representatives considers it to be.” But really, c’mon, isn’t impeachment reserved for cases of treason, bribery, or other high crimes and misdemeanors? Are any of these criteria truly invoked in a case such as this where there is an actual unprecedented question of constitutional authority?