Executive offices exempt from Executive Orders

Earlier this week, I blogged on how the Office of the Vice President (OVP) was claiming to be exempt from the Executive Orders governing the protection of national secrets. Now we have an update to this ongoing issue.

According to this Washington Post story, White House spokeswoman Dana Perino said:

Cheney is not subject to the executive order… “because the president gets to decide whether or not he should be treated separately, and he’s decided that he should.”

And according to this LA Times story, White House spokesman Tony Fratto said:

…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.

Let’s look at those definitions a little more closely. Section 6.1, Definitions, defines “Agency” as “any “Executive agency,” as defined in 5 U.S.C. 105; any “Military department” as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.” If you go to 5 U.S.C 105:

“Executive agency” means an Executive department, a Government corporation, and an independent establishment.

Similarly 5 U.S.C 102 has the military departments defined as:

The military departments are:
The Department of the Army.
The Department of the Navy.
The Department of the Air Force.

The offices of the President and Vice President don’t qualify as “executive departments,” since these are the State Department, the Department of Defense, etc. “Government corporations” are organizations like Fannie Mae and Freddy Mac. “Independent establisments” are probably things like the CIA and the EPA. And the “military departments” are even more specific – the departments of the Army, Navy, and Air Force only.

But if you notice, the definition from EO13292 Section 6.1 also has this phrase: “and any other entity within the executive branch that comes into the possession of classified information.” Without a doubt, the Office of the President and the Office of the Vice President qualify under this definition – they come into posession of classified information all the time. I personally suspect that the executive offices deal with the most highly classified information as a matter of course on a daily basis. And yet, EO13292 has no exemption for either executive office written into it.

Let me be clear about something – if the President wants to exempt the White House and the OVP from ISOO oversight, there’s ultiimately nothing we can do about it. The oversight was established by Executive Order, it can similarly be abolished by another Executive Order. But the problem here is that the current, legally enforcable Executive Order offers no exemptions to either the White House or the OVP. If you don’t believe me, search EO13292 yourself.

The exemptions being claimed simply are not there.

If the President wishes to exempt the White House and OVP from oversight, all he needs to do is amend EO13292 and add the exemption. I don’t question the President’s authority to do so. What I question is the wisdom in exempting even the President’s and Vice President’s offices from oversight.

The purpose of the Information Security Oversight Office is to ensure that the requirements of EO13292 and EO12958 are being followed. And as the House Committee on Oversight and Government Reform has discovered, the requirements are not being followed in the White House, resulting in possibly serious breaches of SCIF electronic security, leaving highly classified Special Comparmented Information (SCI) material in foreign hotel rooms, and the disclosure of SCI material to non-cleared junior aides. And because the ISOO has been refused access to the OVP, we don’t even know how serious the breaches have been there, although the Scooter Libby and Valerie Plame Wilson scandals can certainly provide some guidance in this regard (see Rep. Waxman’s letter to Vice President Cheney for several more examples). So long as the ISOO is granted access, these errors and breaches can be corrected – without access, the ISOO is dependent on insiders getting disgusted and turning whistleblower. Even then, the ISOO lacks the power to do more than bring the breaches to the attention of the President – if the President doesn’t care to enforce his own Executive Order, there’s nothing that the ISOO can do but go to Congress. And that’s what it ultimately did.

The national security of the United States is not a political football to be passed back and forth. If you look closely at Classified Information Nondisclosure Agreement, the individuals signing it aren’t signing an agreement with the President of the United States, or the Vice President. Signers are signing an agreement with the United States of America. The United States is bigger than the Republican Party, bigger than the Democratic Party, bigger than the Congress, bigger than Vice President, and bigger than even the President of the United States. The President is the executor of the interest of the United States, but ultimately, the President is not the United States himself. L’Etat ce n’est pas Bush – Bush is not the State.

Let’s just hope that the home team picks up this particular football when the Offices of the President and Vice President fumble it.

7 replies »

  1. Brian,

    Thanks for continuing to follow this story. As you note, there is nothing in the executive order(s) that exempts Bush or Cheney from oversight. Why it doesn’t raise red flags for Americans that Dick Cheney wants exemption from any oversight of his doings as a public servant continues to baffle me.

    Since Bush has now exempted both himself and Dickie boy from his own executive order, excuse me while I pimp another S&R piece on Bush’s tendency to ignore the law – and/or treat it as if it doesn’t apply.

    “L’etat, ce n’est pas Bush” -you’re killing me….;-)

  2. Jim, thanks for correcting my French – I took three years in high school, but that was a long time ago at this point, and I couldn’t remember how to do the negative.

    One of these days people will wake up. I’d like to see that happen before Bush leaves office, but people are still just hitting the snooze button over and over. What we need is a political version of Clocky, the clock that runs away and hides after you hit the snooze bar.

  3. So, if Bush doesn’t see his office as an executive office, despite the definition of the presidency as the chief executive, does that mean we don’t have to impeach him to remove him from office? Can we make this a cowardly sort of corporate move a la asking Milton from the film Office Space to simply move his office into the basement?

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