Bush claims exemption from his oversight order
By Josh Meyer
Times Staff Writer
7:44 PM PDT, June 22, 2007
WASHINGTON — The White House said Friday that, like Vice President Dick Cheney's office, President Bush's office is exempt from a presidential order requiring government agencies that handle classified national security information to submit to oversight by an independent federal watchdog.
The executive order that Bush issued in March 2003 covers all government agencies that are part of the executive branch and, although it doesn't specifically say so, was not meant to apply to the vice president's office or the president's office, a White House spokesman said.
The issue flared up Thursday when Rep. Henry A. Waxman, D-Calif., criticized Cheney for refusing to file annual reports with the National Archives and Records Administration, spelling out how his office handles classified documents, or to submit to an inspection by the archives' Information Security Oversight Office.
The archives, a federal agency, has been pressing the vice president's office to cooperate with its oversight efforts for the past several years, contending that by not doing so, Cheney and his staff have created a potential national security risk.
Bush issued the directive in response to the Sept. 11, 2001, terrorist attacks as a way of ensuring that the nation's secrets would not be mishandled, made public, or improperly declassified.
The order aimed to create a uniform, government-wide security system for classifying, declassifying and safeguarding national security information. It gave the archives' oversight unit responsibility for evaluating the effectiveness of each agency's security classification programs. It applied only to the executive branch of government, mostly agencies led by Bush administration appointees, as opposed to legislative offices such as Congress and judicial offices, including the courts.
In the executive order, Bush stressed the importance of the public's right to know what its government was doing, particularly in the global campaign against terrorism. "Our democratic principles require that the American people be informed of the activities of their government," the executive order said.
But from the start, Bush considered his office and Cheney's exempt from the reporting requirements, White House spokesman Tony Fratto said in an interview Friday. Cheney's office filed the reports in 2001 and 2002 -- as did his predecessor, Al Gore -- but stopped in 2003.
As a result, the National Archives has been unable to review how much information the president's and vice president's offices are classifying and declassifying. And the security oversight office cannot conduct inspections of the executive offices of the president and vice president to see if they have safeguards in place to protect the classified information they handle and to properly declassify information when required.
Those two offices have access to the most highly classified information in all of government, including intelligence gathered against terrorists and unfriendly foreign countries.
Waxman and J. William Leonard, director of the archives' oversight office, have argued that the order clearly applies to all executive branch agencies, including the offices of the vice president and the president.
Fratto said that the White House disagrees.
"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, does not specifically exempt the president's office or the vice president's office from the requirements. 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.
Cheney's office drew criticism Thursday for claiming that it was exempt from the reporting requirements because the vice president's office is not fully within the executive branch, citing his role as president of the Senate when needed to break a tie among senators.
At a Friday news conference, White House spokeswoman Dana Perino said that while constitutional scholars can debate that assertion, Cheney's office is exempt from the requirements because the president intended him to be from the outset.
Cheney's office did not comment Friday.
Several security experts said that they were not aware that the president had exempted his own office from the oversight requirements. But they said it fit a pattern in the administration of avoiding accountability, even on all-important matters of national security.
"If the president and the vice president don't take their own rules seriously, who else should?" said Tom Blanton, director of the National Security Archive, a nongovernmental research institute at George Washington University in Washington that lobbies for open government. "If they get a blank check, it's a recipe for disaster. I can't think of a quicker way to break down the credibility of the entire security classification system."
Blanton noted that the White House has acknowledged that as many as 5 million in-house e-mails have disappeared in recent years, at a time when investigators wanted to review them for possible evidence of inappropriate leaks of classified information.
"If there are all these great safeguards in place, then where are the 5 million e-mails?" Blanton asked.
Waxman, chairman of the powerful House Committee on Oversight and Government Reform, wrote an eight-page letter to Cheney Thursday in which he complained about the vice president's refusal to adhere to the executive order. Waxman, citing the criminal investigation of Cheney's office related to the leak of a CIA agent's identity, suggested that the vice president's office was a national security risk.
He also accused Cheney or his staff of trying to have the archives' watchdog unit abolished after its director, Leonard, pressed for more oversight and for a legal opinion from the Justice Department as to whether the executive order applied to the vice president's office.
Perino denied that attempts were made to abolish the unit.
A spokesman for the archives, Susan Cooper, would not comment Friday on whether the archives' watchdog unit ever tried to inspect the president's executive office or obtain annual classification reports from it.
Fratto said he was not aware of such an effort, but that it would be rebuffed. "I'm not going to get into hypotheticals, but the executive order does not grant them that authority," Fratto said.
He noted that the oversight requirements do, however, apply to the National Security Council, the president's principal forum for considering national security and foreign policy matters with his senior national security advisers and Cabinet officials.
Fratto also said that the White House and Cheney's office have a legal obligation to adhere to the executive order's guidelines regarding the proper handling of classified documents, even if they don't have to submit to oversight by an outside agency.