Bush claims oversight exemption too
The White House says the president's own order on classified data does not apply to his office or the vice president's.
WASHINGTON — 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.
click to enlargeAn 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 issue flared Thursday when Rep. Henry A. Waxman (D-Los Angeles) criticized Cheney for refusing to file annual reports with the federal National Archives and Records Administration, for refusing to spell out how his office handles classified documents, and for refusing to submit to an inspection by the archives' Information Security Oversight Office.
The archives administration has been pressing the vice president's office to cooperate with oversight for the last several years, contending that by not doing so, Cheney and his staff have created a potential national security risk.
Bush amended the oversight directive in response to the Sept. 11 terrorist attacks to help ensure that national secrets would not be mishandled, made public or improperly declassified.
The order aimed to create a uniform system for classifying, declassifying and otherwise safeguarding national security information. It gave the archives' oversight unit responsibility for evaluating the effectiveness of each agency's classification programs. It applied to the executive branch of government, mostly agencies led by Bush administration appointees — not to legislative offices such as Congress or to judicial offices such as the courts.
"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 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 inspect the president and vice president's executive offices to determine whether safeguards are 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, including intelligence on terrorists and unfriendly foreign countries.
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, 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.
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. It cited his legislative role as president of the Senate when needed to break a tie.
At a Friday news conference, White House spokeswoman Dana Perino said constitutional scholars could debate that assertion.
But, she said, Cheney's office is exempt from the requirements because the president intended him to be.
Cheney's office did not comment Friday.
Several security experts said they were not aware that the president had exempted his own office from the oversight requirements.
But they said it fit what they saw as a pattern in the administration of avoiding accountability, even on 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 had acknowledged that a substantial number of in-house e-mails had 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 e-mails?" Blanton asked.
Waxman, chairman of the powerful House Committee on Oversight and Government Reform, wrote an eight-page letter to Cheney on Thursday in which he complained that the vice president had refused 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 spokeswoman 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.
Fratto said that 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 did, 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 advisors and cabinet officials.
Fratto said that the White House and Cheney's office had a legal obligation to adhere to the executive order's guidelines regarding the proper handling of classified documents, even if they didn't have to submit to oversight by an outside agency.
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