Is President Bush Part of the Executive Branch?Dana Perino, the occasionally flustered White House spokeswoman, has at least been consistent in her line that the executive order governing classification procedures that’s gotten Dick Cheney into trouble lately also doesn’t apply to President Bush. Today The Los Angeles Times’ Josh Meyer points out why Perino’s been saying that: the president’s office itself rebuffed the National Archives’ Information Security Oversight Office. Rep. Henry Waxman (D-CA) found that in 2005, ISOO investigators came to the West Wing to inspect senior Bush aides’ handling of classified information, only to be turned away by White House security officers. At the risk of a cheap shot, Saddam Hussein gave about as much access to UNMOVIC weapons inspectors in 2002 than Bush aides gave to the ISOO.
Now, here’s the rub. If President Bush and Vice President Cheney clearly fall outside the scope of the executive order, as Perino said yesterday, why does ISOO, the agency directed under the order to ensure complaince, insist on inspecting them? The order, known as Executive Order 13292, gives the ISOO the authority “to conduct on-site reviews of each agency’s program established under this order.” Neither the president nor the vice president run any agency. But here’s how EO 13292 defines “agency”:
“Agency” means 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.
That’s President Bush’s language: he amended the executive order on March 25, 2003. (Basically, he gave the vice president power to automatically declassify information; it became an issue in the Valerie Plame leak case.) He could have easily cleared up any confusion about ISOO’s ability to investigate his own office with a few uses of the word “exempt,” but he didn’t — and now he’s insisting that the order contains an implicit exemption.
It’s an improvisatory kind of legal reasoning, it seems — and it’s no wonder Perino (who’s apologizing all the time these days for her lack of a “legal mind”) is having trouble keeping up.