Bush Turned His EO on Classified Information into Pixie Dust, Too
Yesterday, I expanded on the reasons why the OLC opinion holding that Presidents aren’t bound by their own Executive Orders is so scary. It means that every Executive Order may have been turned to Pixie Dust by the President–and we’d never know it.
Unless, of course, there were persistent, unpunished violations of what we believed to be the Executive Order. If there were an Executive Order that the Executive branch was publicly flouting, we might assume that Bush had turned that EO, too, into Pixie Dust.
And that is apparently what happened with EO 12958. It governs the treatment of classified information: what can be classified, when it should be declassified, what records one should keep of classification and declassification, and who can declassify classified information, and how classified information should be protected.
It’s an EO that Vice President Cheney has had epic difficulties with.
In 2003, for example, Vice President Cheney (and the President’s Foreign Intelligence Advisory Board) stopped providing the National Archives with data describing his office’s classification and declassification activities. No explanation, he just stopped doing so.
Then, in 2004, the National Archives prepared to do an inspection of OVP, as it is mandated to do. Yet OVP refused to let the NA conduct the inspection.
Finally, when Bill Leonard of ISOO appealed to DOJ for a ruling on Cheney’s refusal to submit to the plain text meaning of Bush’s EO, he was told (six months later) that the EO had turned to Pixie Dust. Specifically, he was told four years after the fact that President Bush did not intend for OVP to be an agency under the EO.
On July 12, 2007, the Counsel to the President wrote a letter to Congress stating that "[t]he President has asked me to confirm to you that … the Office of the Vice President … is not an ‘agency’ for purposes of the Order." … That statement on behalf of the President resolves the question you presented to the Attorney General. Therefore, the Department of Justice will not be providing an opinion addressing this question.