Another Look at the VP’s Classification Authority

The White House press office and some Bush Administration critics are insisting that the 2003 executive order on classification policy endowed the Vice President with a unique status and classification powers identical to those of the President himself.

But that’s not what the executive order says.

“In this executive order the President is saying that the Vice President is not different than him,” said White House press secretary Dana Perino on June 25.

“The executive order on classified national security information — Executive Order 12958 as amended in 2003 — makes it clear that the Vice President is treated like the President and distinguishes the two of them from ‘agencies’,” wrote David Addington, the Vice President’s chief of staff in a June 26 letter (pdf) to Senator Kerry.

Similarly, New York Times columnist and Bush critic Frank Rich wrote yesterday that in 2003 “every provision [in the executive order] that gave powers to the president over classified documents was amended to give the identical powers to the vice president.”

Mr. Rich claimed that “this unprecedented increase in vice-presidential clout” has “special importance” for understanding the Iraq war, the Valerie Plame case and more.

“By giving Mr. Cheney the same classification powers he had, Mr. Bush gave his vice president a free hand to wield a clandestine weapon: he could use leaks to punish administration critics,” wrote Mr. Rich.

From an opposing political perspective, Byron York of the National Review wrote last year that the revised executive order constituted an “enormously consequential expansion of vice-presidential power.”

More soberly, the Congressional Research Service reported in a memo to Rep. Henry Waxman (pdf) that “Among the modifications made by the new [executive] order were the vesting of the vice president with authority coequal to that of the President to security classify information originally.”

And I myself wrote in Secrecy News last year that the language of the 2003 executive order “dramatically elevates the Vice President’s classification authority to that of the President.”

On closer examination, none of this appears to be correct.

The text of the 2003 executive order does not grant any new classification authority to the Vice President beyond that which he already possessed as one of some two dozen officials authorized by the President to classify information originally at the Top Secret level. Like those other officials, the Vice President was already authorized to classify information within the scope of the executive order, and to delegate his authority to others. No additional classification powers were provided in the new order.

A line by line comparison of the Bush executive order with the prior order, indicating what was added and what was deleted in 2003, shows that every classification authority granted to the Vice President was also granted to other agency heads, such as the Secretary of Defense or the Secretary of State, and was also possessed by the Vice President himself in the past.

Mr. Addington and the White House press office argue that the mere juxtaposition of references to the President and the Vice President in the text of the 2003 Bush order — such as in section 1.3(a)(1) — somehow translates into new status for the Vice President. But again, no such status or new authority is articulated in the order.

To the contrary, the Director of the Information Security Oversight Office, who is charged by the President with implementing and overseeing the executive order, concluded that an interpretation of the order which treats the Office of the Vice President as entirely distinct from other executive branch entities is not consistent with a “plain text reading,” as he wrote to the Attorney General (pdf).

Fundamentally, the Vice President’s classification authority is not and cannot be identical to that of the President. The President’s authority is inherent, stemming from his status as commander in chief of the armed forces; the Vice President’s authority is derivative. Likewise, and for the same reason, the President can alter the provisions of the executive order at a moment’s notice; the Vice President cannot.