Vice President’s Office is Not an Agency, ISOO Told

The Office of the Vice President is not an “agency” for purposes of the executive order on classification and therefore its classification and declassification activity no longer need be reported to the Information Security Oversight Office, the Justice Department finally informed ISOO Director Bill Leonard in a newly disclosed letter.

In a January 9, 2007 letter to the Attorney General, Director Leonard had questioned the OVP’s refusal since 2003 to submit to normal oversight. He was following up on a complaint (pdf) filed with ISOO by the Federation of American Scientists, which was also forwarded to the Attorney General.

The OVP’s position is not consistent with a “plain text reading” of the executive order, Mr. Leonard wrote (pdf) to the Attorney General at that time.

Be that as it may, the President’s intention is that the Office of Vice President should not be considered an “agency” for purposes of oversight, Steven G. Bradbury of the Justice Department Office of Legal Counsel wrote to Mr. Leonard on July 20, 2007 on behalf of the Attorney General. He cited another letter (pdf) to that effect from White House counsel Fred Fielding.

The Bradbury letter to ISOO was obtained by blogger Marcy Wheeler, who disclosed it today on her blog EmptyWheel.

The Bush Administration’s evident willingness to reinterpret — not revise — the executive order and to deviate from what is commonly understood as the order’s “plain text” meaning illustrates the unreliability of executive orders as a safeguard of public rights, Ms. Wheeler stressed.

The move gave new resonance to a statement presented on the Senate floor last week by Sen. Sheldon Whitehouse (D-RI) who described an Office of Legal Counsel opinion which he said concludes as follows:

“An Executive order cannot limit a President. There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it.”

What the President is claiming, Sen. Whitehouse said, is that “I don’t have to follow my own rules, and if I break them, I don’t have to tell you that I am breaking them.”