Down the rabbit hole

When it comes to surveillance and the treatment of classified information, President Bush is making up the rules as he goes along

Earlier this month, senator Sheldon Whitehouse made a stunning revelation: the president is not legally obliged to follow his own executive orders.

Executive orders are the directives the president issues to explain how he will implement existing laws. They cover things like the organisation and legal conduct of the intelligence community, the treatment of classified and unclassified information and interrogation techniques approved for the CIA.

Whitehouse read from a legal opinion he had declassified to explain this point:

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.

Or, as the senator explained in his own words, that means the president believes: "I don't have to follow my own rules, and I don't have to tell you when I'm breaking them."

Whitehouse raised the issue in the context of the executive order that governs surveillance. As he explained, that executive order is the only thing preventing US intelligence agencies from spying on Americans when they travel abroad. But since the president can ignore that executive order if he chooses, that protection amounts to little. "[U]nless Congress acts," Whitehouse said, "here is what legally prevents this president from wiretapping Americans travelling abroad at will: nothing. Nothing." Of course, Americans would have no way of knowing that their government could wiretap them as they travel abroad, because they have no way of knowing whether the president has modified an executive order without revealing it publicly. On the contrary, since the order appears untouched, Americans would fairly believe they were safe from wiretaps overseas, all because the department of justice's office of legal council ruled the president doesn't have to tell us when he changes the rules.

The executive order governing surveillance may not be the only one that Bush has modified without revealing he has done so. It appears that Bush has also modified the executive order governing the treatment of classified information from its plain text meaning.

That particular executive order is one that the office of the vice president (OVP) seemed to be violating for years. Starting in 2003, OVP refused to reveal its classification and declassification activities, as the order required. And when the National Archives came to inspect OVP's classification procedures in 2004, OVP staffers refused to let the inspection take place. Finally, Bill Leonard, who as the head of the information security oversight office is the person in charge of reporting on classified materials, appealed to the department of justice for guidance. For six months, Leonard got no response. It wasn't until Congress threatened to withdraw funding from Cheney's office that the administration bothered to inform anyone that the executive order didn't mean what it appeared to mean. "The president has asked me to confirm to you that ... the office of the vice president, like the president's office, is not an 'agency' for the purposes of the order." And even then, they only informed Leonard indirectly. As Leonard describes it: "I was told that the order meant something other than what I (and others) thought a plain text reading would indicate, especially in the context in which it was originally developed."

This is the stuff of Alice in Wonderland or Calvinball, in which cartoonish figures can simply change the rules mid-game. "'When I use a word,' Humpty Dumpty said, in a rather scornful tone,' it means just what I choose it to mean, neither more nor less." "Any player may declare a new rule at any point in the game ... The player may do this audibly or silently depending on what zone ... the player is in." Only in this case, the rules the cartoonish figure keeps changing have very real consequences - affecting our civil rights and our ability to keep classified information secure.