Politics & Policy

The Little-Noticed Order That Gave Dick Cheney New Power

Have you ever heard of Executive Order 13292?

In addition to discussing his hunting accident, Vice President Dick Cheney, in his interview on the Fox News Channel Wednesday, also pointed to a little-known but enormously consequential expansion of vice-presidential power that has come about as a result of the Bush administration’s war on terror.

Near the end of the interview, Fox anchor Brit Hume brought up a controversy arising from the CIA-leak case, in which prosecutor Patrick Fitzgerald said in court papers that former top Cheney aide Lewis Libby testified he had been authorized “by his superiors” to disclose information about the classified National Intelligence Estimate to members of the press. “Is it your view that a Vice President has the authority to declassify information?” Hume asked.

“There is an executive order to that effect,” Cheney said.

“There is?”

“Yes.”

“Have you done it?”

“Well, I’ve certainly advocated declassification and participated in declassification decisions. The executive order–”

“You ever done it unilaterally?”

“I don’t want to get into that. There is an executive order that specifies who has classification authority, and obviously focuses first and foremost on the President, but also includes the Vice President.”

Cheney was referring to Executive Order 13292, issued by President Bush on March 25, 2003, which dealt with the handling of classified material. That order was not an entirely new document but was, instead, an amendment to an earlier Executive Order, number 12958, issued by President Bill Clinton on April 17, 1995.

At the time, Bush’s order received very little coverage in the press. What mention there was focused on the order’s provisions making it easier for the government to keep classified documents under wraps. But as Cheney pointed out Wednesday, the Bush order also contained a number of provisions which significantly increased the vice president’s power.

Throughout Executive Order 13292, there are changes to the original Clinton order which, in effect, give the vice president the power of the president in dealing with classified material. In the original Clinton executive order, for example, there appeared the following passage:

Classification Authority.

(a) The authority to classify information originally may be exercised only by:

(1) the President;

(2) agency heads and officials designated by the President in the Federal Register…

In the Bush order, that section was changed to this (emphasis added):

Classification Authority.

(a) The authority to classify information originally may be exercised only by:

(1) the President and, in the performance of executive duties, the Vice President;

(2) agency heads and officials designated by the President in the Federal Register…

In another part of the original Clinton order, there was a segment dealing with who was authorized to delegate the authority to classify material. In the Clinton order, the passage read:

(2) “Top Secret” original classification authority may be delegated only by the President or by an agency head or official designated…

(3) “Secret” or “Confidential” original classification authority may be delegated only by the President; an agency head or official designated…

In the Bush order, that segment was changed to read (emphasis added):

(2) “Top Secret” original classification authority may be delegated only by the President; in the performance of executive duties, the Vice President; or an agency head or official designated…

(3) “Secret” or “Confidential” original classification authority may be delegated only by the President; in the performance of executive duties, the Vice President; or an agency head or official designated…

Both executive orders contained extension sections defining the terms used in the order. One of those terms was “original classification authority,” that is, who in the government has the power to classify documents. In the Clinton order, the definition read:

“Original classification authority” means an individual authorized in writing, either by the President, or by agency heads or other officials designated by the President…

In the Bush executive order, the definition was changed to read (emphasis added):

“Original classification authority” means an individual authorized in writing, either by the President, the Vice President in the performance of executive duties, or by agency heads or other officials designated by the President…

In the last several years, there has been much talk about the powerful role Dick Cheney plays in the Bush White House. Some of that talk has been based on anecdotal evidence, and some on entirely fanciful speculation. But Executive Order 13292 is real evidence of real power in the vice president’s office. Since the beginning of the administration, Dick Cheney has favored measures allowing the executive branch to keep more things secret. And in March of 2003, the president gave him the authority to do it.

Byron York, NR’s White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President–and Why They’ll Try Even Harder Next Time.

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