SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 76
August 1, 2008

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SENATE BILL WOULD BAR SECRET CHANGES TO EXECUTIVE ORDERS

The President would no longer be able to secretly modify or revoke a published executive order if a new bill introduced in the Senate yesterday becomes law.

The bill, sponsored by Sen. Russ Feingold and Sen. Sheldon Whitehouse, responds to a Justice Department Office of Legal Counsel opinion that was revealed last year by Senator Whitehouse on the Senate floor. According to that unreleased opinion, "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 this means is that any published executive order may or may not actually be in effect. It may or may not correspond to the legal framework that governs the executive branch. The public has no way of knowing.

"No one disputes that a President can withdraw or revise an Executive Order at any time," said Senator Feingold yesterday. "That is every President's prerogative. But abrogating a published Executive order without any public notice works a secret change in the law."

"Worse," he said, "because the published Order stays on the books, it actively misleads Congress and the public as to what the law is."

To remedy that problem, the new bill requires notification of any change.

"If the President revokes, modifies, waives, or suspends a published Executive Order or similar directive, notice of this change in the law must be placed in the Federal Register within 30 days. The notice must specify the Order or the provision that has been affected; whether the change is a revocation, a modification, a waiver, or a suspension; and the nature and circumstances of the change."

"The bill does not require the publication of classified information about intelligence sources and methods or similar information. The basic fact that the published law is no longer in effect, however, cannot be classified," Sen. Feingold said.

"On rare occasions, national security can justify elected officials keeping some information secret," he said, "but it can never justify lying to the American people about what the law is. Maintaining two different sets of laws, one public and one secret, is just that--deceiving the American people about what law applies to the government's conduct."

See Sen. Feingold's July 31 introduction of the Executive Order Integrity Act of 2008 (S. 3405) here:

At an April 30 hearing of Sen. Feingold Senate Judiciary subcommittee, I testified on the various categories of secret law, including the problem of "reversible executive orders." That testimony is available here:

A NEW EXECUTIVE ORDER ON INTELLIGENCE ACTIVITIES

Following a lengthy interagency review process, the White House yesterday unveiled its amendments to Executive Order 12333, the foundational document on "United States Intelligence Activities" that was originally issued by President Reagan in 1981.

The new executive order reflects institutional changes that have occurred in recent years. In particular, it reinforces the authority of the Director of National Intelligence to oversee, coordinate and direct the activities of the sixteen-member intelligence community.

The ACLU found reason to criticize the revised order, which it said weakened protections against domestic spying. Members of Congress objected because they said they were not adequately consulted. To me, the changes seemed unexpectedly minor and in some cases positive.

The new executive order affirms, for example, that "The United States Government has a solemn obligation... to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law." Such a statement, in a presidential order that is intended to direct a rule-driven bureaucracy, is not nothing.

The old Reagan order did not even mention the words "civil liberties" or "privacy." (Nor did it mention the term "covert action," which the new order uses instead of the old euphemism "special activities.")

To criticize (or praise) the provisions of the new executive order is to presume its status as a controlling document and a definitive source on intelligence policy. But a more troubling question is how much the order actually matters.

At a White House press briefing yesterday, one unnamed reporter asked: "What do you have to say to folks that say, essentially, it's nice that you have this stuff in the executive order, but it doesn't necessarily mean anything when a President gets it into his mind that he needs or wants to do something that some people would find outside of those bounds?"

A "senior administration official" replied: "I think what we would say to that is that the executive order reaffirms the nation's longstanding commitment to protecting civil liberties. It maintains all of the protections that are in place to do so. It requires that all procedures have to be approved by the Attorney General."

But the question seems to be better than the answer, particularly since the Bush Administration's so-called Terrorist Surveillance Program may have violated the terms of this very executive order on intelligence activities.

"The administration's warrantless wiretapping program not only violated the Foreign Intelligence Surveillance Act; it was inconsistent with several provisions of Executive Order 12333, the longstanding executive order governing electronic surveillance and other intelligence activities," said Sen. Russ Feingold, who was briefed on the program as a member of the Senate Intelligence Committee.

"Apparently, the administration believed its actions constituted a tacit amendment of that Executive Order. And who knows how many other Executive Orders have been secretly revoked or amended by the conduct of this Administration," he said.

The new Feingold/Whitehouse bill described above that prohibits secret modifications or waivers of published executive orders would close this loophole. In so doing, it would also bolster the integrity and credibility of intelligence directives like Executive Order 12333.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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