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The Vice President
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Dear Mr. Vice President:
The Oversight Committee has learned that over the objections of the National Archives,
you exempted the Office of the Vice President from the presidential executive order that
establishes a uniform, goveûrment-wide system for safeguarding classified national security
information. Your decision to exempt your ofñce from the President's order is problematic
because it could place national security secrets at risk. It is also hard to understand given the
history of security breaches involving officials in your office.
Executive Order 12958, which President Bush has amended and endorsed, directs the
National Archives to oversee a uniform system for protecting classified information. A key
component of the executive order directs the Information Security Oversight Office within the
National Archives to inspect federal agencies and White House offices to ensure compliance
with the security procedures required by the President. Acting under the authority of the
President's executive order, the National Archives sought to conduct an on-site inspection of the
Office of the Vice President in 2004.
The National Archives has informed the Committee that your office intervened to block
the inspection. According to a letter that the National Archives sent to your staff in June 2006,
you asserted that the Office of the Vice President is not an "entity within the executive branch"
and hence is not subject to presidential executive orders. To my knowledge, this was the first
time in the nearly 3O-year history of the Information Security Oversight Office that a request for
access to conduct a security inspection was denied by a White House office.
In January 2007, the Information Security Oversight Office took the appropriate step
under the executive order and asked Attorney General Alberto Gonzales to resolve whether the
President's order applies to your office. According to the Director of the Information Security
Oversight Office, you responded to this request by recommending that the executive order be
amended to abolish the Information Security Oversight Office.
I question both the legality and the wisdom of your actions. In May 2006, an official in
your office pled guilty to passing classified information to individuals in the Philippines. In
March 2007, your former chief of staff, L Lewis "Scooter" Libby, was convicted of perjury,
obstruction ofjustice, and false statements for denying his role in disclosing the identity of a
covert CIA agent. In July 2003, you reportedly instructed Mr. Libby to disclose information
from a National lntelligence Estimate to Judith Miller, a former New York Times reporter. This
record does not inspire confidence in how your office handles the nation's most sensitive
security information. Indeed, it would appear particularly irresponsible to give an office with
your history of security breaches an exemption from the safeguards that apply to all other
executive branch officials.
Executive Order 12958
Executive Order 12.958, "Classified National Security Information," was first issued by
President Clinton in 1995.' President Bush amended the executive order in March 2003.' As
amended by President Bush, the executive order prescribes a uniform system for classifying,
safeguarding, and declas siffin g national security information.
The executive order gives important responsibilities to the Information Security
Oversight Office within the National Archives. This office was created in 1978 by Executive
Order tZ}lS,"National Security Information," issued by President Carter.3 Undei the Bush
executive order, the National Archives, acting through the Information Security Oversight
Office, is directed to ensure agency compliance with classified information safeguards by issuing
directives to agencies; developing and monitoring security education programs; receiving and
responding to reports of security violations; and acting on complaints about the program's
implementation. In addition, the executive order and its implementing directive require
executive branch agencies to provide data to the Archives about their classification and
declassification activities, which the Archives then compiles to produce annual reports for the
President.
An important part of the responsibilities of the National Archives is conducting on-site
inspections of agencies' classified information programs. The executive order expressly
authorizes the Information Security Oversight Office to conduct on-site inspections of all
executive branch agencies to monitor the agencies' compliance with requirements for protecting
classified information. These reviews allow the Archives to identify deficiencies in such areas as
security education and training, agency self-inspection programs, safeguarding practices, and
security violation procedures.a
According to the Archives, the Information Security Oversight Office has conducted
inspections of multiple White House offices, including the National Security Council. It also
received regular reports in the prior Administration from the Office of the Vice President about
the classification and declassification activities of the office.s
The Refusal to Comply with Executive Order 12958
the Office of the Vice President, as authorized by the executive order. According to the National
Archives, your staff blocked this inspection. Your office informed the Archives that it was not
bound by the executive order applicable to all other executive branch entities and therefore
would not permit the Archives to conduct an inspection of the procedures and facilities used by
the Office of the Vice President to safeguard classified national security information.o
In 2001 and2002, your office had provided the National Archives with data on its
classification and declassification activities, as required by the executive order. Your office
ceased to provide this information in 2003, and has refused to provide it in each year since.T No
rationale for this change in policy was provided to the Archives at that time.
In June 2006, the Director of the lnformation Security Oversight Office, J. William
Leonard, wrote to your Chief of Staff, David Addington, to contest your claim that the Office of
the Vice President is not subject to the President's executive order. According to Mr. Leonard's
letter, your position was that your office "does not believe it is included in the definition of
'agency' as set forth in the Order" and "does not consider itself an 'entity within the executive
branch that comes into the possession of classified information."'8
Your office did not respond to Mr. Leonard. As a result, he wrote your office again in
August 2006. In this letter, Mr. Leonard suggested that the question of the applicability of the
executive order be referred to the Justice Department, writing: "Absent a coÍrmon
understanding as to how Executive Order 12958,'Classified National Security Information'
applies to the OVP, I would suggest referral of this matter to the Office of Legal Counsel at the
Department of Justice in accordance with the order's section 6.2_)."o
Your office apparcntly did not respond to this letter either. As a result, Mr. Leonard
wrote to Attorney General Alberto Gonzales in January 2007 to seek his resolution of the
impasse, as specifically authorized in the executive orá"r.t0
In his letter to the Attomey General, Mr. Leonard argued that the'_lain text reading" of
the executive order supported the position of the National Archives, writing:
There are several explicit references in the Order to the constitutional position of the Vice
President that confer specific authorities and exemptions upon the individual
encumberingthatposition. There is but a single explicit reference to the govemment
entity (the OVP) which serves the Vice President. This sole explicit reference for the
purpose of exempting the O\IP ... supports an interpretation that the rest of the Order
does apply."
Mr. Leonard also argued that a consideration of '_olicy implications" supported the
position that the order applies to the Office of the Vice President. According to Mr. Leonard:
"If the OVP is not considered an entity within the executive branch, I am concerned that this
could impede access to classified information by OVP staff in that such access would be
considered a disclosure outside the executive branch."l2
Mr. Leonard concluded:
I believe that OVP staff, when they are supporting the Vice President in the performance
of executive duties, are aî entity within the executive branch. ... As such, it is entirely
appropriate that security classification activity by OVP staff ... be reportable to this
office. ... I also believe it is appropriate to affirm that all provisions of the Order apply to
the staff of the OVP when they are acting in support of the Vice President's perforTnance
of executive duties.13
To date, Attorney General Gonzales has not responded to Mr. Leonard's letter.
Possible Retaliation Against the National Archives
Executive Order 12958 is currently being revised. During this process, it appears that
your office has proposed revisions to the order that could be construed as retaliation against the
Information Security Oversight Office and the National Archives.
Mr. Leonard told the Committee staff that after he wrote to your staff in June and August
2006, your office suggested the elimination of the provision in the executive order that allows the
National Archives to appeal disputes to the Attorney General.la
Mr. Leonard also said that your office proposed a more drastic change after the National
Archives continued to press the matter by seeking an opinion from the Attorney General.
According to Mr. Leonard, your office urged the inter-agency coÍìmittee considering revisions to
the executive order to abolish the Information Security Oversight Office which he heads. Mr.
Leonard said that your office also proposed a change to the definitions in the executive order that
would exempt the Office of the Vice President from oversight.ls
The process of revising the executive order is not yet final. According to Mr. Leonard,
however, the changes proposed by your office have been rejected by the inter-agency group
charged with making recommendations to the President.
Request for Information
Your office may have the worst record in the executive branch for safeguarding classified
information. As Special Prosecutor Patrick Fitzgerald established, I. Lewis "Scooter" Libby,
your former Chief of Staff, leaked the identity of a covert CIA operative to several reporters in
June 2003. Mr. Libby was convicted in March of perjury, obstruction ofjustice, and false
statements for lying to a grand jury and to FBI agents in order to conceal his role in the leaking
of this information.
The prosecution of Mr. Libby also revealed that you apparently misused the
declassification process for political reasons. In July 2003, you reportedly instructed Mr. Libby
to leak to the media portions of an October 2002 National Intelligence Estimate regarding
Saddam Hussein's purported efforts to develop nuclear weapons.tu Your selective
declassification of this information was apparently made outside the formal declassification
process and done as part of a damage-control effort you undertook to defend the
Administration's rationale for going to war in lraq.lT
In a separate incident, Leandro Aragoncillo, a former aide in your office, pleaded guilty
in May 2006 to passing classified information to plotters allegedly tryng to overthrow Philippine
President Gloria Macapagal Arroyo. Mr. Aragoncillo reportedly disclosed numerous secret and
top secret documents to Philippine officials over several years while working in your office.l8
Given this record, serious questions can be raised about both the legality and the
advisability of exempting your office from the rules that apply to all other executive branch
officials. To help the Committee understand your perspective on these matters, I ask that you
provide written answers and documents in response to the following questions:
(1) What is the basis for your view that the Office of the Vice President is not bound
by Executive Order 12958?
(2) In the absence of compliance with Executive Order 12958, what steps has the
Office of the Vice President taken to ensure that classified information is
adequately safeguarded within your office?
a. Specifically, which, if any, of the classified information responsibilities
exercised by the National Archives has your office undertaken on its own?
b. Has the Office of the Vice President implemented directives or guidelines for
personnel regarding the classification, handling, and declassification of
national security information? If so, please provide a copy of these directives
or guidelines to the Committee.
c. Has the Office of the Vice President conducted self-inspections to ensure
compliance with any such guidelines?
d. Has the Office of the Vice President received and acted upon reports of
security violations within your office? If so, please provide a copy of the
reports and a description of your office's response to the Committee.
(3) Is it the official position of the Office of the Vice President that your office exists
in neither the executive nor legislative branch of govemment?
a. If so, when and why did you adopt this view?
b. Has your office asserted in any other contexts that its nonexistence in the
executive branch justifies avoiding oversight or accountability?
(4) Has the Office of the Vice President sought to retaliate against the National
Archives for asserting authority to conduct inspections in or require reporting by
the Office of the Vice President?
a. What is the rationale for proposing the elimination of the right of the
National Archives to appeal inter-agency disputes to the Attorney
General?
b. What is the rationale for proposing the elimination of the Information
Security Oversight Office within the National Archives?
c. Please provide a copy of all documents relating to your office's proposed
changes to the executive order.
The Committee on Oversight and Govemment Reform is the principal oversight
committee in the House of Representatives and has broad oversight jurisdiction as set forth in
House Rule X. An attachment to this letter provides additional information about how to
respond to the Committee's request.
I would appreciate your cooperation with this request. Please provide answers to the
questions above and the requested materials to the Committee by July 12,2007. If you have any questions regarding this letter, please contact me or ask your staff to contact Michael Gordon or
David Rapallo of the Committee staff at (202)225-5420.
Sincerely,
Henry A. Waxman
Chairman
Enclosure
cc: Tom Davis
Ranking Minority Member
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