Posted on 08/22/2009 1:13:55 PM PDT by Vincent Jappi
The Obama doublespeak brigade appears to be sewing confusion as to the issues discussed in my previous post regarding exemptions for POTUS in EO 12968. As stated in the previous article, POTUS and VP are exempt from security clearance examinations for receiving classified information listed in EO 12968.
However, Sections 5.2(5)(d) and (e) make it clear that if the agency head in charge of such classified info determines that the procedures listed within the EO cannot be invoked without risk to national security – then such provisions do not limit the agency head’s power to deny release of classified information.
The exemption for POTUS is a procedure listed in EO 12968 and as such the agency head does not have to abide by it if – in his sole discretion – national security may be at risk. Furthermore, the law states that the agency head’s determination is conclusive.
If the POTUS exemption had been written in a separate law, then there might be an issue. But since the POTUS exemption is a procedure listed directly in EO 12968, and since that EO allows the agency head to forego all procedures listed therein for national security reasons, then thePOTUS exemption does not have to be followed by the agency head where – in his sole discretion – the national security might be at risk. And according to the EO, the agency head’s determination is conclusive.
Here is the POTUS exemption listed at 1.1(e):
(e) “Employee” means a person, other than the President and Vice President
The exemption exists in the EO and is therefore a procedure of Executive order 12968.
Now here is the relevant text from EO 12968, Sections 5.2(5)(d) and (e):
(d) When the head of an agency or principal deputy personally certifies that a procedure set forth in this section cannot be made available in a particular case without damaging the national security interests of the United States by revealing classified information, the particular procedure shall not be made available. This certification shall be conclusive.
I failed to include the above in my original report. Instead, I included the following from subsection (e):
(e) This section shall not be deemed to limit or affect the responsibility and power of an agency head pursuant to any law or other Executive order to deny or terminate access to classified information in the interests of national security. The power and responsibility to deny or terminate access to classified information pursuant to any law or other Executive order may be exercised only where the agency head determines that the procedures prescribed in subsection (a) of this section cannot be invoked in a manner that is consistent with national security. This determination shall be conclusive.
I should have included both sections as they are consecutive and when read together provide much better context for the reader. The two sections make a catch all provision which wisely entrusts the issue of national security to the persons in our Government who are most likely to understand the national security risks involved with the release of such information.
The two provisions, when read together, make it clear that all procedures listed in Executive Order 12968 may be discarded by the agency heads at their sole discretion. The POTUS exemption from the other procedures listed in EO 12968 is itself a procedure of EO 12968 and as such agency heads may refuse to make that procedure available when the national security is potentially at risk.
Well this might explain why Emperor Billigula was unable to find out the truth about UFOs while he was sleazing up the Oval Office.
I have contended for years that any person running for any office from dog catcher to the President should have the same security clearance as any Military person carries in order to see any classified material. What is so difficult about that requirement?
The President IS the Executive Branch. The only rational reason I can think of for subordinates in the Executive Branch to withhold information from the President is if they are investigating the President for High Crimes and Misdemeanors. But even that, given the plain text of the Constitution, is a stretch:
Article II, Section 1:
The executive Power shall be vested in a President of the United States of America.Article II, Section 2:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
1: POTUS is CINC.
2: POTUS has the authority to fire any agency head and replace him/her with anyone of his choosing.
3: A POTUS issued the EO. He can issue another.
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