Steven Aftergood Takes on Pixie Dust

Oh this ought to be fun.

You’ll recall that when I was in my week-long Pixie Dust* tizzie last year, I was the first to reveal the purported resolution of Cheney’s Fourth Branch stand-off with Bill Leonard and Henry Waxman.

Finally, when Bill Leonard of ISOO appealed to DOJ for a ruling on Cheney’s refusal to submit to the plain text meaning of Bush’s EO, he was told (six months later) that the EO had turned to Pixie Dust. Specifically, he was told four years after the fact that President Bush did not intend for OVP to be an agency under the EO.

On July 12, 2007, the Counsel to the President wrote a letter to Congress stating that "[t]he President has asked me to confirm to you that … the Office of the Vice President … is not an ‘agency’ for purposes of the Order." … That statement on behalf of the President resolves the question you presented to the Attorney General. Therefore, the Department of Justice will not be providing an opinion addressing this question.

Poof! Four years after Cheney stopped reporting his classification activities, three years after NA tried to do the original inspection, Bush got around to telling Bill Leonard that the plain text of the EO doesn’t mean what it appears to mean. And Bush only told Leonard that news via Fred Fielding via Sam Brownback via Steven Bradbury. It took Congress threatening to withdraw funding from OVP before the President decided to tell the guy whose job it is that the EO at the center of his mandate doesn’t mean what it appears to mean–and what he has understood it to mean for all the years he has done the job.

But Steven Aftergood isn’t satisfied with that resolution. In particular, he’s not happy with Steven Bradbury’s snotty refusal to provide a ruling on the underlying conflict, as is mandated by the Executive Order (unless, of course, that, too, has been turned to Pixie Dust).

Attorneys at the Justice Department Office of Legal Counsel violated the executive order on classification and damaged oversight of the secrecy system last year when they refused to process a request from the Information Security Oversight Office for an interpretation of the order, according to a complaint filed yesterday (pdf) by the Federation of American Scientists Project on Government Secrecy.

Last January, J.William Leonard, the Director of the Information Security Oversight Office (ISOO), wrote to the Attorney General seeking an opinion on the applicability of classification oversight requirements to the Office of the Vice President after that Office ceased to cooperate with ISOO oversight.

But in July, Steven G. Bradbury of the Office of Legal Counsel wrote back that the Justice Department "will not be providing an opinion addressing this question."

By refusing to provide an opinion, Mr. Bradbury appears to have violated the President’s executive order, which requires that "the Attorney General… shall render an interpretation" of any disputed matter when requested by ISOO. A response is not optional, and yet no response was provided.


And by yielding to the OVP’s extreme view, the Justice Department has introduced new deformities in the classification system. So, for example, the classification activities of the Vice President’s National Security Advisor are now said to be exempt from ISOO oversight even though the classification activities of the President’s National Security Advisor must be reported to ISOO.

The complaint makes a number of worthwhile points, including:

  • "Shall" means "have to"
  • Fielding’s letter didn’t resolve the conflict
  • Dana "Pig Missile" Perino’s public statements–which Fielding cited in his own letter–didn’t resolve the conflict
  • "Person" of the Vice President is not the same thing as "Office" of the Vice President

And, finally, this doozy: "not different" is not the same as "different":

What Mr. Fielding failed to recognize is that some members of the President’s office do report to the Information Security Oversight Office. These include the President’s National Security Advisor, the President’s Science Advisor, and others.

So if the Vice President is “not different” from the President, then at least some of the Vice President’s staff would be expected to report their classification and declassification activity to ISOO, as do some of the President’s staff.

The executive order provides no basis for concluding that the President’s National Security Advisor, for example, must report to ISOO every year, as he does, while the Vice President’s National Security Advisor should not. That makes no sense at all. Yet this incongruous result reflects the Justice Department’s failure to correctly analyze the requirements of the executive order, which is a professional lapse.

Alternatively, if the Vice President’s National Security Advisor (among others) does not have to report to ISOO, this would contradict the President’s expressed intent that the Vice President is “not different” than the President for purposes of the executive order. It would mean that the President intended the Vice President’s staff to receive less oversight from ISOO than does his own staff. Yet that is contrary to what the President’s spokeswoman indicated. [my emphasis]

I guess this is the nonsense you get when you send Dana "Pig Missile" Perino to address matters of ontology.

Aftergood is asking the Office of Professional Responsibility to investigate Bradbury’s snotty refusal to answer Leonard’s question, as Bradbury (actually, Gonzales was required to do it) is required to by Exeuctive Order.

Now, as always, I’m not holding my breath. OPR doesn’t have the independence of an Inspector General’s office, and it doesn’t have to publicly report the outcome of any investigation. Furthermore, Pixie Dust is infinitely flexible, and if Bush so desires, he will just state (or have "Pig Missile" do so for him) that the requirement that the AG provide a ruling on EO 13292 has, like the requirements for the Office of the Vice President, been turned to Pixie Dust. Which is, I suspect, their currently operative understanding of what did happen, but it’d be nice to force them to say so publicly, so we could mock them for it.

But there’s one thing that works in Aftergood’s favor. Attorney General Mukasey has already gone on the record to state that he believes that, if a President wants to act contrary to an Executive Order, he has to actually change that executive order–he can’t simply turn it into Pixie Dust.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

Michael Mukasey managed to avoid stating an opinion about most features of the unitary executive. But not this one.

*Pixie Dust is the process by which, armed with an absurd ruling from OLC, the President doesn’t have to change any Executive Orders he decides to ignore or violate, he can simply ignore or violate them, and it’s the same, legally, as if he formally modified them.

68 replies
  1. phred says:

    I particularly like the bit about “not different” not being “different”. Seems to me that this goes right to the heart of insta-declassification as practiced by OVP, as well as the treatment of ISOO by OVP. This could open a real can of worms for the 4th Branch.

    And my favorite quote from Aftergood, “which is a professional lapse” could easily apply to nearly every act of BushCo political appointees throughout the Executive Branch.

  2. WilliamOckham says:

    This is great. This is why I still like Calvinball as the analogy for this. The problem the WH has is that, even though they maintain that they have the right to make up the rules as they go along, in this case they made up the wrong rule. Even if you accept the idea that the President has Calvinball powers, he still has to play competently enough to get his way.

  3. skdadl says:

    What a model of a letter from Aftergood. There’s an expression he uses that is new to me but that I like very much: “the attentive public.” Heh. We know who at least some of those are.

  4. rapt says:

    This issue SHOULD be treated like a baby in a supermarket, screaming for ma to buy him candy and refusing to shut up. Instead it has to be endlessly discussed, debated, picked apart. As if Dubco has a semivalid point deserving debate.

    Normally the pouting child is sent to bed without his supper while the grownups talk about more serious and interesting issues. The unreasonable demands are then simply stricken from the record as if they never existed.

  5. klynn says:

    Good. About time someone else picked up on the “shall” and the difference between “person” and “office”. EW you are WAY AHEAD of the curve.

    re danps:

    That’s a great analysis link. I totally agree wrt Marcy and Josh. Good thing bloggers can win pulitzers now. Marcy and Josh have great potential to win…

    As for Aftergood, he’s the guy to take this on.

    Steven Aftergood is a senior research analyst at the Federation of American Scientists. He directs the FAS Project on Government Secrecy, which works to reduce the scope of government secrecy and to promote reform of official secrecy practices.

    He writes Secrecy News, an email newsletter (and blog) which reports on new developments in secrecy policy for more than 10,000 subscribers in media, government and among the general public.

    In 1997, Mr. Aftergood was the plaintiff in a Freedom of Information Act lawsuit against the Central Intelligence Agency which led to the declassification and publication of the total intelligence budget ($26.6 billion in 1997) for the first time in fifty years. In 2006, he won a FOIA lawsuit against the National Reconnaissance Office for release of unclassified budget records.

    Mr. Aftergood is an electrical engineer by training (B.Sc., UCLA, 1977) and has published research in solid state physics. He joined the FAS staff in 1989.

    He has authored or co-authored papers and essays in Scientific American, Science, New Scientist, Journal of Geophysical Research, Journal of the Electrochemical Society, and Issues in Science and Technology, on topics including space nuclear power, atmospheric effects of launch vehicles, and government information policy. From 1992-1998, he served on the Aeronautics and Space Engineering Board of the National Research Council.

    For his work on confronting government secrecy, Mr. Aftergood has received the James Madison Award from the American Library Association (2006), the Public Access to Government Information Award from the American Association of Law Libraries (2006), and the Hugh M. Hefner First Amendment Award from the Playboy Foundation (2004).

    The Federation of American Scientists, founded in 1945 by Manhattan Project scientists, is a non-profit national organization of scientists and engineers concerned with issues of science and national security policy.

    I have a personal appreciation for the Federation of American Scientists. My grandfather was an engineer who designed valves. He was put to task to design a valve and he had no idea what it was for. He delivered it to a government site, still without knowledge. One fateful day during WWII, he realized what his valve was for. On August 6, 1945 he was given an award for his high contributions to the Manhattan Project. (I am looking at the certificate as I type).

    My grandfather was haunted for the rest of his life and had great difficulty trying to justify the end of the war verses the devastation he played a part in creating and how the world would be forever changed. So did many other engineers and scientists who contributed to the Manhattan Project but had no idea what they were doing. Thus, the Federation of American Scientists…Thus the fight against government secrecy…

    Go Aftergood, go!

    • JohnJ says:

      That is an impressive resume! I have a new hero in Government!

      EW: you know that The Big Dick (TBD) has people reading everything! I wonder how many of your nicknames are used at the lower levels of the WH staff. “PM is going to speak about that.” That’s the civil-servants I grew up around.

      Thanks, I really really needed this this morning!

        • phred says:

          Now I’m wondering how many of Cheney’s henchmen call him Darth ; ) Still, Pig Missile tops the charts in my nickname handbook, truly one of your best. Although, I am warming to Automaton Shill Snotty Bradbury, or ASS Bradbury for short ; )

    • readerOfTeaLeaves says:

      Driveby — klynn, thx for that link to the other day. Fascinating.

      EW, the speed of your mind continues to boggle!

      QU: I missed where ‘Pig Missile’ originated? Can someone briefly explain…?

      • brendanx says:

        The Post’s “Style” section had a snippet about how she admitted to not knowing exactly what the Cuban Missile Crisis was: “Wasn’t it like the Bay of Pigs”?

        • phred says:

          Perhaps it was the quote from the Post that led to the conversation on Wait Wait — I just heard it on the radio. The following week they had Frank Calliendo and had him impersonate Bush (since Bush would never come on the show). So Peter asked fake-Bush whether it bothered him that Perino didn’t know the difference, to which fake-Bush replied, “I wouldn’t expect her to know anything I don’t know”. Totally cracked me up : )

      • phred says:

        On Wait Wait Don’t Tell Me, the NPR news quiz, Dana Perino was a guest for the “not my job” part of the show. In chatting with Peter Segal (sp?) she admitted she didn’t know the difference between the Bay of Pigs and the Cuban Missile Crisis. Hence, Dana “Pig Missile” Perino.

    • klynn says:

      …be “so much!” See, laughing so much I cannot type.

      I’m off to continue the chuckle irt Bradbury being snotty…

  6. JimWhite says:

    Speaking of OVP, I was thinking about the significance of the Iowa caucus. Several people have pointed out that 68% of the Democrats voted against the “establishment” candidacy of Clinton. Many are suggesting that the Obama/Edwards ticket would be unbeatable. My first response to that was that I would much prefer Edwards’ views as leading the ticket, so he should be first.

    Then I started thinking about issues like those here. Think about how Cheney has really set the agenda in the past seven years. Think about how he has done that through the use of young, impressionable lawyers with no compunction against delivering absolute batshit opinions. Maybe the best way to undo that damage is with a smart, progressive attorney as VP. Of course, for me, this would only be viable if as part of the bargain, Obama gave up all use of Lieberman as his mentor and relied on Edwards instead.

    Anyway, think about Edwards as the best hanky to clean up all that snot.

    • MadDog says:

      The way I understand it is that 2/3 voted against Clinton, 2/3 voted against Edwards and 2/3 voted against Obama.

      Can’t way for the MSM to spin it this way.

      • JimWhite says:

        Yep, you can bet they will. They also will ignore Marcy’s math from last night that shows Huck came in a dismal fourth overall.
        Meanwhile, they will shine no light on the cockroaches in OVP.

      • joanneleon says:

        From what I’ve heard, MadDog, Chris Matthews already used this meme. Last night, he said that 2/3 voted against Clinton. There was a front page story on dkos by Hunter discussing this and other Tweety atrocities.

        • MadDog says:

          From what I’ve heard, MadDog, Chris Matthews already used this meme. Last night, he said that 2/3 voted against Clinton. There was a front page story on dkos by Hunter discussing this and other Tweety atrocities.

          Ahhh, but Tweety only trashed HRC.

          My analysis conforms to MSM’s view of Eqaul Opportunity for Democrats and therefore trumps his.

          Never let a good Democrat go unpunished, and if you’ve got the time and the microphone, rub it in. *g*

  7. radiofreewill says:

    I like reading Hersh and Savage, during those times when I’m drying my boots, kicking back and taking in the long view.

    But, for splashing through the Swamps of Corruption like a Hellhound on the Trail of Fearful Evil, I can’t gets me enough Emptywheel!

    Thank you, Marcy, for the Best Near-Real-Time Political News, Analysis and Insight on the Web!

    Following your work through this Great Community for the last year has been Fantastic!

    • joanneleon says:

      Hear, hear, radiofreewill. You’ve said it better than I could.

      Also, I really wish Hersh would write more often. Haven’t read Savage’s books yet. I assume they get a big recommend?

      • radiofreewill says:

        joanneleon – I know Savage mainly from his work as a writer for the Boston Globe, where he follows Executive Power, in general, and Signing Statements, in particular.

        He won the 2007 Pulitizer for National Reporting for the series of Articles referenced here:…..tatements/

        His new book, “Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy,” which I haven’t read yet, is getting rave reviews.…..038;sr=8-1

        Finally, Glenn Greenwald hosted an FDL Book Salon with Charlie Savage last September that is a Short Course in Savage and well worth the read:…

      • WilliamOckham says:

        I just finished Savage’s ‘Takeover’ book. I bought to read at the beach on my Christmas break. It is excellent. I was familiar with almost all of the stuff he writes about, but he does a wonderful job of bringing out the signficance of many apparently unrelated issues and Cheney’s long-term project to overthrow our democracy and establish a tyrannical executive power. I think everybody who cares about our country should read it. It makes a fine companion piece to ‘Anatomy of Deceit’.

  8. chetnolian says:

    Jim White @19

    You make a good point. The OVP will never be the same again, and the identity of the VP ought to be as significant as that of the President.

  9. klynn says:

    O/T When you have time EW, you might enjoy this read:…..5Df02.html

    It is a current and long term outlook on US-Iran policy from an Asian Times perspective.

    MadDog, don’t worry. It’s the residual chuckles from snotty…

    Thanks phred for the new Bradbury title. The laughs continue.

  10. OleHippieChick says:

    Marcy, you just plain RULE!

    Glad to see bu$hlerCo tripped up by their own myriad convolutions of the Law. It’s only fair.

    • TheraP says:

      I’m the shrink… and I’m sitting back simply pondering what mental model (or whatever you want to call it… could be intuition) Marcy uses for where to leap (pounce?) next. One step ahead all the time! …. I am in awe! (and not easily awed, mind you)

  11. Peterr says:

    Attorney General Mukasey has already gone on the record to state that he believes that, if a President wants to act contrary to an Executive Order, he has to actually change that executive order–he can’t simply turn it into Pixie Dust.

    Perhaps, but the President can always turn Mukasey into Pixie Dust, and then deal with the EO.

  12. radiofreewill says:

    “Oh, Dana.”

    Perino, on an episode of “Wait…Wait…Don’t Tell Me” on NPR, said:

    “I had a situation the other day when they said President Putin said that our missile defense program was like the Cuban Missile Crisis. And so I got asked about the Cuban Missile Crisis and I was panicked a little bit because I really know nothing about the Cuban Missile Crisis…I came home and I asked my husband…wasn’t that like, the Bay Of Pigs thing? And he said, “Oh, Dana.”"

    Hence, the “Pig Missle” moniker.

  13. bmaz says:

    In an attempt to draw first blood, and stop what is sure to be the “madness, madness madness” of pondering Mukasey’s status as a “principled conservative”, TPM reports:
    Mukasey announced today that he’s appointing Chicago federal prosecutor Patrick Fitzgerald to the Attorney General’s advisory committee of U.S. attorneys.
    Fitzgerald was on the committee from 2001 until 2005, but his appointment to it preceded his service as special prosecutor in the Valerie Plame CIA leak investigation….

    Gonzales… did not re-appoint Fitzgerald to the advisory panel, which counsels the attorney general on law enforcement issues.

    Don’t be deceived by window dressing moves and the occasional doing of the right thing, when it comes to protecting Bush and screwing you and me, Mukasey is down with the Fourth Branch; that is why they picked him. Don’t forget that…..

    • BayStateLibrul says:

      I’m betting with bmaz.
      We should know SOON whether he allows Congress to have transcripts of the Republic’s three henchmen (Bush, Cheney and Rover)
      Btw, isn’t his decision due to Waxman today?

      • emptywheel says:

        Rove is not at question, at least not his five Grand Jury appearances. Waxman is only looking for the stuff not covered by grand jury secrecy rules. The logic is that, since Bush and Cheney asked for the favor of not appearing before the GJ, their transcripts aren’t covered. But Roves’ are.

  14. Neil says:

    OT – from the American Constitution Society for Law and Policy (ACS)

    The Pocket Veto and the Constitution

    TPMmuckraker comments on a constitutional controversy between the Bush Administration and Congress over whether the President successfully “pocket vetoed” a defense authorization bill passed by Congress with veto-proof majorities late last year. The controversy centers on what it means for Congress to “adjourn.”

    Article I, section 7 of the Constitution says “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.” (emphasis added). This procedure came to be known as a pocket veto.

    Kagro X expands on TPMmuckraker’s comments and argues that President Bush cannot utilize a pocket veto because (1) ten days did not elapse since passage of the legislation before he declared that he would allow the measure to expire and (2) the Senate still met every three days in pro-forma sessions, and thus Congress had not adjourned. MORE

  15. Neil says:

    WASHINGTON, DC— Today’s jobs numbers show a significant increase in the unemployment rate, from 4.7% in November to 5.0% in December. Nearly 500,000 more Americans became unemployed, the largest increase in a single month since 2001. Ted Kennedy has a few words about that.

    • BayStateLibrul says:

      Be leery if you see Bush smuggling Larry Kudlow, and a copy of an Economics 101 text, on Air Force One during his trip to Israel next week.
      More tax cuts coming?

    • klynn says:


      In Columbus, Ohio the homeless rate increased by 40% this month. The shelters are beyond capacity.

    • phred says:

      I’ve always pictured it more like a pig being launched from a trebuchet (with Bush doing the launching). And yes MadDog, one really does need to put lipstick on that pig ; )

      • bmaz says:

        If there ain’t a button for it on the Emptywheel comment box, I don’t know how to do it. I couldn’t find the “photoshop” button, so a Google image is all you get….

        • phred says:

          Sorry bmaz, didn’t mean to complain. The pig version of Slim Pickins on a missile is certainly appropos

          I just kind of like the image of Pig Missile being launched over the parapet out of the castle by BushCo into a hoard of bloody thirsty reporters. Ok, meek mild mannered reporters who catch her ever so gratefully and hope that she wasn’t inconvenienced in anyway by having to come out to meet them. ; )

    • BlueStateRedHead says:

      Now I understand why God created Google. To make serendipity the law of the land. Fabulous find. Or did you plant it? IS Ohio State your football team?

      Oh oh. I said football. A day too early.
      Sorry EW.

      I believe that was a legitimate use of the word, under Fair Use law. We have in all (ordinary) fairness to myself have had a basketball reference.

      So that baseball fans do not feel left out. and because I am kind of punch drunk from meeting 2 deadlines and finishing a chapter draft all in one day, here is a true story from Dkos.

      People were comparing their emotional reactions to the Obama speech: JFK, no RFK, that sort of thing.

      Someone said it reminded them of the day the Red Sox won the World Series. I guess the Republicans being eclipsed was part of it. Not that it was an emotional experience for anyone. *g*

      Back to the (dirty) business at hand.

  16. ThePug says:

    And, of course, the OVP continues to market it’s own special brand of pixie dust including franchising it out:, check the forth graf, second sentence – the “quasi-agency” bit. Absolutely no point to the extraneous comment other than to increase brand recognition. Is this the new marque for the “fourth branch” product which apparently wasn’t selling?

  17. Hmmm says:

    So is there anything -structural- that a 2009 Congress could do to meaningfully preclude abuse of the OVP — as per Dick and 41 before him — going forward? I.e. something durable, as in not-erasable-by-EO?

    • bmaz says:

      That is an interesting question; and I do not know the answer, but i would think there may be some issues with separation of powers between the three Constitutional branches. Although the Constitution does not specify diddly squat in the way of powers and duties, or limitation thereon, for the Vice-President other than maintain a pulse in case the President does not, I am not sure that means that Congress can fill in the blanks. Just don’t know, but an excellent question.

      Phred – I was joking; did not take your comment as a complaint. I can take any abuse that comes my way, and I fully earn most all of it anyway….

  18. BlueStateRedHead says:

    I am a Pats fan. As they say in The Big Apple, What’s to worry? [Yiddish intonation required.)Eexcept that they have plenty to worry about. Giant things to worry about.

    Meanwhile in the BayState we can watch the primaries.

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