Feb 13, 2013

Posted in Uncategorized

President Obama’s (Formerly) Secret Embargoed Executive Order

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In his Commentaries on the Laws of England, William Blackstone famously wrote of the Emperor Caligula, he “wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.” A core tenant of the Rule of Law is that laws are known to those who are affected by it. Laws that are not known cannot be law.

During President Obama’s State of the Union Address, he announced that he had signed an Executive Order concerning cyber-security.

That’s why, earlier today, I signed a new executive order that will strengthen our cyber defenses by increasing information sharing, and developing standards to protect our national security, our jobs, and our privacy.

If you hadn’t heard about this executive order earlier (I hadn’t), it’s not your fault. No one had!

In fact, the President signed it in the White House privately, and asked the White House Press Corps not to report on it. In effect, this executive order, which has the force of law, was to be “embargoed” until the State of the Union.

Andrew Kaczynski has the story:

Shortly before 4:20 p.m. Tuesday, the White House emailed reporters that President Obama had signed a highly anticipated Executive Order aimed at protecting cyber security.

The order — setting up new programs aimed at stopping online espionage and terrorism — was already the law of the land, signed by the president. But it was also secret.

The document was “embargoed until delivery of the President’s in the State of the Union address” — despite the fact it had already been signed.

Such embargoes — imposed unilaterally, rather than agreed-upon — are not binding on news organizations, which weigh the urgency of the news against the headache of, for instance, being dropped from the White House’s distribution list.

Is anyone else troubled by this? Embargoing the fact that a new law has been created–and a unilateral executive order at that!

What makes this troubling is that the law seems to have gone into effect once the President signed it.

The new order appears, however, to have taken effect immediately; Vietor didn’t respond to a follow up question about when the order took effect.

For a period of five hours, there was a law on the books that no one knew about, and the President told the Press not to report on it. And the press complied, with nary an objection, save BuzzFeed’s ex-post-post. I wonder what other similar requests the press honors.

If reporters are asked not to report on troop movements or something classified, or the travels of the President which could impact national security, I get that. But this was an executive order!

Of course, this is trivial. No one was really impacted by the executive order during this five-hour interregnum. No one was harmed by it. This was done purely to preserve the dramatic aspect of the President announcing it for the first time at the State of the Union.

This isn’t like a Steve Jobs keynote, where the “Oh one last thing” is reserved for the presentation. An executive order that has the force of law isn’t like a new iPad, that needs to be kept secret for rhetorical flair. It is a law.

Oh, by the way, guess who the last President to pull such a move was.

Keeping White House executive orders secret is far from unprecedented, but usually concerns actual secrets. In 2002, the Bush White House signed a controversial executive order allowing for warrantless surveillance on those suspected of terrorism

At least that order had the pretense of concerning national security.

As a libertarian, I am seriously concerned about the unitary executive precedents Obama is setting, and how a future Republican President will rely on, and expand on them–my hope is that it won’t be much worse, but I am doubtful.

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