AN EXECUTIVE ORDER can be a surreptitious way of making policy. It often makes an end-run around Congress and frequently escapes the media's attention as well. It is, in short, a way of making policy by fiat.
President Bush has signed a slew of executive orders that have gone unreported for weeks or months -- most notably, changes to environmental regulations and restricted access to former presidential papers and Freedom of Information Act information.
Now, a potentially explosive executive order has just been discovered by SEEN, the Sustainable Energy and Economy Network. Signed on May 22, it appears to give U.S. oil companies in Iraq blanket immunity from lawsuits and criminal prosecution.
Here's what happened: On May 22, the U.N. Security Council passed Resolution 1438, which provided gas and oil companies in Iraq with limited immunity until Dec. 21, 2007. Their reason? To protect the flow of oil revenues into the development fund that will be used to reconstruct Iraq. The U.N. resolution, however, did not provide immunity from human rights violations or environmental damage. Nor did it protect any employee or any company after the oil was produced and extracted in Iraq.
Notice what President Bush changed when, on the same day, he issued Executive Order 13303 -- called "Protecting the Development Fund and Certain Other Property in Which Iraq Has an Interest." Unlike the U.N. resolution, the president's order appears to place U.S. corporations above the law for any activities related to Iraq oil, either in that country or in the United States.
It also declared a national emergency as the justification for sweeping aside all federal statues, including the Alien Tort Claims Act, and appears to provide immunity against contractual disputes, discrimination suits, violations of labor practices, international treaties, environmental disasters and human rights violations. Even more, it doesn't limit immunity to the production of oil, but also protects individuals, companies and corporations involved in selling and marketing the oil as well.
Unlike the U.N. resolution, therefore, the order provides immunity for more of the industry's activities, as well as for a broader swath of individuals, companies and corporations.
These are the kind of legal protections that most corporations could only dream of enjoying. If, for example, a U.S. oil company engages in criminal behavior in California, and its assets can be traced back to Iraqi oil, it could be immune from any kind of prosecution.
Tellingly, the president's order provides no such legal immunity for companies who are helping to reconstruct Iraqi communications, computer or electrical infrastructure.
"In terms of legal liability," said Tom Devine, legal director of the Government Accountability Project, a Washington nonprofit group that defends whistle blowers, "the executive order cancels the concept of corporate accountability and abandons the rule of law. It is a blank check for corporate anarchy, potentially robbing Iraqis of both their rights and their resources."
Taylor Griffin, a spokesman for the Treasury Department, told me that this is a "tortured and incorrect reading of the executive order and what it hopes to achieve: protecting the revenue that belongs to the Iraqi people." When asked why the order did not exempt human rights or environmental damage, he responded, "When the regulations are written, they will address these."
But Betsy Apple, managing director and an attorney with EarthRights International, a Washington, D.C., human rights organization, thinks this is disingenuous and described the executive order as "an outrage" in a telephone interview. "It is a green light for oil companies to do business in Iraq, without worrying about legal liability," she said.
For some critics, the executive order supports the suspicion that the invasion of Iraq was always about gaining control of that country's oil. Jim Vallette, senior researcher at the liberal Institute for Policy Studies, said, "This order reveals the true motivation for the present occupation: absolute power for U.S. corporate interest over Iraqi oil."
The Institute and the Government Accountability Project have now asked Congress to investigate -- and repeal -- this order. The president's order is an outrage and Congress should act immediately. In our democracy, no one is above the law.
©2003 San Francisco Chronicle