Thursday, June 21, 2007

Cheney secedes from the executive branch


Dick Cheney is a wonder.

Remember back in 2001 when he basically invited the oil industry to write the administration's new energy policy? When people wanted to know who attended the advisory meetings Cheney refused to say, claiming executive privilege -- that is, as a member of the executive branch, he had a right to receive "free and frank" advice without those advisors having to worry about their names or words being made public. He won a court case on the matter using that argument.

Fast forward to 2004, where in order to -- again -- maintain the cloak of secrecy over his actions, Cheney claimed that the Office of the Vice President isn't part of the executive branch, exempting it from an executive order that lays out how agencies are supposed to handle and safeguard classified information. This came to a head when the VP's staff blocked an inspection by the National Archives office tasked with making sure the order was being followed.

The National Archives had a cow, to which the VP responded with ... silence. So the Archives wrote to Attorney General Alberto Gonzales. This time the VP responded -- by attempting to abolish the Archives office doing the questioning. Gonzales' response was ... silence.

The Veep's legal reasoning seems worthy of Alberto Gonzales. It asserts that the Office of the Vice President isn't an executive branch agency for the purposes of the executive order because it has both legislative and executive functions -- for instance, presiding over the Senate and casting a vote when necessary to break ties.

Not only is this assertion novel -- no previous VP has made such a claim -- but it's also a ludicrous technicality. The Vice President's legislative duties are narrow and relatively minor, and don't involve disclosures of classified information. Essentially all of the office's handling of classified data comes through its executive duties. The argument appears to make a distinction between the VP (an executive branch officer) and his office (which has mixed duties), allowing the office to claim executive privilege when convenient and legislative-branch status when convenient.

The Archives lay out the argument in a letter to Cheney (pdf) and the subsequent letter to Gonzales (pdf).

The common thread, of course, is Cheney's obsessive need for secrecy and nonaccountability -- as well as his penchant for lashing out at perceived enemies. In this case it's particularly nutty: Cheney is asserting that the government should simply trust that his office is handling classified information appropriately. This arguably places his dislike of accountability above the demands of national security.

Henry Waxman, chairman of the oversight committee, summed things up in a fiery 8-page letter (pdf) requesting answers from the VP's office by July 12. Expect the VP's response to be either silence or a dismissal of Congress' authority in this matter. The latter point might even be valid: Congress' oversight authority over the handling of executive orders is generally limited to attacking the orders themselves (if they lack statutory authority), not questioning whether they were carried out. It doesn't appear that Congress has the power to compel the executive branch to follow or enforce its own orders.

What Congress does have, however, is the power to embarass. Cheney seems immune to embarassment, but stonewalling or public defiance will simply mean that much more political capital drained from an administration that is already running on fumes in that department. And the fault for that lies with Cheney and his congenital and destructive secretiveness, not Congress.

Update: Pulling from the discussion in the comments, I wanted to highlight the aspect of the Executive Order that discusses what government bodies are covered. Section 6.1(b) reads as follows:

"Agency" means any "Executive agency," as defined in 5 U.S.C. 105; any "Military department" as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.

Now, Cheney's argument is that the VP's office isn't part of the executive branch, his earlier claims of "executive privilege" notwithstanding. There could be an interesting case to be made there, seeing as how his salary is actually paid by the Senate and his sole constitutional duty is presiding over the Senate. On the other hand, the job of Vice President is laid out in detail in Article II of the Constitution -- the article describing the executive branch.

Then there's the two centuries worth of practice, precedent and legal rulings that undermine Cheney's claim. At USA.gov, the government's directory of itself, the vice president is listed under the "executive office of the President." Besides having an office in the White House, he also has an office in the Eisenhower Executive Office Building -- which, notably, contains executive offices. He's part of the president's Cabinet, something no legislative branch member is. The list goes on.

Besides, if he's not part of the executive branch, then he's an employee of Congress and can be subpoenaed or otherwise overseen at will. I'm sure Congress would love to exercise that newfound power.

, ,

Labels:

13 Comments:

Anonymous Anonymous said...

Oh, I hope Waxman DOES hold a public hearing!!! I would LOVE to have this subject come before the public. This part is particularly funny:

"Cheney is asserting that the government should simply trust that his office is handling classified information appropriately. This arguably places his dislike of accountability above the demands of national security."

Because considering former National Security Advisor Sandy Berger's National Archives escapade in recent history-----I'd love to discuss the topic. I would LOVE to hear Dems' leadership explain how they DID trust Berger's lame explanation but do NOT trust Cheney's.

BTW, Berger WAS a part of the former Executive office and he was sent into the National Archives as a representative of the former President of the United States.

So----YES!!! Bring it on!!

JP5

6/21/2007 7:02 PM  
Blogger Sean Aqui said...

That deflection to Berger is so loopy I don't know where to begin addressing it, so I'll tell you what: I'll agree your comparison is valid if you'll agree that Cheney deserves the same sentence Berger got.

6/21/2007 7:19 PM  
Anonymous Anonymous said...

But Cheney didn't break any law; Berger did. Berger STOLE and INTENTIONALLY DESTORYED HIGHLY CLASSIFIED documents; Cheney did not. Cheney doesn't deserve any sentence because he did nothing wrong. Berger deserved jail time.

But hey, I would welcome a hearing on the National Archives and classified materials. I feel sure Berger's name would surely come up.

JP5

6/21/2007 8:06 PM  
Blogger Sean Aqui said...

Well, like I said, the parallel you're attempting to draw to Berger just doesn't hold up. If Berger's name comes up in the hearings, so what? Will that make a material difference?

What do you think of Cheney's actions and argument that the OVP is not part of the executive branch?

6/22/2007 7:54 AM  
Anonymous Anonymous said...

a poem for cheney

he thinks he can hide from everything
even from death itself
from death that finds us all
he is not exempt
and when he dies
(and he will, he will)
we will desecrate his grave
(if we can find it)
but even if we can't
the worms will know where he is
and they will have their way with him
and we will knock over his statues
(if we can find them)
but even if we can't
history will know what he has done
and it will have its way with him
to those a generation hence
he will be a bad-smelling stain
on the fabric of american history
nothing more
nothing more
nothing more

6/22/2007 10:09 AM  
Blogger Sean Aqui said...

Vowing to desecrate someone's grave doesn't exactly leave you holding the moral high ground.

Plus, he's had a long career. He wasn't particularly distinguished as a member of Congress, but he did a credible job as SecDef under Bush the Elder -- even if he now does bizarre stuff like blaming Democrats for supporting his actions back then.

I agree, however, that history will not be kind to Cheney's latest incarnation.

6/22/2007 10:14 AM  
Anonymous Anonymous said...

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. The Vice President's office is NOT an agency. Neither is the President's office.

And from the Executive order itself:

"(b) Information originated by:

(1) the incumbent President or, in the performance of executive duties, the incumbent Vice President;

(2) the incumbent Presidents White House Staff or, in the performance of executive duties, the incumbent Vice Presidents Staff;

(3) committees, commissions, or boards appointed by the incumbent President; or

(4) other entities within the Executive Office of the President that solely advise and assist the incumbent President is exempted from the provisions of paragraph (a) of this section."


http://www.whitehouse.gov/news/releases/2003/03/20030325-11.html

And everyone knows that Henry Waxman just wants to do some witch hunting.

JP5

6/22/2007 10:33 AM  
Blogger Sean Aqui said...

That quote is disingenous.

The section you quote deals only with mandatory declassification reviews. In other words, the Pres and VP and other offices listed can classify information they generate, and that information is not automatically subjected to a review of whether the classification was proper.

It does not exempt them from the rest of the EO, specifically an inspection to determine how they're handling classified records.

You'll also note that it refers to information "originated" by those offices, not other information handled by those offices. The VP cannot classify an outside document, for example, in order to protect the classification from review.

As to the claim that the VP's office is not an "agency" as defined in the EO, if that were the case the EO would not have to make specific exemptions for the OVP, such as the one you cite above.

Beyond that, Section 6.1(b) reads as follows:

"Agency" means any "Executive agency," as defined in 5 U.S.C. 105; any "Military department" as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.

Please explain how you think that exempts the OVP.

6/22/2007 10:50 AM  
Anonymous Anonymous said...

"Any other entitity???" You think the Vice President's Office is another entity?

The Vice President's office has lawyers far smarter than you or I on the matter.

And what is Waxman looking for specifically? I think he's just how to give Cheney and this administration all the grief he can bestow upon them. And Cheney is NOT biting.

JP5

6/22/2007 8:33 PM  
Blogger Sean Aqui said...

JP5: The legality aside, do you defend the idea that the OVP should be exempt from oversight on its handling of classified information?

As for what Waxman is looking for, it's mostly to (justifiably) embarrass the administration, but also to plug a potential security hole. Congress has no authority to enforce an EO, but they do have the ability to point up ridiculous executive branch practices. It's the Congressional version of the bully pulpit.

6/25/2007 7:17 AM  
Anonymous Anonymous said...

The country elected Vice President Cheney to be VP. They did NOT elect Waxman to be anything. And certainly not a part of the EXECUTIVE branch. The EO was made BY THE PRESIDENT to ensure that agencies and entities were safeguarding the classified materials they might have. IF Waxman has some evidence that Cheney has misused Classified materials, he should present it. But he should NOT be using the EO to try to get into Cheney's office and witch hunt.

These Dems are simply going from one thing to the next.....trying their best to give this administration all the grief they can. Well, it's not working. The American people want them to do something besides investigate. And so far, they've been a real "do-nothing" Congress and a big failure.

JP5

6/29/2007 2:56 AM  
Blogger Sean Aqui said...

The country elected Vice President Cheney to be VP.

Well, mostly they elected Bush. The Veep tends to ride into office on the president's coattails.

They did NOT elect Waxman to be anything.

He's an elected official, and a committee chairman of Congress, which has oversight authority over the executive branch.

The EO was made BY THE PRESIDENT to ensure that agencies and entities were safeguarding the classified materials they might have.

You are correct that the president is free to write an EO that exempts himself and the OVP from oversight. However, in this case he did not do so. And if he does amend the EO to say exactly that, it would not immunize him from the question of whether that's a good idea or not.

IF Waxman has some evidence that Cheney has misused Classified materials, he should present it.

Waxman's letter to Cheney is filled with examples that he considers evidence. Beyond that, though, it's a circular question. Nobody knows how Cheney is handling secret information because Cheney is refusing oversight in the manner. Thus demanding proof of improper handling is a bit disingenuous.

So far, they've been a real "do-nothing" Congress and a big failure.

They've already accomplished several things important to them, so "do-nothing" isn't entirely accurate.

You declared them a failure in their first month, and have been saying it ever since. Never mind that the session is not even half over. Beyond that, any analysis of the session must answer the question of who is to blame for any "failure" to get things done. Seems to me that Republican senators blocking legislation, and a Republican president prepared to veto bills, play a large role.

That is as it should be. But it's silly to then solely blame the Democrats for not getting anything done.

7/02/2007 11:54 AM  
Anonymous Anonymous said...

good news: Cheney is now correct.

6/08/2009 6:01 AM  

Post a Comment

Links to this post:

Create a Link

<< Home