Thursday, June 21, 2007

Cheney Asserts "Dark Lord Privilege"

By Cernig

Kudos to Nico at Think Progress today for a report on Dick Cheney's ongoing war on democracy.
House investigators have learned that over the objections of the National Archives, Vice President Cheney exempted his office from a presidential executive order designed to safeguard classified national security information.

The Office of the Vice President has asserted that it is not an “entity within the executive branch” and hence is not subject to presidential executive orders.
There's now a nasty turf battle going on, with the Information Security Oversight Office asking Gonzales (yeah, I know) to rule that Cheney must abide by the presidential executive order signed by Bush which stipulates that the administration must "provide data on its classification and declassification activities" and submit to on-site inspections by the Information Security Oversight Office (ISOO). Cheney’s office has retaliated by requesting changes in the executive order that would abolish the ISOO and eliminate the ability of the National Archives to appeal disputes to the Attorney General.

If you wrote this as satire, it would fail the test of almost-believability.

Is there any conservative out there willing to stand on his or her hind legs and defend Cheney for this? If the VP isn't a part of the executive why has he been given so much executive power? If he isn't a part of the executive and he isn't a part of the judiciary or the legislature then why has he been given any power at all? Moreover, why didn't he mention this belief when the DoJ were citing executive privilege as the reason not to pry into the make-up of his energy task force?

Update Justin Rood, ex TPM Muckraker and now with ABC News' The Blotter has picked up the story and is running it under the headline "Cheney Power Grab: Says White House Rules Don't Apply to Him".
In a statement e-mailed to the Blotter on, Cheney spokeswoman Megan McGinn said, "We are confident that we are conducting the office properly under the law.”

...For the first two years of the George W. Bush administration, Cheney's office complied with a presidential order that requires officials to report statistics on the number of documents it classifies and declassifies.

Since 2003, however, Cheney's office has refused to submit the data to ISOO. And when ISOO inspectors tried in 2004 to schedule a routine inspection of the vice president's offices, they were rebuffed, Waxman's letter claims.

Other White House offices, including the National Security Council, did not object to similar inspections, according to Waxman.
This one is going to have legs, lots of them. Challenge your favorite rightwinger to defend Cheney today! Let's get them all on record on this. One rightwing "lover of democracy" has already come out in favor of Cheney's denial of the power of the President to command him.

Update 2 Brian Angliss at Scholars and Rogues has been looking hard at the actual Presidential Order, Cheney's argument that since his office is part of the Legislative Branch he isn't covered by it and the penalties for contravening the order.
The only individual who has the authority to grant a waiver to access for the Information Security Oversight Office (ISOO) of the National Archives is the President himself (on the advice of his National Security Advisor, who must also be notified of the waiver request). And yet the Vice President claims that he has the authority, in direct opposition to EO13292.

...the only time the Office of the Vice President is mentioned [in the order] is to grant a single, specific exemption - and if the OVP wasn’t in the executive branch, it wouldn’t need an exemption.

...Having the Vice President, and a Republican at that, responsible for egregious breaches in national security sets a very poor example. After all, if the Vice President’s office can be exempt from secrecy requirements, then other offices could be as well. How long will it be before the entire Justice Department uses the identical argument (its duties are split between the executive and judicial branches, after all) to exempt itself from annual ISOO oversight?

And what are the sanctions for breaking this particular EO?

(c) Sanctions may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation.
(d) The agency head, senior agency official, or other supervisory official shall, at a minimum, promptly remove the classification authority of any individual who demonstrates reckless disregard or a pattern of error in applying the classification standards of this order.

As per his own Executive Order, President Bush must, at a minimum, remove Vice President Dick Cheney’s classification authority, but the Vice President’s history of willful disregard of national secrets obviously puts him in the “suspension without pay” or “removal” categories.

Failure to do so puts the President himself in violation of his own Executive Order.
Time for George to say "Dick, you are not my father"?

Update 3 James Joyner points me to a post of his from February that shows the Office of The Vice-President have been thinking this one through for some time. Then, the OVP refused to submit a list of office staff for the “Plum Book” (officially, United States Government Policy and Supporting Positions) on the grounds that:
The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The Vice Presidency performs functions in both the legislative branch (see article I, section 3 of the Constitution) and in the executive branch (see article II, and amendments XII and XXV, of the Constitution, and section 106 of title 3 of the United States Code).
And that, accordingly, the staff of the OVP are not "Presidentially Appointed".

This new report is far more serious in that the OVP is claiming it isn't covered by a presidential order for activities carried out under another presidential order while fulfilling duties assigned by presidential order. That has to be problematic. It's almost as if Dick Cheney wants to provoke the kind of argument over executive power that will lead to a constitutional crisis.

Update 4 I asked and got answers. My two favorite conservative pundits - Steven Taylor and James Joyner - both say Cheney is full of it this time.

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