Cheney’s executive decision

Times Staff Writer

For the last four years, Vice President Dick Cheney has made the controversial claim that his office is not fully part of the Bush administration in order to exempt it from a presidential order regulating federal agencies’ handling of classified national security information, officials said Thursday.

Cheney has held that his office is not fully part of the executive branch of government despite the continued objections of the National Archives, which says his office’s failure to demonstrate that it has proper security safeguards in place could jeopardize the government’s top secrets.

According to documents released Thursday by a House committee, Cheney’s staff has blocked efforts by the National Archives’ Information Security Oversight Office to enforce a key component of the presidential order: a mandatory on-site inspection of the vice president’s office. At least one of those inspections would have come at a particularly delicate time -- when Cheney’s former chief of staff, I. Lewis “Scooter” Libby, and other aides were under criminal investigation for their suspected roles in leaking the identity of CIA operative Valerie Plame.


In an eight-page letter to Cheney on Thursday, Rep. Henry A. Waxman (D-Los Angeles) also charged that Cheney or his top staffers tried to abolish the Information Security Oversight Office this year after its director tried repeatedly to force Cheney’s office to comply with the presidential order.

Cheney spokeswoman Lea Anne McBride confirmed the vice president’s position Thursday but said she could not discuss the matter in detail, including whether Cheney or his aides tried to abolish the information security office. “We are confident that we are conducting this office properly under the law,” McBride said.

Some legal scholars and government secrecy experts noted the irony in Cheney’s stance that his office is not fully part of the executive branch, given his claims of executive privilege when refusing to provide information requested by Congress.

Cheney’s office has also refused to file required reports with the National Archives elaborating how much national security information was being classified and declassified, which was first reported by the Chicago Tribune last year.

Documents released Thursday offer new details about the intensifying dispute between the office of the vice president and the National Archives. The archives has appealed to Atty. Gen. Alberto R. Gonzales to intervene but has not received a response.

President Bush amended an existing executive order regarding classified information in 2003 to address post-Sept. 11 concerns that sensitive data were being mishandled.


Cheney’s staff filed annual reports with the National Archives in 2001 and 2002, as required of all federal agencies that handle national security matters. But it hasn’t filed any of the reports since 2003, when Bush’s order established a uniform, government-wide system for safeguarding classified national security information to ensure it is not accidentally released or leaked for political gain.

Waxman and others criticized Cheney and his staff, saying their refusal to comply with the presidential order could endanger national security.

“To my knowledge, this was the first time in the nearly 30-year history of the Information Security Oversight Office that a request for access to conduct a security inspection was denied by a White House office,” Waxman wrote to Cheney.

What’s more, the congressman said, it suggests that the vice president considers himself above the law -- even when the directive in question was created by his own boss, Bush.

“This is a very dangerous position he is taking and a ridiculous one, but it is a quite serious one,” Waxman, chairman of the House Committee on Oversight and Government Reform, said in an interview.

“I don’t know if he is covering something up or not, but ... when somebody refuses to make this information available, you wonder what they don’t want the inspectors from the National Archives to know.”


A frequent critic of the Bush administration, Waxman also asked Cheney how the vice president’s office could claim, as it has in correspondence he cited in his letter, that it was not “an entity within the executive branch.”

One Cheney staffer familiar with the matter said Thursday that the vice president has not complied with the order because his office has dual functions: It is part of the executive branch -- the Bush administration -- but also part of the legislative branch, given Cheney’s position as president of the Senate.

As such, the vice president’s office has no legal obligation to abide by the order because it only applies to the executive branch, said the Cheney staffer, who was not authorized to publicly discuss the inner workings of the office and requested anonymity.

Cheney’s position is articulated in the 2004 edition of an annual government directory of senior officials known as the Plum Book:

“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 ... and in the executive branch.”

Waxman said Cheney’s refusal to allow oversight of its classification system was a problem for another reason: The office has had a history of leaks of classified information in recent years.


In his letter to the vice president, Waxman said two Cheney staffers -- including Libby -- have been criminally prosecuted in the alleged illegal disclosure of classified information.

Waxman also said the Libby prosecution uncovered information suggesting that Cheney himself “apparently misused the declassification process for political reasons ... as part of a damage-control effort” to defend the administration’s rationale for going to war in Iraq.

“Your office may have the worst record in the executive branch for safeguarding classified information,” Waxman wrote.

Steven Aftergood, director of the Federation of American Scientists: Project on Government Secrecy, said the information that Cheney’s office is required to report is essentially trivial, most of it routine data on classification and declassification activity levels.

“But the significance of the dispute is enormous. It reveals with unusual clarity how stubbornly this vice president resists oversight,” Aftergood said. “If the executive order on classification can be violated at will, as the vice president has done, then agencies can abuse secrecy to conceal all kinds of mischief, and worse.”

Gordon Silverstein, a constitutional scholar at UC Berkeley, said Cheney’s claims were all the more noteworthy given his repeated assertions of executive privilege, based on his senior position within the Bush administration, as a reason why he has not had to testify before Congress or provide lawmakers with information on such national security issues as torture, interrogation and CIA renditions of terrorists.


“Here’s a guy who raises ‘executive privilege’ to historic levels to exempt himself from all rules and oversight, and now he says he’s not part of the executive branch?” said Silverstein. “Here we have a subordinate part of the executive branch asserting independent constitutional authority even against its own superior. It is flabbergasting.”