Eric Rasmusen’s Weblog

It seems that Cheney’s office is being treated most unfairly in this business about “The Vice President is not in the Executive Branch”. Actually, Cheney’s claim is “The VP’s office is not an agency; it is like the President’s office.” See “Dick Cheney Rules” The vice president consistently gets hostile, biased, uninformed press coverage. by Kate O’Beirne

(or the anti-Cheney website at the end of this post) which say:

The Chicago Tribune reported that, since 2003, the vice president’s office had been refusing to report its activities, asserting that it wasn’t an “agency” under an executive order that required yearly reports on classification decisions. The vice president’s office also noted that the vice president has both legislative and executive functions – which is obviously true, but an unnecessary legal point in this latest dispute.

In a letter to Cheney’s chief of staff in June 2006, the director of the Information Security Oversight Office (ISOO) at the National Archives argued that the vice president was obliged to report “statistics related to its security classification program” to the ISOO. If they were unable to agree about how the executive order applied to the vice president, the ISOO director suggested referring the matter to the attorney general for a resolution.

Receiving no response to his letter, the ISOO director wrote the attorney general in January 2007, seeking either an affirmation that the vice president’s office was obliged to report its classification data to the ISOO, or a revision of the executive order to clarify its scope.

Six months later, there has still been no response from the attorney general, but the ISOO director got a reply from the president that affirmed the vice president’s position. Late last month, Tony Snow explained that the president and vice president are not executive “agencies” and so are not covered by Executive Order 12958, as amended by President Bush in 2003. The White House explains that it is in compliance with requirements about the handling of classified documents, and that the White House Security Office oversees that responsibility; it is only the requirement of reporting to the ISOO that is at issue.

The unremarkable interpretation that the vice president is to be treated like the president himself, when it comes to an executive order on classification practices that the president is free to repeal or modify at will, is not the stuff of a constitutional crisis. It’s not even unprecedented. In a 1994 legal memorandum, assistant attorney general Walter Dellinger reached a similar conclusion about Vice President Gore, determining that the vice president’s office is not an “agency” for purposes of the Freedom of Information Act. Dellinger’s opinion pointed out that “the Vice President has no constitutional or statutory responsibilities as an executive branch officer,” and that therefore general references to executive-branch entities are not sufficient to include the vice president….

In her contribution to the outrage over Cheney’s alleged belief that confidentiality in the executive branch “trumps everything else,” Gloria Borger of USNews.com credits “industrious Democrats led by Rep. Henry Waxman” with unearthing all the information about the vice president’s nefarious doings. In a series of letters to the administration, Waxman-chairman of the House Oversight and Government Reform Committee-has been complaining about the refusal to report to the ISOO, and about the denial of access to the vice president’s office for a routine ISOO inspection in 2004. His assertions are uncritically repeated in news stories….

Editorials bashing Cheney also, typically, remind their readers about his previous “stonewalling” when he refused to disclose details about his energy task force. But they fail to note that his earlier obstinacy was upheld in a 7-2 Supreme Court decision….

Cheney is now criticized for ordering the Secret Service “in secret” to destroy records of visitors to his residence, “right after the Washington Post sued for access to the logs.”

The vice president’s office submitted a letter to the editor to the Times, to correct the editorial’s “inaccuracies and omissions”: In fact, a month before the Washington Post filed its lawsuit, the vice president’s counsel asked the Secret Service to maintain all visitor records in good order, before returning them to the vice president’s office for preservation under the Presidential Records Act. Sworn statements filed in a lawsuit by a liberal watchdog group seeking Secret Service records indicate that — under longstanding practice — visitor logs are not agency records of the Secret Service, but rather are preserved as Presidential Records Act materials. Copies of the vice president’s visitor records that happen to be in the custody of the Secret Service are being retained, owing to the litigation; and the vice president has approved the retention.

Unsurprisingly, the Times failed to print the letter to the editor; it hasn’t even published a correction or clarification.

Here’s the same story on the ISOO, from a website strongly hostile to Vice President Cheney:

For the last three years, Vice President Cheney’s office has refused to divulge its classification statistics to ISOO, despite a seemingly explicit requirement that it do so. Prior to 2002, such information had routinely been transmitted and reported in ISOO’s annual reports to the President.

The disclosure requirement appears in ISOO Directive 1 (at section 2001.80): “Each agency that creates or handles classified information shall report annually to the Director of ISOO statistics related to its security classification program.”

Such ISOO directives “shall be binding upon the agencies,” President Bush wrote in Executive Order 13292 (section 5.1). Significantly, an “agency” here means not only a statutorily-defined executive branch agency (which would not include the OVP), but also refers to “any other entity within the executive branch that comes into the possession of classified information” (which would include the OVP).

By that reasoning, the Oval Office itself is an agency. But it is not.

This entry was posted on Monday, July 16th, 2007 at 5:54 pm and is filed under Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.