The Method to Cheney's Madness

By Dan Froomkin
Special to washingtonpost.com
Friday, June 22, 2007 2:32 PM

Why, in 2003, did Vice President Cheney suddenly become so dead-set against reporting how his office handled government secrets?

Cheney's refusal to abide by reporting requirements that apply to everyone else in the Bush administration -- and the audacity of his excuse, that because he is also president of the Senate, his office is not really within the executive branch -- led to a bunch of unflattering front-page headlines this morning.

But let's assume there's a method to his madness. Perhaps Cheney is rejecting this oversight because he doesn't want people to know what he and his aides have been doing with classified information. Or perhaps he believes in principle that he shouldn't be subject to constraints that apply to others in the executive branch. Maybe both. I'm betting on both.

Cheney's particular sensitivity to releasing information about his handling of government secrets is not exactly surprising. And while he apparently had no problem filing reports in 2001 and 2002, he stopped doing so in 2003 -- a game-changing year in a lot of ways.

As I wrote in my March 31, 2006, column, investigative reporter Murray Waas has developed a compelling case that the use and abuse of classified information has been key to the White House's success not only in contriving a bogus case for war in Iraq, but in keeping charges of deception from becoming a major issue in the 2004 election -- and, arguably, to this day. Time and time again, in a strategy that most likely owes its existence to Cheney, the White House has selectively leaked or declassified secret intelligence findings that served its political agenda -- while aggressively asserting the need to keep secret the information that would tend to discredit it.

Also, starting in early 2003, Bush granted Cheney broad new powers to personally classify and declassify material, as I wrote in my Feb. 17, 2006 column. Bush's move, ironically, came in the very same order that Cheney is now in part resisting.

On March 25, 2003, just days after ordering U.S. troops into Iraq, Bush signed an executive order amending Executive Order 12958, which President Clinton had signed in 1995, and which laid out a host of rules about the classification and declassification of secret information.

Bush did not change the requirement that federal agencies report at least once a year on their implementation of those policies. Nor did he change the definition of who was covered by the reporting requirements. That continued to include any "entity within the executive branch that comes into the possession of classified information."

But Bush did make one major change: Giving the vice president all the same classification powers as the president. Clinton's order had assigned those powers only to the president, agency heads and their specifically designated subordinates. Bush's order added one more party: The vice president. Or, in the precise and possibly telling words of the order: "[I]n the performance of executive duties, the Vice President."

In a Feb. 15, 2006, interview on Fox News, Cheney asserted that he had the authority to declassify government secrets, but refused to say whether he had ever done so. From the transcript:

Brit Hume: "Let me ask you another question. Is it your view that a Vice President has the authority to declassify information?"

Cheney: "There is an executive order to that effect."

Hume: "There is."

Cheney: "Yes."

Hume: "Have you done it?"

Cheney: "Um, well, I've certainly advocated declassification and participated in declassification decisions. The executive order --"

Hume: "You ever done it unilaterally?"

Cheney blinked and paused.

Cheney: "Um, I don't want to get into that."

And let's not forget the elephant in the room. As Josh Meyer writes in the Los Angeles Times today: "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."

Finally there's the question of whether Cheney is trying to make a broader point here. The vice president, along with his longtime legal adviser David S. Addington, are widely viewed as the guiding forces behind the Bush administration's expansion of executive power, in an attempt to roll back post-Watergate limits on the presidency. (See, for instance, my June 6, 2006, column.) Cheney is also hands-down the most powerful vice president in history. So wouldn't it be in character for him and his top aides to maneuver to establish the vice presidency as a uniquely powerful and unconstrained force?

For more background, see yesterday's column: Cheney: Neither Here Nor There?

The Coverage

Peter Baker writes in The Washington Post: "Vice President Cheney's office has refused to comply with an executive order governing the handling of classified information for the past four years and recently tried to abolish the office that sought to enforce those rules, according to documents released by a congressional committee yesterday.

"Since 2003, the vice president's staff has not cooperated with an office at the National Archives and Records Administration charged with making sure the executive branch protects classified information. Cheney aides have not filed reports on their possession of classified data and at one point blocked an inspection of their office. After the Archives office pressed the matter, the documents say, Cheney's staff this year proposed eliminating it. . . .

"In an interview yesterday, Steven Aftergood, who directs the federation's Project on Governmental Secrecy, said the dispute concerns 'a very narrow bit of information' but indicated a broader disregard for following the same rules observed by the rest of the executive branch. 'By refusing to comply with these trivial instructions, the vice president undermines the integrity of the executive order,' he said. 'If it can be violated with impunity on a trivial point, then it can also be violated on more important matters.'"

Meyer writes in the Los Angeles Times: "'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.' . . .

"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.'"

Meyer notes that Cheney's position is laid out in the 2004 edition of an annual government directory of senior officials known as the Plum Book, which lists politically appointed positions across the executive branch, with a notable exception: "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."

Scott Shane writes in the New York Times: "The dispute is far from the first to pit Mr. Cheney and Mr. Addington against outsiders seeking information, usually members of Congress or advocacy groups. Their position is generally based on strong assertions of presidential power and the importance of confidentiality, which Mr. Cheney has often argued was eroded by post-Watergate laws and the prying press. . . .

"In the tradition of Washington's semantic dust-ups, this one might be described as a fight over what an 'entity' is. The executive order, last updated in 2003 and currently under revision, states that it applies to any 'entity within the executive branch that comes into the possession of classified information.'

"J. William Leonard, director of the oversight office, has argued in a series of letters to Mr. Addington that the vice president's office is indeed such an entity. He noted that previous vice presidents had complied with the request for data on documents classified and declassified, and that Mr. Cheney did so in 2001 and 2002.

"But starting in 2003, the vice president's office began refusing to supply the information. In 2004, it blocked an on-site inspection by Mr. Leonard's office that was routinely carried out across the government to check whether documents were being properly labeled and safely stored."

William Douglas writes for McClatchy Newspapers: "The skirmish is the latest in a long battle between Congress and the Bush White House -- particularly Cheney's office -- over the administration's campaign to expand the powers of the executive branch and increase the amount of information labeled as classified."

Julia Malone writes for Cox News Service: "Senate Majority Leader Harry Reid, D-Nev., when asked about Cheney's claim to be part of the legislative branch, quipped: 'I always thought that he was president of this administration.'"

Greg Sargent reports for TPM Cafe on the "nifty chart" sent out by Rep. Rahm Emanuel (Ill.), head of the House Democratic Caucus, showing the new four branches of government: Legislative, Executive, Judicial and Dick Cheney.

MSNBC's Keith Olbermann concludes: "Vice President Cheney is a rogue nation." Newsweek's Richard Wolffe told Olbermann: "This is a very rocky path, and if it's Constitutional, then I'm a banana."

Citizens for Ethics in Government reasons that "if Mr. Cheney is not subject to executive branch security requirements, surely he must be subject to Senate rules." That could include, just for example, the inspection of his office by the Office of Senate Security.

Warrantless Wiretapping Watch

Paul Kane writes in The Washington Post: "Former attorney general John D. Ashcroft told the House intelligence committee yesterday about disputes in the Bush administration over aspects of its domestic surveillance program, which peaked in the March 2004 visit to his hospital bedside by White House officials seeking his change of heart. . . .

"House Intelligence Chairman Silvestre Reyes (D-Tex.) . . . declined to detail the specifics of Ashcroft's testimony but said the former attorney general, now in private practice, gave the panel 'very candid advice' as it considers drafting new legislation that could rewrite FISA. There was 'robust and enormous debate' within the Bush administration about the post-Sept. 11, 2001, program, he said.

"But another member of the panel, Rep. Rush D. Holt (D-N.J.), said that Ashcroft did not give detailed explanations of what he was so concerned about in 2004, more than two years after the program's inception. 'He gave long, rambling, nonspecific answers,' Holt said."

Kane also reports: "The Senate Judiciary Committee, frustrated by what Chairman Patrick J. Leahy (D-Vt.) called 'stonewalling' of its requests for information about the dispute by the Bush administration, approved subpoenas yesterday for documents from the Justice Department and the White House related to the authorization and legal justifications for the surveillance program.

"Following the committee's practice, it withheld issuing the subpoenas pending further negotiations with the administration. In a demonstration of lawmakers' bipartisan concerns, three Republicans joined Democrats in the 13 to 3 vote to authorize the subpoenas. 'We are asking not for intimate operational details but for the legal justifications and analysis underlying these programs that affect the rights of every American,' Leahy said."

Thomas Ferraro writes for Reuters: "'The information the committee is requesting is highly classified and not information we can make available,' White House spokesman Tony Fratto said in signaling a possible court fight."

The Center for Democracy and Technology offers up a list of its "most wanted surveillance documents." Among them:

"Memorandum prepared by former Deputy Attorney General James Comey which, according to Comey, was sent to the White House shortly after March 10, 2004. The memorandum followed a review of the classified surveillance program (to which Comey referred in his May 15, 2007 testimony before the Senate Judiciary Committee) and it apparently explained why the Department of Justice in 2004 would not certify the surveillance program as lawful."

And: "Memorandum from then-White House Counsel Alberto Gonzales received by Comey shortly after March 10, 2004 that responded to the determination by the Department of Justice not to certify the lawfulness of the classified surveillance program."

Constitutional Crisis?

Michael Doyle writes for McClatchy Newspapers: "President Bush and the Democratic-led Congress are on a collision course over White House secrets, a sensitive conflict that's as old as the country itself.

"Bush has invoked the war on terrorism to claim unprecedented and virtually unlimited executive powers, unchecked by Congress, the courts and at times even the Constitution. . . .

"With Thursday's Senate Judiciary Committee action approving subpoenas related to Bush's warrantless wiretap program, congressional Democrats now have hit the administration with more than two dozen subpoenas.

"Unless some compromise is reached, the courts are the next stop in what probably will become a constitutional crisis."

Susan Crabtree writes in The Hill: "House Judiciary Committee Democrats warned yesterday they would pursue a contempt of Congress motion if the White House fails respond to subpoenas for testimony and documents related to the firings of U.S. attorneys last year.

"The deadline for a response is Thursday, June 28. If the White House does not comply, it opens the possibility of a constitutional showdown between the two branches. In an ironic twist, the Department of Justice (DoJ) would be called on to enforce the contempt motion."

Republican former Justice Department officials David B. Rivkin Jr. and Lee A. Casey, writing in a Los Angeles Times op-ed, urge Bush to "stand firm" against congressional subpoenas related to the firings of the U.S. attorneys.

"Because there is no legitimate congressional concern here to weigh against the president's clear interest in keeping White House political personnel deliberations confidential, a claim of executive privilege should be upheld by the judiciary. The president's answer to both House and Senate subpoenas should be 'See you in court.'"

Justice Watch

Amy Goldstein and Dan Eggen write in The Washington Post: "Although Attorney General Alberto R. Gonzales has told lawmakers that [Deputy Attorney General Paul J.] McNulty was the aide most responsible for the firings, McNulty continued yesterday to say that he played a minimal role in the dismissals and had little direct contact with Gonzales over the matter. Still, McNulty, who has announced he will resign this summer, also provided further evidence of possible partisan considerations in the firings, telling a House Judiciary subcommittee that complaints from a senior Republican senator contributed to the removal of one U.S. attorney. . . .

"McNulty argued that he had been fully candid with Congress when he testified in February. 'I had no knowledge of any plan to remove U.S. attorneys prior to October of 2006, and therefore no knowledge of any White House contacts or White House involvement,' McNulty said yesterday."

Here is the transcript of his testimony.

Poll Watch

Marcus Mabry writes for Newsweek: "In [a] new poll, conducted Monday and Tuesday nights, President Bush's approval rating has reached a record low. Only 26 percent of Americans, just over one in four, approve of the job the 43rd president is doing; while, a record 65 percent disapprove, including nearly a third of Republicans.

"The new numbers -- a 2 point drop from the last Newsweek Poll at the beginning of May -- are statistically unchanged, given the poll's 4 point margin of error. But the 26 percent rating puts Bush lower than Jimmy Carter, who sunk to his nadir of 28 percent in a Gallup poll in June 1979. In fact, the only president in the last 35 years to score lower than Bush is Richard Nixon. Nixon's approval rating tumbled to 23 percent in January 1974, seven months before his resignation over the botched Watergate break-in."

On Wednesday, Joseph Carroll reported for Gallup: "According to a new Gallup Poll, conducted June 11-14, 2007, just 32% of Americans say they approve of the way George W. Bush is handling his job as president, while 65% disapprove. Bush's current job approval rating is among the most negative of his entire presidency and is just one point higher than his all-time low as president, measured in May 2006. His current 65% disapproval rating ties for the highest of his entire tenure in the White House, the same as measured in May 2006 and in February 2007."

Gitmo Watch

Josh White and Robin Wright write in The Washington Post: "Senior Bush administration officials are engaged in active discussions about closing the U.S. military detention facility at Guantanamo Bay, Cuba, but deep divisions remain regarding the fate of the approximately 375 foreign detainees currently held there should the prison close, according to numerous officials familiar with the ongoing dialogue.

"President Bush has stated publicly his desire to shut down the facility, which has drawn significant criticism and damaged the United States' reputation internationally. . . .

"Key discussions have centered on how to repatriate roughly 75 remaining detainees who have been cleared for release or transfer, how to put roughly 80 detainees on trial following major failures in the Military Commissions Act, and where to indefinitely hold an additional 220 detainees the government deems too dangerous to release. While there have been preliminary talks of bringing them to military detention centers in the United States, there has been significant opposition from Vice President Cheney as well as from the Justice and Homeland Security departments, and officials said yesterday that they are not on the brink of a decision."

Peter Spiegel writes in the Los Angeles Times: "The White House postponed a meeting of the administration's top senior foreign and defense policy officials scheduled for today to debate the future of the Guantanamo Bay, Cuba, terrorism detention center, but officials said the issue of whether to close the facility was likely to be discussed at a later date.

"The meeting was scheduled to help senior leaders decide whether the Guantanamo prison could be closed and its detainees moved to facilities in the U.S. without risking their release by the courts. Plans for the White House meeting were first reported Thursday by the Associated Press."

Matthew Lee of the Associated Press, however, writes that the White House "is nearing a decision to close the Guantanamo Bay detainee facility and move its terror suspects to military prisons elsewhere. . . .

"Senior administration officials said Thursday a consensus is building for a proposal to shut the center and transfer detainees to one or more Defense Department facilities, including the maximum-security military prison at Fort Leavenworth, Kan., where they could face trial."

Lee writes: "Officials say that Bush, who also has said he wants to close the facility as soon as possible, is keenly aware of its shortcomings.

"His wife, Laura, and mother, Barbara, along with Rice and longtime adviser Karen Hughes, head of the public diplomacy office at the State Department, have told him that Guantanamo is a blot on the U.S. record abroad, particularly in the Muslim world and among European allies."

But Lee acknowledges that "Cheney's office and the Justice Department have been against the step, arguing that moving 'unlawful' enemy combatant suspects to the U.S. would give them undeserved legal rights," and that they "could block the proposal."

Gone to Alabama

Henry J. Pulizzi blogs for the Wall Street Journal on Bush's swing through Alabama yesterday, starting at Browns Ferry, a nuclear power facility that recently reopened being shuttered in 1985.

"But some said Browns Ferry is an odd place for Bush to herald the benefits of nuclear energy. In the mid-1970s, it was the site of what opponents call the second most severe nuclear accident in the U.S., behind Three Mile Island.

"'The Browns Ferry Nuclear Plant has a dubious history and can hardly be held up as a model for the industry,' said Michele Boyd, legislative director of Public Citizen's energy program. 'Instead of representing the future of nuclear power, it stands as the premier example of why we stopped ordering new reactors in the first place.'

"Since restarting last month, the Unit 1 reactor has been shut down twice, making it a 'strange poster child' for Bush's nuclear plans, according to Jim Riccio, nuclear policy analyst at Greenpeace. 'I guess Three Mile Island was booked,' Riccio said in a statement."

From Bush's speech: "I remind those who share my concern about greenhouse gases that nuclear energy produces no greenhouse gases. If you are interested in cleaning up the air, then you ought to be an advocate for nuclear power."

James Gerstenzang writes in the Los Angeles Times: "Of the senators standing in the way of the immigration overhaul that is one of President Bush's top priorities, none has been more adamant than Jeff Sessions (R-Ala.).

"Yet here was Bush on Thursday, spending much of the day in Alabama, touring a unit of a nuclear power plant that recently reopened after a fire two decades ago and capping the visit at a party in Mobile expected to raise $1 million for the senator's 2008 reelection campaign.

"Look no further to find an example of money trumping policy when it comes to politics."

From Bush's speech at the Sessions fundraiser: "He's a strong ally on a lot of fronts. We occasionally have our differences. (Laughter.) I mean, take the immigration bill, for example. (Laughter.) We both agree we've got a problem. (Laughter.) And the fundamental question is how best to fix it. . . .

"I remember -- and I'm going to share this with Sessions -- I remember a political buddy of mine in Texas. He said if we agreed 100 percent of the time, one of us wouldn't be necessary. (Laughter.) Well, he's necessary in the United States Senate, and I'm proud you're here to back him, and thanks for coming. (Applause.)"

Signing Statements Watch

The New York Times editorial board writes: "President Bush is notorious for issuing statements taking exception to hundreds of bills as he signs them. This week, we learned that in a shocking number of cases, the Bush administration has refused to enact those laws. Congress should use its powers to insist that its laws are obeyed."

Scooter Libby Watch

Josh Gerstein writes in the New York Sun: "A federal judge is adding the heft of a 30-page legal opinion to his decision last week not to permit a former chief of staff to Vice President Cheney, I. Lewis Libby Jr., to remain free while he appeals his convictions for obstructing the CIA leak investigation.

"Judge Reggie Walton's decision to file a detailed and carefully-reasoned justification for his ruling adds some incline to the uphill battle Libby faces in trying to convince a federal appeals court panel to grant him a stay of his 30-month prison term while his lawyers fight to overturn his conviction. The lengthy opinion could also be viewed as a shot across the bow of the appeals court panel, which is certain to face claims it had more of an eye on politics than law if it chooses to upend Judge Walton's decision."

If the court turns Libby down, Gerstein writes, "he could seek relief from the Supreme Court. Another possibility, first raised on National Review's Web site, is that Mr. Bush could issue a form of clemency known as a respite, which could have the same effect as a stay."

What a Croc

Washington Post fashion writer Robin Givhan writes: "George W. Bush was photographed recently in a pair of black Crocs -- Cayman style, $29.99 -- as he was heading out from the White House to ride his bike. He wore the clunky resin clogs -- which have ventilation holes and a heel strap -- with a pair of black shorts, a white camp shirt, a baseball cap with the image of an unidentified Scottish terrier and black bike socks imprinted with the presidential seal. . . .

"Bush's decision to wear black socks with his Crocs was ill-considered. The combination makes one think of an old man on his way to the beach."

Here the offending photograph of Bush, from June 2.

Cartoon Watch

Stuart Carlson on exceptions to Bush's rules; Tony Auth on Bush and science.

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