On Friday, the New York Times called attention in an editorial to a GAO investigation showing that in many cases President George W. Bush is refusing to implement laws that Congress has passed.[1] -- The Times noted that "The Bush administration’s disregard for these laws is part of its extraordinary theory of the 'unitary executive.' The administration asserts that the president has the sole authority to supervise and direct executive officers, and that Congress and the courts cannot interfere. This theory, which has no support in American history or the Constitution, is a formula for autocracy." -- In a related story, the Times also reported Friday that Henry Waxman (D-CA 30th) has revealed an effort by Vice President Dick Cheney to abolish a unit of the National Archives charged with oversight of his office's handling of classified information.[2] -- "[A]fter repeatedly refusing to comply with a routine annual request from the archives for data on his staff’s classification of internal documents, the vice president’s office in 2004 blocked an on-site inspection of records that other agencies of the executive branch regularly go through." -- Lurking in the background of this story is the infamous David S. Addington, Cheney's "legal adviser," one of the éminences grises of the Bush administration. -- To evade the law, Addington devised the novel theory that "the vice president’s office was not an 'entity within the executive branch' because, under the Constitution, the vice president also plays a role in the legislative branch, as president of the Senate, able to cast a vote in the event of a tie." -- Justin Rood reported on an ABC News blog that Rep. Waxman wrote to Cheney: "Serious questions can be raised about both the legality and advisability of exempting your office from the rules that apply to all other executive branch officials."[3] ...
1.
Opinion
Editorial
DON'T VETO, DON'T OBEY
New York Times
June 22, 2007
http://www.nytimes.com/2007/06/22/opinion/22fri1.html
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.
The Government Accountability Office, a nonpartisan arm of Congress, investigated 19 provisions to which Mr. Bush objected. It found that six of them, or nearly a third, have not been implemented as the law requires. The G.A.O. did not investigate some of the most infamous signing statements, like the challenge to a ban on torture. But the ones it looked into are disturbing enough.
In one case, Congress directed the Pentagon in its 2007 budget request to account separately for the cost of military operations in Iraq and Afghanistan. It was a perfectly appropriate request, but Mr. Bush issued a signing statement critical of the rule, and the Pentagon withheld the information. In two other cases, federal agencies ignored laws requiring them to get permission from Congressional committees before taking particular actions.
The Bush administration’s disregard for these laws is part of its extraordinary theory of the “unitary executive.” The administration asserts that the president has the sole authority to supervise and direct executive officers, and that Congress and the courts cannot interfere. This theory, which has no support in American history or the Constitution, is a formula for autocracy.
Other presidents have issued signing statements, but none has issued as many, or done so with the same contemptuous attitude toward the co-equal branches of government. The G.A.O. report makes clear that Mr. Bush’s signing statements were virtually written instructions to executive agencies to flout acts of Congress. Senator Robert Byrd, Democrat of West Virginia, has said that the report shows that Mr. Bush “is constantly grabbing for more power” and trying to push Congress “to the sidelines.”
Members of Congress have a variety of methods available to make the administration obey the law. They should call the agency heads up to Capitol Hill to explain their intransigence. And they should use the power of the purse, the authority the founders wisely vested in the people’s branch, as a check on a runaway executive branch.
When the Bush presidency ends, there will be a great deal of damage to repair, much of it to the Constitutional system. Congress should begin now to restore the principle that even the president and those who work for him are not above the law.
2.
Washington
AGENCY IS TARGET IN CHENEY FIGHT ON SECRECY DATA
By Scott Shane
New York Times
June 22, 2007
http://www.nytimes.com/2007/06/22/washington/22cheney.html
[PHOTO CAPTION: Vice President Dick Cheney and President Bush in the Oval Office on Wednesday in a meeting with Republican members of the House.]
For four years, Vice President Dick Cheney has resisted routine oversight of his office’s handling of classified information, and when the National Archives unit that monitors classification in the executive branch objected, the vice president’s office suggested abolishing the oversight unit, according to documents released yesterday by a Democratic congressman.
The Information Security Oversight Office, a unit of the National Archives, appealed the issue to the Justice Department, which has not yet ruled on the matter.
Representative Henry A. Waxman, Democrat of California and chairman of the House Committee on Oversight and Government Reform, disclosed Mr. Cheney’s effort to shut down the oversight office. Mr. Waxman, who has had a leading role in the stepped-up efforts by Democrats to investigate the Bush administration, outlined the matter in an eight-page letter sent Thursday to the vice president and posted, along with other documentation, on the committee’s Web site.
Officials at the National Archives and the Justice Department confirmed the basic chronology of events cited in Mr. Waxman’s letter.
The letter said that after repeatedly refusing to comply with a routine annual request from the archives for data on his staff’s classification of internal documents, the vice president’s office in 2004 blocked an on-site inspection of records that other agencies of the executive branch regularly go through.
But the National Archives is an executive branch department headed by a presidential appointee, and it is assigned to collect the data on classified documents under a presidential executive order. Its Information Security Oversight Office is the archives division that oversees classification and declassification.
“I know the vice president wants to operate with unprecedented secrecy,” Mr. Waxman said in an interview. “But this is absurd. This order is designed to keep classified information safe. His argument is really that he’s not part of the executive branch, so he doesn’t have to comply.”
A spokeswoman for Mr. Cheney, Megan McGinn, said, “We’re confident that we’re conducting the office properly under the law.” She declined to elaborate.
Other officials familiar with Mr. Cheney’s view said that he and his legal adviser, David S. Addington, did not believe that the executive order applied to the vice president’s office because it had a legislative as well as an executive status in the Constitution. Other White House offices, including the National Security Council, routinely comply with the oversight requirements, according to Mr. Waxman’s office and outside experts.
Tony Fratto, a White House spokesman, said last night, “The White House complies with the executive order, including the National Security Council.”
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.
Mr. Waxman asserted in his letter and the interview that Mr. Cheney’s office should take the efforts of the National Archives especially seriously because it has had problems protecting secrets.
He noted that I. Lewis Libby Jr., the vice president’s former chief of staff, was convicted of perjury and obstruction of justice for lying to a grand jury and the F.B.I. during an investigation of the leak of classified information -- the secret status of Valerie Wilson, the wife of a Bush administration critic, as a Central Intelligence Agency officer.
Mr. Waxman added that in May 2006, a former aide in Mr. Cheney’s office, Leandro Aragoncillo, pleaded guilty to passing classified information to plotters trying to overthrow the president of the Philippines.
“Your office may have the worst record in the executive branch for safeguarding classified information,” Mr. Waxman wrote to Mr. Cheney.
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.
Mr. Addington did not reply in writing to Mr. Leonard’s letters, according to officials familiar with their exchanges. But Mr. Addington stated in conversations that the vice president’s office was not an “entity within the executive branch” because, under the Constitution, the vice president also plays a role in the legislative branch, as president of the Senate, able to cast a vote in the event of a tie.
Mr. Waxman rejected that argument. “He doesn’t have classified information because of his legislative function,” Mr. Waxman said of Mr. Cheney. “It’s because of his executive function.”
Mr. Cheney’s general resistance to complying with the oversight request was first reported last year by the Chicago Tribune.
In January, Mr. Leonard wrote to Attorney General Alberto R. Gonzales asking that he resolve the question. Erik Ablin, a Justice Department spokesman, said last night, “This matter is currently under review in the department.”
Whatever the ultimate ruling, according to Mr. Waxman’s letter, the vice president’s office has already carried out “possible retaliation” against the oversight office.
As part of an interagency review of Executive Order 12958, Mr. Cheney’s office proposed eliminating appeals to the attorney general -- precisely the avenue Mr. Leonard was taking. According to Mr. Waxman’s investigation, the vice president’s staff also proposed abolishing the Information Security Oversight Office.
The interagency group revising the executive order has rejected those proposals, according to Mr. Waxman. Ms. McGinn, Mr. Cheney’s spokeswoman, declined to comment.
Mr. Cheney’s penchant for secrecy has long been a striking feature of the Bush administration, beginning with his fight to keep confidential the identities of the energy industry officials who advised his task force on national energy policy in 2001. Mr. Cheney took that dispute to the Supreme Court and won.
Steven Aftergood, who tracks government secrecy at the Federation of American Scientists and last year filed a complaint with the oversight office about Mr. Cheney’s noncompliance, said, “This illustrates just how far the vice president will go to evade external oversight.”
But David B. Rivkin, a Washington lawyer who served in Justice Department and White House posts in earlier Republican administrations, said Mr. Cheney had a valid point about the unusual status of the office he holds.
“The office of the vice president really is unique,” Mr. Rivkin said. “It’s not an agency. It’s an extension of the vice president himself.”
3.
CHENEY POWER GRAB: SAYS WHITE HOUSE RULES DON'T APPLY TO HIM
By Justin Rood
The Blotter (ABC News web site blog)
June 21, 2007
http://blogs.abcnews.com/theblotter/2007/06/cheney-power-gr.html
Vice President Dick Cheney has asserted his office is not a part of the executive branch of the U.S. government, and therefore not bound by a presidential order governing the protection of classified information by government agencies, according to a new letter from Rep. Henry Waxman, D-Calif., to Cheney.
Bill Leonard, head of the government's Information Security Oversight Office (ISOO), told Waxman's staff that Cheney's office has refused to provide his staff with details regarding classified documents or submit to a routine inspection as required by presidential order, according to Waxman.
In pointed letters released today by Waxman, ISOO's Leonard twice questioned Cheney's office on its assertion it was exempt from the rules. He received no reply, but the vice president later tried to get rid of Leonard's office entirely, according to Waxman.
Leonard did not immediately respond to requests for comment.
In a statement e-mailed to the Blotter on ABCNews.com, Cheney spokeswoman Megan McGinn said, "We are confident that we are conducting the office properly under the law.”
As director of the tiny, 25-person Information Security Oversight Office, Leonard is responsible for keeping track of the nation's secrets and making sure they are properly protected.
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.
"Serious questions can be raised about both the legality and advisability of exempting your office from the rules that apply to all other executive branch officials," Waxman said in his letter to the vice president, and asked him to explain why he felt the rules didn't apply to him and his staff and how he was protecting classified information in his office.
Former Cheney aide I. Lewis "Scooter" Libby was recently convicted on several counts of perjury and obstruction of justice stemming from the leak of the identity of former covert CIA officer Valerie Plame, Waxman noted, and in 2006, former Cheney aide Leandro Aragoncillo pleaded guilty to sharing classified U.S. documents with foreign nationals. Aragoncillo also worked under former Democratic Vice President Al Gore, who complied with ISOO's requests.