In 1939 Winston Churchill referred to the Soviet Union as a riddle wrapped in a mystery inside an enigma. Well- the phrase has been used a few times since (most notably in Oliver Stone’s “JFK”) but it seems incredibly apropos for our current Vice President. Especially since his most recent pronouncement that he doesn’t need to follow an executive order intended to maintain the integrity of classified documents.
The executive order was established by President Clinton and revised by President Bush in 2003. The 2003 version directed the National Archives’ Information Security Oversight Office to oversee a program of education and supervision of classified document protection and maintenance.
According to a letter from William Leonard, director of the oversight office to the House Oversight and Government Reform Committee, Mr. Cheney’s office argued it did not meet the definition of an executive branch agency and therefore was exempt. Mr. Leonard also wrote that Cheney’s office suggested his agency be abolished under a revision of the presidential order now under consideration.
Let’s take the first part first. Mr. Cheney is exempt from oversight because it doesn’t meet the definition of the executive branch? Okay – this sort of argument would be knee slapping “Saturday Night Live” satire if it wasn’t real. Mr. Cheney’s contention is that as Vice President he is the President of the Senate and therefore not technically under the authority of orders that are applicable to the Executive Branch. In other words- he is above the law to which even the President of the United States must adhere. Is he joking? Afraid not.
Some of my fellow liberal bloggers have asserted that Mr. Cheney invoked Executive Privilege over meetings with an “Energy Group” in January 2001 and therefore to say now that he is not part of the Executive branch is hypocritical. This was not the case. Actually the GAO sued the administration when the vice president’s office refused to comply with GAO requests and did everything but invoke Executive Privledge. Mr. Cheney affront to both the GAO and the National Archives’ Information Security Oversight Office is actually more disturbing than mere hypocrisy would have been. Mr. Cheney’s actions over the years have threatened to tear down the Constitutional balance of power that keeps each branch of government in check and show he will use every means possible to ensure that he is not accountable for anything.
On January 29, 2001, President Bush established the National Energy Policy Development Group (“Energy Group”), which was chaired by Vice President Dick Cheney. Cheney’s Energy Group consisted of six cabinet officers (Treasury, Interior, Agriculture, Commerce, Transportation and Energy), plus other government officials he was authorized to include. (For example, he could include the Secretary of State, if international issues were involved.) The staff was made up of full time government employees.
Clearly, the Energy Group was constituted to avoid the Federal Advisory Committee Act (FACA). That 1972 law applies if any group of two or more persons utilized by a president for advice includes a non-government employee or official. If this occurs, FACA requires that the group must make all of its proceedings open to the public, keep records of the proceedings, and accommodate a broad spectrum of views.
Cheney’s Energy Group sought to avoid the FACA requirements by including only government employees, and no outside persons, and it appears they did so successfully. But we don’t really know, because the Vice President refuses to provide the information necessary to make a determination. For all we know, non-government persons, perhaps from industry, may effectively have become part of the Energy Group in that they became involved in the advice given to the President.
Counsel to the Vice President David Addington responded to the Congressional request. He explained that the Energy Group was not subject to the Federal Advisory Committee Act, but as a matter of comity – a more accurate word might be “comedy,” given his response — he would provide some answers about the Energy Group’s members, staff and activities. Unfortunately, these “answers” were extremely vague. According to an article by former Nixon aide John Dean for FindLaw.com Mr. Addington (nicely) told the General Accounting to get lost. The Vice President did everything BUT invoke Executive Privilege.
However it was not because the Vice President did not see himself as a member of the Executive Branch that Executive Privledge was not invoked in the case of the “Energy Group”. According to a July 2003 article for Forbes.com by Dan Ackman, the aversion to asserting an executive-privilege claim might have been that the doctrine, while oft-discussed, is never mentioned in the Constitution and is ill-defined.
It is “an extremely murky area,” said Charles Fried, U.S. solicitor general during the Reagan Administration, in response to the earlier GAO suit. “Every time it’s come up, they’ve resolved it [without a judicial decision].” If the administration presented the issue squarely, it would risk a negative precedent that could haunt it later, Fried said. The idea behind executive privilege is that the president’s conversations with his advisers should be private, allowing all involved to be candid while formulating initiatives. But the task force allegedly included consultations with outsiders, including Enron executives, which may weaken its claim and also increase the suggestion that the governmental process was corrupted by private interests.
Mr. Cheney saw himself as unaccountable to the General Accountability Office and now says that laws that govern the Executive Branch do not apply because – well he is in the legislative branch. Hmmm… I don’t think so. Just simply go to the USA.gov site describing the Executive branch. The Vice President’s office is listed as part of the Executive Branch.
But I guess if Mr. Cheney loses the argument that he is not technically part of the Executive Branch even though all research points to a contrary reality, he can just strong arm the National Archives’ Information Security Oversight Office by threatening to close it.
So the Vice President is above GAO requests, above executive orders applying to the executive branch regarding classified documents and above the law in general. Mr. Cheney and his cloak of mystery has done more to destroy the balance of power in the Constitution than any other American I can think of – with the exception of Richard Milhous Nixon.
I wonder what he will say to Saint Peter when he meets him at the pearly gates? I can hear it now- “God’s rules do not apply to me, I’m Dick Cheney”.