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Vice President Not in Executive Branch?

Posted on: June 23, 2007 9:31 AM, by Ed Brayton

I'm sure you've heard about this by now. According to a letter sent by Rep. Henry Waxman to the Vice President, Cheney's office has for the last 4 years refused to allow routine office inspections regarding the handling of classified documents from the Information Security Oversight Office (ISOO), claiming not to be a part of the executive branch. A long excerpt from that letter below the fold:

That last part is quite important. If the Office of the Vice President is not an entity within the executive branch (what on earth else could it be?) then that means Cheney doesn't get to claim executive privilege. Yet he does. He went all the way to the Supreme Court asserting executive privilege to withhold the identities of his energy task force. Indeed, if he seriously wants to assert that his office is not an entity of the executive branch, the implications are vast and he isn't going to like all of them. It's just a textbook situation of rank hypocrisy and making whatever argument is necessary to defend his current whims, consistency and rationality be damned.

Here's another thing I think this situation demonstrates: how weak Bush is compared to Cheney in terms of who's really in control of White House policy. Bush's office complies with the law and the inspections. His office does not make such absurd claims, only the VP does. According to several reports, Bush's legal counsel has made clear that the VP's office is wrong. Bush could, and should, simply order the VP's office to comply with the law. The fact that he doesn't tells you where the real power lies, or at the very least, how reluctant Bush is to reign in Cheney.

Here's how the Contra Costa Times reported it:

Contra Costa Times

Waxman joins fight to get Cheney documents

Vice president asserts he is not an entity of the executive branch, refuses to comply with order to protect classified material

By William Douglas

MCCLATCHY WASHINGTON BUREAU

Article Launched: 06/22/2007 03:07:43 AM PDT

WASHINGTON -- Vice President Dick Cheney and congressional Democrats are sparring over the vice president's refusal to comply with a 2003 presidential executive order that requires all agencies and the executive branch to protect classified material.

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.

In a letter to Cheney on Thursday, House Oversight and Government Reform Committee Chairman Henry Waxman, D-Los Angeles, questioned "both the legality and wisdom" of the vice president's claiming an exemption from the order, noting recent controversies involving members of Cheney's staff and classified information.

Former Cheney Chief of Staff Lewis "Scooter" Libby was convicted in March of perjury and obstruction of justice in connection with a federal investigation into the identification, in a leak to the media, of CIA undercover operative Valerie Plame.

In May 2006, Leandro Aragoncillo, an aide in the vice president's office, admitted in federal court that he stole classified U.S. intelligence information and passed it on to officials plotting a coup in the Philippines.

"This record does not inspire confidence in how your office handles the nation's most sensitive security information," Waxman wrote. "Indeed, it would appear particularly irresponsible to give an office with your history of security breaches an exemption from the safeguards that apply to all other executive branch officials."

Cheney's office says it's exempt from Bush's executive order because it's not an entity within the executive branch. The order, issued in March 2003, directed all agencies and executive branch offices to report on their classified and non-classified files to the National Archives and Records Administration.

Cheney says his office is "unique" because it has dual responsibilities in the executive branch and legislative branches. In addition to serving as vice president, Cheney is president of the U.S. Senate.

"I would say that we are confident that we are conducting the office properly and under law," said Megan McGinn, a Cheney spokeswoman.

National Archives officials and Waxman disagree.

They say Cheney and his staff fall under the executive order because of their executive branch business. The Archive's Information Security Oversight Office has been trying to get Cheney to comply with the order since it was denied access to the vice president's office for a routine inspection in 2004.

"According to a letter that the National Archives sent to your staff in June 2006, you asserted that the Office of the Vice President is not an 'entity within the executive branch,' and hence is not subject to presidential executive orders," Waxman wrote. "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."

Archives officials fired off letters to Cheney's office in June and August 2006 seeking compliance with Bush's order, to no avail. In January, they wrote Attorney General Alberto Gonzales in hopes of getting Cheney to comply. Gonzales has not responded to the letter, according to Waxman's office. Justice Department spokesman Dean Boyd told McClatchy that the matter is under review.