FOCUS OF VP INQUIRY SHIFTS TO ATTORNEY GENERAL

FOCUS OF VP INQUIRY SHIFTS TO ATTORNEY GENERAL

Congressional leaders who are investigating the refusal of Vice President Cheney to comply with executive branch procedures for oversight of classification and declassification activity yesterday asked Attorney General Alberto Gonzales to account for his sluggish handling of the issue.

(Note:  I had originally used this article as a reply to my last article in gather - - but, decided that for wide distribution I needed to publish this as a Gather article)

Last January, J. William Leonard, the director of the Information Security Oversight Office (ISOO), asked the Attorney General to determine whether the Office of the Vice President is subject to reporting requirements like other executive branch agencies, or not.

A reply is not optional. The executive states clearly that "The Attorney General, upon request..., shall render an interpretation of this order with respect to any question arising in the course of its administration" (sec. 6.2b).

Yet no such reply has been forthcoming.

"Due to conflicting statements from your department, the status of your review of this matter is unclear," wrote Reps. Henry Waxman, John Conyers Jr., and William Lacy Clay in their letter to the Attorney General. "More than six months (sic) have passed since Mr. Leonard's letter to you, and the Information Security Oversight Office has received no response to its inquiry."

The House letter asked Attorney General Gonzales to reply to a series of questions regarding his review of the Vice President's status as a classifier.

http://www.fas.org/sgp/congress/2007/h062707.pdf

The Congressmen cited a Justice Department Office of Legal Counsel reply to a Freedom of Information Act request from the Federation of American Scientists (first reported by Michael Isikoff in Newsweek this
week) indicating that "no documents" had been generated in response to the ISOO inquiry.

http://www.fas.org/sgp/news/2007/06/olc-foia.pdf

On the Senate floor yesterday, Sen. Patrick Leahy extolled the FAS request as a example of the utility of the Freedom of Information Act.

"Just this week, we witnessed the great value of FOIA in shedding light on a controversial policy within the Office of the Vice President regarding the handling of classified information, with news reports that a FOIA request to the Justice Department first revealed that the Attorney General may have delayed a review into the legality of this troubling policy," Sen. Leahy said in a June 27 statement on the status of the Open Government Act, which has been held up by opposition from a Republican Senator.

http://www.fas.org/sgp/congress/2007/leahy062707.html

In a June 25 letter, Sen. Dick Durbin asked the Vice President to comply with the requirements of the Executive Order "so that we will not be compelled to take corrective action in our appropriations bill."

http://www.fas.org/irp/congress/2007_cr/durbin062507.pdf


ADDINGTON AND THE QUESTION OF INTENT

Vice Presidential Chief of Staff David Addington defended Dick Cheney's refusal to submit to oversight by the Information Security Oversight Office in a June 26 letter to Sen. John Kerry.

"The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes it clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies'," he wrote.

http://www.fas.org/sgp/news/2007/06/ovp062607.pdf

Mr. Addington's claim is demonstrably false.

By presidential order dated October 13, 1995, the President delegated original classification authority to the Vice President under Executive Order 12958, along with other officials in the executive office of the President and various agency heads.

http://www.fas.org/sgp/clinton/oca.html

When the executive order was amended in 2003, that delegation of classification authority to the Vice President was not rescinded or modified. It remains in effect. Consequently, the Vice President's authority is comparable to that of the Secretary of Defense or the Secretary of State.

Furthermore, as ISOO director J. William Leonard explained in his January 9, 2007 letter to the Attorney General, a "plain text reading"
of the order indicates that the Office of the Vice President is subject to the order's requirements. He noted that the OVP is granted one particular exemption, concerning the order's mandatory declassification review provisions.

"This sole explicit reference for the purpose of exempting the OVP from a provision of the Order supports an interpretation that the rest of the Order does apply.... otherwise there would be no need for an exemption,"
Mr. Leonard flawlessly argued.

By contrast, reported Michael Abramowitz in the Washington Post (June 27), "Addington did not cite specific language in the executive order supporting [his] view, and a Cheney spokeswoman could not point to such language last night. But spokeswoman Lee Anne McBride said the intent of the order, as expressed by White House officials in recent days, was 'not for the VP to be separated from the president on this reporting requirement'."

The President could amend the executive order at a moment's notice to exempt the Vice President from oversight. Or the Attorney General could render an interpretation of the order that favors the Vice President's position. But neither action has been taken.

Instead, the White House simply insists that the executive order does not mean what a "plain text reading" says that it means. By doing so, it degrades the machinery of government.