The press coverage of Vice President Cheney is reaching new heights of hysteria. A recent face-off between his office and an obscure government oversight agency is alleged to represent yet another alarming example of Cheney’s “contempt for the law” and habitual “stealth.” That “faint aroma reminiscent of Nixonian methods” once evident in parts of the Bush administration? Now “it’s all over the place.” The editorial consensus is that Cheney’s “penchant for secrecy appears to know no bounds.”
His utter disregard for such criticism is no secret. The outraged overreaction to the latest controversy, casting the vice president as a wholly unaccountable fourth branch of government, can only serve to warrant his disdain for the fourth estate.
The dispute became public in May, with a story about the classification and declassification of secret documents. The Chicago Tribune reported that, since 2003, the vice president’s office had been refusing to report its activities, asserting that it wasn’t an “agency” under an executive order that required yearly reports on classification decisions. The vice president’s office also noted that the vice president has both legislative and executive functions – which is obviously true, but an unnecessary legal point in this latest dispute.
In a letter to Cheney’s chief of staff in June 2006, the director of the Information Security Oversight Office (ISOO) at the National Archives argued that the vice president was obliged to report “statistics related to its security classification program” to the ISOO. If they were unable to agree about how the executive order applied to the vice president, the ISOO director suggested referring the matter to the attorney general for a resolution.
Receiving no response to his letter, the ISOO director wrote the attorney general in January 2007, seeking either an affirmation that the vice president’s office was obliged to report its classification data to the ISOO, or a revision of the executive order to clarify its scope.
Six months later, there has still been no response from the attorney general, but the ISOO director got a reply from the president that affirmed the vice president’s position. Late last month, Tony Snow explained that the president and vice president are not executive “agencies” and so are not covered by Executive Order 12958, as amended by President Bush in 2003. The White House explains that it is in compliance with requirements about the handling of classified documents, and that the White House Security Office oversees that responsibility; it is only the requirement of reporting to the ISOO that is at issue.
The unremarkable interpretation that the vice president is to be treated like the president himself, when it comes to an executive order on classification practices that the president is free to repeal or modify at will, is not the stuff of a constitutional crisis. It’s not even unprecedented. In a 1994 legal memorandum, assistant attorney general Walter Dellinger reached a similar conclusion about Vice President Gore, determining that the vice president’s office is not an “agency” for purposes of the Freedom of Information Act. Dellinger’s opinion pointed out that “the Vice President has no constitutional or statutory responsibilities as an executive branch officer,” and that therefore general references to executive-branch entities are not sufficient to include the vice president.
Dellinger’s 1994 memorandum wasn’t met with accusations that Al Gore was “above the law.” That’s because, back then, a media reaction wasn’t being stoked and scripted by Rep. Henry Waxman, the combative California Democrat.
In her contribution to the outrage over Cheney’s alleged belief that confidentiality in the executive branch “trumps everything else,” Gloria Borger of USNews.com credits “industrious Democrats led by Rep. Henry Waxman” with unearthing all the information about the vice president’s nefarious doings. In a series of letters to the administration, Waxman-chairman of the House Oversight and Government Reform Committee-has been complaining about the refusal to report to the ISOO, and about the denial of access to the vice president’s office for a routine ISOO inspection in 2004. His assertions are uncritically repeated in news stories.
The New York Times quoted Waxman’s contention that Vice President Cheney’s office “may have the worst record in the executive branch for safeguarding classified information.” The story reported that — in addition to citing the conviction of I. Lewis Libby, Cheney’s former chief of staff, in the Valerie Plame leak investigation — Waxman charged “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.” While delicacy might prevent the New York Times from reminding its readers about the multiple leaks of classified information it has itself received — and published! — there is no excuse for its failure to note that Aragoncillo was a Marine who joined the White House in 1999, and who worked on Vice President Gore’s staff before being assigned to Dick Cheney’s.
Editorials bashing Cheney also, typically, remind their readers about his previous “stonewalling” when he refused to disclose details about his energy task force. But they fail to note that his earlier obstinacy was upheld in a 7-2 Supreme Court decision. The New York Times, for example, cited the energy task force — with no mention of the Supreme Court vindication — as evidence of the vice president’s “disdain for accountability.” This was in a recent editorial — titled “Dick Cheney Rules” — devoted to another charge that is being uncritically added to the bill of particulars: Cheney is now criticized for ordering the Secret Service “in secret” to destroy records of visitors to his residence, “right after the Washington Post sued for access to the logs.”
The vice president’s office submitted a letter to the editor to the Times, to correct the editorial’s “inaccuracies and omissions”: In fact, a month before the Washington Post filed its lawsuit, the vice president’s counsel asked the Secret Service to maintain all visitor records in good order, before returning them to the vice president’s office for preservation under the Presidential Records Act. Sworn statements filed in a lawsuit by a liberal watchdog group seeking Secret Service records indicate that — under longstanding practice — visitor logs are not agency records of the Secret Service, but rather are preserved as Presidential Records Act materials. Copies of the vice president’s visitor records that happen to be in the custody of the Secret Service are being retained, owing to the litigation; and the vice president has approved the retention.
Unsurprisingly, the Times failed to print the letter to the editor; it hasn’t even published a correction or clarification. The only surprise — given the kind of hostile, biased, uninformed press coverage Cheney routinely receives — is that the vice president’s office even bothered to try.