National secrecy Executive Orders vs. the Office of the Vice President

The office of the President of the United States has a vested interest in protecting the United States. This is, after all, one of the main reasons we have a Presidency in the first place – the President is Commander-in-Chief of the U.S. military. Similarly, the Republican Party has claimed national security as their exclusive domain for decades, and public polls (as well as elections) have usually shown that voters favor the Republican Party on the issue of who will protect the United States more effectively, Republicans or Democrats. So why is it that Vice President Dick Cheney, a Republican, exempted his office from the Executive Order that sets government-wide standards for safeguarding our most secret documents?

As I pointed out in a prior blog (Security failures at the White House), the White House has a very poor record safeguarding national secrets. And in some respects, ignoring Executive Order 12958 is worse than exempting yourself from that order. But at least the White House has the authority to change Executive Orders – it is, after all, the office of the President, and the President has the authority to change Executive Orders (EOs), as President Bush himself did when he updated parts of 12958 with EO13292.

But the Vice President does not have the same authority. If the Vice President had the authority to exempt his office from certain EOs, those EOs would have to say so. In this case, I’ve searched through EO13292 looking for what the Vice President’s actual authority is, and here’s what I found. The Vice President has the authority to:

  • classify information that applies to his official duties as Vice President.

That’s it. The only invididual who has the authority to grant a waiver to access for the Information Security Oversight Office (ISOO) of the National Archives is the President himself (on the advice of his National Security Advisor, who must also be notified of the waiver request). And yet the Vice President claims that he has the authority, in direct opposition to EO13292.The Office of the Vice President (OVP) is also claiming to not be an executive office because, according to this letter from the ISOO to the OVP, the OVP “has both legislative and executive functions.” So, because the Vice President nominally serves as the head of the Senate, he’s claiming not to be an “entity within the executive branch”. As required by the Executive Order, the National Archives has requested that Attorney General Gonzales decide whether the Office of the Vice President is a part of the executive branch or not (read the letter yourself). In fact, it’s interesting to note that the letter to the letter to the Attorney General points out that the only time the Office of the Vice President is mentioned is to grant a single, specific exemption – and if the OVP wasn’t in the executive branch, it wouldn’t need an exemption.And, according to the letter from Rep. Henry Waxman, chairman of the House Committee on Oversight and Government Reform, to Vice President Cheney himself, the Vice President’s response was to recommend the abolution of the Archive’s Information Security Oversight Office in its entirety or, barring those changes, eliminating the section in the EO that permits the ISOO to appeal to the Attorney General and changing certain definitions specifically to exempt the OVP from the requirements of the Executive Order. These changes have, thankfully, been rejected by the inter-agency panel responsible for recommending revisions to the President.As Vice President, Dick Cheney is second only to the President in his responsibilities to the country. And as the second-highest executive in the United States, his actions serve as powerful examples of how to behave to other federal employees. Having the Vice President, and a Republican at that, responsible for egregious breaches in national security sets a very poor example. After all, if the Vice President’s office can be exempt from secrecy requirements, then other offices could be as well. How long will it be before the entire Justice Department uses the identical argument (its duties are split between the executive and judicial branches, after all) to exempt itself from annual ISOO oversight?And what are the sanctions for breaking this particular EO?

(c) Sanctions may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation.
(d) The agency head, senior agency official, or other supervisory official shall, at a minimum, promptly remove the classification authority of any individual who demonstrates reckless disregard or a pattern of error in applying the classification standards of this order.

As per his own Executive Order, President Bush must, at a minimum, remove Vice President Dick Cheney’s classification authority, but the Vice President’s history of willful disregard of national secrets obviously puts him in the “suspension without pay” or “removal” categories.

Failure to do so puts the President himself in violation of his own Executive Order.

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