OT: Quaint Relics
- From: Carl A.Alzheimer <nobody@xxxxxxxxxxxxxxxxx>
- Date: Sat, 7 Jul 2007 15:55:16 -0600 (MDT)
The Misunderestimated Mr. Cheney:
The Vice President's Record of Willfully Violating the Law, And Wrongly
Claiming Authority to Do So
By JOHN W. DEAN
----
Friday, Jun. 29, 2007
Vice President Dick Cheney has regularly claimed that he is above the
law, but until recently he has not offered any explanation of why.
In fact, it is becoming increasingly difficult to find a law that Cheney
believes does apply to him, whether that law be major or minor. For
example, he has claimed that most of the laws passed in the aftermath of
Watergate were unconstitutional, and thus implicitly inapplicable. His
office oversees signing statements claiming countless new laws will not
be honored except insofar as the President's extremely narrow
interpretation allows. He does not believe the War Powers Act should be
honored by the President. Nor, in his view, should the President be
bothered with laws like the Foreign Intelligence Surveillance Act
(FISA). In fact, it appears Cheney has actively encouraged defiance of
such laws by the Bush Administration.
For Cheney, the Geneva Conventions - considered among the nation's most
important treaties -- are but quaint relics that can be ignored. Thus,
he publicly embraced their violation when, on an Idaho talk radio
program, he said he was not troubled in the slightest by our forces
using "waterboarding" -- the simulated drowning of detainees to force
them to talk. There are serious questions as to whether Cheney himself
has also conspired to violate the War Crimes Act, which can be a capital
crime.
A man who can so easily disregard the War Powers Act, FISA, the Geneva
Conventions, and the War Crimes Act is merely flicking fleas when it
comes to complying with laws like the Presidential Records Act, which
requires him to keep records. Yet as CNN and other news organizations
have reported, Cheney ordered the destruction of the visitor logs to his
residence. These, of course, are presidential records the law requires
him to preserve and protect. (Indeed, neighbors of the Vice President
were surprised when, in the past, a truck for a document shredding
service would regularly visit the Vice President's residence at the
Naval Observatory.)
Most recently, the Vice President has refused to comply with Executive
Order 12958, as amended by his boss, George W. Bush. These orders were
issued to implement the law adopted by Congress in 1995 to clarify the
classification and protection of national security information.
Most interesting in Cheney's defiance is his absolutely absurd
explanation of why the law is not applicable to him or his staff.
Cheney's Explanation(s) For Defying the National Security Classification
Orders
Henry Waxman, who may be the nation's most diligent and vigilant member
of Congress, recently reported that Vice President Cheney claims he is
exempt from the presidential orders requiring government-wide procedures
to safeguard classified national security information because he is not
an "entity within the executive branch." According to information
provided to Chairman Waxman's Oversight committee, Cheney further
claimed he was not an "agency" as set forth in the Executive Orders.
Column continues below ?«
When Cheney was widely ridiculed by humorists, cartoonists, pundits,
commentators and several members of Congress for his claim of not being
an "entity within the executive branch," the Vice President's chief of
staff and counsel David Addington responded by asserting that the Vice
President is not subject to the order because he is not an "agency" as
defined by the order. (Addington thus effectively dropped the claim that
the Vice President is not an "entity.")
However, Addington does not cite any authority or language for his new
claim that the Vice President is not an "agency." In fact, there is
none. To the contrary, the order controlling national security
classification states exactly the opposite of what Addington claims.
Executive Order 12958 states that the term "Agency" means any "Executive
agency," as defined in the statutory language found at 5 U.S.C. 105, and
it includes "any other entity within the executive branch that comes
into the possession of classified information." An entity is any "body"
or "unit" or "thing" within the executive branch, and to claim the Vice
President's office is none of these is an insult to common sense. So is
Addington's claim that the Office of Vice President is not an agency
under the law.
Section 105 of Title 5 of the United States Code states that
an "'Executive agency' means an ?c independent establishment" within the
executive branch. Independent establishments are defined by Section 104
as "an establishment in the executive branch ?c which is not an Executive
department [which are listed in Section 101, and include the Departments
of State, Treasury, Justice, etc.], military department, Government
corporation, or part thereof, or part of an independent establishment."
The Justice Department issued an opinion in 1994 that the Vice President
was not an "agency" under the Freedom of Information Act. That opinion
was largely based on the Supreme Court ruling, in Kissinger v. Reporters
Comm. for Freedom of the Press, that "agency" does not cover "the
President's immediate personal staff or units in the Executive Office
whose sole function is to advise and assist the President."
However, the agency definition in E.O. 12985 is very different from that
in the Freedom of Information Act. If, as Addington claims, E.O. 12985
was intended to exempt the Vice President's office, why did it not so
state? Or, why did Bush not exempt the Vice President when he amended
that order in July 2005?
Cheney's claim his office is neither an entity nor agency defies logic,
but it is not surprising since he continues also to claim, with
absolutely no evidence to support his claim, that Saddam Hussein was
involved in 9/11 and that terrorist Abu Musab al Zarqawi set up an al
Qaeda operation in Iraq.
Needless to say, Cheney's claim - or Addington's claim, since Cheney
appears to be backing away from his chief of staff and counsel on this
issue - raises the question of what the vice president is. Legally, the
vice president has only the most limited of powers and authority, unless
the president empowers him.
The Limited Role the Constitution and a Federal Statute Envision for the
Vice President
The Vice President's very limited but vital roles are set forth in the
Constitution. He is the next in succession to become President, should
there be a vacancy or should the president suffer from mental or
physical inability to serve. And he is the president of the Senate,
which means he can preside over the Senate but under the Senate Rules,
he cannot take part in debate, and under the Constitution, he can only
vote to break a tie.
In the event of a vacancy in the office of the president, under Article
II and the Twenty-Fifth Amendment, the Vice President becomes the Acting
President. Also under the Twenty-Fifth Amendment, the Vice President,
when acting with a majority of the Cabinet, can also declare the
president is "unable to discharge the powers and duties of his office."
If he so declares, then after so informing Congress, the Vice President
becomes Acting President until the President notifies Congress that he
is fine; if there is a dispute, the Congress resolves it.
The only other Constitutional duty of the Vice President is that set
forth in Article I, Section 3, clause 4, which makes the Vice President
the "President of the Senate, but [he/she] shall have no Vote, unless
they be equally divided." Not since the nation's second Vice President,
Thomas Jefferson, decided it was a waste of time to preside over the
Senate has any Vice President done so -- other than to break ties or for
ceremonial events, such as the State of the Union or the tallying of
electoral college votes.
Since 1947, the Vice President has been given a number of statutory
duties, when President Truman recommended, and the Congress agreed, that
the Vice President should be a member of the National Security Council.
This, however, is the most significant of his statutory assignments.
Thus, beyond the limited constitutional responsibilities, and the few
statutory tasks, the Vice President's role comes down to whatever the
President assigns him. Vice Presidents can have no role greater than the
assignments given by the president -- or in the case of Dick Cheney,
whatever he has been able to convince the President he can appropriately
handle for him.
The Source of Cheney's Power: Influence, Not a Formal Grant of Authority
Washington insiders have long understood that Cheney's power stems from
his knowledge of the way the White House and the Office of the President
operate. This is knowledge he acquired as President Ford's Chief of
Staff. With Bush's consent, much of the paper flow of the White House
which heads up the chain of command toward the President goes through
Cheney's office. In addition, Cheney's staff reaches down into the
executive bureaucracy to shape the debate before it reaches the White
House.
Those with whom I have spoken have serious doubt that Bush and the White
House staff really knows what Cheney is doing, why he is doing it, or
how he is doing it. From the outset of this administration, Cheney has
been instrumental in placing people loyal to him throughout the
Executive Branch. This is not to say that Bush is not "the decider," for
he is, but by shaping the debate and controlling the paper flow, Cheney
decides what the decider will decide.
It has long been apparent that Cheney's genius is that he lets George W.
Bush get out of bed every morning actually believing he is the
President. In fact, his presidency is run by the President of the
Senate, for Cheney is its true center of gravity. That fact has become
more apparent with every passing year of this presidency, and anyone who
thinks otherwise has truly "misunderestimated" our nominal president and
his vice president.
-------------------------------------------------------------------------
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John W. Dean, a FindLaw columnist, is a former counsel to the president.
http://writ.news.findlaw.com/dean/20070629.html
.
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