U.S. agency is target in Cheney fight on secrecy data

By Scott Shane
International Herald Tribune
Friday, June 22, 2007

For four years, Vice President Dick Cheney has resisted routine oversight of his office's handling of classified information, and when the National Archives unit that monitors classification in the executive branch objected, the vice president's office suggested abolishing the oversight unit, according to documents released Thursday by a Democratic congressman.

The Information Security Oversight Office, a unit of the National Archives, appealed the issue to the Justice Department, which has not yet ruled on the matter.

Representative Henry Waxman, Democrat of California and chairman of the House Committee on Oversight and Government Reform, disclosed Cheney's effort to shut down the oversight office. Waxman, who has had a leading role in the stepped-up efforts by Democrats to investigate the Bush administration, outlined the matter in an eight-page letter sent Thursday to the vice president and posted, along with other documentation, on the committee's Web site.

Officials at the National Archives and the Justice Department confirmed the basic chronology of events cited in Waxman's letter.

The letter said that after repeatedly refusing to comply with a routine annual request from the archives for data on his staff's classification of internal documents, the vice president's office in 2004 blocked an on-site inspection of records that other agencies of the executive branch regularly go through.

But the National Archives is an executive branch department headed by a presidential appointee, and it is assigned to collect the data on classified documents under a presidential executive order. Its Information Security Oversight Office is the archives division that oversees classification and declassification.

"I know the vice president wants to operate with unprecedented secrecy," Waxman said in an interview. "But this is absurd. This order is designed to keep classified information safe. His argument is really that he's not part of the executive branch, so he doesn't have to comply."

A spokeswoman for Cheney, Megan McGinn, said, "We're confident that we're conducting the office properly under the law." She declined to elaborate.

Other officials familiar with Cheney's view said that he and his legal adviser, David Addington, did not believe that the executive order applied to the vice president's office because it had a legislative as well as an executive status in the Constitution. Other White House offices, including the National Security Council, routinely comply with the oversight requirements, according to Waxman's office and outside experts.

Tony Fratto, a White House spokesman, said last night, "The White House complies with the executive order, including the National Security Council."

The dispute is far from the first to pit Cheney and Addington against outsiders seeking information, usually members of Congress or advocacy groups. Their position is generally based on strong assertions of presidential power and the importance of confidentiality, which Cheney has often argued was eroded by post-Watergate laws and the prying press.

Waxman asserted in his letter and the interview that Cheney's office should take the efforts of the National Archives especially seriously because it has had problems protecting secrets.

He noted that I. Lewis Libby Jr., the vice president's former chief of staff, was convicted of perjury and obstruction of justice for lying to a grand jury and the FBI during an investigation of the leak of classified information — the secret status of Valerie Wilson, the wife of a Bush administration critic, as a Central Intelligence Agency officer.

Waxman added that in May 2006, a former aide in Cheney's office, Leandro Aragoncillo, pleaded guilty to passing classified information to plotters trying to overthrow the president of the Philippines.

"Your office may have the worst record in the executive branch for safeguarding classified information," Waxman wrote to Cheney.

In the tradition of Washington's semantic dust-ups, this one might be described as a fight over what an "entity" is. The executive order, last updated in 2003 and currently under revision, states that it applies to any "entity within the executive branch that comes into the possession of classified information."

J. William Leonard, director of the oversight office, has argued in a series of letters to Addington that the vice president's office is indeed such an entity. He noted that previous vice presidents had complied with the request for data on documents classified and declassified, and that Cheney did so in 2001 and 2002.

But starting in 2003, the vice president's office began refusing to supply the information. In 2004, it blocked an on-site inspection by Leonard's office that was routinely carried out across the government to check whether documents were being properly labeled and safely stored.

Addington did not reply in writing to Leonard's letters, according to officials familiar with their exchanges. But Addington stated in conversations that the vice president's office was not an "entity within the executive branch" because, under the Constitution, the vice president also plays a role in the legislative branch, as president of the Senate, able to cast a vote in the event of a tie.

Waxman rejected that argument. "He doesn't have classified information because of his legislative function," Waxman said of Cheney. "It's because of his executive function."

Cheney's general resistance to complying with the oversight request was first reported last year by The Chicago Tribune.

In January, Leonard wrote to Attorney General Alberto Gonzales asking that he resolve the question. Erik Ablin, a Justice Department spokesman, said last night, "This matter is currently under review in the department."

Whatever the ultimate ruling, according to Waxman's letter, the vice president's office has already carried out "possible retaliation" against the oversight office.

As part of an interagency review of Executive Order 12958, Cheney's office proposed eliminating appeals to the attorney general — precisely the avenue Leonard was taking. According to Waxman's investigation, the vice president's staff also proposed abolishing the Information Security Oversight Office.

The interagency group revising the executive order has rejected those proposals, according to Waxman. McGinn, Cheney's spokeswoman, declined to comment.

Cheney's penchant for secrecy has long been a striking feature of the Bush administration, beginning with his fight to keep confidential the identities of the energy industry officials who advised his task force on national energy policy in 2001. Cheney took that dispute to the Supreme Court and won.

Steven Aftergood, who tracks government secrecy at the Federation of American Scientists and last year filed a complaint with the oversight office about Cheney's noncompliance, said, "This illustrates just how far the vice president will go to evade external oversight."

But David Rivkin, a Washington lawyer who served in Justice Department and White House posts in earlier Republican administrations, said Cheney had a valid point about the unusual status of the office he holds.

"The office of the vice president really is unique," Rivkin said. "It's not an agency. It's an extension of the vice president himself."