Web Letters: Cheney and the Constitution

The Constitution is quite clear. The Executive, Legislative and Judicial roles of each branch of the federal are spelled out. Other than tie-breaking in the Senate or acceding to the presidency should that office be vacated, the vice presidency has no inherent powers and the Vice President acts on any matter at the request of the Chief Executive.

Mr. Cheney presents us with a lot of nonesense. Lesser personalities in the government (and Fourth Estate) he bulldozes and bullies. A quiescent and cowardly Congress of both parties has let him get away with it. Once they have the courage, like Congressman Waxman, to lead a challenge to his usurpation of power, he becomes like Bert Lahr, the cowardly lion. Perhaps the Congress, which let the present imbalance of power in the federal government come about by its inaction, may at last find the courage to support Congressman Kuchinich's Articles of Impeachment.

This would swiftly resolve any feinged ambiguity advanced by the Vice President's office on what the Founding Fathers meant and wrote.

Clinton J. Vickers

Sammamish, WA

Aziz Huq's article--while certainly informative--may miss an angle of analysis, and it is one that I would like to offer for consideration. Huq refers to Executive Order 12958, and rightly so, as this executive order creates a "uniform system for classifying, safeguarding, and declassifying national security information," to quote from Rep. Waxman's recent letter to Vice President Cheney. In this letter, Rep. Waxman wanted to know why the VP’s office had not complied with requests from the Oversight Office to conduct an inspection in accordance with the executive order.

But to understand the rise of the imperial Vice Presidency, it may help to delve deeper into the background of this executive order and, more importantly, to look at Executive Order 13292, which amended the one to which Huq and others refer.

Former President Bill Clinton signed Executive Order 12958 in 1995 and the purpose of the order was to create more transparency in government. The system that resulted not only made the classification of documents more difficult but also ensured that the declassification of information was much easier. And it worked. In the first five years, this executive order led to the declassification of over 800 million pages of records.

Eight years later--and five days after the beginning of the Iraq Invasion on March 20, 2003--President Bush signed Executive Order 13292 which amended 12958, and the changes are stunning. Look for yourself and contrast the two. I suggest examining the final line-in/line-out version of Executive Order 13292, showing the changes made to the earlier EO 12958.

The first paragraph alone shows a glimpse of the spirit underlying the new executive order as it strikes earlier language from 1995. The earlier EO stated that US national interest requires that certain information be maintained in confidence in order to protect, among other things, our "participation with a community of nations." In the new executive order it is now "interaction with other nations."

More than anything else, EO 13292 offers indisputable proof--or, if you prefer, is the "smoking gun"--showing that the Vice President's Office assumed executive duties traditionally reserved to the US President. As Section 1.3 (a) (1) makes plain for all of history, the authority to classify information was expanded to include the US Vice President, acting "in the performance of executive duties."

"In the performance of executive duties." If you take the time to review EO 13292, you will see the phrase "in the performance of executive duties" six times, by my count. Each time the phrase is employed, it acts to expand the powers of the Vice President and give him authority which did not exist in the earlier order. To further illuminate this point, look at Section 6.1 (cc) where "original classification authority" is defined as an individual authorized to classify information in writing, including by, among others, the "Vice President in the performance of executive duties."

Once the VP and his office were granted the authority and power to classify documents relating to national defense, then essentially the role of commander-in-chief no longer belonged to the US President solely. After all, if Vice President Cheney has the authority to classify information, then he can call the shots. And just as significantly, the executive order was signed only few days after the beginning of Operation Iraqi Freedom, which began on March 20, 2003. So clearly the intent of this executive order, among other things, was to transfer more power to the Office of the Vice President and, ultimately, the chief operator himself--VP Cheney. In other words, the executive order was the mechanism that allowed presidential powers to flow into the Office of the Vice President in ways never seen before.

Here's what's strange. Rep. Waxman and others appear, at least ostensibly, to want the VP's Office to comply with the oversight provisions of the EO in order to determine why certain information was declassified or "leaked." In particular, Rep. Waxman mentions the disclosure of Valerie Plame in his letter to Cheney.

But the real need for compliance by the Vice President's Office, at least in my opinion, is not to determine why the office has leaked some information but, instead, to determine if the office was warranted in classifying information. Addington's refusal to comply with the demands of the Information Security Oversight Office suggests that the Vice President does not want the public to know the information--or lies--that led to the invasion and the prosecution of the war itself. The EO may shine a bright line on some dark places, so the stonewalling and legal gymnastics have begun.

In all likelihood, the issue will end up in our justice system. In January '07, the Information Security Oversight Office requested that the US Attorney General render an advisory opinion as to whether or not the VP's Office had to comply with the requests for inspection. The USDOJ never responded. And it is interesting to note the VP Office did comply with the inspections in the years prior to the Iraqi invasion. But after the invasion...nada.

So the courts will weigh in. It is perhaps relevant at this point to mention the work of Roberto Unger. Unger--a social theorist and law professor at Harvard Law School--studied the judicial system that existed during the time of the Weimar Republic. In his book, Law in Modern Society, he concluded that the inability of the courts to justify the status quo created a breakdown in the German society, and this disintegration of justice opened the floodgates that gave rise to Nazism.

"In the performance of executive duties." The devil is in the details.

Sidney O. Smith III

Atlanta , GA