Although I am not normally one to spring to the defense of Dick Cheney I have to say that people are being really petty about the latest kerfuffle over his conduct. Mr. Cheney is not, after all, just any vice president. He was president of a big corporation before he picked himself to be Mr. Bush’s vice-president. He would not have made the switch from president of a big important company to a job described by John Nance Garner, one of its former occupants, as not worth more than a warm bucket of spit, unless he knew that the position he was accepting was more important than the job he was giving up. The reason it is more important is not just that he, being brighter than the president, sees himself as the real power behind the throne. It is because of the unique nature of the office of the vice-presidency as seen through Mr. Cheney’s constitutional eyes.
Mr. Cheney and other constitutional scholars know that what makes the Constitution of the United State a special document is that it is a living document that changes with the times, even if some of the changes can only be effected by torturing its meaning. (Torture, as Mr. Cheney knows, can work miracles).
According to Mr. Cheney’s interpretation of the Constitution, the vice-president is a member of the executive branch for purposes of being entitled to receive classified information that members of the legislative branch may not receive, but a member of the legislative branch when it comes to being accountable for what he does with that information. It is based on this creative interpretation of the Constitution that recent events unfolded.
In mid-June it was disclosed that beginning in 2003, Mr. Cheney’s office had refused to comply with Executive Order 12958. In a very nice letter to Mr. Cheney, Henry Waxman, the chairman of the Committee on Oversight and Government Reform explained to Mr. Cheney what that executive order was all about and to whom it applied. He explained to Mr. Cheney that: “Executive Order 12958 . . . directs the National Archives to oversee a uniform system for protecting classified information. A key component of the executive order directs the Information Security Oversight Office . . . to inspect . . . White House offices to ensure compliance with the security procedures required by the President.” The executive order applies to any “entity within the executive branch that comes into the possession of classified information.”
Before receiving the letter Mr. Cheney had informed the Oversight Committee that he was not subject to that Order because he was not an entity within the executive branch of government because he breaks ties in the senate thus being more legislator than executive officer.
Although some scholars might unfairly consider Mr. Cheney’s position palpable nonsense, Alberto Gonzales is not among them. In January J. William Leonard, the director of the oversight office wrote Mr. Gonzales asking him whether he thought the vice president was part of the executive branch of government. Mr. Gonzales has been studying the question for almost 6 months and has not yet been able to figure it out so it’s quite obvious that Mr. Cheney has put his finger on a fascinating constitutional issue.
Aside from constitutional issues, a practical reason for non-compliance exists. During 2001 and 2002 when Mr. Cheney’s office was complying with the Executive Order, the inspectors did not discover that Mr. Cheney had a genuine spy on his payroll. Leandro Aragoncillo, an aide in Mr. Cheney’s office, was sending classified information to Phillipine legislators interested in overthrowing that country’s president. On May 4, 2006, he pled guilty to a number of counts involving espionage. At his hearing it was disclosed that during 2001 and 2002 he sent the legislators classified “situation Reports” and documents classified “Top Secret” and “Secret”. Mr. Cheney can quite properly point out that if the inspections were such a big deal the inspectors should have discovered his in-house spy. Mr. Aragoncillo was not the only leaker in Mr. Cheney’s office. I. Lewis Libby who was convicted of perjury also leaked classified information.
In an effort to support the vice president’s claim of exemption from oversight Tony Fratto, a White House spokesman, said Mr. Bush considered the president’s and vice-president’s offices exempt from the executive order even though they would seem to both be White House offices, the term used in the executive order. Said Mr. Fratto: “This executive order was issued by the president and he knows what his intentions were.” That the words “White House” do not include the offices of either the president or the vice-president, said Mr. Fratto, is a conclusion that is arrived at by inference. He didn’t say what kind of inference. That’s probably classified. (On June 27 the White House abandoned Mr. Cheney’s argument that he was not part of the executive branch. Someone should let Mr. Gonzales know so he doesn’t spend any more time wondering about that.)
CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu.