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Cheney and His Records

What are we going to do about old Dick’s subterfuge and an office he did much to undermine during his time in power?  All sorts of conjecturing has been taking place about how best to deprive the archival records of the US Vice President’s papers under the Presidential Records Act (PRA).  The man is scurrying behind a wall of legal protections and gathering a group of friends to achieve that devilish enterprise.

According to the Citizens for Responsibility and Ethics in Washington, an argument being made by the Office of the Vice President, archivists and the National Archives and Records Administration, is rather cunning, if severely flawed.  Dick is, in fact, a member of Congress.

Startled?  Let’s go back a bit.  Since an executive order in 2001, President Bush declared that the PRA applied to ‘executive records’.  What executive order 13233 did should have been a warning to devotees of the paper trail: the public record was effectively being closed.  As the American Library Association put it (Press Release, March 1, 2002), the order of November 1, 2001 ‘effectively invalidates the Presidential Records Act.’ Now the PRA was a creature of necessity, passed in 1978 to combat the attempts of an ever-paranoid, larcenous President Nixon to conceal his records.

The records of Presidents and Vice Presidents, the public was told, would be their property – ‘we the people’ would be able to assert that abstract yet powerful ownership over the deliberations of the White House. At the waving of his pen, Bush put pay to that, a legislative emasculation librarians and archivists have yet to recover from.

Cheney’s response to has been one of self-exclusion: he is not, one is suddenly surprised to find out, part of the executive.  We are told, curiously, that the Vice President is somehow part of a different arm of government.  That may well be Congress, which will come as a surprise to many representatives on the Hill.  Cheney has offered, to add to his other philosophical meditations, a rather idiosyncratic interpretation of the separation of powers doctrine.  One can only wonder what the old Baron de Montesquieu might have thought about that.

According to CREW, the archivist has added to this legal conundrum.  Not only is Dick apparently an appendage of Congress, the congressional records amassed during his time in office are his personal effects.  He may do with them as he wishes.  The result is predictable.  Paper trails will vanish.  There will be no obligation to keep them as a public record.  True to form, the Bush administration, even in its post-administrative phase, will intrigue and obscure, deceive and deny.

Privileges in high office can be such a dangerous thing.  When it comes to records, the case of Nixon v Administrator of General Services 433 US 425 (1977) comes to mind.  While the argument there covered the Presidential office, rather than that of the Vice President (non-executive, according to Cheney), the issues covered there bear repeating.  While a degree of constitutional privilege protecting various records is important (that much was acknowledged by the Court), the presumption can be overcome by demonstrating some ‘specific need’ for those particular records to be accessible.  In Cheney’s case, Iago of the administration, that need should be obvious.  The danger in Cheney’s case is that such records will become as rare as an Iraqi arsenal of weapons of mass destruction.

CREW has attempted to circumvent Cheney’s measures of concealment by seeking an order that will preserve these records pending a lawsuit assessing the legal merits of the Vice President’s actions.   The shredding machine is being readied, and the lawyers of CREW are busy preventing it from being used.  Cheney, in the meantime, might well want to consider running for Congress after the expiration of his term.  That is, after all, where he claims he belongs.

BINOY KAMPMARK was a Commonwealth Scholar at Selwyn College, Cambridge.  Email: bkampmark@gmail.com.

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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