By Dan Froomkin, The Washington Post, June 22, 2007

22 Jun 2007 // Why, in 2003, did Vice President Cheney suddenly become so dead-set against reporting how his office handled government secrets?

Cheney's refusal to abide by reporting requirements that apply to everyone else in the Bush administration -- and the audacity of his excuse, that because he is also president of the Senate, his office is not really within the executive branch -- led to a bunch of unflattering front-page headlines this morning.

But let's assume there's a method to his madness. Perhaps Cheney is rejecting this oversight because he doesn't want people to know what he and his aides have been doing with classified information. Or perhaps he believes in principle that he shouldn't be subject to constraints that apply to others in the executive branch. Maybe both. I'm betting on both.

Cheney's particular sensitivity to releasing information about his handling of government secrets is not exactly surprising. And while he apparently had no problem filing reports in 2001 and 2002, he stopped doing so in 2003 -- a game-changing year in a lot of ways.

As I wrote in my March 31, 2006, column, investigative reporter Murray Waas has developed a compelling case that the use and abuse of classified information has been key to the White House's success not only in contriving a bogus case for war in Iraq, but in keeping charges of deception from becoming a major issue in the 2004 election -- and, arguably, to this day. Time and time again, in a strategy that most likely owes its existence to Cheney, the White House has selectively leaked or declassified secret intelligence findings that served its political agenda -- while aggressively asserting the need to keep secret the information that would tend to discredit it.

Also, starting in early 2003, Bush granted Cheney broad new powers to personally classify and declassify material, as I wrote in my Feb. 17, 2006 column. Bush's move, ironically, came in the very same order that Cheney is now in part resisting.

On March 25, 2003, just days after ordering U.S. troops into Iraq, Bush signed an executive order amending Executive Order 12958, which President Clinton had signed in 1995, and which laid out a host of rules about the classification and declassification of secret information.

Bush did not change the requirement that federal agencies report at least once a year on their implementation of those policies. Nor did he change the definition of who was covered by the reporting requirements. That continued to include any "entity within the executive branch that comes into the possession of classified information."

But Bush did make one major change: Giving the vice president all the same classification powers as the president. Clinton's order had assigned those powers only to the president, agency heads and their specifically designated subordinates. Bush's order added one more party: The vice president. Or, in the precise and possibly telling words of the order: "[I]n the performance of executive duties, the Vice President."

In a Feb. 15, 2006, interview on Fox News, Cheney asserted that he had the authority to declassify government secrets, but refused to say whether he had ever done so. From the transcript:

Brit Hume: "Let me ask you another question. Is it your view that a Vice President has the authority to declassify information?"

Cheney: "There is an executive order to that effect."

Hume: "There is."

Cheney: "Yes."

Hume: "Have you done it?"

Cheney: "Um, well, I've certainly advocated declassification and participated in declassification decisions. The executive order --"

Hume: "You ever done it unilaterally?"

Cheney blinked and paused.

Cheney: "Um, I don't want to get into that."

And let's not forget the elephant in the room. As Josh Meyer writes in the Los Angeles Times today: "According to documents released Thursday by a House committee, Cheney's staff has blocked efforts by the National Archives' Information Security Oversight Office to enforce a key component of the presidential order: a mandatory on-site inspection of the vice president's office. At least one of those inspections would have come at a particularly delicate time -- when Cheney's former chief of staff, I. Lewis 'Scooter' Libby, and other aides were under criminal investigation for their suspected roles in leaking the identity of CIA operative Valerie Plame."

Finally there's the question of whether Cheney is trying to make a broader point here. The vice president, along with his longtime legal adviser David S. Addington, are widely viewed as the guiding forces behind the Bush administration's expansion of executive power, in an attempt to roll back post-Watergate limits on the presidency. (See, for instance, my June 6, 2006, column.) Cheney is also hands-down the most powerful vice president in history. So wouldn't it be in character for him and his top aides to maneuver to establish the vice presidency as a uniquely powerful and unconstrained force?

For more background, see yesterday's column: Cheney: Neither Here Nor There?
The Coverage

Peter Baker writes in The Washington Post: "Vice President Cheney's office has refused to comply with an executive order governing the handling of classified information for the past four years and recently tried to abolish the office that sought to enforce those rules, according to documents released by a congressional committee yesterday.

"Since 2003, the vice president's staff has not cooperated with an office at the National Archives and Records Administration charged with making sure the executive branch protects classified information. Cheney aides have not filed reports on their possession of classified data and at one point blocked an inspection of their office. After the Archives office pressed the matter, the documents say, Cheney's staff this year proposed eliminating it. . . .

"In an interview yesterday, Steven Aftergood, who directs the federation's Project on Governmental Secrecy, said the dispute concerns 'a very narrow bit of information' but indicated a broader disregard for following the same rules observed by the rest of the executive branch. 'By refusing to comply with these trivial instructions, the vice president undermines the integrity of the executive order,' he said. 'If it can be violated with impunity on a trivial point, then it can also be violated on more important matters.'"

Meyer writes in the Los Angeles Times: "'This is a very dangerous position he is taking and a ridiculous one, but it is a quite serious one,' Waxman, chairman of the House Committee on Oversight and Government Reform, said in an interview.

"'I don't know if he is covering something up or not, but . . . when somebody refuses to make this information available, you wonder what they don't want the inspectors from the National Archives to know.' . . .

"Gordon Silverstein, a constitutional scholar at UC Berkeley, said Cheney's claims were all the more noteworthy given his repeated assertions of executive privilege, based on his senior position within the Bush administration, as a reason why he has not had to testify before Congress or provide lawmakers with information on such national security issues as torture, interrogation and CIA renditions of terrorists.

"'Here's a guy who raises 'executive privilege' to historic levels to exempt himself from all rules and oversight, and now he says he's not part of the executive branch?' said Silverstein. 'Here we have a subordinate part of the executive branch asserting independent constitutional authority even against its own superior. It is flabbergasting.'"

Meyer notes that Cheney's position is laid out in the 2004 edition of an annual government directory of senior officials known as the Plum Book, which lists politically appointed positions across the executive branch, with a notable exception: "The vice presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The vice presidency performs functions in both the legislative branch . . . and in the executive branch."

Scott Shane writes in the New York Times: "The dispute is far from the first to pit Mr. Cheney and Mr. 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 Mr. Cheney has often argued was eroded by post-Watergate laws and the prying press. . . .

"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 Mr. 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 Mr. 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 Mr. Leonard's office that was routinely carried out across the government to check whether documents were being properly labeled and safely stored."

William Douglas writes for McClatchy Newspapers: "The skirmish is the latest in a long battle between Congress and the Bush White House -- particularly Cheney's office -- over the administration's campaign to expand the powers of the executive branch and increase the amount of information labeled as classified."

Julia Malone writes for Cox News Service: "Senate Majority Leader Harry Reid, D-Nev., when asked about Cheney's claim to be part of the legislative branch, quipped: 'I always thought that he was president of this administration.'"

Greg Sargent reports for TPM Cafe on the "nifty chart" sent out by Rep. Rahm Emanuel (Ill.), head of the House Democratic Caucus, showing the new four branches of government: Legislative, Executive, Judicial and Dick Cheney.

MSNBC's Keith Olbermann concludes: "Vice President Cheney is a rogue nation." Newsweek's Richard Wolffe told Olbermann: "This is a very rocky path, and if it's Constitutional, then I'm a banana."

Citizens for Ethics in Government reasons that "if Mr. Cheney is not subject to executive branch security requirements, surely he must be subject to Senate rules." That could include, just for example, the inspection of his office by the Office of Senate Security.