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Cheneyâ€TMs Office Declares Exemption from Secrecy Oversight

by Michelle Chen

*A correction was appended to this news article after initial publication.

June 7, 2006 – Thickening the haze of secrecy surrounding the executive branch, the Office of Vice President Dick Cheney has declared itself exempt from a yearly requirement to report how it uses its power to classify secret information.

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In its 2005 report to the president released last month, the Information Security Oversight Office (ISOO), a branch of the National Archives, provides a quantitative overview of hundreds of thousands of pages of classified and declassified documents. But the vice president’s input consists of a single footnote explaining that his office failed to meet its reporting requirements for the third year in a row.

Open-government advocates say Cheney’s refusal to divulge even basic information about classification activities reflects an alarming pattern of broadening executive privilege while narrowing public accountability.

"It’s part of a larger assertiveness by the Office of the Vice President and a resistance to oversight," said Steve Aftergood of the Project on Government Secrecy, a division of the public-interest association Federation of American Scientists. "It’s as if they’re saying, ‘What we do is nobody’s business.’"

Though not the only government entity to shrug off the reporting duties, Cheney’s office is unique in that it has actually issued a public justification for its non-compliance. Cheney’s office argued on Monday that its dual role in the federal government places it above the reporting mandate.

Though not the only government entity to shrug off the reporting duties, Cheney’s office is unique in that it has actually issued a public justification for its non-compliance.

"This matter has been carefully reviewed, and it has been determined that the reporting requirement does not apply to [the Office of the Vice President], which has both executive and legislative functions," Lea McBride, a spokesperson for Cheney’s office, told The NewStandard.

Cheney’s press aides declined to specify to TNS how the office’s legislative role effectively exempted it from the executive order, or why the office had complied prior to 2003.

In a May 30 letter to J. William Leonard, director of the ISOO, the Project on Government Secrecy contended that Cheney’s rationale was illogical, because additional legislative functions should have no bearing on the vice president’s executive-branch obligations. Troubled by the continued non-compliance, the organization warned that if the ISOO did not act to enforce the vice president’s responsibilities under the executive order, "every agency will feel free to re-interpret the order in idiosyncratic and self-serving ways."

Each year, the ISOO publishes data on the amount of information classified by government entities, such as the Department of Justice and the Pentagon, and broadly analyzes how the bureaucracy processes national-security secrets. Mandated by an executive order, the report is intended to encourage greater accountability and minimize secrecy.

Open-government advocates argue that argued the report on classification merely reflects the volume, not the individual public-interest value, of government secrets.

In 2003 – around the time Cheney’s office stopped reporting to the ISOO – the Bush administration affirmed and expanded the vice president’s classification powers through a revision of Executive Order 12958, the same order mandating the yearly ISOO assessment. The amended order explicitly granted the vice president unprecedented authority to classify information "in the performance of executive duties," including the ability to label information "secret" and "top secret" on par with the heads of federal agencies and the president himself.

Critics also note another legal shield compounding the vice president’s reticence about how he handles secrets: Cheney enjoys general immunity from the Freedom of Information Act, which empowers members of the public with a process for demanding the release of government documents.

Along with Cheney’s office, the President’s Foreign-Intelligence Advisory Board and Homeland Security Council – both advisory bodies attached to the White House – also failed to report classification activity in 2005. In the footnote of its report, the ISOO suggested that the loss of this information was inconsequential, because these entities "historically have not reported quantitatively significant data."

However, Aftergood argued that because the annual report is a statistical breakdown of information processed, the quantitative data merely reflects the volume, not the individual public-interest value, of the secrets withheld by the government.

The most recent report shows that decisions to classify information have declined by about 9 percent since 2004, and the volume of newly declassified information has risen slightly. But watchdogs say the government is still amassing secrets at a disturbing rate: total classification activity was over 60 percent higher in 2005 than in 2001. Overall, agencies reported 14.2 million classification decisions last year.

Some question whether Cheney has wielded his power over secret government information to smear opponents.

Though Cheney’s obfuscation of his classification activity has been ongoing since 2003, the explosion of the Valerie Plame leak scandal, which centers on the suspected retaliatory leak of a CIA agent’s identity by the White House, has invited fresh scrutiny of the administration’s political opacity. Some question whether Cheney has wielded his power over secret government information to smear opponents.

In a February interview with Fox News, asked whether he had ever exercised declassification powers, Cheney replied, "I've certainly advocated declassification and participated in declassification decisions," though he refused to elaborate on the nature of those decisions.

Aftergood said that the ISOO could try to compel Cheney to comply with the executive order through enforcement mechanisms. These could include sanctions, which under the ISOO’s mandate might entail "termination of classification authority" or "denial of access to classified information" – or officially requesting an advisory ruling from the attorney general to clarify the vice president’s obligations.

Since receiving the letter, Leonard of the ISOO told TNS that he is "currently pursuing the matter." Noting the novelty of Cheney’s defense, he added, "I am not aware of any other entity claiming any such ‘exemption.’"

Jennifer Gore, communications director for the watchdog group Project on Government Oversight (POGO), pointed to a precedent for public-interest advocates bringing legal challenges to curb executive secrecy. Referring to the Watergate scandal, which also involved a court battle over the White House’s refusal to disclose incriminating documents, she said, "In the past, when members of the executive branch have voiced privilege as a reason not to turn something over, then it’s time to go to the courts."

To counterbalance the expansion of secrecy under the current administration, POGO is also advocating the Executive Branch Reform Act of 2006. The bill, introduced by Representatives Tom Davis (R-Virginia) and Henry Waxman (D-California), targets new, vaguely defined categories that build on the regular classification system, mainly the "sensitive but unclassified" label that has enabled agencies to limit public access to counterterrorism-related information.

Aftergood said that systemic problems in the classification system undermine the public value of the ISOO’s annual report, with or without full compliance from agencies. To move toward genuine transparency, he said, the ISOO’s tracking should encompass more aggressive, in-depth reviews of classified materials to monitor whether federal operatives are overusing or abusing their privilege.

"What’s really missing is a sense of the quality of the classification activity," Aftergood said. "You could tell me how many things you classify, but that doesn’t give me any indication of whether you exercised good judgment or not."

CORRECTION

Minor Change:

In the original version of this article, the Federation of American Scientists was incorrectly written American Federation of Scientists.

 | Change Posted June 8, 2006 at 10:48 AM EST

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This News Article originally appeared in the June 7, 2006 edition of The NewStandard.
Michelle Chen is a staff journalist.

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