The Vice President of the United States, Richard B. Cheney, should immediately resign from the President’s Cabinet. According to the White House web site, the President’s Cabinet is "drawn from Article II, Section 2 of the Constitution." The web site also states that the Cabinet consists of "the Vice President and the heads of 15 executive departments." To avoid any confusion that the Vice President is part of the Executive Branch, Dick should do the honorable thing and quit.
Earlier this week the Vice President asserted that he was exempt from an executive order requiring him to file reports on classification of records. Dick claimed that he was exempt because he was not strictly an executive branch official:
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.
The aggressive efforts to protect the operations of his staff have usually pitted Cheney against lawmakers, interest groups or media organizations, sometimes going all the way to the Supreme Court. But the fight about classified information regulation indicates that the vice president has resisted oversight even by other parts of the Bush administration. Cheney’s office argued that it is exempt from the rules in this case because it is not strictly an executive branch agency.
Oh really Dick?
The Executive Order that the Vice President takes exception to was issued on March 25, 2003. It was an order amending Executive Order 12958 that governs the handling of Classified National Security Information by the Executive Branch of the United States Government. This is the very Order that gives the Vice President his authority to classify documents in the first place. Without this Order, the Vice President has no authority to classify documents. To be clear, the Vice President, and that includes the incumbent, is given classification authority by the Executive Order specifically "in the performance of his executive duties." Section 1.3 of the Executive Order states:
Sec. 1.3. Classification Authority. (a) The authority to classify information originally may be exercised only by:
(1) the President and, in the performance of executive duties, the Vice President;
(2) agency heads and officials designated by the President in the Federal Register; and
(3) United States Government officials delegated this authority pursuant to paragraph (c) of this section.
The Vice President’s role as the President of the Senate, given to him in Article I, Section 3 of the Constitution, does not give him classification authority according to the Executive Order – it is his executive duties that give him authority in this Executive Order.
The Vice President has also started to use a new classification designation called "Treated as Top Secret/SCI". This is a new classification which is specifically prohibited by the Executive Order:
Sec. 1.2. Classification Levels. (a) Information may be classified at one of the following three levels:
(1) "Top Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.
(2) "Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.
(3) "Confidential" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.
(b) Except as otherwise provided by statute, no other terms shall be used to identify United States classified information.
So, either Dick Cheney has properly classified information that he wants to keep secret, and therefore is bound by this Executive Order, or all of the documents he has "classified" as "Treated as Top Secret/SCI" has not been properly classified. In trying to exempt himself from the laws, Dick Cheney may have jeopardized national security. Very clever, Dick.
The Vice President’s office has also claimed that Dick Cheney is not covered by the order because his office is not an "agency" as defined by the Executive Order. The Executive Order however defines "agency" as follows:
"Agency" means any "Executive agency," as defined in 5 U.S.C. 105; any "Military department" as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.
So unless Dick Cheney is storing all his "classified" information in his Senate office and unless all of that information was not gathered in the performance of executive duties, he is bound by this Executive Order.
The latest news out of the White House is that the President meant to exempt himself and the Vice President from the Executive Order, though he failed to spell it out in the Order itself. Of course the President of the United States may choose to clarify his position and issue an Executive Order exempting himself and the Vice President from the laws of the United States and from common sense. In that case, we the people may have to seek recourse to Article II, Section 4 of the Constitution.