Is Vice President's Office Above The Law?

Legal Analyst Andrew Cohen On Friction Between Cheney And The National Archives

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

---

Back in January, just before the U.S. Attorney scandal began to rock his happy little world, Attorney General Alberto R. Gonzales was formally asked to answer a very simple question from the folks at the National Archives' Information Security Oversight Office: Is the Office of the Vice President an "entity within the executive branch" subject to a presidential executive order designed to safeguard classified national security information.

I think I know the answer to the question. I think you do, too. In fact, I think most any fifth grader does as well. But six months later, the nation's top lawyer still hasn't mustered up a response. This delay and the ambiguity it has fostered is important because the Office of the Vice President — the same folks who brought us the leak of the secret identity of CIA agent Valerie Plame Wilson — has taken unto itself the authority to declare as a formal legal position that it is not part of the executive branch and thus does not have to let the National Archives' folks do whatever it is they do to comply with Executive Order 12958.

That's a detailed Clinton-era (and Bush-endorsed) presidential directive that gives the Information Security Oversight Office the authority to inspect federal agencies and offices to ensure that national security secrets stay as secret as they can stay given the circumstances. Now, you might think that I. Lewis "Scooter" Libby's former workplace — a virtual sieve, if you believe the testimony at his perjury and obstruction of justice trial — might be particularly sensitive about cooperating with such a review. And you might think that the super-secret Vice President Dick Cheney would embrace a program that is designed to ensure secrecy. But if you thought that you would be wrong.

In 2004, the ISOO inspectors came to inspect the Office of the Vice President. No dice, said Cheney's tribunes. They blocked the inspection. Then, when the National Archives folks complained, first to the vice president's office and then later to Gonzales, Cheney and Company pushed to have the ISOO simply removed from the language of the Executive Order and eliminated from the government bureaucracy altogether. In other words, rather than comply with the directive, the vice president's office tried to simply eliminate the entity that was seeking to enforce it. That'd be like the president trying to eliminate the IRS because he doesn't want to pay taxes.

Perhaps it is too much to expect the hapless attorney general to do anything about this form of lawfare by a bunch of arrogant zealots in a rogue office within the executive branch. After all, in 2002, it was Gonzales, then acting as White House counsel, who kowtowed to some of those very same people when the administration sought (and ultimately received) his blessing to alter our nation's rules about torture. The Justice Department is in turmoil as a result of the prosecutor purge, the attorney general himself has been focused upon trying to save his own skin, and it normally takes months anyway for these sorts of legal analyses to be completed even when the focus is not an angry Office of the Vice President.

So the National Archives has as much chance of getting Justice to ride to the rescue here as you or I have in getting our passports on time. And that leaves us looking to the other two branches of government for help. The dispute has not yet reached federal court and may never get there, thanks to the political nature of the fight. After all, these are all Republicans going after one another and since executive orders are so malleable, you don't see them directly enforced in court anyway. Congress? The lawmakers, at least some of them, are trying.

The Oversight Committee of the House of Representatives Thursday tried to remind us all that this problem has been around for years and doesn't appear to be getting any closer to any sort of resolution. Committee chairman Henry A. Waxman (D.-Calif) sent an open letter to the vice president in which Waxman asked the most powerful vice president in American history to answer a long list of questions about the way in which Cheney's office has handled the affair. All I can say about the letter, and the response I expect from it, is this: good thing Waxman wasn't on a hunting trip with the vice president when the letter was delivered.

I am not an expert in the scope and depth of executive orders. But I don't think you need to be a constitutional scholar to conclude that the Office of the Vice President would be among those federal executive offices contemplated for inclusion in Order No. 12958. Otherwise, there would be no practical oversight over Cheney's office when it comes to the protection of national security information. And surely we know from our past recent history that this cannot be a good idea.

What's appalling is not that the Office of the Vice President would make this claim — why should we expect anything more from these folks given their long, rich history of blowing off their own accountability to the public and other parts of the government? What's appalling is that three years after the National Archives' folks first tried to do their job, they still haven't been allowed in, and there is no real glimmer of hope that they ever will be. This is not how a democratic government is supposed to work, and any fifth grader will probably be able to tell you that, too.

[victoriarum]

No single person is above the law.

These individuals are elected into these positions and being in them is a privilege.

They should exemplify themselves with a level of integrity and ethics where others will follow in their foot steps in the same manner, not set the stage where it%u2019s a do as you please situation. How does this speak to the rest of the world?

They took an oath to abide the laws, not break them, or adjust them to pacify their mistakes, or make them up as they go to fit their personal agendas.

When you have secrets, then you have lies.

Pray for Peace, God Bless each of You.

[book54552134]

This is a corrupt bunch of people occupying the Executive Branch who have little regard for Constitutional Law, The Bill of Rights, or International Law.
For 6 1/2 years they have done exactly as they wished and as far as they are concerned, that is not about to change now.
Like Dubya said, "It'd be a lot easier if this was a dictatorship ... as long as I'm the dictator."
As we have seen, he was not joking at all. It really makes one wonder whether they actually plan to leave office in Jan 09 or if they have some kind of plan in mind. Considering how this corrupt bunch operate, it is unfathomable that they are simply going to leave their implemented policies to chance after Jan 09 which is not very far off.

[michellem99-2009]

How you forgot Watergate?Most of you were not born or small children when Watergate happened.It deant with crime and the oval office. Is this not the same but different crime. So no one is above the law just they are more crafty at it. It is a disgrace the way the Offices of Pres. and Vice Pres. is abused and has been for years. Bush and company are worse than Clinton. Crooks they be. I am just a layperson. So Amreica has to clean her house and have good honourable folks running her govts and not the bunch in there now. They are awful in trying to pall the wool over our eyes.

[fosofos]

Cheney along with many other members of this vile company are war criminals and deserve to be put to death.

[hungry1968]

Posted by JEGibbons at 10:28 PM : Jun 22, 2007

This is the same guy that said we were holding "terrorist suicide bombers" at Guantanamo.
Yeah, we always capture people that have committed suicide and hold them for interrogation.

[starkeraven]

RE:"This delay and the ambiguity it has fostered is important because the Office of the Vice President %u2014 the same folks who brought us the leak of the secret identity of CIA agent Valerie Plame Wilson" I guess Andrew Cohen never heard of Richard Armitage who admitted he told columnist Robert Novak about Valerie Plame. Armitage did not work in Cheney's office but in the State Department. I hope Mr. Cohen puts his bias against Cheney aside and makes the correction.

[starkeraven]

RE:"This delay and the ambiguity it has fostered is important because the Office of the Vice President %u2014 the same folks who brought us the leak of the secret identity of CIA agent Valerie Plame Wilson" I guess Andrew Cohen never heard of Richard Armitage who admitted he told columnist Robert Novak about Valerie Plame. Armitage did not work in Cheney's office but in the State Department. I hope Mr. Cohen puts his bias against Cheney aside and makes the correction.

[ramos937]

Assuming Cheney is correct, then he is subject to the rules of the Senate and has to abide by them. The Democrats now control the Senate. By majority vote alone they could do with the VP's office whatever they want -strip him of his official residence, strip him of AF2, the list goes on and on.

Realistically, Cheney can do anything he wants as long as Congress let's him. But, if it wanted to, Congress could delete any funds for the VP's Office. Little chance of that.

[knyghtwolf]

bush & cheney, two symbols of the end of our great nation that we LET do what they have done. We have no one to blame here but OURSELVES and the lack of sack to do anything about it because we just might get hurt or worse...get a visit from the men in black. Like all historical governments that have risen and fallen; from the Roman Empire to Germany, America too WILL fall due to greed and corruption of corporations and our own federal government, from two to five years from now....expect it, but it will happen, it always does because we are too lazy to get up off our own collective butts and do what needs to be done. Have a nice day & enjoy what freedumbs you have left because that what it is now, not freedoms but FREEDUMBS, the masses we are now are the D U M B A S S E S today.

[brianbwb-2009]

butch1227,

Cheney, Bush, Powell, Rice, Rumsfeld, Wolfowitz, and others behind the scenes have conspired to commit treason, violations of the US constitution, and crimes against humanity. Now they are about to transfer many innocent people detained in Cuba to Afghanistan, where they will all be "disappeared".

So that some future idiot (or even the same ones) won't be tempted to use these bad precedents to launch a similar pogrom against you and your loved ones, we must hold these people responsible for their actions as a message for future presidents. They shouldn't be allowed to finish their terms, and according to their roles in this, those rising to capital punishment should not be allowed to "croak" naturally...

[brianbwb-2009]

To all those who hate "liberals" (xzavierbrown, McVet, et. al.,):

Please give your definition of "liberal", then substitute the words "big business", for "lazy minorities", and or "women", then explain how those who pose as "conservatives" are any different than those who pose as "Liberals".

(sound of crickets chirping)

Still waiting...

(more crickets, sound of scratching heads)

Didn't think so, so ****...

[mikekleber]

Shortly after the 2000 inauguration, it became evident that Cheney was running the show. Also, it was obvious that GW was an exceptionally stupid individual. Do you remember how bad he was at delivering a speech? Personally, I don't think GW has the brains or the balls to squelch Cheney. We all need to pray that there is still something left in our country after he leaves office. As for Cheney, I am confident that he will have a day of reckoning. Good luck to all Americans.

[butch1227]

Cheney has always been a private, arrogant, holier-than-thou, COWARDLY JACKASS, so why should anyone be surprised that he STILL ACTS THIS WAY NOW.....!!! The ONLY thing that will change ***(head) Cheney... is.... his impeachment or death... and either one is desirable to the present situation... that of his sucking air...!!!
GOOD RIDDANCE WHEN HE FINALLY LEAVES OFFICE OR CROAKS...!!!

[victoriarum]

I was always taught, "If you have nothing to hide, then you should have no secrets. And if you have secrets, then you have lies."

Pray for Peace, God Bless Each of You.

[cofmanaaron]

Cool, just making sure. There have been a couple of nutjobs on here lately.

[gkc99]

"gkc99: Are you being sarcastic? If you're not, it means you're a fascist.
Posted by cofmanaaron "

Duh-oh! What is sar-cas-tic mean? Me not know!

Obviously you're a newbie on these threads.

[jegibbons]

Posted by MCVet at 07:48 PM : Jun 22, 2007

=="Cheney, DID exactly what the Article SAID he did so why attack them for doing what the FREE Press is supposed to do."== And we have your word on that, huh?
You and this nitwit CBS lawyer Cohen would never cook up a story just because you didn't like the guy. NOT MUCH YOU WOULDN'T!!!

Hey DUMMY Read what it says at the top of this so called "article." page. Did the word OPINION escape your attention? This isn't NEWS It's editorial opinion. But then you FLAMERS don't care about facts so opinion is GOOD enough,RIGHT?

There is no cure for those who volunteer to be duped. I ain't drinking the Kool Aid. In your case it's safer for you to LEET SOME ONE ELSE DO YOUR THINKING for you. We don't want you to hurt yourself.

[cofmanaaron]

gkc99: Are you being sarcastic? If you're not, it means you're a fascist.

[gkc99]

"Is Vice President's Office Above The Law?"

The Vice President's Office IS the law. Don't like it? We have a nice little cage for you at Guantanamo, and all the water you can breathe.

[cofmanaaron]

At least supporting starving families is better than cutting funds for college education, which the republican leadership did. Oh, and then there is the massive undermining of the constitution. Want examples? Read this: http://www.guardian.co.uk/usa/story/0,,2064157,00.html