[Infowarrior] - VPOTUS Office Declares Exemption from Secrecy Oversight

[Richard Forno]

http://newstandardnews.net/content/index.cfm/items/3261/printmode/true

Cheney¹s Office Declares Exemption from Secrecy Oversight
by Michelle Chen
*A correction was appended to this news article after initial publication.

June 7 ­ 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.

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.

"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.

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.

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 at 10:48 AM EST
© 2006 The NewStandard