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Thursday, February 16, 2006

Above the Law? Not So Fast...

It's an Administration that would make J.R. Ewing green with envy.

The interview that Brit Hume conducted with Dick Cheney yesterday was newsworthy for a number of items (transcript available here) -- but most notably, to my mind, Cheney's coy flirtation with his alleged ability to declassify information at his own whim.
Q Let me ask you another question. Is it your view that a Vice President has the authority to declassify information?

THE VICE PRESIDENT: There is an executive order to that effect.

Q There is.


Q Have you done it?

THE VICE PRESIDENT: Well, I've certainly advocated declassification and participated in declassification decisions. The executive order --

Q You ever done it unilaterally?

THE VICE PRESIDENT: I don't want to get into that. There is an executive order that specifies who has classification authority, and obviously focuses first and foremost on the President, but also includes the Vice President.
Not to belabor the point or anything, but that is just bunk. I've been looking into the declassification process as much as any civilian can do so without top level security clearance, and every executive order that I have reviewed that is publicly available does not exempt the Veep from the regular declassification process under which all federal employees outside the President must operate. Dick Cheney is subject to the same rules as everyone else, no matter how he may think otherwise.

And I see that Steve Clemons and Liberal Oasis have come to the same conclusion. The two main Executive Orders that I have reviewed are here (showing changes from the previously effective order) and here, for your further perusal.

Classification and declassification are generally governed by fairly tight security protocols, precisely because the materials deal with sensitive national security matters. You can't just, willy nilly, have some person in the government randomly classifying and declassifying information without some process of notification and review being followed, otherwise you risk information being declassified for political, and not national security, reasons. (See, e.g., Plame Wilson, Valerie.)

Even the WSJ has called Cheney's claims of declassification privilege into question. How shaky is Cheney's ground when the WSJ is calling him out on the foundations of his arguments publicly?

It sure seems to me like we've been seeing a whole lot more speculation in the last week or so about the shaky ground of this Administration in terms of its overreach beyond its Constitutional boundaries.

Op-eds like this shrill one from George Will today, decrying the Administration's selective reading of only those bits of the Constitution which support its claims to power, and its selective ignorance of the whole of the rest of the document.
Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."

The administration, in which mere obduracy sometimes serves as political philosophy, pushes the limits of assertion while disdaining collaboration.
Will goes on to cite the Youngstown case as establishing that the Executive branch is at its weakest when butting up against the laws as established by Congress. Is it only Will? Nope.

Peggy Noonan has a piece in today's WSJ Opinion Journal speculating, in that tone so favored by Beltway insiders, about what "other people" might be saying about dumping Cheney from the ticket because he has become such a liability as the President's "hate magnet." (Her words, not mine.) FWIW, Sean-Paul has a contest going on who the Cheney replacement might be...anyone want to lay odds on McCain or Guiliani or Condi?

The morass of mendacity that has followed this Veep like PigPen's cloud in the Peanuts cartoon is becoming too thick for even the kool-aid-iest of Administration supporters in the wake of Dick's shooting incident. Could just be pre-2006 election jitters, but something is certainly in the air this week. And it's not just a bad PR hangover, either.

Maybe it's the new Abu Ghraib photos and information that Salon has gotten their hands on, and the continuing difficult news from the Middle East and the war that Cheney pushed so hard to have after 9/11. The ever-ballooning deficit as a result of the ill-planned war costs can't help matters, that's for sure.

Maybe it's the ever-constant drip, drip, drip from Scooter and the Traitorgate investigation, and the now-made-public revelation that "superiors" authorized Libby to reveal classified bits of the NIE to reporters. (Thanks for that one, Team Libby. Good on ya.)

Maybe it's just that Dick Cheney is too much bad news wrapped up in one, lone package. Whatever is going on, though, I feel a storm brewing in Washington. And I'd keep an eye on Lynn Cheney. Sue Ellen had nothing on her, that's for damn sure.

UPDATE: Georgia10 at dKos has even more about the classification questions.