The Unitary Executive Branch

Cheney exempts his own office from reporting on classified material

BY MARK SILVA
Chicago Tribune

WASHINGTON - As the Bush administration has dramatically accelerated the classification of information as "top secret" or "confidential," one office is refusing to report on its annual activity in classifying documents: the office of Vice President Dick Cheney.

A standing executive order, strengthened by President Bush in 2003, requires all agencies and "any other entity within the executive branch" to provide an annual accounting of their classification of documents. More than 80 agencies have collectively reported to the National Archives that they made 15.6 million decisions in 2004 to classify information, nearly double the number in 2001, but Cheney continues to insist he is exempt.

Explaining why the vice president has withheld even a tally of his office's secrecy when such offices as the National Security Council routinely report theirs, a spokeswoman said Cheney is "not under any duty" to provide it.

That is only one way the Bush administration, from its opening weeks in 2001, has asserted control over information. By keeping secret so many directives and actions, the administration has precluded the public - and often members of Congress - from knowing about some of the most significant decisions and acts of the White House.

In the aftermath of the terrorist attacks of Sept. 11, 2001, the administration has based much of its need for confidentiality on the imperative of protecting national security at a time of war. Yet experts say Bush and his closest advisers demonstrated their proclivity for privacy well before Sept. 11:

Starting in the early weeks of his administration with a move to protect the papers of former presidents, Bush has clamped down on the release of government documents. That includes tougher standards for what the public can obtain under the Freedom of Information Act and the creation of a broad new category of "sensitive but unclassified information."

Not only has the administration reported a dramatic increase in the number of documents deemed "top secret," "secret" or "confidential," the president has authorized the reclassification of information that was public for years. An audit by a National Archives office recently found that the CIA acted in a "clearly inappropriate" way regarding about one-third of the documents it reclassified last year.

The White House has resisted efforts by Congress to gain information, starting with a White House energy task force headed by Cheney and continuing with the president's secret authorization of warrantless surveillance of people inside the United States suspected of communicating with terrorists abroad. Sen. Arlen Specter, R-Pa., recently threatened to withhold funding for the surveillance program unless the White House starts providing information.

The administration has withheld the identities of, and accusations against, detainees held in its war on terror, and it censored the findings of a joint House-Senate committee that investigated the events leading to Sept. 11, including a 27-page blackout of Saudi Arabia's alleged connections to the terrorists.

While maintaining a disciplined and virtually leakproof White House, senior members of the administration have been accused of leaking information to punish a critic of the war in Iraq. The grand jury testimony of a former White House aide reportedly asserts that Bush himself selectively authorized release of once-classified information to counter criticism.

A tension has always existed between the presidency and the public, with concerns about security and confidentiality competing with the public's right to know about its government. But the balance seems to be tipping toward secrecy in a more pronounced way than at any time in the past three decades.

"Our democratic principles require that the American people be informed of the activities of their government," Bush said in his executive order on classified information. "Nevertheless, throughout our history, the national defense has required certain information be maintained in confidence in order to protect our citizens."

Bush and Cheney have made it clear they are intent on reclaiming presidential powers lost by Bush predecessors. That erosion of power started with Richard Nixon's losing fight over the privacy of his papers after the Watergate scandal and continued through Bill Clinton's impeachment.

"This is a presidency in which, from the start, there were important forces to accentuate the executive prerogative, and all of that became more important after 9/11," said Fred Greenstein, professor emeritus of politics at Princeton University and author of "The Presidential Difference: Leadership Style from FDR to George W. Bush."

White House spokeswoman Dana Perino maintains that the White House has "struck the right balance" between national security and openness.

"We need to ensure that national security information is properly classified and protected," Perino said. "We endeavor to make as much information available to the public as possible. ... We are accountable to the American people. The president doesn't want it any other way."

But to some, the administration's penchant for secrecy has curtailed crucial public debate.

"It determines the character of our political system," said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists. "Is it a political process that is open to wide-ranging debate, or is it more like a closed circle of elite decision-makers? I think we've learned, often to our disappointment, that it's the latter."

To others, the insistence that information considered important be kept confidential is part of the Bush White House's insistence on discipline and order.

"I really think they think of it in terms of good governance," said James Carafano, senior fellow for national security and homeland security at the Heritage Foundation, a conservative think tank. "It's a very corporate style of leadership."

Bush has a partner - some say mentor - in Cheney, who from the start resisted all efforts to disclose the inner workings of a task force devising the administration's energy policy. He defeated an unprecedented lawsuit by the Government Accountability Office, the investigative arm of Congress, to unveil that task force and carried his fight successfully to the Supreme Court.

And as the administration has sealed an increasing number of documents as secret or sensitive, and cut the number of documents being declassified each year, the refusal of Cheney's office to report on the number of its decisions stands out.

A directive from the National Archives, acting under the authority of the executive order bolstered by Bush in March 2003, requires all agencies and executive branch units to report annually on their classification and declassification of files.

Cheney's office maintains that its dual executive and legislative duties make it unique, as the vice president also serves as president of the Senate.

"This matter has been carefully reviewed," said spokeswoman Lea Anne McBride. "It has been determined that the reporting requirement does not apply to the office of the vice president."

To many, the administration's acts are part of a broader campaign to boost the powers of the presidency.

"It's pretty clear that there were certain players in the administration, including the vice president, who felt that the executive branch had not fully exerted all of its constitutional authorities," said David Walker, the U.S. comptroller general.

Walker, as head of the GAO, filed that office's only lawsuit against a government agency in April 2002 as it sought to open the records of Cheney's energy task force. A federal judge dismissed the suit as a struggle between the executive and legislative branches that courts were not empowered to adjudicate.

The White House, in asserting a more powerful executive office, believed "that some of its authorities and privileges had eroded through the years and wanted to redraw that line," Walker said. "We just happened to be one of many situations that they chose to try to test."

Organizations including the Sierra Club also carried the fight to the Supreme Court, which in 2004 voted 7-2 to uphold "a paramount necessity of protecting the executive branch from vexatious litigation" and returned the case to an appeals court, which last year ruled in favor of the White House.

The administration started asserting its power over paper soon after Bush's inauguration by placing a hold on the release of the records of former presidents - beginning with the papers of Ronald Reagan's presidency - and later issuing an executive order granting past presidents a veto over releases.

The Presidential Records Act of 1978, enacted in response to Watergate-era court battles over Nixon's papers, had placed a hold on release of "confidential communications ... between the president and his advisers" for 12 years after the conclusion of a presidency.

The order Bush issued in 2001 enabled former presidents, or their representatives if the president has died, to screen any request for records and withhold ones considered "privileged." It gave the same authority to vice presidents.

Before the end of its first year, the administration also reversed a long-standing policy on how agencies respond to public requests for records under the Freedom of Information Act.

Clinton's attorney general, Janet Reno, had insisted on "a presumption of disclosure." But Bush's first attorney general, John Ashcroft, arguing that "no leader can operate effectively without confidential advice and counsel," implored all agencies to disclose information requested by the public "only after full and deliberate consideration ... of the privacy interests that could be implicated."

The administration's policy, stated by Ashcroft in an Oct. 12, 2001, memo, had been in the drafting for months.

But after the Sept. 11 attacks, and amid growing concern about information that terrorists might obtain from the government, then-Bush Chief of Staff Andrew Card issued an order in March 2002 demanding that any "Sensitive but Unclassified Information" related to homeland security be released only after careful consideration "on a case-by-case basis."

That has led to a proliferation of documents stamped "Sensitive but Unclassified" or simply "For Office Use Only," according to experts who track government record-keeping.

The Bush administration is "objectively more secretive" than its recent predecessors, Aftergood said.

"Anyone who calls or writes a government agency for information encounters barriers that were just not there a decade ago," he said. "The government is undergoing a mutation in which we are gradually shifting into another kind of government in which executive authority is supreme and significantly unchecked."

Ticomaya wrote:

Debra_Law wrote:

georgeob1 wrote:

Similar things were said about Thomas jefferson, Abraham Lincoln, Teddy Roosevelt, FDR, Harry Truman, and LBJ.

Provide verifiable information to substantiate your statement and then tell us your point in making the statement.

Do the same for your "Bush has indeed turned our country into a dictatorship" remark.

Feel free to read the thread before you assert that Deb hasn't done exactly that.

With some help, of course.

Cycloptichorn

Dictators are known for having absolute rule

No, Debra -- with your helpful assistance -- has contributed a lot of hyperbolic paranoia, and little else.

Quote:

Dictators are known for having absolute rule

Hardly. Dictators attempt absolute rule. It works with a varying degree of success, depending on how tight a hold they have on the country.

Bush has taken more steps to transform our system of governance into a dictatorship than any previous American president.

Though other presidents have in the past asserted powers beyond the typical scope of Constitutional definitions, none have asserted that they are above the law, and certainly none have flouted congressional authority in the fashion that the Bush executive branch has done.

Quote:

No, Debra -- with your helpful assistance -- has contributed a lot of hyperbolic paranoia, and little else.

You have no substantial argument justifying Bush's actions at all, and so resort to calling Deb and I 'paranoid.' As time goes by, you will see quite a bit of the same from your fellow Republicans; but it isn't paranoia in the slightest, rather, patriotism and a desire to see the Rule of Law continue in our country, for everyone.

Cycloptichorn

Cycloptichorn wrote:

Quote:

Dictators are known for having absolute rule

Hardly. Dictators attempt absolute rule. It works with a varying degree of success, depending on how tight a hold they have on the country.

Debra claims Bush has "turned our country into a dictatorship," and you agree. So is Bush's rule a "dictatorship" or merely an "attempted dictatorship," in your estimation? What has Bush done vis-a-vis the Judicial Branch to further his Dictatorship?

He's found an effective way to sidestep the judicial branch and the legistlative branch simultaneously.

By using his 'signing statements' to exempt himself from any responsibility to the Legistlative branch, Bush has effectively removed any control Congress has over him.

Becuase it is quite difficult to get the SC to rule on a case where there is no actual defendant who can claim harm, Bush essentially gets a free pass from the Judicial Branch. Unless Congress steps up and holds Bush accountable for his actions, it is highly unlikely that the Judicial branch will take action against Bush.

Also, Bush has effectively siezed control of the Justice Department by installing Alberto Gonzales as AG; his own personal lawyer. AG AG is supposed the represent the interests of the people of the US, but it is clear that he represents the interests of Bush far more.

Quote:

Bush has taken more steps to transform our system of governance into a dictatorship than any previous American president.

But according to DL, he has already made it a dictatorship, and you agreed with her assessment. Which is it: Has he already converted the US to a dictatorship, or is he merely taking steps to effect that transformation?

He is taking steps to do so, by increasing the power of the Executive Branch far beyond any reasonable interpretation.

Quote:

Though other presidents have in the past asserted powers beyond the typical scope of Constitutional definitions, none have asserted that they are above the law, and certainly none have flouted congressional authority in the fashion that the Bush executive branch has done.

I don't see that Bush has asserted he is "above the law," but I agree with Bush that he need not follow any laws that are unconstitutional. I know you and I disagree on that point.

Bush doesn't have the right to decide whether or not a law is constitutional or not. He isn't a constitutional scholar. I have yet to see you point out where Bush derives the right to do this.

You highlight an excellent point: Bush's tactic has been to find a friendly legal scholar or AG employee to write up a bullshit paper declaring laws impacting on the Executive Branch to be 'unconstitutional' and then proceeds to act as if they are in fact not constitutional. This is a critical step in Bush side-stepping the Judicial Branch, because in many cases it is difficult to hold Bush to task for doing so due to the nature of the court system and the time involved. It is quite possible that even if a case challenging the constitutionality of Bush's 'signing statements' were allowed to go forward without the State Secrets act being invoked, it would take years before the SC could see the case, and during that whole time Bush runs around breaking the law willy-nilly.

The truth really is that it is the job of Congress to hold Bush accountable, and that will never happen while the Republicans control the place; they are far more beholden to the Party structure than ancient ideas such as truth, justice, or the Law.

Quote:

Quote:

No, Debra -- with your helpful assistance -- has contributed a lot of hyperbolic paranoia, and little else.

You have no substantial argument justifying Bush's actions at all, and so resort to calling Deb and I 'paranoid.' As time goes by, you will see quite a bit of the same from your fellow Republicans; but it isn't paranoia in the slightest, rather, patriotism and a desire to see the Rule of Law continue in our country, for everyone.

Cycloptichorn

Of course I have arguments in support of Bush's actions, and you've seen me make them on your "America ... Spying on Americans" thread. I don't have a strong urge to replicate them on every thread you choose to start or resurrect that pertains to this topic.

And I thought you believed patriotism was overrated, or do I have you confused with most other leftists?

Ticomaya wrote:

Cycloptichorn wrote:

Quote:

Dictators are known for having absolute rule

Hardly. Dictators attempt absolute rule. It works with a varying degree of success, depending on how tight a hold they have on the country.

Debra claims Bush has "turned our country into a dictatorship," and you agree. So is Bush's rule a "dictatorship" or merely an "attempted dictatorship," in your estimation? What has Bush done vis-a-vis the Judicial Branch to further his Dictatorship?

He's found an effective way to sidestep the judicial branch and the legistlative branch simultaneously.

By using his 'signing statements' to exempt himself from any responsibility to the Legistlative branch, Bush has effectively removed any control Congress has over him.

Becuase it is quite difficult to get the SC to rule on a case where there is no actual defendant who can claim harm, Bush essentially gets a free pass from the Judicial Branch. Unless Congress steps up and holds Bush accountable for his actions, it is highly unlikely that the Judicial branch will take action against Bush.

Also, Bush has effectively siezed control of the Justice Department by installing Alberto Gonzales as AG; his own personal lawyer. AG AG is supposed the represent the interests of the people of the US, but it is clear that he represents the interests of Bush far more.

Cyclops wrote:

Bush has taken more steps to transform our system of governance into a dictatorship than any previous American president.

But according to DL, he has already made it a dictatorship, and you agreed with her assessment. Which is it: Has he already converted the US to a dictatorship, or is he merely taking steps to effect that transformation?

He is taking steps to do so, by increasing the power of the Executive Branch far beyond any reasonable interpretation.

Cyclops wrote:

Though other presidents have in the past asserted powers beyond the typical scope of Constitutional definitions, none have asserted that they are above the law, and certainly none have flouted congressional authority in the fashion that the Bush executive branch has done.

I don't see that Bush has asserted he is "above the law," but I agree with Bush that he need not follow any laws that are unconstitutional. I know you and I disagree on that point.

Bush doesn't have the right to decide whether or not a law is constitutional or not. He isn't a constitutional scholar. I have yet to see you point out where Bush derives the right to do this.

You highlight an excellent point: Bush's tactic has been to find a friendly legal scholar or AG employee to write up a bullshit paper declaring laws impacting on the Executive Branch to be 'unconstitutional' and then proceeds to act as if they are in fact not constitutional. This is a critical step in Bush side-stepping the Judicial Branch, because in many cases it is difficult to hold Bush to task for doing so due to the nature of the court system and the time involved. It is quite possible that even if a case challenging the constitutionality of Bush's 'signing statements' were allowed to go forward without the State Secrets act being invoked, it would take years before the SC could see the case, and during that whole time Bush runs around breaking the law willy-nilly.[/color]

Tico wrote:

Cyclops wrote:

Tico wrote:

No, Debra -- with your helpful assistance -- has contributed a lot of hyperbolic paranoia, and little else.

You have no substantial argument justifying Bush's actions at all, and so resort to calling Deb and I 'paranoid.' As time goes by, you will see quite a bit of the same from your fellow Republicans; but it isn't paranoia in the slightest, rather, patriotism and a desire to see the Rule of Law continue in our country, for everyone.

Cycloptichorn

Of course I have arguments in support of Bush's actions, and you've seen me make them on your "America ... Spying on Americans" thread. I don't have a strong urge to replicate them on every thread you choose to start or resurrect that pertains to this topic.

And I thought you believed patriotism was overrated, or do I have you confused with most other leftists?

Patriotism is over-rated. I should be focusing my energies on space research, or making the world better for everyone. Instead I just seem to keep circling back to the affairs of my own country. It is slightly troublesome

Cycloptichorn

If a law is unconstitutional, it is unconstitutional before being declared unconstitutional by a court.

He gets no such thing .. but it is true that Supreme Court requires a justiciable controversy, but one would think there would be all kinds of harmed plaintiffs bringing suit if Bush is breaking laws left and right. Unless you are claiming nobody is harmed by Bush's actions, in which case I really don't see what you're complaining about.

What has he done that has the effect of increasing the power of the Executive Branch?

Quote:

If a law is unconstitutional, it is unconstitutional before being declared unconstitutional by a court.

Sorry, I didn't realize you actually believe this crap.

The President doesn't have the legal authority to declare laws unconstitutional.

Quote:

If a law is unconstitutional, it is unconstitutional before being declared unconstitutional by a court.

Sorry, I didn't realize you actually believe this crap.

The President doesn't have the legal authority to declare laws unconstitutional. He can only do so to the extent that Congress allows him to do so. In this case, Bush has Congress comfortably in his pocket (we all know the Republican way - Party, Nation, Truth) and so is proceeding to act in an unrestrained manner.

As I have said before, the Prez doesn't have the ability to act without consequence. It is up to our elected Congressmen to make sure that the consequences of Bush's actions are not ignored.

Also, you said:

Quote:

He gets no such thing .. but it is true that Supreme Court requires a justiciable controversy, but one would think there would be all kinds of harmed plaintiffs bringing suit if Bush is breaking laws left and right. Unless you are claiming nobody is harmed by Bush's actions, in which case I really don't see what you're complaining about.

Problem is, you can't bring cases to court without the State Secrets act being employed by the government to quash the trial. See the Recent EFF vs ATT case.

Quote:

What has he done that has the effect of increasing the power of the Executive Branch?

Bush has asserted that he is not limited by any law passed by Congress that he does not wish to be limited by.

And it isn't just a matter of simple changes to law; reference the Torture Amendment signing statement, in which Bush directly contradicted the bill he just signed, one intended to limit his authority as CIC. Bush claims that his authority cannot be limited, becuase his lawyers don't support any reading of the constitution which allows this, which allows Bush to break whatever laws he wishes, whenever he wishes. Congress is effectively neutered.

And this is a dangerous action that smacks of dictatorial powers.

Cycloptichorn

Cycloptichorn wrote:

Quote:

If a law is unconstitutional, it is unconstitutional before being declared unconstitutional by a court.

Sorry, I didn't realize you actually believe this crap.

The President doesn't have the legal authority to declare laws unconstitutional.

I would add that if the president believes a law is unconstitutional he ought not to sign it.

If the law is unconstitutional, he is not bound by the law.

The State Secrets privilege is there for a reason, Cyclops. Its existence and use does not make Bush a dictator.

I'm sorry, FD, but you are wrong. The constitution does provide for an instance in which the President refuses to sign a bill. Article One, Section Seven reads, in part:

If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

A President, knowing an adjournment was near, could prevent a bill from becoming law by not signing it, if he knew the Congress would adjourn within ten days time. Nevertheless, if i understand correctly what is being discussed, the President has a right either to veto, or not to sign a bill.

Quote:

If the law is unconstitutional, he is not bound by the law.

This is the giant hole in yer argument, Tico; Laws do not have an inherent 'constitutionality' or 'unconstitutionality'; that is a subjective decision made by the judicial branch, not the executive branch. Otherwise it would be quite easy to see which laws are constitutional and which are not; this is obviously not the case.

Bush doesn't have the authority to not follow laws that he or his lawyers believe are unconstitutional. He only has the ability to do so. This is the crux of the issue.

Until a law has been declared to be unconstitutional, it can not be broken by Bush without consequence.

The consequences can be determined by either political or legal means. Bush, and the Republican party in general, have colluded to block any investigation into his breaking of the law (and it is breaking of the law, even if Bush disagrees with the constitutionality of that law). This is akin to a group seizing control of a government and 'gaming' the system in order to violate the principles of that government.

Bush swore an oath to uphold the law. He is currently in major violation of that oath, as he has been breaking the law for some time, knowingly. I suppose that he is mostly a pawn in this, as Cheney & others have assured him that they will 'get away with it' because there is noone to investigate.

Quote:

The State Secrets privilege is there for a reason, Cyclops. Its existence and use does not make Bush a dictator.

It does if Bush et al use this to block any inquiries into their lawbreaking by the Judicial branch. The SC can't review the law because it is never allowed to get that far. This removes the ability of the Judicial branch to check the Executive branch, even though they are well aware that the Executive branch is breaking the law.

Upon what basis do you rest your argument that laws are unconstitutional before they have been declared to be so?

Cycloptichorn

Newsom Is Right that the Executive Can Sometimes Make Constitutional Judgments

Some opponents have suggested that Mayor Newsom has no business making constitutional judgments in the first place; that is for the courts, and only courts, to do. But that argument defies both the oath he took, and history.

Mayor Newsom is right that in some circumstances, executive officers are entitled to make independent constitutional judgments. Or, put another way, it is not the case that only courts can undertake constitutional review - it is not true that other branches of government always need to wait for, and defer to, the judiciary's determinations of which statutes are constitutional and which are not.

As the California Attorney General's brief points out, Marbury v. Madison does say that "it is emphatically the province and duty of the judicial department to say what the law is." But "emphatically" is not "exclusively," and history suggests that sometimes the Executive -- and not just the Judiciary -- has also pronounced on the constitutionality of laws.

Indeed, many a President has historically, and I think properly, asserted a power to decline to enforce a Congressional statute that he believes is unconstitutional -- a power deriving from both the oath he takes to support the U.S. Constitution, and his duty to see that the law, especially the Constitution, is "faithfully executed."

Historical Examples of Constitutional Judgments By Presidents

For example, in the 1798 Alien and Sedition Acts, Congress sought to outlaw criticism of incumbents -- an obvious First Amendment violation. The federal courts, however, held otherwise.

Thomas Jefferson pardoned all those who had been convicted under the old Act, despite these court decisions. To Jefferson, the question was not simply what courts had done or might do, but what his own independent constitutional conscience dictated.

In 1832, President Andrew Jackson he vetoed a bill on constitutional grounds -- again, using independent judgment despite a prior court ruling. There, the Supreme Court had already upheld a similar bill against constitutional challenge. But Jackson wrote:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.

Even the Supreme Court itself agrees to some extent: As Walter Dellinger observed when he served in the Office of Legal Counsel during the Clinton administration, the Court has "endorsed" the practice of a President's declining to enforce statutory requirements he views as unconstitutional.

Dictator? I don't know. But he's definitely operating outside of the system that was set up over 200 years ago that was intended to ensure a democratic republic. I wonder what he's up to and prefer someone who is more direct, don't you?

A can shoot B, but at his legal peril. You want to forbid A from shooting B, even if he is justified in doing so.

Bush claims that his unitary executive branch powers cannot be constrained by the laws made by Congress. Bush unilaterally determines when and if he'll execute the laws enacted by Congress.

The key point here is that throughout our history both Presidents and the Congress have repeatedly tested the contemporary limits of their respective powers. There is nothing new, novel, or even original in the actions that Bush is, with breathless indignation, accused of by critics who blandly ignore these historical facts.

All attempts by those to deny that Bush has established himself as a dictator are without merit. The facts speak for themselves.