Yesterday, I reported here that John Kerry had written to David Addington, the Chief of Staff to Vice President Dick Cheney and asked for details as to “why Cheney believes that he is not subject to agency scrutiny?”
The Hill reports that Cheney’s office dismissed “Democratic claims” including Kerry’s, “that Cheney is putting himself above the law because his office refused to grant access to an oversight agency that is tasked with reviewing how classified information is handled.”
“Constitutional issues in government are generally best left for discussion when unavoidable disputes arise in a specific context instead of in theoretical discussions,” Cheney’s chief of staff, David Addington, said in a letter to Sen. John Kerry (D-Mass.).
Kerry had joined a growing chorus of Democrats who criticized Cheney’s refusal to submit to Executive Order 12958, signed by President Clinton and amended by President Bush in 2003. The order requires the National Archives’ Information Security Oversight Office (ISOO) to oversee executive agencies’ handling of classified documents.
According to House Oversight and Government Reform Committee Chairman Henry Waxman (D-Calif.), Cheney ignored questions from Waxman and the National Archives in 2006. Still unwilling to submit its document classifications to oversight, Waxman said Cheney’s office responded in 2007 by seeking to abolish the ISOO.
A PDF copy of David Addington’s less than adequate response to Kerry is available here. Kerry said on Addington’s response:
“This legalistic response raises more questions than it purports to answer. I am far from satisfied with the response from David Addington, and ask again for the Vice President’s office to plainly answer the question of whether he considers himself outside the realm of agency scrutiny, and what their office is doing to secure our nation’s most privileged information. The American people deserve to know the truth and are owed more than a ‘parse constitionally’ as the president’s spokesman said today.”
Kerry responded to Addington with a 2nd letter, the text of the letter is as follows:
June 26, 2007
David S. Addington
Chief of Staff
Office of the Vice President
Eisenhower Executive Office Building
Washington, DC 20501
Dear Mr. Addington,
Thank you for your prompt reply to my letter dated June 25, 2007 in reference to the Vice President’s refusal to comply with Executive Order 12958. However, your response raises more questions then it purports to answer. My letter posed two separate and specific questions to your office: 1) Does the Office of the Vice President believe it does not fall under the executive branch and if so, what reasoning is there behind that determination?; 2) What steps is the Office of the Vice President taking to protect classified information if they are not adhering to inspections from the Archives? Your letter did not address either of these critical issues.
Additionally, you stated that, “The executive order gives the Information Security Oversight Office, under the supervision of the Archivist of the United States, responsibility to oversee certain activities of ‘agencies,’ but not of the Vice President or the President.” However, on June 21st, Tony Fratto, a White House spokesman said, ”the White House complies with the executive order, including the National Security Council.” If the White House complies with Executive Order 12958 then why does the Vice President feel compelled to adopt a different approach?
You also characterize these constitutional questions as occurring in a “theoretical discussion” but that is not the case. The Vice President’s non-compliance with this executive order came to light through an investigation done by the House Committee on Oversight and Government Reform and questions raised by Congressman Henry Waxman, the chairman of that committee. The care and handling of classified information is not a theoretical issue, it is a justified concern of Congress executing its oversight function.
Executive Order 12958 clearly states that, “‘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.” Your view that the Office of the Vice President is not an “agency” does not address the fact that Vice President Cheney is clearly within the executive branch and it is through that position that he is privy to classified information.
Again, I ask you to respond to the questions raised in my first letter and the additional question posted herein. These questions include:
1. Does the Office of the Vice President believe that it does not fall under the executive branch and, if so, what is the reasoning behind this determination?
2. What protocols or procedures does the Office of the Vice President employ to ensure the safety of classified information?
3. Why does the Office of the Vice President differentiate itself from the White House in its compliance with Executive Order 12958?
Thank you for your attention to this matter. I look forward to your timely response.
John F. Kerry