Sunday, July 01, 2007

The Straw That Broke This Camel's Back, or Impeach Cheney Now

I have long believed that impeaching George Bush would be foolish, since it would just make Dick Cheney the President, and that impeaching both was utterly impractical. But that still leaves another option -- impeach Cheney. He has long been one of the strongest advocates of the "unitary executive" theory that Congress and the courts cannot bind the President in time of war. He has been a strong supporter of unlimited detention, warrantless surveillance, "coercive interrogation" and the like. Still, up till now I have held back, wanting more proof linking Cheney to some specific crime. But the straw that broke this camel's back and convinced me that Cheney should be impeached was a recent article in the New York Times reporting his claim that not even the President can bind the Vice President.

The President apparently signed an executive order requiring all entities in the executive branch that come into possession of classified information to report on their classification and declassification to the Information Security Oversight Office (an executive agency). All other executive agencies complied, as did Cheney in 2001 and 2002, but in 2003 he began refusing to submit to this order and blocked a routine on-site inspection to insure that classified documents were properly secured. His argument (set forth by his faithful enabler, David Addington) was that because the Constitution designates the Vice President as president of the Senate who can cast a vote in case of ties, he is not part of the executive and is not bound by the President's executive orders. When the ISOO took the dispute to the Attorney General for an opinion, Cheney proposed eliminating such appeals and even sought to abolish the Information Security Office altogether.

This is an extraordinary act of audacity, even for Cheney. Up till now, he could at least claim to be upholding a principled belief in executive power and secrecy. Yet for all his morbid obsession with secrecy, Cheney will not even follow proper procedures to protect legitimately classified documents. And this apparently resulted in at least one significant breach of security (not counting the deliberate leak of Valerie Plame). A former vice presidential aide, Leandro Aragoncillo, passed classified information to plotters attempting to overthrow the government of the Philippines. And when Cheney and Addington pushed extreme views of the "unitary executive," however undemocratic and unconstitutional, they could at least claim to be principled defenders of Presidential power. Now suddenly the executive is not so unitary after all, when the President issues an order the Vice President does not like. What are we to conclude except that Cheney has no principles at all, not even bad ones, and cares only for his own power.

But there is an obvious problem in seeking to impeach the Vice President for disobeying an executive order. The President may, after all, modify his executive orders if he wishes. If a power-hungry Vice President demands to be exempted from an executive order, a weak President has the option of caving. Appealing as it may be to impeach Dick Cheney for violating his own concepts of presidential power, if the President declines to enforce his own prerogative, can Congress do it for him?

There is an argment to be made that Cheney is in violation of s statute and not just an executive order the President may change simply by saying he did not intend it to apply to the Vice President. First of all there is aCongressional statute (3 USC 301) requiring that the President's executive orders "shall be in writing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part." Thus the President cannot modify his order to exempt the Vice President by simply saying (much less thinking) so. The modification must be in writing, although this provision would allow the President to change his order at will. But there is another statute governing the executive order, the Counterintelligence and Security Enhancements Act of 1994, which requires (50 U.S.C. 435(a)) the President to "establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government." Thus a fair argument can be made that the statute does not allow the President to exempt the Vice President, even if wants to. But these are technical violations of obscure laws and not the stuff of impeachments.

Maddening as it may be, Cheney's violation of his own stated principles will not be sufficient grounds to impeach him. Shortly after the New York Times story, the Washington Post did a four-part series on Cheney's exercise of power. My next post will address whether they found anything impeachable.

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