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Vice President Dick Cheney unilaterally exempts his office from Executive Order 12958, which established government-wide procedures for safeguarding classified national security information. (White House 4/17/1995; Congress Committee On Oversight And Government Reform 6/21/2007) It was amended by President Bush’s Executive Order 13292 (see March 25, 2003) to require that all agencies or “any other entity within the executive branch that comes into the possession of classified information” regularly report on their activities to the Information Security Oversight Office. (White House 3/25/2003)
Vice President Not Part of Executive Branch, Cheney Argues - Cheney’s argument is that the vice president’s office is not part of the executive branch, and therefore has no legal obligation to report on its classification decisions as mandated by the order. Cheney justifies his position by noting that the vice president has a role in both the executive and legislative branches—the vice president is also president of the Senate—and the vice president’s office is not an agency. In May 2006, Cheney spokeswoman Lea Anne McBride will say, “This has been thoroughly reviewed and it’s been determined that the reporting requirement does not apply to [the office of the vice president], which has both legislative and executive functions.” (McBride does not say who reviewed the claim.)
Criticism - Others, such as government secrecy expert Steven Aftergood of the Federation of American Scientists, disagree. “It undermines oversight of the classification system and reveals a disdain for presidential authority,” he says. “It’s part of a larger picture of disrespect that this vice president has shown for the norms of oversight and accountability.” Around 80 agencies and entities must report annually to the National Archives; besides the Office of the Vice President, only the president’s Homeland Security Council and the president’s Foreign Intelligence Advisory Board have as yet failed to report on their activities. Aftergood will say: “Somebody made a decision that they don’t want to do what they used to do.… They have to explain why they stopped doing it, and they haven’t done that.” (Rood 6/21/2007) Law professor Garrett Epps observes: “The vice president is saying he doesn’t have to follow the orders of the president. That’s a very interesting proposition.” And Judicial Watch’s Paul Orfanedes says Cheney’s claim “seems most disingenuous.” (Malone 6/21/2007)
Retaliation For Attempt To Force Compliance - The National Archives’ Information Security Oversight Office (ISOO) will attempt in 2004 to conduct an inspection of Cheney’s offices pursuant to the executive order; Cheney’s staff will block the inspection, the first time since the ISOO’s inception in 1978 that one of its inspections has been thwarted. The National Archives will protest Cheney’s decision (see June 8, 2006 and January 9, 2007); Cheney will respond by attempting to abolish the ISOO (see May 29, 2007-June 7, 2007). (Henry A. Waxman 6/21/2007 ; Rood 6/21/2007) In June 2007, President Bush will announce that he never intended for either his or Cheney’s office to have to comply with the directive. (Jackson 6/24/2007; Isikoff 12/27/2007)
Issue Nothing More Than 'Kerfuffle' - In December 2007, Cheney will call the entire issue a “kerfuffle… is he or isn’t he; is he part of the executive branch, part of the legislative branch? And the answer really is, you’ve got a foot in both camps. I obviously work for the president. That’s why I’m sitting here in the West Wing of the White House. But I also have a role to play in the Congress as the president of the Senate. I actually get paid—that’s where my paycheck comes from, is the Senate. So I try to keep lines open to both sides of the Congress, both the House and the Senate.” (White House 12/6/2007) However, Cheney sometimes asserts executive privilege, a function of the executive branch (see June 26, 2007 and June 29, 2007).
The White House decides that the Department of Homeland Security should raise the threat level to orange in the days before the presidential election. The ostensible reason for this is an Osama bin Laden videotaped speech (see October 29, 2004). However, many in the administration, including Homeland Security chief Tom Ridge, believe the proposal to raise the threat level may be politically motivated (see October 29, 2004). In his 2009 book The Test of Our Times, Ridge will write: “The timing of the tape may have been a surprise; the content was not. Within the department no one felt it necessary to consider additional security measures or to call the Homeland Security Council into session.” The situation is different among White House officials. “A vigorous, some might say dramatic, discussion ensued” over the need for the alert, Ridge will write. “Then-Attorney General John Ashcroft strongly urged an increase in the threat level and was supported by then-Defense Secretary Donald Rumsfeld.… There was absolutely no support for that position within our department. None. I wondered, ‘Is this about security or politics?’ Post-election analysis demonstrated a significant increase in the president’s approval rating in the days after the raising of the threat level.” Ridge will continue: “As the minutes passed at our video conference, we concluded that others in the administration were operating with the same threat information that we had at DHS, and they didn’t know any more than we did. And we concluded that the idea was still a bad one. It also seemed possible to me and to others around the table that something could be afoot other than simple concern about the country’s safety.” The administration chooses not to raise the threat level. Ridge will write: “I believe our strong interventions had pulled the ‘go-up’ advocates back from the brink. But I consider the episode to be not only a dramatic moment in Washington’s recent history, but another illustration of the intersection of politics, fear, credibility, and security.” He will write that the episode is a strong influence on his upcoming decision to resign his post and leave Washington. (O'Toole 8/9/2009; Sharma 8/20/2009; MSNBC 9/2/2009)
Retired Maj. Gen. Bruce Lawlor, formerly part of the Homeland Security Advisory Council, a panel made up of business representatives, academic leaders, and security experts appointed by President Bush, says that the Homeland Security warning system had outlived its usefulness. “I’m not suggesting that we do away with communications with the public. What I’m suggesting is that maybe you do away with the color-coded system.” (Sifuentes 12/15/2004) The Department of Homeland Security has also been accused on a number of occasions for manipulating the alert level for political reasons. (Dreyfuss 9/21/2006 ) Secretary of Homeland Security Tom Ridge acknowledges criticisms of the system, saying that the color-coded system has invited “questions and even occasional derision.” However, he also states that “the system is here to stay.” (Associated Press 12/15/2004) He agrees with a report released by the Heritage Foundation and the Center for Strategic and International Studies that recommends reform of the system. The report specifically suggests the removal of the color-coded system in favor of a system of regional alerts. The Homeland Security Advisory Council votes to collect information from the public and the media about the threat system. Other recommendations they adopt include plans to identify potential private-sector terror targets, suggestions on how to improve terrorism-related fields of study and how to bolster terror-related training. (Sifuentes 12/15/2004)
Former Secretary of Homeland Security Tom Ridge admits to further problems with the terror alert system. In defense of his administration of the Department of Homeland Security, he says that Administration decisions to raise the threat level were sometimes unjustified by evidence and unsupported by his department. “More often than not we were the least inclined to raise it,” says Ridge. “Sometimes we disagreed with the intelligence assessment. Sometimes we thought even if the intelligence was good, you don’t necessarily put the country on [alert].… There were times when some people were really aggressive about raising it, and we said, for that?” Ridge had previously disagreed with Attorney General John Ashcroft on the communication of threat information to the public. These comments mark the first time that dissension among the Homeland Security Advisory Council, a panel made up of business representatives, academic leaders, and security experts appointed by President Bush, is discussed with the press. Reform of the terror alert system is under review by current Homeland Security secretary Michael Chertoff. Department spokesman Brian Roehrkasse says “improvements and adjustments” may be announced within the next few months. (Hall 5/10/2005) As of 2007, no such announcement have been made.
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