When the Vice President Does It, That Means It’s Not Illegal

By FRANK RICH
July 1, 2007
Op-Ed Columnist, NYTimes.com

WHO knew that mocking the Constitution could be nearly as funny as shooting a hunting buddy in the face? Among other comic dividends, Dick Cheney’s legal theory that the vice president is not part of the executive branch yielded a priceless weeklong series on “The Daily Show” and an online “Doonesbury Poll,” conducted at Slate, to name Mr. Cheney’s indeterminate branch of government.

The ridicule was so widespread that finally even this White House had to blink. By midweek, it had abandoned that particularly ludicrous argument, if not its spurious larger claim that Mr. Cheney gets a free pass to ignore rules regulating federal officials’ handling of government secrets.

That retreat might allow us to mark the end of this installment of the Bush-Cheney Follies but for one nagging problem: Not for the first time in the history of this administration — or the hundredth — has the real story been lost amid the Washington kerfuffle. Once the laughter subsides and you look deeper into the narrative leading up to the punch line, you can unearth a buried White House plot that is more damning than the official scandal. This plot once again snakes back to the sinister origins of the Iraq war, to the Valerie Wilson leak case and to the press failures that enabled the administration to abuse truth and the law for too long.

One journalist who hasn’t failed is Mark Silva of The Chicago Tribune. He first reported more than a year ago, in May 2006, the essentials of the “news” at the heart of the recent Cheney ruckus. Mr. Silva found that the vice president was not filing required reports on his office’s use of classified documents because he asserted that his role in the legislative branch, as president of the Senate, gave him an exemption.

This scoop went unnoticed by nearly everybody. It would still be forgotten today had not Henry Waxman, the dogged House inquisitor, called out Mr. Cheney 10 days ago, detailing still more egregious examples of the vice president’s flouting of the law, including his effort to shut down an oversight agency in charge of policing him. The congressman’s brief set off the firestorm that launched a thousand late-night gags.

That’s all to the public good, but hiding in plain sight was the little-noted content of the Bush executive order that Mr. Cheney is accused of violating. On close examination, this obscure 2003 document, thrust into the light only because the vice president so blatantly defied it, turns out to be yet another piece of self-incriminating evidence illuminating the White House’s guilt in ginning up its false case for war.

The tale of the document begins in August 2001, when the Bush administration initiated a review of the previous executive order on classified materials signed by Bill Clinton in 1995. The Clinton order had been acclaimed in its day as a victory for transparency because it mandated the automatic declassification of most government files after 25 years.

It was predictable that the obsessively secretive Bush team would undermine the Clinton order. What was once a measure to make government more open would be redrawn to do the opposite. And sure enough, when the White House finally released its revised version, the scant news coverage focused on how the new rules postponed the Clinton deadline for automatic declassification and tightened secrecy so much that previously declassified documents could be reclassified.

But few noticed another change inserted five times in the revised text: every provision that gave powers to the president over classified documents was amended to give the identical powers to the vice president. This unprecedented increase in vice-presidential clout, though spelled out in black and white, went virtually unremarked in contemporary news accounts.

Given all the other unprecedented prerogatives that President Bush has handed his vice president, this one might seem to be just more of the same. But both the timing of the executive order and the subsequent use Mr. Cheney would make of it reveal its special importance in the games that the White House played with prewar intelligence.

The obvious juncture for Mr. Bush to bestow these new powers on his vice president, you might expect, would have been soon after 9/11, especially since the review process on the Clinton order started a month earlier and could be expedited, as so much other governmental machinery was, to meet the urgent national-security crisis. Yet the new executive order languished for another 18 months, only to be published and signed with no fanfare on March 25, 2003, a week after the invasion of Iraq began.

Why then? It was throughout March, both on the eve of the war and right after “Shock and Awe,” that the White House’s most urgent case for Iraq’s imminent threat began to unravel. That case had been built around the scariest of Saddam’s supposed W.M.D., the nuclear weapons that could engulf America in mushroom clouds, and the White House had pushed it relentlessly, despite a lack of evidence. On “Meet the Press” on March 16, Mr. Cheney pressed that doomsday button one more time: “We believe he has, in fact, reconstituted nuclear weapons.” But even as the vice president spoke, such claims were at last being strenuously challenged in public.

Nine days earlier Mohamed ElBaradei of the International Atomic Energy Agency had announced that documents supposedly attesting to Saddam’s attempt to secure uranium in Niger were “not authentic.” A then-obscure retired diplomat, Joseph Wilson, piped in on CNN, calling the case “outrageous.”

Soon both Senator Jay Rockefeller of West Virginia and Congressman Waxman wrote letters (to the F.B.I. and the president, respectively) questioning whether we were going to war because of what Mr. Waxman labeled “a hoax.” And this wasn’t the only administration use of intelligence that was under increasing scrutiny. The newly formed 9/11 commission set its first open hearings for March 31 and requested some half-million documents, including those pertaining to what the White House knew about Al Qaeda’s threat during the summer of 2001.

The new executive order that Mr. Bush signed on March 25 was ingenious. By giving Mr. Cheney the same classification powers he had, Mr. Bush gave his vice president a free hand to wield a clandestine weapon: he could use leaks to punish administration critics.

That weapon would be employed less than four months later. Under Mr. Bush’s direction, Mr. Cheney deputized Scooter Libby to leak highly selective and misleading portions of a 2002 National Intelligence Estimate on Iraq to pet reporters as he tried to discredit Mr. Wilson. By then, Mr. Wilson had emerged as the most vocal former government official accusing the White House of not telling the truth before the war.

Because of the Patrick Fitzgerald investigation, we would learn three years later about the offensive conducted by Mr. Libby on behalf of Mr. Cheney and Mr. Bush. That revelation prompted the vice president to acknowledge his enhanced powers in an unguarded moment in a February 2006 interview with Brit Hume of Fox News. Asked by Mr. Hume with some incredulity if “a vice president has the authority to declassify information,” Mr. Cheney replied, “There is an executive order to that effect.” He was referring to the order of March 2003.

Even now, few have made the connection between this month’s Cheney flap and the larger scandal. That larger scandal is to be found in what the vice president did legally under the executive order early on rather than in his more recent rejection of its oversight rules.

Timing really is everything. By March 2003, this White House knew its hype of Saddam’s nonexistent nuclear arsenal was in grave danger of being exposed. The order allowed Mr. Bush to keep his own fingerprints off the nitty-gritty of any jihad against whistle-blowers by giving Mr. Cheney the authority to pick his own shots and handle the specifics. The president could have plausible deniability and was free to deliver non-denial denials like “If there is a leak out of my administration, I want to know who it is.” Mr. Cheney in turn could delegate the actual dirty work to Mr. Libby, who obstructed justice to help throw a smoke screen over the vice president’s own role in the effort to destroy Mr. Wilson.

Last week The Washington Post ran a first-rate investigative series on the entire Cheney vice presidency. Readers posting comments were largely enthusiastic, but a few griped. “Six and a half years too late,” said one. “Four years late and billions of dollars short,” said another. Such complaints reflect the bitter legacy of much of the Washington press’s failure to penetrate the hyping of prewar intelligence and, later, the import of the Fitzgerald investigation.

We’re still playing catch-up. In a week in which the C.I.A. belatedly released severely censored secrets about agency scandals dating back a half-century, you have to wonder what else was done behind the shield of an executive order signed just after the Ides of March four years ago. Another half-century could pass before Americans learn the full story of the secrets buried by Mr. Cheney and his boss to cover up their deceitful path to war.

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