Focus of VP Inquiry Shifts to Attorney General

Congressional leaders who are investigating the refusal of Vice President Cheney to comply with executive branch procedures for oversight of classification and declassification activity yesterday asked Attorney General Alberto Gonzales (pdf) to account for his sluggish handling of the issue.

Last January, J. William Leonard, the director of the Information Security Oversight Office (ISOO), asked the Attorney General to determine whether the Office of the Vice President is subject to reporting requirements like other executive branch agencies, or not.

A reply is not optional. The executive order states clearly that “The Attorney General, upon request…, shall render an interpretation of this order with respect to any question arising in the course of its administration” (sec. 6.2b).

Yet no such reply has been forthcoming.

“Due to conflicting statements from your department, the status of your review of this matter is unclear,” wrote Reps. Henry Waxman, John Conyers Jr., and William Lacy Clay in their letter to the Attorney General. “More than six months (sic) have passed since Mr. Leonard’s letter to you, and the Information Security Oversight Office has received no response to its inquiry.”

The House letter asked Attorney General Gonzales to reply to a series of questions regarding his review of the Vice President’s status as a classifier.

The Congressmen cited a Justice Department Office of Legal Counsel reply (pdf) to a Freedom of Information Act request from the Federation of American Scientists (first reported by Michael Isikoff in Newsweek this week) indicating that “no documents” had been generated in response to the ISOO inquiry.

On the Senate floor yesterday, Sen. Patrick Leahy extolled the FAS request as a example of the utility of the Freedom of Information Act.

“Just this week, we witnessed the great value of FOIA in shedding light on a controversial policy within the Office of the Vice President regarding the handling of classified information, with news reports that a FOIA request to the Justice Department first revealed that the Attorney General may have delayed a review into the legality of this troubling policy,” Sen. Leahy said in a June 27 statement on the status of the Open Government Act, which has been held up by opposition from a Republican Senator.

In a June 25 letter (pdf), Sen. Dick Durbin asked the Vice President to comply with the requirements of the Executive Order “so that we will not be compelled to take corrective action in our appropriations bill.”

Addington and the Question of Intent

Vice Presidential Chief of Staff David Addington defended Dick Cheney’s refusal to submit to oversight by the Information Security Oversight Office in a June 26 letter (pdf) to Sen. John Kerry.

“The executive order on classified national security information — Executive Order 12958 as amended in 2003 — makes it clear that the Vice President is treated like the President and distinguishes the two of them from ‘agencies’,” he wrote.

Mr. Addington’s claim is demonstrably false.

By presidential order dated October 13, 1995, the President delegated original classification authority to the Vice President under Executive Order 12958, along with other officials in the executive office of the President and various agency heads.

When the executive order was amended in 2003, that delegation of classification authority to the Vice President was not rescinded or modified. It remains in effect. Consequently, the Vice President’s authority is comparable to that of the Secretary of Defense or the Secretary of State.

Furthermore, as ISOO director J. William Leonard explained in his January 9, 2007 letter to the Attorney General (pdf), a “plain text reading” of the order indicates that the Office of the Vice President is subject to the order’s requirements. He noted that the OVP is granted one particular exemption, concerning the order’s mandatory declassification review provisions.

“This sole explicit reference for the purpose of exempting the OVP from a provision of the Order supports an interpretation that the rest of the Order does apply…. otherwise there would be no need for an exemption,” Mr. Leonard flawlessly argued.

By contrast, reported Michael Abramowitz in the Washington Post (June 27), “Addington did not cite specific language in the executive order supporting [his] view, and a Cheney spokeswoman could not point to such language last night. But spokeswoman Lee Anne McBride said the intent of the order, as expressed by White House officials in recent days, was ‘not for the VP to be separated from the president on this reporting requirement’.”

The President could amend the executive order at a moment’s notice to exempt the Vice President from oversight. Or the Attorney General could render an interpretation of the order that favors the Vice President’s position. But neither action has been taken.

Instead, the White House simply insists that the executive order does not mean what a “plain text reading” says that it means. By doing so, it degrades the machinery of government.

DNI Mandates Intelligence Rotations

The Director of National Intelligence has issued policy guidance (pdf) that encourages and directs temporary assignments for intelligence officials in more than one element of the intelligence bureaucracy as a prerequisite for promotion to senior leadership positions.

The idea is that such rotations would increase cohesion within the intelligence community, improve cooperation, and enhance a sense of shared purpose.

“Joint Duty assignments further the interests of each IC element and the Community as a whole, promote the effectiveness of the U.S. Government, and provide future IC leaders with a broader perspective on the issues facing the Community,” according to the new Instructions.

See “Intelligence Community Civilian Joint Duty Program Implementing Instructions,” Intelligence Community Policy Guidance (ICPG) 601.01, June 25, 2007.

Skeptics question the feasibility of this approach.

“Contrary to the intention of such a program, there are really only three types of people who pursue rotations: those who are in a job they hate; those who work for a boss they hate, and those who are encouraged by their boss to find another job,” wrote former intelligence officer Michael Tanji.

“Those who might actually want to expand their knowledge of the community and prepare themselves for positions of greater responsibility are usually thwarted by their management: Anyone worth a darn is kept close to the vest.”

See “Old Wine in New Bottles,” The SPOT Report, Washington Examiner, June 27.

Sensitive Information at TSA

The Transportation Security Agency last week circulated a notice to Federal Air Marshals regarding protection of sensitive data (pdf). A copy was obtained by Secrecy News.

The notice focuses on Sensitive Security Information (SSI) and so-called Sensitive Personally Identifiable Information (PII).

SSI is transportation security-related information that is exempt from disclosure.

Sensitive PII includes social security numbers, drivers license numbers and similar data.

The proliferation of new categories and new acronyms for restricting disclosure of information is not helpful, said P. Jeffrey Black, who is himself a Federal Air Marshal and a whistleblower.

“Employee personal identification information is protected under the Privacy Act. There is no reason to come up with yet another acronymed classification for something that is already protected by Act of Congress,” Mr. Black said in response to an inquiry from Secrecy News.

Joint Intelligence Doctrine

A new publication (pdf) from the Joint Chiefs of Staff presents “fundamental principles and guidance for intelligence support to joint operations.”

The document provides an overview of the various intelligence-related disciplines, from imagery to interrogation, and their employment in support of military operations.

See “Joint Intelligence,” Joint Publication 2-0, 22 June 2007.

Vice President Makes Secrecy Policy a Joke (Literally)

The arcane details of national security classification policy became the stuff of late night comedy as White House officials struggled to justify the peculiar refusal of Vice President Dick Cheney to comply with the oversight requirements established by President Bush’s executive order on classification.

For two successive days, the White House press briefing was dominated by incredulous reporters who wondered how the Vice President could claim that he both was and was not part of the executive branch; why he complied with oversight reporting requirements in 2001 and 2002, and why he then ceased to comply; and how the Vice President’s behavior can be consistent with the executive order when the Administration’s own Information Security Oversight Office says that it is not.

“I’m not a legal scholar,” said an exasperated Dana Perino, the White House spokeswoman. “I’m not opining on his argument that his office is making.”

The story became certifiably big news last night when it was the subject of a five minute satirical segment on The Daily Show with Jon Stewart (where I had a microsecond cameo). See “Non-Executive Decision,” June 25, 2007, under “most recent videos.”

The Justice Department had said that the classification policy dispute was “under review” since Information Security Oversight Office director J. William Leonard asked the Attorney General in January 2007 to resolve the matter. But in response to a Freedom of Information Act request, the Justice Department revealed that no documents whatsoever had been generated by the purported review. See “A New Cheney-Gonzales Mystery” by Michael Isikoff, Newsweek, July 2.

Congressional leaders are stirring the pot, warning that the Office of Vice President could suffer budget penalties if it does not comply with routine oversight procedures. See “Secrecy May Cost Cheney, Dems Warn” by Elana Schor and Mike Soraghan, The Hill, June 26.

To recap: The internal executive branch conflict over the Vice President’s non-compliance with the executive order was triggered by a formal complaint filed with the Information Security Oversight Office in May 2006 by the Federation of American Scientists (following a report in the Chicago Tribune by Mark Silva).

The FAS complaint was accepted by ISOO Director William Leonard, and was forwarded to the Attorney General in January with his request (pdf) for an official interpretation of the executive order. There the matter lay for five months until Congressman Henry Waxman, chairman of the House Oversight Committee, raised the issue to stratospheric heights last week with a letter to the Vice President (pdf) questioning his Office’s conduct.

The Diane Rehm Show on National Public Radio devoted an hour to the topic yesterday with Congressman Waxman, Peter Baker of the Washington Post, former Justice Department lawyer David Rivkin, and myself. See “The Executive Branch and Classified Information,” June 25.

The controversy is playing out against the backdrop of a massive four-part series in the Washington Post on Vice President Cheney’s role and conduct written by Barton Gellman and Jo Becker. The story had been under development for many months and Ms. Becker has since left the Post to go work for the New York Times. In a weird and probably unprecedented coincidence, she had a byline in front page stories in both the Washington Post and the New York Times on June 25.

Selected CRS Reports

Some recent reports from the Congressional Research Service that have not been made readily available in the public domain include the following (all pdf).

“Long-Range Ballistic Missile Defense in Europe,” June 22, 2007.

“Foreign Science and Engineering Presence in U.S. Institutions and the Labor Force,” updated June 21, 2007.

“Russian Political, Economic, and Security Issues and U.S. Interests,” updated May 31, 2007.

“The Use of Federal Troops for Disaster Assistance: Legal Issues,” updated April 24, 2007.

“The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice,” updated September 25, 2006.

Cheney Sought to Abolish Secrecy Oversight Office

The Office of Vice President Dick Cheney proposed to abolish the Information Security Oversight Office (ISOO), the executive branch organization that oversees the national security classification system, after its Director insisted that the Vice President comply with reporting requirements that apply to all executive branch entities.

Rep. Henry Waxman (D-CA), the chairman of the House Oversight Committee who revealed the move today, said in a letter to the Vice President (pdf) that it “could be construed as retaliation” against ISOO.

The proposed change in ISOO’s status was ultimately rejected by an interagency review group which is considering revisions to the executive order on classification policy.

The dispute between ISOO and the Office of the Vice President was prompted by a complaint filed with ISOO by the Federation of American Scientists in May 2006 (Secrecy News, 05/31/06). The FAS complaint (pdf) noted that the OVP had ceased to comply with its obligation to submit an annual report on classification and declassification activity, and asked the ISOO Director to enforce the requirement.

When the OVP continued to resist compliance, ISOO Director J. William Leonard formally asked the Attorney General in January 2007 (pdf) to intervene and to render an interpretation of the executive that would resolve the dispute in one direction or another.

A truncated copy of the ISOO letter to the Attorney General, with two attachments missing, was released by Rep. Waxman today. A complete copy of the January 9, 2007 letter is available here.

The Attorney General has not responded to the ISOO letter.

ODNI Dismisses Inadvertent Release of Intel Budget Data

The recent inadvertent disclosure of intelligence spending figures concealed in an official PowerPoint briefing does not reveal the size of the intelligence budget, the Office of the Director of National Intelligence (ODNI) said this week (pdf).

Close scrutiny of a PowerPoint slide presented by ODNI official Terri Everett (.ppt) at a conference last month turned up budget numbers that were used to create a bar graph showing relative annual spending on intelligence contractors, and suggested that overall annual intelligence spending could be $60 billion or more.

But “the specific bar graphs on the slides and their underlying data were based on a small, anecdotal sample of a portion of Intelligence Community contracting activities. As a result, this data cannot be used to derive either the overall Intelligence Community budget, or a breakdown of any portion of the budget,” the ODNI said in a June 19 statement.

“The overall Intelligence Community budget and its components are classified to protect the national security interests of the United States,” the ODNI added, a claim that is widely disputed. Legislation (pdf) pending in the Senate would require annual disclosure of the national intelligence program budget.

Extraordinary Hearing on Extraordinary Rendition

The House Foreign Affairs Committee held a hearing last April on the policy of “extraordinary rendition,” referring to the seizure of suspected terrorists and their transfer to a foreign country for detention and interrogation.

The record of the hearing, which has just been published (pdf), features the volatile Michael Scheuer, a former CIA official involved in the rendition program. It is exceptionally nasty and occasionally funny.

Mr. Scheuer, veering from outrageous to absurd and back again, attacked John McCain, the Washington Post’s Dana Priest and quite a few others in remarkably offensive terms.

See “Extraordinary Rendition in U.S. Counterterrorism Policy: The Impact on Transatlantic Relations,” House Foreign Affairs Committee, April 17, 2007.

“Oftentimes,” Rep. Ed Markey (D-MA) delicately observed, “people aspire to a higher percentage of their thoughts going unspoken than this hearing has demonstrated.”