How Fourthbranch Works

Newsweek's Michael Isikoff has posted a fascinating interview with J.William Leonard, the head of the National Archives' Information Security Oversight Office (ISOO), which deals with classified documents from the executive branch. He was the major figure in the fight by Dick Cheney to define his office as a fourth branch of government existing outside executive branch accountability. I've been calling him "Fourthbranch" ever since (like the Taco Bell ad: "think outside the Constitution"). In the interview, Leonard details just how uniquely Cheney and his minions see their responsibilities to other government agencies.

NEWSWEEK: Explain how all this happened.

Leonard: Up until 2002, OVP was just like any other agency. Subsequent to that, they stopped reporting to us…At first, I took that to be, 'we're too busy.' Then we routinely attempted to do a review of the OVP and it was at that point in time it was articulated back to me that: 'well they weren't really subject to our reviews.' I didn't agree with it. But you know, there is a big fence around the White House. I didn't know how I could get in there if somebody didn't want me to.

So how did matters escalate?

The challenge arose last year when the Chicago Tribune was looking at [ISOO's annual report] and saw the asterisk [reporting that it contained no information from OVP] and decided to follow up. And that's when the spokesperson from the OVP made public this idea that because they have both legislative and executive functions, that requirement doesn't apply to them.…They were saying the basic rules didn't apply to them. I thought that was a rather remarkable position. So I wrote my letter to the Attorney General [asking for a ruling that Cheney's office had to comply.] Then it was shortly after that there were [email] recommendations [from OVP to a National Security Council task force] to change the executive order that would effectively abolish [my] office.

Who wrote the emails?

It was David Addington.

No explanation was offered?

No. It was strike this, strike that. Anyplace you saw the words, "the director of ISOO" or "ISOO" it was struck.

Here we have the Fourthbranch way. Assume the laws don't apply to you; when pressed, threaten to abolish the law or the agency that attempts to execute it. And since Cheney is not a lawyer, his appointed henchman in these matters is now David Addington. There's always one degree of separation for Fourthbranch, be it Libby or Addington or whoever. And the new firewall may get torched by the ongoing torture tape investigation.

The House Intelligence Committee has scheduled a hearing on January 16 (pdf) regarding the destruction of CIA interrogation videotapes of two al Qaeda suspects held in secret overseas prisons, Abu Zubaydah and Abd al-Rahim al-Nashiri.

The order to destroy the tapes allegedly was given by Jose Rodriguez who at that time was head of the CIA’s clandestine service. Rodriguez, who has hired lawyer Robert Bennett to represent him, has no intention of being the scapegoat.

The TimesonLine reports Rodriguez is seeking immunity for his testimony. Who might he give up?

Four names in the White House have surfaced so far. My money is on Cheney lawyer (now his Chief of Staff) David Addington.

Reports have cited four White House and OVP staffers as having discussed the tapes with the CIA, and have gone out of their way to assure that three of them advised against destruction. Only Addington is left hanging out to dry. And of course, the CIA ignored the advice of everyone but Addington.

It's hard to understate the level to which Fourthbranch runs this government without being subject to regular government scrutiny. Just this week he's been implicated in denying a waiver to California to set their own greenhouse gas emissions targets. You can add that to the secret energy meetings, enabling the Enron energy blackouts in California in 2001, the Plame leak, official secrecy including making up a classification for his own documents, the tax cuts ("This is our due!"), war in Iraq, the looming threat of war in Iran, environmental policy, and well, everything in the Angler series.

The Office of the Vice President is a relic of the compromise that forged the Constitution, almost wholly unnecessary in the function of a 21st-century state. While it seemed a useless honorific only given meaning when a President died in office (and there are plenty of other ways to create a line of succession), it lingered because nobody could fathom anything bad arising from it.

They never met Fourthbranch.

Fourthbranch Oozes Back Into The Third Branch - But Still Stonewalls

Mike Allen definitely got played when he wrote this headline:

Dems force Cheney flip-flop on secret docs

Dick Cheney's office is abandoning a justification for keeping the Vice-President's secret papers out of the hands of the National Archives.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

Believe me, I like any headline that begins "Dems force Cheney." But they haven't force him to do a whole lot. While his lawyers are giving up on trying to justify the ridiculous Fourth Branch of government claim, they aren't at all done resisting efforts to release information:

Dick Cheney's chief of staff, David Addington, issued a letter to Sen. John Kerry (D-MA) today defending the Vice President's interpretation of his office being outside the executive branch - only this time, he said it was because Cheney's office isn't an "agency."

A copy of the letter from David Addington to Sen. John Kerry, D-Mass., was released to RAW STORY. Kerry said the "legalistic" response from Addington "raises more questions than it purports to answer."

"Dear Senator Kerry," Addington writes. "The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies.'"

No longer satisfied with the Vice President's office's claim that Cheney is actually an admixture between the legislative and executive branch, Addington now posits that the Vice President's office is not an "agency."

"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."

It will not surprise you to know that if you're a constitutional scholar and you actually READ the executive order in question, Addington's reasoning is transparently silly.

Most importantly, Addington's argument would appear to be inconsistent with the statute that required the promulgation of the E.O. in the first place, 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." (Thanks to "gnarly trombone" in the comments for the cite.) Unless there is some reason to think that Congress did not mean to cover the Office of the Vice President in this directive -- which would surprise me, although I don't know anything about the intracacies of this statute -- then the E.O. must be construed to cover that Office. (Unless, of course, the statute would to that extent unconstitutionally impinge on the Commander in Chief's authority . . . but who would be so audacious as to make that far-fetched argument? (Yes, that's a rhetorical question.)

TPM Muckraker has more on this.

The Senate Judiciary Committee decided to step into this nonsense, albeit from a different angle, by issuing subpoenas for documents relating to the warrantless wiretapping program. This impacts Abu G as well, last seen dodging protestors in Idaho, since he claimed under oath that there was no internal disputes about the warrantless wiretapping program, yet James Comey testified the exact opposite and in fact detailed the nature of the dispute (as well as his Midnight Ride to stop Fredo and Card from preying upon John Ashcroft when he was sick in the hospital. The Judiciary Committee is seeking documents from DoJ as well.

But the fact that they're subpoenaing documents from the OVP means that Fourthbranch will have to trot out an executive privilege argument again. At which point he'll be again asked to comply with executive branch rules regarding oversight of classified information procedures. So Fourthbranch has stepped into a vicious cycle.

The Democrats in the Congress have really pounced on this. It's great theater. Hopefully they can walk and chew gum, and press this advantage elsewhere as well.

UPDATE: Fredo's also been dragging his feet on the supposed "investigation" of Cheney's exemption from oversight rules, and so House leaders have written him.