David Addington,Vice President Cheney’s Chief of Staff, sent this letter (.pdf) to Sen. John Kerry yesterday. In it 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.” The executive order gives the ISOO [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. As you know, the President’s spokesperson reiterated on June 22, 2007 that the order does not give the ISOO authority to oversee the Office of the Vice President.
Constitutional issues in government are generally best left for discussion when unavoidable disputes arise in a specific context instead of in theoretical discussions. Given that the executive order treats the Vice President like the President rather than like an “agency,” it is not necessary in these circumstances to address the subject of any alternative reasoning, based on the laws and history of the legislative functions of the vice presidency and the more modern executive functions of the vice presidency, to reach the same conclusion that the vice presidency is not an “agency” with respect to which ISOO has a role.
Whew, that’s a mouthload of mumbo-jumbo. Thank goodness for the folks at Salon.com’s “War Room,” who translated that garbage thusly:
A translation and three questions:
Translation: Even though we're not using the legislative vs. executive argument anymore, we still think the executive order doesn't require anything of us.
Question No. 1: What, exactly, are "the more modern executive functions of the vice presidency"?
Question No. 2: Any chance that this "more modern" period began on, say, Jan. 20, 2001?
Question No. 3: While we realize that this argument may cut the other way, in what legal sense, exactly, does the "more modern executive functions of the vice presidency" trump "the law and history of the legislative functions of the vice presidency"?
Good questions. Today the Senate subpoenaed the White House and Vice President Cheney’s office about warrantless wiretaps. I have a feeling we might get answers to at least one of those questions.