Scholar: Cheney secrecy laying groundwork for possible 'history heist'

http://rawstory.com/news/2008/Schol...for_0908. html

Nick Juliano
Published: Monday September 8, 2008

While they might not like to admit it, President Bush and Vice President Dick Cheney are, at the end of the day, employees of the American people, and four generations of precedent -- not to mention US law -- require that the people be allowed to audit their performance once they leave office.

Scholars and open government advocates, though, are sounding the alarm that Cheney, perhaps the most secretive and influential vice president ever, who entered government service during Richard Nixon's administration, could be returning to Tricky Dick's disdain for open government. A lawsuit filed Monday would force Cheney to comply with the 1978 Presidential Records Act, one of an array of post-Watergate reforms meant to redress Nixon's abuse of the office.

The act requires outgoing administrations to hand over executive branch documents to the National Archives, where the records are preserved for future historians. Problem is, Cheney's crafty lawyers have argued he is not a member of the executive branch, and President Bush early in his tenure amended what could amount to a giant loophole to the act that would allow Cheney to simply toss his papers into the fireplace on his way out the door.

"I think we're at a crossroad," said historian Martin Sherwin, one of the plaintiffs in a lawsuit that would force Cheney to preserve and hand over his records. "There's a possibility here for what I call a history heist, or a historical theft from the American people."

Citizens for Responsibility and Ethics in Washington, an open-government watchdog that filed the lawsuit, hosted a conference call Monday with Sherwin and other experts.

CREW's top lawyer, Anne Weismann, said concern that Cheney could dodge the requirements of the Presidential Records Act stems in part from a Bush executive order issued in November 2001.

The order amended the act to require disclosure of only the "executive records" of the vice president's office, meaning anything Cheney argued fell under his role as a member of the legislative branch could be kept secret indefinitely. Weismann noted that phrase does not appear anywhere in the Presidential Records Act itself nor are "executive records" mentioned anywhere in the legislative history of the law.

Because the vice president also serves as president of the Senate -- a position that amounts to essentially playing official tiebreaker in the event of a 50-50 vote -- Cheney's office has argued he is not a member of the executive branch. Cheney and his inner circle have sought this distinction to avoid all manner of oversight that would greet normal members of the executive branch; the potential they'll use it to deny historians a look at his office's inner workings is just the latest affront.

Weisman noted that CREW was hardly unfounded in suspecting Cheney might try to avoid handing over his records. Unfortunately, with a White House as prone to secrecy and as careless about keeping records as this one, even if CREW succeeds in forcing Cheney to hand over his records, no one ever will be able to say for sure what has already been destroyed.

The White House already is under fire for losing up to 10 million internal e-mails, including correspondence from Cheney's office during key days in the battle over his secret energy task force and in the Valerie Plame case.

"We already know there is at least that much of a gap," Weissman told RAW STORY on Monday's call. "As far as what the vice president has done in his seven-plus years in office, it's anybody's guess."