COMMENTARY: Transparency vs. secrecy

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By Bruce Fein

The informing function of Congress should never be subordinated to a presidential privilege to maintain the confidentiality of advice. No presidential adviser expects confidentiality; a privilege would enable the president to skew the public record; and, citizens engaged in self-government need to know what their government is doing and why to guide their political judgments and loyalties.

A cornerstone of the Constitution's checks and balances is an informed public opinion that regularly forces the president to alter course without need of a lawsuit or legislation. The pending case of Committee on the Judiciary of the U.S. House of Representatives v. Miers, et al. in the U.S. District Court for the District of Columbia over White House involvement in the firing of nine United States attorneys should be easily decided in favor of transparency.

The idea that presidential advice would be compromised or chilled without a guarantee of confidentiality is sheer nonsense. Every adviser knows the president regularly waives confidentiality to appease Congress or to reassure the public. President Ronald Reagan, for instance, repeatedly waived confidentiality for advice from Cabinet members or national security advisers during congressional hearings on covert arms sales to Iran. Moreover, under the Supreme Court's precedent in Nixon v. United States (1974), presidential confidentiality is subservient to criminal justice.

Finally, confidential advice or statements routinely leak to the media or are revealed in books or memoirs by former members of the president's inner circle. Director of Central Intelligence George Tenet advised President George W. Bush in the Oval Office that proof of Saddam Hussein's weapons of mass destruction was a "slam dunk." That advice was leaked to Bob Woodward and published in "Plan of Attack." After his resignation, Mr. Tenet ruefully observed in "At the Center of the Storm": "Anything you say can be used down the road to make someone else's point. That's the way Washington has evolved - there are no private conversations, even in the Oval Office."

Even if confidentiality contributed more than a peppercorn to sound presidential advice, a presidential privilege would still be mischievous. It would enable the president to waive confidentiality for good or flattering information, but to withhold the bad and the ugly. A half-truth is another name for a lie.

The informing or sunshine function of Congress to facilitate self-government, in any event, should invariably trump presidential confidentiality. The collective wisdom of the second, third and fourth presidents of the United States should be conclusive.

John Adams lectured: "Liberty cannot be preserved without a general knowledge among the people, who have a right ... and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers."

Thomas Jefferson elaborated: "There is only one force in the nation that can be depended upon to keep the government pure and the governors honest, and that is the people themselves. They alone, if well-informed, are capable of preventing corruption of power, and of restoring the nation to its rightful course if it should go astray. They alone are the safest depository of the ultimate powers of government."

James Madison added: "Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives."

In "Congressional Government," the future president, Woodrow Wilson, celebrated the informing function of Congress to its legislative function for the reasons voiced by Adams, Jefferson and Madison: "There is some scandal and discomfort, but infinite advantage, in having every affair of administration subjected to the test of constant examination on the part of the assembly which represents the nation. The chief use of such inquisition is, not the direction of those affairs in a way with which the country will be satisfied (though that itself is of course all-important), but the enlightenment of the people, which is always its sure consequence. Very few men are unequal to a danger which they see and understand; all men quail before a threatening which is dark and unintelligible, and suspect what is done behind the screen. If the people could have, through Congress, daily knowledge of all the more important transactions of the governmental offices, an insight into all that now so often shaken, would, I think, be very soon established."

The behavior of President Bush confirms that an informed public is the best remedy for an executive branch gone astray. Intense congressional and public scrutiny and criticism of President Bush's warrantless "Terrorist Surveillance Program" in contravention of the Foreign Intelligence Surveillance Act forced a capitulation to judicial oversight in January 2007. A congressional investigation revealed Attorney General Alberto Gonzales' chief of staff, Kyle Sampson, had flirted with using the attorney general's authority to appoint interim United States attorneys to smuggle Karl Rove's friend, Tim Griffin, into a prized appointment in Arkansas without Senate confirmation. The exposure forced Mr. Bush to sign legislation to return authority to federal judges to appoint interim United States attorneys after a vacancy exceeding 120 days.

In the Miers litigation, the House Judiciary Committee seeks testimony and documents from former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten to expose the nature and extent of White House complicity in the firings of nine United States attorneys. The White House defense that the president is constitutionally authorized to remove United States attorneys for any reason or no reason is beside the point. The congressional inquiry is not seeking to limit the president's removal power, but only to inform the public as to how and why it was exercised by President Bush and to hold him politically accountable. As President Harry Truman would have advised, if a president can't take the heat for removal decisions, he doesn't belong in the White House.

Bruce Fein is a constitutional and international lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.