Monday, November 27, 2006

A Democrat-controlled 110th Congress must enact new legislation to challenge executive privilege if it hopes to exercise meaningful oversight of the White House. The legislation should establish House and Senate legislative-executive committees featuring legislative majorities to arbitrate disputes over congressional access to national security information. The arbitrations should be binding and shielded from judicial review. Executive privilege based on a generalized interest in the confidentiality of presidential communications to ensure candid advice from subordinates should be explicitly rejected. Without the proposed legislation, assertions by Democrat leaders to insist on greater oversight and accountability of President Bush’s tight-lipped administration will prove toothless.

The informing and checking functions of Congress are more important than its legislative responsibilities. The former enlighten public opinion and the president’s maladministration and lawlessness are deterred and exposed. Think of the Fulbright hearings on the Vietnam War, the Watergate hearings of the Ervin Committee, and the Church Committee’s hearings on the massive intelligence wrongdoing by the FBI, CIA and NSA.

During the first six years of the Bush administration, oversight hibernated under a Republican-controlled Congress. Republican committee chairmen regularly refused to hold hearings, for example, to examine the CIA’s secret prisons and interrogations abroad or to question President Bush’s preposterous expectations of a unified, secular, democratic Iraq. And the hearings that were held were more ceremonial than informative. Administration witnesses routinely asserted executive privilege to deny Congress access to critical information. Attorney General Alberto Gonzales, for example, refused to share with the Senate Judiciary Committee the legal advice President Bush had received to justify the NSA’s warrantless domestic surveillance program in contravention of the Foreign Intelligence Surveillance Act (FISA), or the ongoing post-September 11 secret spying programs of President Bush that have not yet leaked to the media. During Gen. Michael Hayden’s confirmation hearing for the post of CIA director, he ludicrously maintained to Sen. Diane Feinstein, California Democrat, that to disclose whether the NSA had ever sought a FISA warrant for a pen register would reveal intelligence sources and methods. Congress has not been alerted to the number of Americans who have been targeted without warrants by the NSA, the percentage of such intercepted communications that have proven useful, or what is done with interceptions that have political but not foreign intelligence value.

Democrat leaders have promised a new day for the 110th Congress. House Speaker-designate Nancy Pelosi of California favors a meticulous investigation of the NSA’s warrantless surveillance program. Sen. Patrick Leahy, Vermont Democrat, slated to head the Senate Judiciary Committee, declared in an interview last week: “I expect real answers, or we’ll have testimony under oath until we get them.” In a recent letter to Attorney General Gonzales, the senator asked for the release of two documents: a directive by President Bush authorizing the CIA to establish foreign detention centers and elaborating permissible interrogation procedures, and a Justice Department legal memorandum addressing torture. The attorney general has yet to respond, but precedent predicts Mr. Leahy will receive either nothing or nothing useful.

At present, the legal landscape tilts decisively in favor of presidential secrecy. Supreme Court and inferior court rulings recognize a qualified constitutional privilege to withhold from Congress either state secrets or confidential advice received from presidential subordinates. If a privilege claim is challenged by Congress in a judicial proceeding, the court balances the importance of the information to oversight or legislation against the danger to national security or executive branch internal candor that might be occasioned by disclosure. But time is of the essence in politics. It takes years to litigate congressional challenges to executive privilege. In the meantime, the information sought typically becomes stale or politically irrelevant. That explains the conspicuous dearth of such lawsuits. As a practical matter, the president’s assertion of executive privilege is absolute. Congress theoretically could retaliate by slashing appropriations or placing in abeyance the confirmation of presidential appointees. These weapons, however, are ordinarily unusable because they are radically disproportionate to the congressional grievance over access to a particular piece of information.



Article I, section 8, clause 18 of the Constitution is the key to cutting the Gordian knot to the executive privilege problem. It empowers Congress to enact appropriate laws for the exercise of all presidential prerogatives, including the authority to withhold information from the legislative branch. Congress should thus pass a bill to establish five-member House and Senate legislative-executive committees to arbitrate executive privilege claims pivoting on national security within 48 hours, unless a majority agreed to an extension. (The statute should categorically reject a generalized interest in confidential advice to the president as a justification for concealing information. No executive official worth keeping would stoop to insincere presidential communications because fearful of public disclosure). The House legislative-executive committee would consist of three members appointed by the speaker, one member appointed by the minority leader, and one executive branch official appointed by the president. The Senate legislative-executive committee would be correspondingly appointed. The disputed information would remain confidential unless the House or Senate committee ordered disclosure. Member votes to sustain or reject executive privilege would be public to insure accountability. Committee decisions would be binding on both Congress and the president with no judicial review. The rulings would enjoy the same constitutional status as a decree by the Supreme Court.

The 110th Congress may issue hundreds of subpoenas to the Bush administration. But if it fails to enact a workable enforcement mechanism, the subpoenas will prove no more than flashy ornaments on the political stage.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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