Updated Below
For my entire Federal career, to include the last five when I was responsible to oversee the Executive branch's classification system, I firmly believed that the President's authority to withhold the disclosure of information in the interest of national security was the President's absolute authority -- rooted in his Article II constitutional authority as commander-in-chief of the armed forces and as chief executive responsible for foreign affairs. I was wrong -- seriously wrong. In fact, such a belief constitutes a serious threat to our constitutional form of government and significantly undermines its system of checks and balances.
Unfortunately, I have not been alone in my mistaken belief. At various times, all three co-equal branches of government have also agreed that this was an implicit yet absolute authority of the President.
For example, while Congress has never explicitly made a grant to the executive of such authority, a number of statutes providing for disclosure of government information exempt national security secrets from disclosure (for example, Freedom of Information Act; Government in the Sunshine Act; Privacy Act; Federal Advisory Committee Act; Administrative Procedures Act; National Environmental Policy Act; and Paperwork Reduction Act. Furthermore, while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” the statute goes on to state that such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.”
The Supreme Court, too has recognized the President's authority in this area. Dating back to the time of Lincoln, in TOTTEN V. UNITED STATES, the Court found that the President may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements. In UNITED STATES V. REYNOLDS, the Supreme Court found that when a claim of privilege against revealing military secrets is invoked, the courts must decide whether the occasion for invoking the privilege is appropriate, and yet do so without jeopardizing the security which the privilege was meant to protect. Also, in DEPARTMENT OF NAVY v. EGAN, the Supreme Court stated that the President is the "Commander in Chief of the Army and Navy of the United States." His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.
Yet, the strength of our constitutional form of government lies into its system of checks and balances. James Madison wrote that the three branches "should not be so far separated as to have no constitutional control over each other." The system of checks and balances is designed to allow each branch to restrain abuse by another branch.
The other day, an unclassified report was released outlining what is quite possibly the worst abuse ever of the President's classification authority. The report by the Inspectors General of five intelligence agencies outlines the extraordinary secrecy surrounding the NSA warrantless surveillance program. This report, taken with other previously released information makes, it very clear that former President Bush and former Vice President Cheney utilized classification authority in order to conceal and cover-up violations of law -- an abuse which our system of checks and balances is intended to preclude.
This much is for certain:
1. The President's program violated the provisions of the Foreign Intelligence Surveillance Act (FISA).
2. The then President and Vice-President knew that this program violated the law. This is readily apparent through Jack Goldsmith, the former head of the Office of Legal Counsel (OLC) in the Department of Justice. Goldsmith wrote in his 2007 book The Terror Presidency that senior officials within the government “blew through FISA in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.” Goldsmith further recounted one of his first experiences with such extraordinary concealment in late 2003, when, as he recalls, David Addington of the Office of the Vice President (OVP) angrily denied a request by the National Security Agency’s (NSA) Inspector General to see a copy of OLC’s legal analysis supporting the warrentless surveillance program. Goldsmith wrote: “Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing." It is important to remember that the NSA lawyers already had knowledge of the actual details of the program, the very information which would be of interest to an enemy. However, they were being denied access to the pure legal analysis of the program, information that would be of no interest or value to an enemy whatsoever.
3. Bush's actions clearly indicate that he was not interested in a genuine legal analysis of the warrantless surveillance program. As indicated in the IGs' report, "the President made the decision to 'read-in' all non-operational persons, including DoJ officials." As a direct result, a hand-picked lawyer, John Yoo, gave the President a piece of paper which was deficient on almost every level except that it gave the President what he wanted -- legal cover. The secrecy of the program prevented any vetting of Yoo's legal work, to include by the head of the OLC himself, Yoo's nominal supervisor.
4. The secrecy of the program, in addition to undermining our constitutional form of government, caused significant harm to national security as well. The report concluded that "extraordinary and inappropriate" secrecy about the warrantless eavesdropping program undermined its effectiveness as a terrorism-fighting tool.
Now, imagine if a President was perceived to abuse his explicit constitutional authority to grant pardons. What would Congress do? Of course, we saw what Congress would do in its investigation into the pardons granted by Clinton to Marc Rich and others.
Now, imagine if a President was to engage in a cover-up of the attempt to install a single, illegal, warrantless wiretap. What would Congress do? Of course, as we saw in Watergate, the Congress would aggressively investigate and move to impeach the President as they did in the case of Nixon.
Now, imaging if a President was to attempt to cover-up the illegal surveillance of almost any American's communications. What would Congress do? So far, apparently nothing.
What Congress can and should do is exert its rightful role in restraining abuses by the executive with respect to exercise of authority to withhold the disclosure of information, ostensibly in the interest of national security. Congress can begin by implementing the long dormant principal recommendation of the 1997 Report of the Commission on Protecting and Reducing Government Secrecy (also known as the Moynihan Commission). Specifically, this Report recommended that "to improve the functioning of the secrecy system and the implementation of established rules, we recommend a statute that sets forth ... what may be declared secret."
It is essential that Congress (and the Courts) take action now to preclude the very open-ended, non-circumscribed, executive authority that the Constitution’s framers sought to avoid in constructing a system of checks and balances. As evidenced by this extraordinary abuse of classification authority by a President himself, the time to take such action is NOW!
Update: Some believe that the point made in item 1, above, i.e. that President Bush violated the law, is debatable. I want to point out that this is not my opinion, but rather the legal finding of Bush's attorney general, John Ashcroft, his deputy attorney general, James Comey, his FBI director, Robert Mueller, and other senior government officials who all threatened to resign in the face of continued law-breaking by the Bush administration. It is my opinion, and many others, that, as indicated in items 2 and 3 above, this law-breaking was deliberate and with malice and forethought -- that there was clear intent to violate the law.
Unfortunately, I have not been alone in my mistaken belief. At various times, all three co-equal branches of government have also agreed that this was an implicit yet absolute authority of the President.
For example, while Congress has never explicitly made a grant to the executive of such authority, a number of statutes providing for disclosure of government information exempt national security secrets from disclosure (for example, Freedom of Information Act; Government in the Sunshine Act; Privacy Act; Federal Advisory Committee Act; Administrative Procedures Act; National Environmental Policy Act; and Paperwork Reduction Act. Furthermore, while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” the statute goes on to state that such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.”
The Supreme Court, too has recognized the President's authority in this area. Dating back to the time of Lincoln, in TOTTEN V. UNITED STATES, the Court found that the President may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements. In UNITED STATES V. REYNOLDS, the Supreme Court found that when a claim of privilege against revealing military secrets is invoked, the courts must decide whether the occasion for invoking the privilege is appropriate, and yet do so without jeopardizing the security which the privilege was meant to protect. Also, in DEPARTMENT OF NAVY v. EGAN, the Supreme Court stated that the President is the "Commander in Chief of the Army and Navy of the United States." His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.
Yet, the strength of our constitutional form of government lies into its system of checks and balances. James Madison wrote that the three branches "should not be so far separated as to have no constitutional control over each other." The system of checks and balances is designed to allow each branch to restrain abuse by another branch.
The other day, an unclassified report was released outlining what is quite possibly the worst abuse ever of the President's classification authority. The report by the Inspectors General of five intelligence agencies outlines the extraordinary secrecy surrounding the NSA warrantless surveillance program. This report, taken with other previously released information makes, it very clear that former President Bush and former Vice President Cheney utilized classification authority in order to conceal and cover-up violations of law -- an abuse which our system of checks and balances is intended to preclude.
This much is for certain:
1. The President's program violated the provisions of the Foreign Intelligence Surveillance Act (FISA).
2. The then President and Vice-President knew that this program violated the law. This is readily apparent through Jack Goldsmith, the former head of the Office of Legal Counsel (OLC) in the Department of Justice. Goldsmith wrote in his 2007 book The Terror Presidency that senior officials within the government “blew through FISA in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.” Goldsmith further recounted one of his first experiences with such extraordinary concealment in late 2003, when, as he recalls, David Addington of the Office of the Vice President (OVP) angrily denied a request by the National Security Agency’s (NSA) Inspector General to see a copy of OLC’s legal analysis supporting the warrentless surveillance program. Goldsmith wrote: “Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing." It is important to remember that the NSA lawyers already had knowledge of the actual details of the program, the very information which would be of interest to an enemy. However, they were being denied access to the pure legal analysis of the program, information that would be of no interest or value to an enemy whatsoever.
3. Bush's actions clearly indicate that he was not interested in a genuine legal analysis of the warrantless surveillance program. As indicated in the IGs' report, "the President made the decision to 'read-in' all non-operational persons, including DoJ officials." As a direct result, a hand-picked lawyer, John Yoo, gave the President a piece of paper which was deficient on almost every level except that it gave the President what he wanted -- legal cover. The secrecy of the program prevented any vetting of Yoo's legal work, to include by the head of the OLC himself, Yoo's nominal supervisor.
4. The secrecy of the program, in addition to undermining our constitutional form of government, caused significant harm to national security as well. The report concluded that "extraordinary and inappropriate" secrecy about the warrantless eavesdropping program undermined its effectiveness as a terrorism-fighting tool.
Now, imagine if a President was perceived to abuse his explicit constitutional authority to grant pardons. What would Congress do? Of course, we saw what Congress would do in its investigation into the pardons granted by Clinton to Marc Rich and others.
Now, imagine if a President was to engage in a cover-up of the attempt to install a single, illegal, warrantless wiretap. What would Congress do? Of course, as we saw in Watergate, the Congress would aggressively investigate and move to impeach the President as they did in the case of Nixon.
Now, imaging if a President was to attempt to cover-up the illegal surveillance of almost any American's communications. What would Congress do? So far, apparently nothing.
What Congress can and should do is exert its rightful role in restraining abuses by the executive with respect to exercise of authority to withhold the disclosure of information, ostensibly in the interest of national security. Congress can begin by implementing the long dormant principal recommendation of the 1997 Report of the Commission on Protecting and Reducing Government Secrecy (also known as the Moynihan Commission). Specifically, this Report recommended that "to improve the functioning of the secrecy system and the implementation of established rules, we recommend a statute that sets forth ... what may be declared secret."
It is essential that Congress (and the Courts) take action now to preclude the very open-ended, non-circumscribed, executive authority that the Constitution’s framers sought to avoid in constructing a system of checks and balances. As evidenced by this extraordinary abuse of classification authority by a President himself, the time to take such action is NOW!
Update: Some believe that the point made in item 1, above, i.e. that President Bush violated the law, is debatable. I want to point out that this is not my opinion, but rather the legal finding of Bush's attorney general, John Ashcroft, his deputy attorney general, James Comey, his FBI director, Robert Mueller, and other senior government officials who all threatened to resign in the face of continued law-breaking by the Bush administration. It is my opinion, and many others, that, as indicated in items 2 and 3 above, this law-breaking was deliberate and with malice and forethought -- that there was clear intent to violate the law.
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