Executive privilege poses a complex dilemma: a presidential administration sometimes needs to conduct the duties of government in secret, yet the coordinate branches and the public need information about the executive branch so that they can fulfill their democratic responsibilities. We should propose that the resolution to the dilemma of executive branch secrecy and democratic accountability is in the founders’ theory of the separation of power. That theory allows for a carefully exercised and properly constrained presidential power of executive privilege. Not all will agree however.
In a political system predicted on democratic accountability, many believe that there can be no legitimate basis at all for executive privilege. I am certainly not alone in the view that executive branch secrecy is indefensible. In 1885 future president of the United States Woodrow Wilson argued that representative government must be predicated on openness. He explained that Congress had the high responsibility of investigating administration activities. It is proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. The Wilsonian view is echoed today by those who maintain that executive privilege is a dubious doctrine. These individuals believe that executive privilege cannot be legitimate under a separation of power systems in which the legislative branch has extensive investigating powers. Among the justifications given for withholding information, none is more prominent than national security concerns. Although most would agree that some limits on access to national security information are reasonable. Many argue that because all information is of possible value to an adversary, adopting a standard is not possible. Moreover, national security is a term of political art, which can be defined by a given administration to coincide with its political interests. The men in power tend, sometimes unconsciously, to equate their own personal and partisan interests with the national interest, no matter how noble their motives.
I am particularly concerned about freedom of the press issues. Democracies accountability cannot exist, I believe, in a society in which the press is limited in what it can investigate and report. Consequently, executive privilege cannot coexist with the Bill of Rights and accountable government. Freedom to publish about government is either absolute, or it does not exist, Wise says. Once qualified, it may be described as something else, but not as freedom of the press.
I also believe that executive branch leaders use national security as a reason to withhold vital information from Congress, the bureaucracy, and the public and thus destroy democratic accountability. Today, secrecy often originates from a domestic political need. Furthermore, we should maintain that secrecy threatens the basic liberties guaranteed by the Bill of Rights. The Framers sought to design a structure for effective leadership that would not threaten liberty. The Framers then, concerned with individual liberties purposefully did not grant a presidential power of privilege in Article II of the Constitution. According to them, secrecy fosters official lying, and consequently, public policy must be based on complete openness in governmental deliberations. They believed that openness was constitutionally necessary and that it protects citizens against lost leaders who scheme to prevent the American public learning the truth. I admit that we are concerned with more than just protecting liberty and democratic accountability. I believe that open government will also ensure a number of policy changes that they desire, such as decreased defense budgets and less U.S. intervention in international affairs.
For our purpose, the major concerns about executive privilege are the rights of citizens and governmental accountability. Nearly five decades ago, James Wiggins[i] wrote that each added measure of secrecy measurable diminishes our freedom. During the Watergate period, investigative reporter Clark Mollenhoff testified before Congress that executive privilege would eventually destroy all our freedom. It is unfortunate that shortsighted people outside of government have occasionally given a degree of support to this so-called time honored doctrine and this phony well-established precedent of executive privilege.
A classically, slippery slope argument characterizes many of the critics of executive privilege: allow any measure of withholding of information, and ultimately all our liberties will be undertermined and democratic accountably destroyed. This argument is countered by the views of other analysts who believe that current limitations on secrecy policies are not in the public interest. Should we criticize the argument of former representative Lee Hamilton (D-Ind.) that secretly arrived at policies are inferior to ones arrived at in full public view? I counter that it is all wonderfully high-minded and unexceptionable, it is also unworkable. These abstract principles are in conflict with a world where secrecy makes its own demands. If secrets of various sorts cannot be kept, good policy and good relations are impossible. Contrary to the argument of the critics of executive privilege, I maintain that our political culture is overly suspicious of secrecy; this is in stark contrast to Great Britain, where the Official Secrets Act of libel laws render the British government and media far more close-mouthed than ours.
I find the differences between the U.S and British secrecy policies telling. For example, under U.S. law, it is a felony to lie to Congress, whereas in Great Britain, there is no penalty or deceiving Parliament. Instead, punishment is meted out to those who dare expose the deception. In Great Britain, unauthorized disclosure of official information is a crime, whereas in the United States, as much official information as possible is made public or is at least guaranteed to be available through the Freedom of Information Act. Clearly, no one has discovered exactly how to balance the competing and valid claims of freedom of information and governmental secrecy. As an informed populace we should ask, how much does a congressional committee need to know without exposing sensitive and necessary operations?
[i] Rozell, Mark J. 1994. Executive Privilege: The Dilemma of Secrecy and Democratic Accountability
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