Friday Roundup: Executive Power Edition

March 23, 2007

The White House told reporters yesterday that Congress has neither the right nor the power to conduct oversight of the Executive Branch.

Dahlia Lithwick criticizes the John Yoo theory of Executive power:

Yoo's argument rests largely on more of this same "greater-power-includes-the-lesser-power" analysis. As he explains to his interviewer, "Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them." He goes on to say, "I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. . . ."

The real trick, as Jack Balkin of Yale Law School points out, is convincing your listener that the same rules and norms that govern the "greater" category also govern the "lesser." You need to convince them that if the state is allowed, for instance, to execute criminals, any laws regarding cruel and unusual treatment simply go away. In the case of the U.S. attorney firings, that would mean insisting that the same rules and norms that govern presidential authority over U.S. attorney appointments govern everything to do with the Justice Department's oversight of individual (partisan, political) criminal investigations and prosecutions. You would similarly need to insist that the rules that govern the president's power to kill someone during wartime also govern his authority to torture a suspect during an undeclared war on terror. Professor Dave Glazier makes this point very clearly at the blog Balkinization.

So, can you claim that the laws of war somehow vaporize the laws governing everything else that may be incident to war? Yoo does seem to contend just that. His argument appears to be that executive power in wartime vaporizes the laws governing virtually everything else. And if that's truly your starting point, I suppose all the other constraints imposed by those other "lesser" laws—from being required to obtain a FISA warrant to having to give a lawyer and a court date to Americans picked up in Chicago—would evaporate as well.

A recipient of a National Security Letter describes life under a gag order:

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

Former White House Counsel Beth Nolan argues that Executive Privilege does not allow the White House to dictate the terms of Congressional oversight:

We don't know exactly what happened, but enough questions have been raised by the e-mails that have been disclosed and officials' changing stories to establish that Congress -- and the American people -- are entitled to know more. When Congress has already received information and testimony that raises serious questions about possible wrongdoing, the White House counsel's offer -- a closed-door session that may not be recorded, even by a transcript, and on the condition that Congress has only one bite at the apple, no matter what it may subsequently learn -- is simply inadequate. Executive privilege is an important and essential constitutional principle, but it is not the only important principle at issue here.

UPDATE: Aziz Huq argues that the caselaw does not support the view of Executive Privilege advanced by the White House:

In fact, presidents' power to keep information from Congress is more uncertain than the President's supporters claim. There are few definitive judicial opinions on the matter. And, for the most part, courts have bent over backward to avoid any definite solution to the conflict. In the most recent high-profile case, the challenge to the Vice President's secretive "energy taskforce" (remember when that was the most scandalous thing about this Administration ?!), the Supreme Court expressly declined the Government's invitation to dismiss out of hand the effort to cast sunlight on the task force. Certainly, the Court showed great deference to the Administration, but there was no suggestion that courts have no role in determining the balance of secrecy--or that the say-so of the President or a close colleague is sufficient to end the story.

But the judicial opinions that do exist are fairly clear on a couple of points.

First, presidents can invoke a presumption that some documents can be kept secret, and this presumption is especially strong in case involving advice being given to the President. This is the principle the President relied on in his speech this week.

Second, even when these documents involve communications from the president himself (or perhaps one day, herself), this privilege dissipates when the need on the other side of the ledger is sufficiently great. And there is no requirement of an absolute privilege short of allegations of criminality. (To the contrary, the Supreme Court in 2004 eschewed such an absolute rule in favor of the executive branch, explicitly declining to dismiss a civil suit against Cheney for information).