Secrecy and Separated Powers: Executive Privilege Revisited

• Author: Heidi Kitrosser
• Position: Associate Professor, University of Minnesota Law School
• Pages: 491-543

Associate Professor, University of Minnesota Law School. I am very grateful for insightful comments on early ideas and drafts from: Ricardo Bascuas, Mike Cahill, Guy Charles, Jim Chen, Jenny Diamond Cheng, David Dana, Steven Dean, Mark Fenster, David Fischer, Dan Gifford, Joel Goldstein, Jill Hasday, Kristen Hickman, Claire Kelly, Lyrissa Lidsky, Jason Mazzone, Brett McDonnell, Mike Paulsen, Jeff Rachlinsky, Dana Brakman Reiser, David Reiss, Neil Richards, Daria Roithmayr, Adam Samaha, Michael Simons, Larry Solum, David Stras, Kevin Washburn, and Peter Weidenbeck. Very helpful comments also were provided in workshops at the University of Minnesota and at the Jurisgenesis Conference hosted by Washington University in St. Louis. Many thanks also to Steven Aftergood for an enlightening telephone conversation on government secrecy. Summer research support was provided by Brooklyn Law School and the University of Minnesota Law School.

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I was struck dumb with astonishment at the sentiments . . . [t]hat the executive alone shall have the right of judging what shall be kept secret, and what shall be made public, and that the representatives of a free people, are incompetent to determine on the interests of those who delegated them.

- Benjamin Franklin¹

Bureaucracy naturally welcomes a poorly informed and hence a powerless parliament-at least in so far as ignorance somehow agrees with the bureaucracy's interests.

- Max Weber²

Introduction

The Bush administration has inspired renewed interest in the topic of executive branch secrecy, with many claiming that this is "the most secretive administration in our history."³ If the degree of secrecy in the Bush administration is unprecedented, the very tendency toward executive secrecy is nothing new. As Arthur Schlesinger, Jr. has written, a "religion of secrecy" has been ascendant in the American Presidency since roughly World War II, serving as an "all-purpose means by which the American Presidency [may] dissemble its purposes, bury its mistakes, manipulate its citizens, and maximize its power."⁴

Executive secrecy manifests itself in a staggeringly large (and growing) system of information classification⁵ and in case-by-case refusals to disclose information sought by others. While case-by-case refusals often occur informally, they are most visible and most notorious when they take the form of executive privilege claims. A claim of executive privilege is generally aPage 492 claim by the President of a constitutional right to withhold information from Congress, the courts, or persons or agencies empowered by Congress to seek information.⁶ Executive privilege is not mentioned in the text of the Constitution,⁷ nor is it statutorily authorized, although some commentators call for statutory recognition of the doctrine.⁸ Rather, executive privilege claims are based on the notion that some information requests effectively infringe on the President's Article II powers, threatening his ability to receive candid advice or to protect national security.⁹ Recent controversies involving executive privilege include Vice President Cheney's refusal to turn over documents relating to energy policy development that were sought by public interest groups under a public disclosure statute¹⁰ and a number of tussles between the White House and investigators, both congressional and commission-based, regarding September 11 and Iraq-related information requests.¹¹

This Article assesses the constitutional validity of executive privilege, focusing solely on executive privilege disputes between Congress and the President or other high-ranking executive branch officers. This Article defines such conflicts broadly to include clashes over information sought directly by Congress (or by a committee or subcommittee thereof), clashes over information sought by individuals through congressionally drawn public access statutes, and clashes over information sought by congressionally created agencies.

The time is ripe to revisit the constitutional validity of executive privilege. Reassessing executive privilege has significance both for the doctrine itself and for executive branch secrecy more generally-including the nearly complete discretion accorded the executive branch to classify information¹²-as the justifications for the two overlap substantially.¹³

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Furthermore, the impact of White House secrecy on current events highlights the systemic significance of information control both between the political branches and between those branches and the people.

This Article concludes that there is no such thing as a constitutionally based executive privilege, and courts-in the face of executive privilege claims-should order compliance with any statutorily authorized demands for executive branch information. This conclusion is reached in two steps. First, perusal of Article I's list of legislative powers and Article II's list of presidential powers does not clearly resolve the question of executive privilege's constitutional legitimacy. To the contrary, such perusal alone offers fair ground to deem control of executive branch information both within Congress's "sweeping clause" power and within the President's power to execute the law and to perform other Article II tasks. Absent further analysis, then, one might be tempted to conclude that the judiciary and some scholars have matters well in hand insofar as they champion a balancing test that weighs congressional interests in openness against presidential interests in secrecy. Alternatively, one might side with those who deem the matter a political question, unfit for resolution by the courts.

Yet analysis of the matter ought not to end there. To the contrary, this Article argues that there is an additional analytical step, one unrecognized to date in the doctrine and scholarship that categorically resolves executive privilege clashes in favor of statutorily authorized access demands. This second step involves gleaning from a broader analysis of the Constitution the insight that information has special constitutional significance, and that it thus is unlike any other tool of power. Specifically, such analysis suggests that secrecy in government sometimes is a necessary evil, but secrecy within the political branches must, to be legitimate, remain a politically controllable tool of the people. To keep government secrecy within the ultimate control of the people, and hence non-tyrannical, secrecy must be subject to policies formulated through processes that themselves are visible and dialogic. Policies so formulated are conclusive over executive privilege claims for two closely related reasons. First, the process of creating such policies entails the type of public, dialogic protections that the Constitution generally demands for regulatory measures. Second, given the unique dangers of secrecy to a democratic system as reflected throughout the Constitution, any openness directives generated through such careful and protective processes must be realistically enforceable.

A useful conceptual hook for understanding these points is a concept developed largely in the political science literature: that of shallow and deep secrecy. Shallow secrecy is secrecy, the very existence of which is known, even while the secrets' contents remain unknown. Deep secrecy is secrecy,Page 494 the fact of which itself is a secret.¹⁴ A rough way to state the points made in the preceding paragraph is that the Constitution demands that secrets generated by the political branches be shallow and, to make the shallowness meaningful, politically checkable. Such shallowness and political checkability should manifest itself in two respects. First, political branch secrets should be subordinate to any access requirements themselves formulated through an open, dialogic process. Hence, secrets should be shallow and politically checkable in the broad...