The 'full access doctrine': Congress's constitutional entitlement to national security information from the executive.

AuthorDivoll, Vicki
  1. CONGRESS MUST HAVE BROAD ACCESS TO INFORMATION FROM THE EXECUTIVE II. CONGRESSIONAL ACCESS TO CERTAIN TYPES OF INTELLIGENCE A. Complete Access to the "Analytic Products" of the Intelligence Agencies B. Intelligence Committees: Broad Access to "Operational Information" C. Operational Information Constituting Core Intelligence Matters to which Congress Must Have Full Access III. PRESIDENTIAL DENIALS OF INTELLIGENCE INFORMATION: WITHOUT CONSTITUTIONAL BASIS A. Executive Privilege B. "Unitary Executive" Theory: An Independent Constitutional Basis to Withhold? 1. The "Removal Power" Theory 2. An Even More Expansive Theory 3. The Bush White House Goes Even Further IV. THE INADEQUACY OF ASSERTIONS OF COMITY AND SECRECY A. The Failure of President Obama's Assertion of a History of Comity B. Current Rules Protecting Secrecy are Adequate V. THE WEAKNESS OF EXISTING STATUTES GOVERNING CONGRESSIONAL ACCESS TO INTELLIGENCE A. Full Access Critical for the Exercise of Constitutional Duties B. Greater Access for the Intelligence Committees and Less Discretion for the President C. The Weakness of the Current Regime Governing Notification of Covert Action Programs VI. GUIDING PRINCIPLES FOR REFORM: THE CONSTITUTIONAL PRINCIPLE OF "FULL ACCESS". CONCLUSION INTRODUCTION

    Students of U.S. government are taught that there has been a decades-long trend of American presidents successfully claiming more and broader powers for the executive branch, particularly when faced with threats from abroad. (1) Since World War II, we have lived through years of war and years of presidential assertions that only they can truly keep us safe. Proponents of expansive executive power have made these arguments more aggressively since September 11, 2001, claiming that the Framers gave the President vast plenary powers to protect the nation, some of which were inchoate and only fully revealed themselves after the 9/11 attacks. (2) Perhaps skeptical of its own ability to protect the American people in times of danger, and paralyzed by the political optic of seeming to object to the use of "strength against our enemies," Congress has acquiesced in the area of national security even if, as has often been the case, it has meant compromising its own core Article I powers. (3)

    Is it true that the Framers strongly favored executive power, and expected Congress to yield its own expressed and implied powers whenever our country is faced with a dangerous world? In a charming quip in Federalist No. 69, (4) Alexander Hamilton, the leading proponent among the Framers of a strong executive, reassured his readers that the President would not have overly broad power, and scoffed at the notion that his "unitariness" would serve to enhance that power:

    [T]he executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York. (5) And James Madison, in Federalist No. 48, observed that each branch should jealously guard its own authority:

    After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be is the great problem to be solved. (6) Nevertheless, a debate about the Framers' intent regarding the proper balance of power among the branches has become little more than an amusing academic parlor game, for the shift in power from the second half of the twentieth century until today is easily observable, and shows no signs of abating. (7) This shift has never been sanctioned in law, however. The Supreme Court has not expressly approved the drift of power to the executive, and, when given the opportunity, has sometimes rejected it. (8) Although the President and Congress must initially make judgments about the constitutionality of their own powers, in our republic the Court has the final word on the proper balance between the branches. (9)

    If courts, humble about their own limitations under Article III, are rarely in a position to mediate between the President and Congress, (10) the two squabbling branches should, as a practical matter, heed Madison's warning and protect their own constitutional authorities. Presidents have been good at protecting their branch's prerogatives, but Congress has not. Congress's occasional attempts to do so have often been ineffective. (11) As political realists, the Framers would not be surprised by the grabs for power made by many of our presidents. (12) But they likely would be disappointed that there has not been an equal and opposite reaction by Congress. To paraphrase James Madison in Federalist No. 51: Ambition has not been countered with ambition, or at least not very well. (13)

    The purpose of this Article is to examine the failure of Congress to defend or even assert its expressed and implied powers under the Constitution against executives determined to expand their own authority. More specifically, this Article examines the willingness, perhaps even the misguided and irresponsible desire, of Congress to demand only a portion of the information from the executive branch relating to the intelligence policies and activities of the U.S. government, or to limit access to such a degree as to render the information useless for its intended purpose. That purpose is to acquire information without which Congress cannot perform its Article I duties, and to which it is entitled under the Constitution.

    I argue that, under the Constitution, Congress is entitled to seek and receive any information from the executive branch that it needs to carry out its core responsibilities to make laws, appropriate funds, and investigate all matters relating to the intelligence functions of our government. Furthermore, the congressional power and obligation to obtain information, although strong in all areas where it is needed to support lawmaking, is at its zenith in the areas of intelligence policies and the activities of the President and the agencies of the intelligence community. The executive, quite simply, has no legitimate basis under our system of separation of powers upon which to refuse to provide any and all information requested by Congress on these matters. (14) The only constitutionally valid restraint or limitation on legislative access are the laws and rules Congress itself puts in place, not the fears, whims, or political calculations of the President seeking to withhold information. And yet, Congress has enacted laws or made informal deals that have let the President run the show.

    A word is necessary at the outset regarding the protection of secrets that are, without question, critical to our national security. This Article addresses the importance of secret-keeping, and recognizes that processes are, and must continue to be, in place to prevent leaks. But in their zeal to keep secrets, Presidents have favored the trustworthiness of executive officials over our elected members of Congress. In doing so, they have, first, ignored empirical evidence that most leaks have come from the executive branch; second, disregarded the constitutional principles of the Full Access Doctrine; and, finally, cut off the American people from their ability to have a full voice, through their representatives in Congress, in the clandestine activities of the United States government.

  2. CONGRESS MUST HAVE BROAD ACCESS TO INFORMATION FROM THE EXECUTIVE

    The courts have recognized repeatedly that in order to perform its basic constitutional responsibilities, Congress can and must acquire information from the President and the departments and agencies of the executive branch. (15) The structure of checks and balances rests on the principle that Congress has a right to know everything (16) that the executive is doing, including all of its policy choices and all of its successes and failures in the implementation of those policies. (17) The Supreme Court has more than once stated the obvious by explaining that Article I presupposes Congress's access to information so that it can responsibly exercise its obligations to make laws requiring or limiting executive conduct, to fund the programs supporting the executive policies of which it approves, to deny funds to those policies of which it disapproves, and to pursue investigations of executive behaviors that raise concerns. (18) Without knowledge of the policy choices and activities of the executive branch, which is often unavailable unless provided by the executive, Congress cannot perform those duties the Framers envisioned, or at least not well. One may safely assume that the Framers did not expect mediocrity from Congress, our most democratic branch, nor did they create a recipe for congressional failure.

    Often, the courts have enunciated these principles in situations in which Congress, exercising its investigative function, is met with refusals by the executive to provide information or witnesses. (19) The backdrop of most, if not all, of these cases is that the executive is seeking to withhold information from a congressional investigation out of concern that the information will be made public. That is, in fact, often Congress's intent, and rightly so, because exposing executive branch failures to the American people is an important part of Congress's job. (20) Significantly, however, the access to information at issue here concerns only information that Congress has already pledged to keep secret. (21) Thus, to the extent that there is any sympathy with the President reflected in the courts' opinions that national security information should not be...

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