The Worth of War (28 page)

In
United States v. Nixon
the court, for the first time, explicitly recognized executive privilege as a valid presidential claim to be balanced against competing claims. The court indicated that where important issues were at stake, especially foreign policy questions as well as military and state secrets, presidential claims of privilege should be given great deference by the courts. Finding no such issues in the case at hand, though, the court ruled against Nixon. In a subsequent case,
Nixon v. Administrator of General Services
, the Court held that the former president's records were not privileged communications and could be transferred to the General Services Administration.
⁵⁷
Once again, though, the court recognized the existence of executive privilege and said it could be used to protect the president's communications, “in performance of [his] responsibilities…and made in the process of shaping policy and making decisions.” Thus, in both
Nixon
cases, precedents were established for claims of privilege, and in subsequent years the federal courts have upheld several such claims made by the president and other executive branch officials acting at the president's behest. For example, in
United States v. American Telephone & Telegraph
, in response to a presidential claim of privilege, the district court enjoined AT&T from providing a congressional subcommittee with the contents of a number of wiretaps conducted by the FBI.
⁵⁸
Similarly, in
United States v. House of Representatives
, the district court refused to compel EPA Administrator Anne Gorsuch to hand over what she claimed were privilege documents to a House subcommittee.
⁵⁹

In their more recent decisions, federal courts have continued to rule in favor of executive privilege in national security cases and others as well.
⁶⁰
Both presidential deliberations and those of presidential advisers and their staffs have been held to be privileged.
⁶¹
In a recent case, the vice president claimed privilege. This is the case of
United States v.
District Court of the District of Columbia
.
⁶²
In this case, a coalition of public interest groups, including Judicial Watch and the Sierra Club, sought to obtain the records of an energy task force led by Vice President Dick Cheney in 2001. The public interest groups brought the suit after a similar suit brought by the director of the General Accounting Office (GAO) was dismissed for want of standing. The Cheney energy task force had been formed to make recommendations to the administration regarding federal energy policy. The public interest coalition charged that the task force gave inordinate influence to energy producers at the expense of consumer and environmental interests. A federal district court ordered Cheney to turn over his records. In a 7–2 opinion, however, the Supreme Court ruled that the vice president was entitled to the protection of executive privilege in order “to protect the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.”

In 2001, President Bush also invoked executive privilege to delay the release of presidential records from the Reagan administration to the Reagan presidential library. Bush issued an executive order declaring that executive privilege covered records that reflect, “military, diplomatic, or national security secrets; communications of the president or his advisors,” and other matters. Similar privileges were asserted for the vice president.
⁶³
As we will see below, President Obama has also found reason to invoke executive privilege.

Delay and Obfuscation

Though hundreds of thousands of pieces of information are classified every year, this represents only a tiny fraction of the information developed by federal agencies. The fact, however, that most information is not classified does not mean that it is made available to the public or even to the Congress. Most secrets are easily kept by federal agencies because they are hidden in an ocean of information, and no outsider even knows of their presence. Occasionally, however, a whistle blower, a clever reporter, or sheer accident will offer a glimpse of the existence
of knowledge the agency would prefer to hide. If this happens, agencies will almost invariably seek to avoid fuller disclosure of information that does not present their actions in the most positive light. Agencies will vigorously resist efforts by the media or the Congress to pry loose their secrets, which sometimes turn out to include fraud, waste, abuse, illegal conduct, and poorly conceived plans. Whistle blowers, nominally protected by law, are almost certain to face agency retaliation to serve as a warning to others.
⁶⁴
There are many recent example of agency efforts to hide embarrassing secrets.

In 2009, for example, agency whistle blowers revealed that the Arizona field office of the US Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) had managed a poorly conceived “sting” operation code named “Fast and Furious,” which allowed licensed firearms dealers in the United States to sell weapons to illegal buyers. The ATF apparently planned to trace the weapons back to Mexican drug cartel leaders. Unfortunately, most of the 2,000 weapons involved in the case were not recovered, though several were linked to subsequent crimes and murders, including the killing of a US Border Patrol Agent. In response to the revelations, ATF executives refused to provide documents pertaining to the operation and, instead, sought to retaliate against the agents who revealed its existence. Similarly, in 2013, the Environmental Protection Agency (EPA) granted one gasoline refinery (out of hundreds in the nation) an exception to the rule requiring a certain amount of ethanol to be blended into gasoline. This exception is worth millions to the refinery and, after it was noted by a
Wall Street Journal
reporter, the agency refused to explain why it had been granted. Some in Congress and the media suggested that perhaps some political motivation had been involved. Also in 2013, when conservative groups voiced suspicions that they had been subjected to extra scrutiny by the Internal Revenue Service (IRS), the agency refused to provide relevant documents.

Two of the main tools that can be used to force government agencies to make documents public are the congressional subpoena power and a public request under the Freedom of Information Act (FOIA).
As to the first of these tools, congressional committees have the power to order federal officials to produce desired documents. An official who refuses may be cited for contempt of Congress, which may, in principle, result in a prison term. In recent years, a number of officials have been held in contempt for refusing to provide Congress with information. During the Bush administration, the president's counsel, Harriet Miers, and chief of staff, Joshua Bolten, were cited for contempt when they refused to comply with congressional subpoenas for documents. During the Nixon administration, Interior Secretary James Watt, Energy Secretary James Edwards, and EPA officials Anne Gorsuch and Rita Lavelle were held in contempt for refusing to turn over documents. In all these cases, the named officials eventually agreed to comply with the subpoenas.

President Obama's Attorney General, Eric Holder, was cited for contempt of Congress in 2012 for failing to comply with a congressional subpoena for documents related to the ATF's Fast and Furious operation. Though Holder eventually submitted some 7,000 pages of documents, he refuse to turn over another 1,300 pages demanded by Congress, and President Obama invoked executive privilege to shield these documents. Representative Darrell Issa (R-CA), chairman of the House Oversight and Government Reform Committee, contended that the Justice Department was hiding some 140,000 additional pages of documents. Since Fast and Furious had been launched under the Bush administration, it is unclear why President Obama's Justice Department is making such a determined effort to keep pertinent documents from Congress. The House of Representatives has asked the federal courts to enforce its subpoena, and the matter is currently being litigated.

Generally speaking, efforts by congressional committees to secure information from executive do not reach the point of confrontation produced by the Fast and Furious case. Typically, agencies go through the motions of cooperating with Congress while delaying, providing only limited responses to congressional demands, and hiding facts that would enable Congress to focus on, or even learn of the existence
of, the most pertinent pieces of information. As one critic noted, an agency may provide tens of thousands of pieces of information, assert that it has complied with congressional demands and fail to find other pieces of information or, in the event that Congress learns of their existence, take the position that these were not covered by the subpoena.
⁶⁵

Similar problems can blunt the impact of a second tool of governmental transparency, FOIA.

FOIA was enacted in 1966 and represented a potentially important mechanism for reducing agency discretion to withhold records from the public. With the advent of FOIA, agencies could no longer arbitrarily declare that a release of documents would not be in the public interest, as had been their typical practice. FOIA requires that all federal agencies must make their records available to any person upon request within twenty days, unless the documents fall within one or more of nine exemptions, which include classified documents, trade secrets, sensitive law enforcement records, and personal or medical records. If a requested document contains some information that falls under one of the exemptions, FOIA requires that the non-exempt portions of the record must still be released with an indication of the location of the deleted portion of the document. Requestors who believe that their FOIA requests have been improperly denied may ask a federal court to order the relevant agency to comply.

Since its enactment, FOIA has allowed individuals, news agencies, and public interest groups some limited measure of access to government documents and has provided many examples of government mismanagement. In 2012, for example, several US Secret Service agents were interrupted by Columbian police when they were engaged in an altercation with prostitutes. The agents were assigned to protect President Obama during an international conference. Secret Service executives described the incident as an isolated case, but FOIA requests filed by news agencies compelled the Secret Service to produce documents that appeared to show a long-standing pattern of problematic behavior on the part of its agents. This included sexual assaults, involvement with prostitutes, improper use of weapons, and public intoxication.
⁶⁶

Federal agencies, however, have learned to undercut FOIA in a variety of ways. To begin with, FOIA requires that only documents that qualify as “agency records” can be requested. Agencies tend to construe the term “records” narrowly and take the position that records of meetings that took place somewhere other than agency property are not agency records, that emails sent via officials' personal email accounts are not agency records, and that records maintained by non-agency personnel are not agency records. Agencies, moreover, may delay responding to requests, delete much of the requested information, provide information in dribs and drabs necessitating multiple FOIA requests, assert that the requested information does not exist or cannot be found and so forth. FOIA also exempts those records that are “ necessarily withheld to encourage the deliberative process.” In other words, records of deliberations leading to a final decision do not have to be produced in response to a FOIA request. Agencies are inclined to classify their most important records as “deliberative” and to refuse access to them.

During the Bush administration, Attorney General John Ashcroft advised agencies to “carefully consider” possible exemptions before releasing documents in response to a FOIA request. The attorney general promised that the Justice Department would defend the withholding of documents unless there was no legal basis for so doing. Reporters found that agency responses to FOIA requests were slow and incomplete and judicial review of agency decisions unhelpful.
⁶⁷

After taking office in 2009, President Obama promised a more transparent government. In an experiment, however,
Bloomberg News
recently sent rather mundane FOIA requests to fifty-seven federal agencies. The requests asked for a list of trips taken by agency heads and a breakdown of their travel expenses. Twenty-seven agencies ignored the requests altogether, and only eight complied within the twenty-day period specified by the FOIA statute.
⁶⁸
Reporters or individuals seeking more sensitive information than travel schedules typically find that turning the FOIA spigot will produce a few droplets from the vast and ever-growing federal sea of information.

Information and Popular Government

Without information, popular government is an impossibility. Citizens would have little choice but to believe what they were told and the unfortunate fact of the matter is that politicians and public officials tend to be practiced liars, viewing what is useful or convenient as far more important than the truth. “I have previously stated and I repeat now that the United States plans no military intervention in Cuba,” said President John F. Kennedy in 1961 as he planned military action in Cuba. “As president, it is my duty to the American people to report that renewed hostile actions against United States ships on the high seas in the Gulf of Tonkin have today required me to order the military forces of the United States to take action in reply,” said President Lyndon Johnson in 1964 as he fabricated an incident to justify expansion of American involvement in Vietnam. “We did not, I repeat, did not—trade weapons or anything else [to Iran] for hostages, nor will we.” said President Ronald Reagan in November, 1986, four months before admitting that US arms had been traded to Iran in exchange for Americans being held hostage there. “Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction,” said Vice President Dick Cheney in 2002. When it turned out that these weapons did not exist, Assistant Defense Secretary Paul Wolfowitz explained, “For bureaucratic reasons, we settled on one issue, weapons of mass destruction (as justification for invading Iraq) because it was the one reason everyone could agree on.” After leaks showed that his 2013 congressional testimony denying the existence of NSA's surveillance program was false, Director of National Intelligence James Clapper declared, “I responded in what I thought was the most truthful or least untruthful manner by saying, ‘No.'”