Since the beginning of the republic, U.S. presidents have used some form of secrecy in the course of governing. In the wake of the Watergate scandal, congressional hearings in the 1970s and the disclosure of covert U.S. programs of assassination and destabilization overseas temporarily reduced the scope of secret activities sponsored by the executive branch. From the 1980s on, however, presidents have come to rely increasingly on secrecy-related practices. Though the U.S. Constitution does not explicitly grant executive secrecy in the list of Article II powers, presidents have increased their powers through legislation, the federal courts’ recognition of legal defenses to conceal information, and responses to the ongoing threat of terrorism.
The George W. Bush administration has shown an even greater commitment to secrecy than its predecessors. Having made secrecy its watchword, this administration relies on the arsenal of useful techniques already available even as it seeks to expand their scope and number. Moreover, secrecy practices are not limited to the domestic policy realm; they extend into foreign policy as well. In fact, the claim to using them is sometimes made even more strongly in the foreign policy context.
The Bush administration’s encroachment on the foreign policy responsibilities of Congress has further limited the checks-and-balances that prevent the secret misuse of power. Indeed, secrecy and expanding executive power have gone hand in hand. But the imperial presidency’s use of secrecy to push a particular foreign policy agenda can be reversed if Congress and the federal courts are willing to act. Court decisions and congressional oversight—through funding, investigative, and legislative action—would apply an overdue brake on excessive presidential secrecy.
Tools of Secrecy
Secrecy enables power, and this is particularly true of the activities of the executive branch. The executive is far freer to act if its actions never come to light. Formal and informal constraints by the coordinate branches and the public cannot be exercised against actions taken in secret. On foreign policy, presidents have used this increasingly unchecked power of secrecy over the years to facilitate the gathering of intelligence, to protect that information, and, more recently, to fight terrorism.
Since 1978, for instance, presidents have had available to them a legalized procedure for conducting surveillance of suspected foreign agents. The Foreign Intelligence Surveillance Act (FISA), passed that year, sets requirements for obtaining permission to conduct intelligence-gathering surveillance. While this law checked executive power by obligating the executive to follow strict procedures in wiretapping activities, the legality of presidentially-ordered wiretaps prior to 1978 was, in fact, questionable. Thus, FISA made the practice clearly legal for the first time, effectively throwing a cloak of statutory protection around any wiretapping the executive wishes to conduct. Moreover, FISA requests are virtually never denied, so that the executive can be confident, in making a request, that surveillance will be authorized.
The state secrets privilege is another means by which the executive can shield its activities from public or governmental view. Established by the Supreme Court in 1953 in U.S. v. Reynolds, it has been used to protect information related to national security. When a party in litigation or in a congressional investigation seeks the release of such information, the executive can invoke the state secrets privilege and effectively end the case. Normally, no one gets to review the allegedly secret materials when this privilege is invoked—not the court, and not the litigant requesting the information.
The laws and policies enacted post-9/11 to fight terror, such as the PATRIOT Act, the Homeland Security Act, and the order creating military commissions to try suspected terrorists, also provide the executive with greater secrecy capabilities. Whether or not these laws are in fact the best way to approach the threat of terror attacks, they certainly increase executive power and restrict civil liberties. These measures shield immigration hearings from public view, expand access to private records, and authorize secret searches and secret detentions.
One of the most striking examples of these anti-terror practices is the interpretation and use of the “material witness statute,” an earlier law that allowed detention of witnesses in criminal cases. To ensure the availability of a key witness to testify in an ongoing criminal case, the government could sometimes detain that person until the date of her trial testimony. Controversial from the beginning, the law signaled a departure from established criminal procedure, since normally, confinement is only permitted when a defendant faces trial or receives a sentence upon conviction. According to the statute, however, witnesses could be confined for the sole purpose of ensuring their testimony.
These earlier objections seem minor, though, when compared to the concerns provoked by the expanded use of “material witness” detention by the Bush administration. In 2001, then Attorney General John Ashcroft warned that “aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting, and delaying of new attacks.” In that vein, he began using material witness detention far more broadly to detain, secretly, individuals who might have information that could be used in future, yet-to-be-filed criminal cases. Thus, material witness detention grew from an occasional practice of confinement in pending cases to a potentially unlimited means to accomplish extrajudicial detentions. Even more ominously, as Laurie Levenson argues, “material witness” became “a temporary moniker to identify an individual who will soon bear the status of defendant.”1
Accusations of the “extraordinary rendition” of alleged terror suspects to torturers abroad, the Bush administration’s admission that it uses secret detention facilities around the world as part of its “war on terror,” and the controversy over treatment of detainees in Guantanamo Bay and Iraqi prisons have all intensified debate over secrecy practices related to detention. Taken together, all of the practices described above—intelligence surveillance, state secrets protective claims, anti-terror laws, and others—equip the executive with a vast, almost unreviewable power to operate in numerous areas of policymaking and execution.
Foreign Policy Context
In some instances, domestic policies regarding law enforcement and internal security matters have a foreign policy component. The round up of foreign nationals for questioning and the rendition of non-U.S. citizens to home countries or third-party nations, for example, display a foreign policy aspect even though they originate domestically with the actions of internal governmental agencies such as Immigration and Customs Enforcement. Thus, they can be viewed both as foreign policy and domestic policy as a result of the undeniable overlap of these policy domains.
Often however, the administration has treated these matters as foreign policy. This distinction is significant because some proponents of executive power claim that foreign policy is essentially off-limits to the other branches. Supreme Court Justice Clarence Thomas, for example, has said repeatedly that the Court lacks the expertise, as well as the legal authority, to evaluate presidential foreign policy decisions, even when those decisions involve the application of constitutional civil liberties standards.
The Bush administration’s extension of secrecy to foreign policy matters has many troubling dimensions. The controversy over the 9/11 terror attacks has generated numerous lawsuits, including the ones brought by victims’ families against the Saudi government for alleged Saudi complicity in the 9/11 terrorists’ plans. In Burnett v. Al Baraka Investment Corp., the United States asserted that information sought by the plaintiffs to prove their case—evidence of U.S. foreknowledge of the 9/11 attacks—was national security-related and therefore protected from disclosure by the state secrets privilege.
Similarly, in Arar v. Ashcroft, the government asserted the state secrets privilege in response to a suit by Maher Arar, a Canadian citizen who alleges he was seized by U.S. officials at Kennedy Airport as he passed through the United States en route to Jordan. He relates that he was flown to Syria, where he spent a year in confinement, suffering ongoing torture. Arar sued the U.S. government under the Torture Victim Protection Act, but his suit was dismissed. The U.S. District Court in New York suggested that the matter involved U.S.-Canadian coordination in the war on terror, and that if those activities were brought to light, the executive might be impeded in its diplomatic efforts with Canada. Once again, legal claims by a private individual ran up against the government’s assertion of a secrecy interest based in national security.
There is a role for secrecy in foreign affairs. However, existing legal doctrines, and presidential actions based on them, have created a dangerously expanded executive power that uses secrecy to shield itself from oversight. Congress has authorized some of these practices by passing the PATRIOT Act and other legislation. The federal courts, including the Supreme Court, have often refused to scrutinize executive actions that implicate foreign policy or national security. But what theory of presidential power would justify such deference by the other branches?
Unlimited Presidential Power?
Not surprisingly, the Bush administration has sought to provide a foundation in constitutional law for its expansive, secrecy-related approach to foreign policy. Administration lawyer John Yoo drafted a memo in 2001 asserting vast war-making powers in the executive. And in 2006 Attorney General Gonzales spoke of inherent constitutional authority as authority for the warrantless eavesdropping that became public that year.
The eminent constitutional scholar Louis Fisher groups these arguments under the heading of the “sole organ” doctrine, which he attributes to a misreading of earlier statements in court and legislative records. In fact, as Fisher shows, there is no real authority for the claim of inherent, unreviewable foreign policy power in the executive. Earlier commentators emphasized the distinction between making and executing foreign policy—and noted that the president may do only the latter, while the former is the province of Congress. Legal rules originating in court decisions are passed down through subsequent decisions, and they derive their force from both verdicts in successive cases and the validity of their original enactment by the courts adopting them for the first time. Fisher shows that neither of these sources of authority is available to proponents of the “sole organ” doctrine. The original pronouncement was not, as some have argued, an endorsement of unlimited presidential power in foreign relations, nor have subsequent courts adopted such a view. The Curtiss-Wright case from the 1930s contains some language in dicta indicating that Justice Sutherland held the view that presidential power in foreign policy was immune from oversight. But as dicta—the judge’s editorializing—those comments are not part of the ruling in the case. Thus, the “sole organ” doctrine is not part of our constitutional jurisprudence concerning presidential power.
Congressional legislation in a particular policy domain also limits presidential power, regardless of whether the subject matter of the legislation is foreign or domestic affairs. In the historic “steel seizure case,” President Truman seized privately-owned steel mills to aid the war effort in Korea. In the resulting litigation, the Supreme Court announced a three-part test for adjudicating conflicts between congressional and presidential power. Where Congress has authorized presidential action, executive power is strongest, and where Congress is silent on presidential action, the executive has a moderate claim. However, where Congress explicitly claims power to act for itself, executive power is at its “lowest ebb.” Significantly in several currently controversial areas, congressional action expressly limits presidential power. In the foreign intelligence context, and with regard to the prohibition of torture as well, Congress has spoken, and therefore the scope of executive action is diminished. Thus, the established judicial test first announced in the Youngstown case exerts a separate limitation on the foreign policy powers of the executive.
Restoring Rule of Law
Given the concentration and abuse of power made possible in part by the administration’s use of secrecy, now is not the time to adopt an expansive conception of presidential power. The administration urged that expansive view during the National Security Agency (NSA) eavesdropping controversy, which became public knowledge three years after the eavesdropping actually started. When Congress and the public wanted to know why the president bypassed the FISA statute (designed precisely to regulate presidentially-ordered surveillance) in the course of its eavesdropping, the administration responded that it did not need to consult Congress or follow FISA in the matter.
The proffered defenses of secrecy converge with arguments for executive supremacy in foreign policymaking, and these two types of claims are mutually reinforcing. Supremacy facilitates secrecy, and secrecy facilitates supremacy. Nonetheless, there are strong reasons not to acquiesce. The practice of constitutional interpretation supports neither the “sole organ” doctrine nor the vast presidential secrecy practiced by the Bush administration. They both threaten the balance of powers when they are employed.
Already-existing checks and balances can be used to reverse the trend of growing secrecy and its dangerous implications for foreign policy. Most of the powers described above are statutory: they were given by congressional act, and they can be withdrawn the same way. Congress re-authorized the PATRIOT Act last spring, but they could act just as easily to pass legislation restraining executive secrecy. The federal courts could also overturn statutory provisions by invoking the Constitution through the process of judicial review. Interestingly, the Bush administration’s frequent use of the state secrets privilege has given courts more exposure to the doctrine, and consequently a more developed state secrets jurisprudence is emerging, especially in the wake of 9/11. The doctrine was court-created to begin with, and as courts perform their institutional role of resolving disputes, there is an opportunity to make it less one-sidedly favorable to the executive. The question, of course, is whether the courts and Congress will see the danger and find the will to act.