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The current flap over CIA torture briefings serves to highlight a long-standing dispute between the Executive and Congress over access to classified or sensitive information. As Congressional leaders have repeatedly noted, they received briefings under ground rules committing them (potentially in violation of the debate clause of the Constitution) not to divulge the information they learned—not even to their own staff or to other members of Congress. This bargain is struck on the basis of claims by the Executive that it is entitled to withhold sensitive information from Congress. For instance, in an appearance before Congress just a week ago, Rajesh De, representing the Obama Justice Department in connection with new whistleblower protection legislation, insisted that the president had exclusive control over national security information and that Congress had no power to qualify or interfere with that control. How did Mr. De justify that proposition?
Presidents dating back to President Washington have maintained, the Executive Branch must be able to exercise control over national security information where necessary.
He cited a Clinton-era memorandum that made this argument. But the Justice Department is distorting history with these contentions. In a Library of Congress study, Louis Fisher vindicates the legacy of George Washington against the Justice Department counterfeiters. In 1792, Congress called on President Washington to provide documents concerning some military reversals suffered by General St. Clair. It is true that Washington got legal advice that “the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public.” But Washington himself concluded that it would be inappropriate to withhold any documents; he released them all to Congress.
The question also figured in two more Congressional requests directed to Washington, the first in 1790 relating to a private bill to pay Baron von Steuben the pension and benefits he had been promised during the war, and the second in 1793 concerning the war record of Alexander Hamilton. In both cases Congress’s requests for documents appear to have been satisfied. Further instances involved the ratification and funding of the Treaty of Algiers from 1793 (the first round of the skirmish with a group of Islamic fundamentalists known to history as the Barbary Pirates), some sensitive diplomatic correspondence with France, and the highly contentious ratification process surrounding the Jay Treaty in 1796. In the last case, Washington did decline to share some documents with the House of Representatives—on the grounds that the Senate alone had responsibility for ratification. The precedents of the Washington era suggest a much greater willingness to share national security information with Congress than has characterized more recent presidents. The president repeatedly cautioned Congress about the sensitivity of the information and asked that it not be divulged publicly, but Washington did not assert the right to withhold it from Congress when reasonable requests were made for information that was relevant to the performance of Congressional duties. On this point as on so many others, our Constitutional history has been one of the steady accretion of presidential power at the expense of the other branches—a process in which a claim of monopoly over certain kinds of information (particularly concerning national security) has played a prime role.
More from Scott Horton:
No Comment — November 4, 2013, 5:17 pm
An expert panel concludes that the Pentagon and the CIA ordered physicians to violate the Hippocratic Oath
No Comment — August 12, 2013, 7:55 am
How will the Obama Administration handle Edward Snowden’s case in the long term?
No Comment — July 29, 2013, 11:36 am
Is it possible to simply disband the partisan FISA court?
Fleming awoke in the dark and his room felt loose, sloshing so badly he gripped the bed. From his window there was nothing but a hallway, and if he craned his neck, a blown lightbulb swung into view. The room pitched up and down and for a moment he thought he might be sick. The word “hallway” must have a nautical name. Why didn’t they supply a glossary for this cruise? Probably they had, in the welcome packet he’d failed to read. A glossary. A history of the boat, which would be referred to as a ship. Sunny biographies of the captain and crew, who had always dreamed of this life. Lobotomized histories of the islands they’d visit. Who else had sailed this way. Famous suckwads from the past, slicing through this very water on wooden longships.
A welcome packet, the literary genre most likely to succeed in the new millennium. Why not read about a community you don’t belong to, that doesn’t actually exist, a captain and crew who are, in reality, if that isn’t too much of a downer on your vacation, as indifferent to one another as any set of co-employees at an office or bank? Read doctored personal statements from underpaid crew members — because ocean life pays better than money! — who hate their lives but have been forced to buy into the mythology of working on a boat, separated now from loved ones and friends, growing lonelier by the second, even while they wait on you and follow your every order.
Rank of Detroit among major U.S. cities whose residents give the largest portion of their income to charity:
A South Dakota researcher concluded that only scant blood spatter results when chain saws are used to dismember pigs.
Four people were arrested for using a remote-controlled hexacopter to fly two pounds of tobacco to prisoners inside the yard at Calhoun State Prison in Georgia.
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Our congratulations to Alice Munro, winner of the 2013 Nobel Prize for Literature