No Comment — June 9, 2009, 11:20 am

Counterfeiting Washington

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.

Share
Single Page

More from Scott Horton:

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

No Comment March 28, 2014, 12:32 pm

Scott Horton Debates John Rizzo on Democracy Now!

On CIA secrecy, torture, and war-making powers

Get access to 164 years of
Harper’s for only $39.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2014

The End of Retirement

= Subscribers only.
Sign in here.
Subscribe here.

The Octopus and Its Grandchildren

= Subscribers only.
Sign in here.
Subscribe here.

Francis and the Nuns

= Subscribers only.
Sign in here.
Subscribe here.

Return of the Strongman

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The End of Retirement·

= Subscribers only.
Sign in here.
Subscribe here.

“For those riding the economy’s outermost edge, adaptation may now mean giving up what full-time RV dwellers call ‘stick houses’ to hit the road and seek work.”
Photograph (detail) © Max Whittaker
Post
The Many Faces of Boko·

= Subscribers only.
Sign in here.
Subscribe here.

“People want education. Open a school and they will rush.”
Photograph © The author
Article
The Octopus and Its Grandchildren·

= Subscribers only.
Sign in here.
Subscribe here.

On Stanford University’s origins and vision
“The pervasive fantasy that Silicon Valley doesn’t need the government obscures the role of that government in funding much of the research that built it.”
Photograph © Sallie Dean Shatz
Post
God Lives on Lemon Street·

= Subscribers only.
Sign in here.
Subscribe here.

“Bethel was Oz-like for me. I mean that with all the awe, utter hopefulness, and mythic fear with which Dorothy and her friends had approached that magical city.”
Photograph (detail) ©© Clemens v. Vogelson (Flickr)
Article
Francis and the Nuns·

= Subscribers only.
Sign in here.
Subscribe here.

“A year and a half into his papacy, Pope Francis is looking an awful lot like his predecessors.”
Photograph (detail) © Dan Kitwood / Getty Images

Average number of sitcom laughs an American hears during a prime-time season:

12,000

Czech and German deer still do not cross the Iron Curtain.

British economists correlated the happiness of a country’s population with its genetic resemblance to Danes.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

In Praise of Idleness

By

I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today