- Current Issue
SIGN IN to access Harper’s Magazine
Need to create a login? Want to change your email address or password? Forgot your password?
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
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?
Number of free condoms handed out by the Brazilian government in advance of Carnival this year:
The best way to measure happiness is simply to ask people how happy they are.
Following three weeks of clashes between protesters and government forces that killed at least 17 people, Venezuelan president Nicolás Maduro announced a two-day extension of Carnival. “Happiness will conquer the embittered,” he said during an appearance at a recreation center.
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“American politics has often been an arena for angry minds.”