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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:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Flor Arely Sánchez had been in bed with a fever and pains throughout her body for three days when a July thunderstorm broke over the mountainside. She got nervous when bolts of light flashed in the sky. Lightning strikes the San Julián region of western El Salvador several times a year, and her neighbors fear storms more than they fear the march of diseases — first dengue, then chikungunya, now Zika. Flor worried about a lot of things, since she was pregnant.
Late in the afternoon, when the pains had somewhat eased, Flor thought she might go to a dammed-up bit of the river near her house to bathe. She is thirty-five and has lived in the same place all her life, where wrinkled hills are planted with corn, beans, and fruit trees. She took a towel and soap and walked out into the rain. Halfway to the river, the pains returned and overcame her. The next thing Flor remembers, she was in a room she didn’t recognize, unable to move. As she soon discovered, she was in a hospital, her ankle cuffed to the bed, and she was being investigated for abortion.
Average amount of time a child spends in Santa Claus’s lap at Macy’s (in seconds):
Beer does not cause beer bellies.
Following the arrest of at least 10 clowns in Kentucky and Alabama, Tennesseans were warned that clowns could be “predators” and Pennsylvanians were advised not to interact with what one police chief described as “knuckleheads with clown-like clothes on.”
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”