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:

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

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

Get access to 164 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

May 2015

Black Hat, White Hat

= Subscribers only.
Sign in here.
Subscribe here.

Beyond the Broken Window

= Subscribers only.
Sign in here.
Subscribe here.

In Search of a Stolen Fiddle

= Subscribers only.
Sign in here.
Subscribe here.

Displaced in the D.R.

= Subscribers only.
Sign in here.
Subscribe here.

The Quietest Place in the Universe

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
“Don sucked the last of his drink through his straw and licked his lips. 'The coast, to me, is more interesting than the valley.'”
Photograph by the author
Article
Fred Morton, who died this week in Vienna, at the age of 90, was a longtime contributor to Harper's Magazine and a good friend. "Othello's Son," which was listed as a Notable Essay in Best American Essays 2013, appeared in our September 2013 issue.
Photograph © Alex Gotfryd/CORBIS
Article
Beyond the Broken Window·

= Subscribers only.
Sign in here.
Subscribe here.

“By the time Bratton left the department, in 2009, Los Angeles had quietly become the most spied-on city in America.”
Illustration by Taylor Callery
Article
Displaced in the D.R.·

= Subscribers only.
Sign in here.
Subscribe here.

“How is it possible that my birth certificate is invalid if I was born here?”
Photograph by Pierre Michel Jean
Article
The Quietest Place in the Universe·

= Subscribers only.
Sign in here.
Subscribe here.

“Gaitskell and his colleagues are approaching the revelation of a new order, a new universe, in which even light will be known differently, and darkness as well.”
Painting by Sebastiaan Bremer

Number of African countries with vaccination rates higher than that of the United States:

16

Iowa urologists reported that only a minor portion of locker-room teasing arises from “the presence of excess foreskin”; most teasing targets small penises.

A farmer in Surrey, England, was ordered by the Reigate and Banstead Borough Council to tear down his cannon-equipped castle, which he had built secretly and then concealed behind hay bales.

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

HARPER’S FINEST

Subways Are for Sleeping

By

“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today