EXECUTIVE PRIVILEGE: A LEGISLATIVE REMEDY Emily Berman Brennan Center for Justice at New York University School of Law ABOUT THE BRENNAN CENTER FOR JUSTICE The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. Our work ranges from voting rights to redistricting reform, from access to the courts to presidential power in the fight against terrorism. A singular institution – part think tank, part public interest law firm, part advocacy group – the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector. About THE BRENNAN CENTER’S LibertY AND National SECURITY Project The Brennan Center initiated its Liberty and National Security Project as part of its Justice Program to foster better public understanding of the importance of accountability, transparency, and checks and balances in the formulation and implementation of national security policy. We have since been at the forefront of advocating for sound, rights-respecting policy based on broad public education, legislative advocacy, litigation, and scholarly activity. © 2009. This paper is covered by the Creative Commons “Attribution-No Derivs-NonCommer- cial” license (see http://creativecommons.org). It may be reproduced in its entirety as long as the Brennan Center for Justice is credited, a link to the Center’s web page is provided, and no change is imposed. The paper may not be reproduced in part or altered in form, or if a fee is changed, without the Center’s permission. Please let the Brennan Center for Justice know if you reprint. About THE Author Emily Berman is Counsel and Katz Fellow in the Liberty and National Security Project at the Brennan Center for Justice. She works through litigation, advocacy, and scholarship to promote rights-protecting and effective oversight of United States national security policy. Before joining the Brennan Center, Ms. Berman was at New York University School of Law pursuing her LL.M. in International Law. She clerked for Judge John M. Walker of the Second Circuit Court of Appeals and graduated magna cum laude from New York University School of Law (2005). ACKnoWLEDGMENTS The author would like to thank Maggie Barron, Liza Goitein, Susan Lehman, Sidney Rosdeitcher, and Michael Waldman of the Brennan Center for their invaluable comments and assistance. Aziz Huq, Eric Lane, Fritz Schwarz, and David Udell deserve special thanks for their extensive contributions. Thanks also go to Ellen Fisher and Chris Stanley for their research assistance. The author also benefited greatly from conversations with Stan Brand, Bruce Fein, Lou Fisher, Rick Kaplan, Irv Nathan, and Patricia Wald. The Brennan Center thanks the Atlantic Philanthropies, the Herb Block Foundation, the John Merck Fund, Newman’s Own Foundation, Open Society Institute, Wachtell, Lipton, Rosen & Katz, and Wallace Global Fund for the generous support that made this paper possible. The statements made and the views expressed in this paper are solely the responsibility of the Brennan Center. Table of Contents Executive Summary 1 Introduction: The Trouble with “Executive Privilege” 7 I. Executive Privilege: The Status Quo and its Flaws 12 A. Congress’s Right To Information 13 B. The Executive’s Interest in Confidentiality 14 C. Problems with the Current System for Resolving Executive Privilege Disputes 16 1. Lack of Clear Standards Leads to Overreliance on Political Factors 17 2. Congress’s Inability to Overcome the Executive’s Monopoly on Information Creates Bias in Favor of Under-disclosure 18 3. The Branches’ Differing Understandings of the Scope of Executive Privilege Creates Conflict 21 4. Lack of Clear Guidelines and Effective Checks Encourage the Executive’s Tendency to Expand Secrecy 23 II. Addressing Executive Privilege’s Shortcomings 25 A. An Executive Privilege Statute is Constitutional 26 B. The Proposed Executive Privilege Codification Act Would Substantially Improve Executive Privilege Dispute Resolution 27 C. The Proposed Statute – Provision-by-Provision 30 Conclusion 52 Appendix: Text of the Executive Privilege Codification Act 53 EXECUTIVE SUMMARY Modern history tells a story of steadily ascendant executive power. By the turn of the 21st Century, the federal government’s bureaucracy had swelled to assume responsibility for generating and implementing policies in areas ranging from the environment to national security and beyond. 9/11 merely accelerated this growth. An executive branch espousing a monarchical vision of executive power; a citizenry passive because of its fear of international terror; and a Congress sometimes reluctant to assume responsibility, sometimes intentionally sidelined by the Executive; all these combined to concentrate yet more power in the executive branch. As the Executive gains power, Congress’s ability to obtain information about how that power is exercised becomes both more difficult and more important. Critically important information about federal policy is housed almost exclusively within the executive branch, and executive officials have little incentive to disclose it. Moreover, during the last eight years the executive branch increasingly relied on a “need to know” paradigm, attempting to ensure that information would be closely guarded and sparingly distributed. Even if all executive policies were harmless, excessive secrecy still would be imprudent—more widely vetted policies will be wiser policies, and effective democratic accountability requires transparency. But history demonstrates that executive actions are not reliably benign.1 When presidents are permitted to implement policies that have not been subject to scrutiny, the results have included justifying abusive interrogation and detention policies through flawed legal analysis; manipulating prosecutorial decision-making for partisan ends; engaging in unlawful conspiracies to influence the outcome of elections; unlawfully funding foreign paramilitary groups; and conducting unlawful surveillance of Americans. The tendency among government officials to withhold information does not necessarily stem from nefarious motives. In fact, it is entirely natural and predictable. Secrecy represents power—power to act according to one’s own preferences, and power to avoid accountability. It is no surprise then when those entrusted with such power attempt to maximize its reach. The result is the routinely acknowledged, systemic over-classification and under-disclosure of information within our executive branch. While this penchant for secrecy is unsurprising, combating it is nevertheless important because of the risks of harm it creates. The trend toward increased executive power and concomitant secrecy has thrown our constitutional balance of power out of kilter. The Framers crafted the Constitution’s checks and balances to limit each branch’s powers, to act as “a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other,”2 and thereby to prevent “tyrannical” policies.3 This self-checking function—and, more fundamentally, the constitutional health of our democracy—depends on transparency. When secrecy thwarts the efforts of the people and their elected representatives to obtain information, it undermines Congress’s core functions, its ability to enact legislation and exercise oversight. Congress cannot craft legislation absent information Brennan Center for Justice | 1 about the problems it aims to ameliorate; nor can it act to check the use of executive power absent knowledge of how that power is exercised. One of the most important tools in the secrecy repertoire is “executive privilege”—the President’s authority to claim the right to withhold information sought by Congress. Executive privilege may be asserted in many contexts. This report focuses, however, on one context: disputes over Congress’s efforts to access information from the Executive. Reform of executive privilege in this context would constitute an important step toward addressing the Executive’s existing culture of secrecy. Executive privilege is one area where the recent expansion of secrecy can—and should—be rolled back to restore our constitutional balance and to prevent the harms that can result when that balance is misaligned. the existing regime of executive privilege is flawed Functioning properly, executive privilege creates a tightly drawn zone of confidentiality around the President to ensure that advisors provide him with candid advice while simultaneously allowing Congress access to the information it needs to engage in its core constitutional functions of policy-making and oversight. But executive privilege can also serve to promote secrecy that is damaging to effective democratic government. When President Bush invoked executive privilege to stop former White House Counsel Harriet Miers and former aide Karl Rove from testifying to Congress about politicization of the Justice Department—when he refused even to allow them to turn up at Congress’s hearings or even to identify the documents that White House Chief of Staff Joshua Bolten refused to supply (let alone explain why they were privileged4)—he frustrated Congress’s ability to inquire into—and, if necessary, to legislate to put a stop to—the perversion of the law in our key legal institutions.5 Supreme Court precedent teaches that the key question in disputes over claims of executive privilege—both