Reclaiming Accountability

Transparency, Executive Power, and the U.S. Constitution

Heidi Kitrosser

• Publisher: University of Chicago Press
• Year: 2015
• Print ISBN:
  9780226565675
  9780226191638
• eBook ISBN:
  9780226191775
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Americans tend to believe in government that is transparent and accountable. Those who govern us work for us, and therefore they must also answer to us. But how do we reconcile calls for greater accountability with the competing need for secrecy, especially in matters of national security? Those two imperatives are usually taken to be antithetical, but Heidi Kitrosser argues convincingly that this is not the case—and that our concern ought to lie not with secrecy, but with the sort of unchecked secrecy that can result from "presidentialism," or constitutional arguments for broad executive control of information.
           
In Reclaiming Accountability, Kitrosser traces presidentialism from its start as part of a decades-old legal movement through its appearance during the Bush and Obama administrations, demonstrating its effects on secrecy throughout. Taking readers through the key presidentialist arguments—including "supremacy" and "unitary executive theory"—she explains how these arguments misread the Constitution in a way that is profoundly at odds with democratic principles. Kitrosser's own reading offers a powerful corrective, showing how the Constitution provides myriad tools, including the power of Congress and the courts to enforce checks on presidential power, through which we could reclaim government accountability.

CHAPTER ONE

The Constitutional Law of Government Secrecy

Transparency and Accountability

Americans long have treated government accountability as a birthright. This spirit is manifest in calls by today’s Tea Partiers to “take our country back” and in earlier cries to the same effect by opponents of the George W. Bush administration. It is embodied in Senator Howard Baker’s repeated demand throughout the Watergate hearings that Nixon administration officials reveal what the president knew and when he knew it. It is present when federal courts “review the legality of the President’s official conduct” or “direct appropriate process to the President himself.”1 And it sounds throughout writings from the founding era, both in Anti-Federalist warnings that the new Constitution created a monarchy and in Federalist responses that the president had only narrow powers and would be overseen by the people and their representatives.

But like any old and dearly held ideal, accountability frequently is tossed about in a rhetorically effective but substantively empty way. The philosopher John Stuart Mill once observed that “however true [an opinion] may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth.”2 And so it is with invocations of accountability. We Americans frequently say that those in government “work for us” and must “answer to us,” but too often we fail to grapple with the conditions that must be in place before we can meaningfully assess what our government is up to and can hold it accountable for the same.

This is perhaps truest with respect to matters of secrecy and transparency in government. Accountability, at bottom, demands that one actor have the ability “to demand an explanation or justification of another actor for its actions and to reward or punish that second actor on the basis of its performance or its explanation.”3 To have this ability, the first actor must be able to access information necessary to assess the second actor. More so, the first actor must be able meaningfully to respond to this information, whether at the ballot box, in the courts, by taking steps to make the information available more widely, or otherwise. Yet while Americans routinely voice support for transparency and accountability in the abstract, we too often tolerate, even embrace, secrecy with few questions asked when secret keepers utter the words “national security” or invoke principles of executive discretion.

To be sure, secrecy in government is neither categorically unjustified nor intrinsically antithetical to accountability. The government plainly needs to keep some information secret. And there are ways to reconcile secrecy with accountability. This book’s concern is not secrecy per se, but rather, unchecked secrecy. Secrecy is unchecked, for instance, where the executive branch keeps the very fact of a program’s existence from the other branches and the people. It also is unchecked where no other actors—whether the judiciary, members of Congress, or members of the public or press—can access information about a program beyond what the executive branch chooses to tell them. Insufficient checking breeds unnecessary, even counterproductive, secrecy. It also is deeply antithetical to accountability.

Secrecy and Executive Power

Excessive secrecy is partly a product of the executive branch’s very nature. This is not to suggest that secrecy is never abused by Congress or the courts. It is, and such abuses merit attention in their own rights. But the problem is most severe and most intransigent in the executive branch. Unlike Congress, which acts predominantly through publicly recorded legislation and through partly public oversight, and the judiciary, which wields power mainly through the force of written public opinions, the executive branch’s major tasks are not intrinsically transparent. The executive’s most basic job, after all, is to execute the laws passed by Congress. While the Constitution prescribes a legislative process that is fairly open and dialogic, it does not and feasibly could not lay out detailed processes by which infinite pieces of legislation are to be executed. Absent congressionally mandated procedures to foster transparency in law execution, laws can be implemented largely in the dark. Furthermore, as the government’s “doer” branch, the executive has unique access to its human and technological resources. Unlike Congress, which can draft legislation but lacks the tools to implement it, and the judiciary, which announces but lacks the means to execute legal rulings, the president is uniquely equipped for self-propelled action. Such actions—whether unauthorized or even barred by statutes—can take place in secret because interbranch assistance is not required.4

The executive’s innate advantages, both generally and for secret keeping, are dramatically compounded by the rise of what Arthur Schlesinger Jr. famously called “the imperial presidency.” As Schlesinger and others have explained, multiple cultural, historical, and technological phenomena have expanded the power of the executive branch relative to countervailing forces. Among other things, the human and technological resources at the executive’s disposal have increased exponentially.5 The executive not only has more capacity to instigate activities unilaterally than ever before, but it has more resources at its disposal to keep those activities secret. Not least among these resources is an enormous classification system, one that did not exist outside of the military until 1951.6

In speaking of the imperial presidency and the presidency generally, it is important to understand that these terms encompass much more than the president himself. They effectively include all actors within the vast and sprawling U.S. bureaucracy who can claim to act for the president. These individuals range from White House staffers in close contact with the president, to personnel throughout the Executive Office of the President, to employees deep within the bureaucracy who take orders from political appointees who answer ultimately to the president, to the millions of persons with some form of authority to classify information based on presidential classification orders.7 The very reach of “the presidency” exacerbates its imperialism, including its expansive capacity to keep secrets. Indeed, power exercised in the president’s name can, paradoxically, obscure the very fact of personal knowledge or involvement by the president. Consider the controversy involving the removal of U.S. attorneys during the administration of George W. Bush. Though U.S. attorneys by statute serve at the president’s pleasure, the removal and replacement of several of them in the middle of President Bush’s second term caused no end of mystery as to who made what decisions and why, prompting one columnist to joke that “magical pixies” had done the job.8 Similarly, much of the Iran-Contra controversy during the Reagan administration involved Congress’s efforts to determine who did what when and on what authority, and whether the president knew what was going on. Indeed, John Poindexter, national security advisor to President Reagan, claimed that he limited what he told the president so as to give him “future deniability.”9

How Constitutional Arguments Advance Government Secrecy

Increasingly, constitutional arguments are among the forces that foster executive secrecy, justifying and staving off checks on the same. For example, both the Obama and George W. Bush administrations have repeatedly invoked the “state secrets” doctrine to urge courts to dismiss lawsuits alleging illegal government activities. When Congress considered legislation in 2008 to limit the state secrets privilege, the Bush administration deemed it an unconstitutional interference with the president’s discretion to keep secrets. While the Obama administration declined to comment on the state secrets legislation when it was reintroduced in 2009, it has claimed a constitutional prerogative to disregard statutory transparency directives in other contexts. Both the Obama and Bush administrations claimed such a prerogative with respect to statutes requiring them to notify the congressional intelligence committees of certain programs. Furthermore, while resisting inquiries into alleged executive branch wrongdoing, both administrations have aggressively pursued those who leaked information about such activities. Each has suggested that leakers warrant little if any protection under the First Amendment in light of the president’s broad constitutional discretion to protect national security. Outside of the national security realm, presidents of both parties repeatedly have argued that the president has a constitutional prerogative to prevent executive branch employees from testifying to Congress without White House preclearance or from disseminating information to the public without such prior review.10

This book refers to constitutional arguments against checking the president’s capacities, including secret-keeping capacities, as “presidentialist” arguments. Such arguments can undermine accountability by facilitating largely unchecked information control. The term “information control” denotes both government secrecy and government efforts to manipulate the information that the public sees or that select groups (for example, congressional committees) receive. Constitutionalizing information control tends to stunt accountability both directly and at a meta-level. The latter occurs when presidentialism undermines meaningful debate about law, policy, and case-by-case decisions regarding government secrecy. The invocation or even potential invocation of presidentialist arguments too often shuts down, rather than stimulates, debate over the arguments’ merits or the costs and benefits of secrecy in a given case. This stunting effect is reflected in public discourse and in congressional and judicial behavior. The effect is attributable partly to the nature of presidentialist secrecy arguments. Citing the president’s unique structural capacities and political visibility, presidentialists demand full or near-complete presidential discretion to determine when and if secrecy is warranted in a given case. Thus, presidentialism lends itself to tautologies to the effect that secrecy is necessary because the president says so, and that interbranch checks on the president’s judgment at best are ineffectual (because only the president has the expertise and can safely access all information necessary to make the judgment) and at worst dangerous (because the other branches might make poor decisions given their lack of expertise or might leak the information that the president says must remain secret).

Of course, the other branches, the public, and the media could push back against such tautologies, and they do so at times. Yet presidentialist secrecy arguments often short-circuit, rather than generate, discussion among these actors. In public discourse, the stunting effect is attributable partly to a perception on the part of the public and the press of their relative ignorance. Hence, they may accept even specious constitutional assertions as debating trump cards.

Apart from sheepishness by nonexperts to challenge executive assertions on constitutional law, the executive branch has powerful means to shape public and interbranch perceptions of its own power’s legal scope. For one thing, the executive branch has a formidable legal infrastructure in the Department of Justice, particularly its Office of Legal Counsel (OLC). As the office that advises the president on the legality of his actions, the OLC is enormously influential. Because many executive power issues never reach the courts, or do so only long after the president has acted, the OLC’s legal opinions often are determinative.11 And while the OLC need not always act with a pro-executive bent, its position within the executive branch and presidential appointment of its head and of the attorney general (AG) incline it in that direction structurally.12 The OLC and the Department of Justice advance the cause of presidentialism in important ways. First, the attorney general—or other executive branch officers, speaking under the AG’s direction or that of the OLC—at times has reached out to the public directly to advocate presidentialism.13 Second, the OLC’s opinions constitute a body of in-depth legal analysis, structurally tilted toward the executive, without any real peer in Congress or the judiciary. Administrations can point to OLC opinions to argue that their own assertions of power are not new or that they follow naturally from precedent.14 Third, since at least the Reagan administration—when the West Publishing Company began, at the administration’s request, to include presidential signing statements in legislative histories—signing statements, too, have been treated by administrations as vehicles for presidentialist precedent.15

Furthermore, members of Congress often bow with little debate to actual or potential presidentialist arguments against disclosing information. There are at least three reasons for this phenomenon. First, it often is not in the political interests of individual congresspersons to be fully informed as to what is going on in the executive branch. Where the choice is between knowing enough to be held responsible should things go awry versus retaining ignorance and preserving the flexibility to align with or distance one’s self from presidential actions as events develop, ignorance can be bliss. This is particularly, though not exclusively, true in the realm of national security. From this perspective, presidentialist arguments for secrecy are a godsend, enabling congresspersons to claim that they would like to know more but that their hands are tied by the Constitution.16 Second, founding assurances that Congress will demand information from the president as a means to oversee and check him were grounded in the assumption that the interests of individual congresspersons would be aligned with that of their respective institutions, the House of Representatives and the Senate. Hence, while the president might fight to keep secrets, members of Congress would surely fight back to protect their institutions’ oversight functions.17 What the founders did not anticipate, however, was the rise of partisan politics and presidents as party leaders in the United States. Congresspersons who share a party affiliation with the president frequently vote to defend the interests of “their” president and party rather than the constitutional prerogatives of their institutions.18 Third, the mere possibility that the White House will make a presidentialist secrecy claim can deter congresspersons from demanding information in the first place. While information disputes between the White House and Congress rarely result in judicial review, they can delay inquiries so dramatically as to make information requests futile. For instance, the chair of the House Government Reform Committee noted his reluctance to subpoena the Bush administration for documents related to Hurricane Katrina, explaining that a subpoena “would be tied up in court by the administration until the Committee’s writ had expired.”19

Federal courts, too, can be quite willing to forgo direct factual or legal analyses of presidentialist secrecy claims in the name of deferring to the constitutional prerogatives of the executive. In 2004, for example, the U.S. Supreme Court held that Vice President Richard Cheney could evade a broad discovery order without formally raising an executive privilege claim, as requiring him to invoke the privilege with particularity would itself unduly burden executive power.20 And in the realm of national security, it is increasingly common for courts to dismiss entire cases on the basis of executive branch assertions that litigation would reveal important state secrets, without the courts examining the evidence to assess the accuracy of the executive’s claims. Such cases, too, are underscored by an implicit and sometimes explicit notion that the president alone has the constitutional prerogative to determine what information is too dangerous to reveal.21

Despite the relative independence of federal courts from politics, courts’ frequent willingness to defer to claims of executive prerogative without serious inquiry can be traced to at least three factors. First, federal judges are appointed by the president and confirmed by the Senate. To the extent that a president deems it a priority to maintain or broaden the scope of his powers, he can take this into account in selecting a nominee.22 And as presidentialist views increasingly enter the legal and political mainstream and prove consistent with the political incentives of many in Congress, such views may positively help, and at minimum not hurt, nominees in attaining Senate confirmation. Second, federal judges are not immune to the lure of what Schlesinger called the “presidential mystique.” The mystique is a cultural feature of the imperial presidency. It amounts to a belief that the president alone has the knowledge, expertise, resources, and other tools to discern what is best for the nation.23 From this perspective, it is pointless at best and damaging at worst to require presidents or other high-level officials to explain in detail, even in camera to a judge, why secrecy is required. While the mystique has particular purchase in the realm of national security, the scope of that realm and its porous boundaries make the reach of the mystique long indeed.24 Third, courts have strong institutional incentives to avoid decisions that could undermine their legitimacy either by straying far beyond the bounds of public opinion or by risking the executive branch’s refusal to cooperate. There thus is an institutional basis for judicial attraction to constitutional doctrines that foreclose serious probing of executive branch secrecy claims. The strength of that attraction correlates with the degree to which presidentialist secrecy arguments are considered legitimate in mainstream legal and political circles.

As the discussion thus far reflects, there is a cyclical relationship between presidential imperialism and presidentialist argument. Most fundamentally, presidents and their partisans long have sought, unsurprisingly, to push to the limits the capacities intrinsic in the preside...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• chapter 1. The Constitutional Law of Government Secrecy
• chapter 2. The Tools and Politics of Constitutional Meaning
• chapter 3. Substantive Accountability and External Checking
• chapter 4. Supremacy Explained and Critiqued
• chapter 5. How Supremacy Undermines Substantive Accountability
• chapter 6. Presidential Supremacy in the Courts
• chapter 7. Substantive Accountability and Internal Checking
• chapter 8. How Unitary Executive Theory Undermines Substantive Accountability
• chapter 9. Where Do We Go from Here?
• Notes
• Index