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[Senate Hearing 105-729]
[From the U.S. Government Printing Office]
S. Hrg. 105-729
DISCLOSURE OF CLASSIFIED
INFORMATION TO CONGRESS
=======================================================================
HEARINGS
before the
SELECT COMMITTEE ON INTELLIGENCE
of the
UNITED STATES SENATE
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
on
DISCLOSURE OF CLASSIFIED
INFORMATION TO CONGRESS
__________
Wednesday, February 4, 1998
Wednesday, February 11, 1998
__________
Printed for the use of the Select Committee on Intelligence
------------
U.S. GOVERNMENT PRINTING OFFICE
51-671 cc WASHINGTON : 1998
SELECT COMMITTEE ON INTELLIGENCE
RICHARD C. SHELBY, Alabama, Chairman
J. ROBERT KERREY, Nebraska, Vice Chairman
JOHN H. CHAFEE, Rhode Island JOHN GLENN, Ohio
RICHARD G. LUGAR, Indiana RICHARD H. BRYAN, Nevada
MIKE DeWINE, Ohio BOB GRAHAM, Florida
JON KYL, Arizona JOHN F. KERRY, Massachusetts
JAMES M. INHOFE, Oklahoma MAX BAUCUS, Montana
ORRIN G. HATCH, Utah CHARLES S. ROBB, Virginia
PAT ROBERTS, Kansas FRANK R. LAUTENBERG, New Jersey
WAYNE ALLARD, Colorado CARL LEVIN, Michigan
DAN COATS, Indiana
TRENT LOTT, Mississippi, Ex Officio
THOMAS A. DASCHLE, South Dakota, Ex Officio
------
Taylor W. Lawrence, Staff Director
Christopher C. Straub, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
C O N T E N T S
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Page
Hearing held in Washington, DC:
Wednesday, February 4, 1998.................................. 1
Statement of:
Fisher, Dr. Louis, Ph.D., Senior Specialist (Separation of
Powers), Congressional Research Service.................... 5
Levin, Hon. Carl, a U.S. Senator from the State of Michigan.. 5
Raven-Hansen, Professor Peter, Glen Earl Weston Research
Professor of Law, The George Washington University Law
School..................................................... 16
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas... 3
Shelby, Hon. Richard C., a U.S. Senator from the State of
Alabama.................................................... 1
Testimony of:
Fisher, Dr. Louis, Ph.D., Senior Specialist (Separation of
Powers), Congressional Research Service.................... 13
Raven-Hansen, Professor Peter, Glen Earl Weston Research
Professor of Law, The George Washington University Law
School..................................................... 30
Supplemental materials, letters, articles, etc.:
Letter and Analysis of the issues, dated October 22, 1998,
submitted by Professor Peter Raven-Hansen and Professor
William C. Banks........................................... 20
Hearing held in Washington, DC:
Wednesday, February 11, 1998................................. 39
Statement of:
Fisher, Dr. Louis, Ph.D., Senior Specialist (Separation of
Powers), Congressional Research Service.................... 45
Kerrey, Hon. J. Robert, a U.S. Senator from the State of
Nebraska................................................... 39
Moss, Randolph D., Deputy Assistant Attorney General, Office
of Legal Counsel, Department of Justice.................... 41
Testimony of:
Fisher, Dr. Louis, Ph.D., Senior Specialist (Separation of
Powers), Congressional Research Service.................... 45
Moss, Randolph D., Deputy Assistant Attorney General, Office
of Legal Counsel, Department of Justice.................... 46
DISCLOSURE OF CLASSIFIED INFORMATION TO CONGRESS
----------
WEDNESDAY, FEBRUARY 4, 1998
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Select Committee met, pursuant to notice, at 10:05
a.m., in Room SH-216, Hart Senate Office Building, the
Honorable Richard Shelby, Chairman of the Committee, presiding.
Present: Senators Shelby, Roberts, and Kerrey of Nebraska.
Also Present: Taylor Lawrence, Staff Director; Chris
Straub, Minority Staff Director; Dan Gallington, General
Counsel; and Kathleen McGhee, Chief Clerk.
Chairman Shelby. The Committee will come to order.
The Committee meets today to examine an issue that goes to
the very core of our mission, namely vigilant oversight of the
intelligence activities and programs of the United States
Government.
We are the people's representatives in ensuring that such
activities are in conformity with the Constitution and the laws
of the United States.
The issue before us is whether the Congress and the
President share constitutional authority over the regulation of
classified information.
As one might expect, the Administration has asserted that
the President has ultimate and unimpeded authority over the
collection, retention and dissemination of national security
information. We disagree.
While the Constitution grants the President, as Commander-
in-Chief, the authority to regulate classified information,
this grant of authority is by no means exclusive.
In fact, the Congress has legislated extensively in this
area.
For example, many specific provisions of the National
Security Act of 1947, amended most recently in 1994, require
that our Committee receive and review classified information as
part of our oversight duties. Certainly, classified information
pertaining to fraud, mismanagement, or misconduct within the
Intelligence Community is in this category.
Last year we wrote a new chapter in this legislative
history by reporting an Authorization Bill that included a key
provision. Section 306 directed the President to inform
Executive branch employees that they may disclose information,
including classified information, to Congress that is relevant
to fraud, mismanagement, or misconduct, within the Executive
branch.
The Senate passed the bill with an almost unanimous vote of
98 to one.
Shortly after passage, the Administration expressed their
opposition to Section 306 stating that it was
``unconstitutional'' and that ``senior advisers would recommend
that the President veto the bill.''
The House version of the bill did not include such a
provision and many Members of the House Permanent Select
Committee on Intelligence expressed concern over the
constitutional implications of Section 306.
The Chairman of the House Intelligence Committee requested,
on behalf of his Members, to have an opportunity to more
closely examine this issue.
And in deference to our colleagues in the House, we agreed
in Conference to amend Section 306 to reflect the sense of
Congress that both branches of government have ``equal
standing'' in the handling of national security information and
we did not impose a statutory requirement on the President.
The Conference Committee agreed, however, that each
Committee would hold hearings on this issue and pursue a more
definitive legislative remedy in this session of the 105th
Congress.
An assertion of exclusive authority by the President to
control classified information that may evidence misconduct
within his Administration is not only counter intuitive, it
contradicts nearly two hundred years of legislative and
judicial precedent.
Our primary purpose in pursuing this legislation is to
ensure that this Committee retains its ability to rigorously
oversee the intelligence activities of the United States
Government on behalf of the people.
Under the current policy, Administration officials reserve
the right to withhold classified information from Congress,
thereby insulating themselves from the scrutiny of the people's
elected representatives.
We don't believe that the Founding Fathers intended this
result and we know that the American people will not accept it.
Our secondary purpose in putting forth legislation is to
give Executive branch personnel an authorized outlet for
extremely sensitive information.
It has become almost routine to see unauthorized
disclosures of allegedly classified information in the print
and broadcast media.
I believe it is imperative that individuals with
information about misconduct within the Executive branch have a
safe harbor where they know the information will be properly
safeguarded and thoroughly investigated.
Every Member of this Committee and every member of its
staff are properly cleared and acutely aware of their
responsibility to protect sensitive national security
information under the rules of the Committee.
I am very disturbed that employees of the Executive Branch
would risk grave harm to our national security by disclosing
classified information to a reporter.
The First Amendment protection, provided in most cases to
reporters who refuse to reveal their sources, provides a
dangerous sanctuary to those who are taking unnecessary risks
with our national security.
Such employees should feel secure in coming forward to the
Oversight Committees of Congress because the information can be
acted on without placing it in the public domain where it can
be used by our adversaries and foreign intelligence services.
I believe we must make it clear to all those who give
classified information to reporters that they will be
prosecuted.
At the same time, we must make it clear that if they bring
this information to the appropriate Oversight Committees, they
will be protected from any retribution, and any allegations of
wrongdoing will be thoroughly investigated without jeopardizing
national security through public disclosures of sensitive
information.
And this last point is the key to effective oversight.
In the investigation process, it is incumbent on us to
vigorously adhere to the rules of our Committee governing the
safeguard of national security information.
I look forward to hearing from our witnesses today on this
very important topic.
I understand that Senator Kerrey, the Vice Chairman, will
join us later. He's in the Finance Committee.
At this point, Senator Roberts, do you have an opening
statement?
Senator Roberts. I just have an observation, Mr. Chairman.
Chairman Shelby. Uh-huh.
Senator Roberts. I don't mean to summarize Dr. Fisher's
testimony before he testifies, but I note there was a very
pertinent conclusion in his conclusion, when he says, to the
extent that the concern of the Executive branch is directed
towards the control of information that might be damaging to
national security, the Intelligence Committees have procedures
in place designed to protect against such damage.
And I know of no one on this Committee, or for that matter,
the House Committee, that would willingly or willfully do
anything of that nature.
Now, I'm, in my real life, in my former life, I'm a former
newspaper man--as a matter of fact, the bio says journalist.
That's an unemployed newspaper man. And I note the concern
about what appears in the Fourth Estate in regards to national
security matters, and Director Tenet just the other day when he
testified before the Committee indicated that the Executive
does have a problem in regards to what is referred to as leaks.
It's been my experience it is not a leak until somebody gets
wet. And with the Executive, I think we're under water in some
cases.
And the thought occurs to me that in a vetting process, if
somebody thinks there is something wrong or they have a concern
or there has been fraud or abuse or somebody is out of bounds
or there's lawbreaking, that if they could come to the
Committee, it seems to me that we might prevent some of the
unauthorized press coverage in regards to classified
information. It would be a vetting process. It would be
somewhere where employees could feel, at least to some degree,
that they were being responsible to their code of conduct,
without going to the press.
Now, I am a realist and I understand it. The press has a
right to know, when they shine the light of truth into
darkness, and all of that, and I know they will continue to do
that, as they should. But I think this could be helpful in that
regard, Mr. Chairman, and I want to thank you for your efforts
in that regard.
Chairman Shelby. We will hear from two panels today.
The first panel will present the argument that the
Executive Branch and Legislative Branch share constitutional
authority over the regulation of classified information.
The second panel will present the opposing argument.
On our first panel is Dr. Louis Fisher. Dr. Fisher may look
familiar because he has testified on over thirty occasions
before various Congressional Committees.
Dr. Fisher is a Senior Specialist in the separation of
powers with the Congressional Research Service of the Library
of Congress. He began work with the CRS in 1970 and served as
research director of the House Iran-Contra Committee in 1987.
Dr. Fisher's areas of expertise are Constitutional Law, the
Presidency, Executive-Legislative Relations, War Powers, and
Congressional-Judicial Relations.
He has authored over a dozen books on various
constitutional topics, many of which focus on the
constitutional tension between the legislature and the
executive. He is the author of more than 200 articles in law
reviews, journals, magazines, books, and newspapers.
Dr. Fisher, we are pleased that you could be with us today.
Also, on our first panel is Professor Peter Raven-Hansen.
Professor Raven-Hansen is currently the Glen Earl Weston
Research Professor of Law at the George Washington University
Law School. He has been a Professor of Law at George Washington
University Law School since 1980.
Before I call on you gentlemen, Senator Levin has joined
us.
Senator.
Senator Levin. Mr. Chairman, I'll be very, very brief. I
would ask that my entire statement be placed in the record.
Chairman Shelby. Without objection, it is so ordered.
Senator Levin. Mr. Chairman, I want to commend you and our
Vice Chairman, first of all, for the energy with which you have
pursued this very important issue. It is an issue which was
left unresolved at the end of last year's legislative period.
It is my own view that a Member of Congress or staff with the
appropriate security clearance, should be able to request or
receive classified information, as long as there is a
legitimate purpose to be served.
And one legitimate for either requesting or receiving
classified information would be if that information provides
evidence of waste, fraud or abuse in programs for which
Congress has oversight responsibility. And the key issue to me
is whether or not the person receiving the information, number
one, has clearance, and number two, has a legitimate--and there
is a legitimate legislative purpose, including oversight.
And so I think that the--hope that we'll be able to resolve
this issue, but I mainly want to, in the moment I have, just to
thank you, Mr. Chairman, and Senator Kerrey as well, our Vice
Chairman, for pursuing this issue. It's very important in terms
of the fight against waste, fraud and abuse.
[The statement of Senator Levin follows:]
Statement of Senator Carl Levin, Intelligence Committee Hearing on
Disclosure of Information to Congress
Mr. Chairman, Mr. Vice Chairman, today's hearing addresses
an important issue that was left unresolved in last year's
Intelligence Authorization and Defense Authorization bills, the
nature and degree of protection to be afforded to federal
employees who use classified information to report fraud, waste
and abuse to Members of Congress with the appropriate security
clearance to receive the information.
As the author of the Whistleblower Protection Act of 1989,
I salute you for the energy with which you have pursued this
important issue.
We are here today, in large part, because the Justice
Department has taken the position that it is unconstitutional
for Congress to provide protection to whistleblowers who use
classified information to disclose waste, fraud and abuse even
if the information is provided to Members and staff with the
appropriate security clearance to receive the information. The
basis for this position is a legal memorandum stating--without
any citation to either the text of the Constitution or the case
law--that the President has ``ultimate and unimpeded authority
over the collection, retention and dissemination of
intelligence and other national security information'' and that
``The Constitution does not permit Congress to circumvent''
this authority.
I think we all recognize that the dissemination of
classified information must be carefully controlled and we do
not want to ``legalize leaking [classified] information to
Congress'. At the same time, however, Congress cannot and
should not accept the conclusion that Executive branch
officials are free to lie to Congress--or to hide evidence of
waste, fraud and abuse--and then threaten reprisal against any
employee who might expose the truth.
A Member of Congress, with the appropriate security
clearance, should be able to request or receive classified
information, as long as the Member has a legitimate need for
that information. One legitimate basis for requesting or
receiving classified information would be if that information
provided evidence of waste, fraud and abuse in programs for
which the Member has oversight responsibility.
I look forward to the testimony of our witnesses.
Chairman Shelby. Well, Senator Levin, I know that you have
spent a lot of time in this area, and I think this is--this one
you've served and chaired another Committee that deals with a
lot of the issues here, but the Intelligence Committee, I
believe, is the proper forum to try to deal with this, and I
appreciate your remarks.
Dr. Fisher, you may proceed.
Any and all of your written statement will be made part of
the record in its entirety.
[The written statement of Dr. Fisher follows:]
Prepared Statement by Louis Fisher, Congressional Research Service,
Executive Employee Access to Congress
Mr. Chairman, I appreciate the opportunity to testify on
legislation that would allow executive employees to contact the
Intelligence Committees without first receiving approval from
their supervisors in the executive branch.
This issue was debated last year when the Intelligence
Committees considered Section 306 of S. 858 to expand executive
employee access to Congress (see appendix for legislative
language). The Senate report accompanying S. 858 explained that
current executive branch policies on classified information
``could interfere with [the Senate Intelligence Committee's]
ability to learn of wrongdoing within the elements over which
it has oversight responsibility.'' [S. Rept. No. 105-24, 105th
Cong., 1st Sess. 26 (1997).]
I approach Section 306 from the work I do on separation of
powers. For thirty years my interest has been in political
institutions: how to keep them healthy so that government as a
whole functions well. At times I testify in defense of
legislative prerogatives. On other occasions I have testified
that pending bills interfere with presidential responsibilities
or threaten judicial independence.
I regard Section 306 as an appropriate and constitutional
means of protecting legislative interests. That is especially
so because Congress in the 1970s--in creating the Intelligence
Committees--relied heavily on those panels to guard Congress as
an institution. To a great degree, Congress delegated to these
committees the responsibility for monitoring and controlling
the intelligence community. There are sufficient safeguards in
Section 306 to protect executive interests. My statement covers
a number of points, including arguments put forth by the
Justice Department's Office of Legal Counsel in a 1996
memorandum.
As presently drafted, Section 306 contemplates two steps:
enactment of a law followed by ``appropriate actions'' by the
President to inform executive employees of the congressional
policy. If for some reason the President failed to act, or
informed executive employees in such a way as to dilute the
congressional policy, the statutory purpose would be undermined
without a clear remedy. An alternative would be to use a single
step: enact Section 306 with no requirement for presidential
action. Of course the President would always be free to issue
any guidelines he considered appropriate to the agencies, but
Section 306 would stand alone as a statement of national policy
for executive employees and contractors.
olc memorandum
In a memorandum dated November 26, 1996, Christopher H.
Schroeder of the Office of Legal Counsel, U.S. Department of
Justice, wrote to Michael J. O'Neil, General Counsel of the
Central Intelligence Agency, regarding access to classified
information. The memo analyzes two congressional enactments
concerning the rights of federal employees to provide
information to Congress: 5 U.S.C. 7211 (Lloyd-LaFollette Act)
and Section 625 of the Treasury, Postal Service Appropriation
Act for fiscal 1997 (P.L. No. 104-208). Both statutory
provisions give executive employees a right to furnish
information to either House of Congress or to a committee or
Member thereof. The OLC memo repeats the position announced in
previous Justice Department documents that a congressional
enactment ``would be unconstitutional if it were interpreted to
divest the President of his control over national security
information in the Executive Branch by vesting lower-ranking
personnel in that Branch with a `right' to furnish such
information to a Member of Congress without receiving official
authorization to do so.'' [OLC Memo at 3.] The Justice
Department bases this position on the following separation of
powers rationale:
``The President's roles as Commander in Chief, head of the
executive Branch, and sole organ of the Nation in its external
relations require that he have ultimate and unimpeded authority
over the collection, retention and dissemination of
intelligence and other national security information in the
Executive Branch. There is no exception to this principle for
those disseminations that would be made to Congress or its
Members. In that context, as in all others, the decision
whether to grant access to the information must be made by
someone who is acting in an official capacity on behalf of the
President and who is ultimately responsible, perhaps through
intermediaries, to the President. The Constitution does not
permit Congress to circumvent these orderly procedures and
chain of command--and to erect an obstacle to the President's
exercise of all executive powers relating to the Nation's
security--by vesting lower-level employees in the Executive
Branch with a supposed `right' to disclose national security
information to Members of Congress (or anyone else) without the
authorization of Executive Branch personnel who derive their
authority from the President.'' [Id. at 4.]
According to this analysis, the two congressional statutes
and the pending language in S. 858 are unconstitutional. The
Department's position relies in part on generalizations and
misconceptions about the President's roles as Commander in
Chief, head of the Executive Branch, and sole organ of the
Nation in its external relations.
commander in chief
The Constitution empowers the President to be Commander in
Chief, but that title must be understood in the context of
military responsibilities that the Constitution grants to
Congress. Article II reads: ``The President shall be Commander
in Chief of the Army and Navy of the United States, and of the
Militia of the several States, when called into the actual
Service of the United States.'' For the militia, Congress--not
the President--does the calling. Article I gives to Congress
the power to provide ``for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel
invasions.'' Article I also empowers Congress to declare war,
raise and support armies, and make rules for the land and naval
forces.
The debates at the Philadelphia Convention make clear that
the Commander in Chief Clause did not grant the President
unilateral, independent power other than the power to ``repel
sudden attacks.'' [2 Farrand 318-19.] The Commander in Chief
Clause was also intended to preserve civilian supremacy. [10
Op. Att'y Gen. 74, 79 (1861).] The historical record is replete
with examples of Congress relying on the regular legislative
process to control the President's actions in military
affairs.\1\ There is no evidence from these sources that the
framers intended the Commander in Chief Clause to deny to
Members of Congress information needed to supervise the
executive branch and learn of agency wrongdoing.
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\1\ Louis Fisher, Presidential War Power (1995); Louis Fisher,
``Congressional Checks on Military Initiatives,'' 109 Pol. Sci. Q. 739
(Winter 1994-95); William C. Banks and Peter Raven-Hansen, National
Security Law and the Power of the Purse (1994); Louis Fisher, ``How
tightly Can Congress Draw the Purse Strings?,'' 83 Am. J. Int'l L. 758
(1989).
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head of the executive branch
The framers placed the President at the head of the
executive branch to provide for unity, responsibility, and
accountability. No doubt that was an important principle for
assuring that the President, under Article II, Section 3, was
positioned to ``take Care that the Laws be faithfully
executed.'' The delegates at the constitutional convention
rejected the idea of a plural executive, preferring to anchor
that responsibility in a single individual. Said John Rutledge:
``A single man would feel the greatest responsibility and
administer the public affairs best.'' [1 Farrand 65.]
But placing the President at the head of the executive
branch did not remove from Congress the power to direct certain
executive activities and to gain access to information needed
for the performance of legislative duties. At the Convention,
Roger Sherman considered the executive ``nothing more than an
institution for carrying the will of the Legislature into
effect.'' [1 Farrand 65.] It was never the purpose to make the
President personally responsible for executing all the laws.
Rather he was to take care that the laws be faithfully
executed, including laws that excluded him from operations in
the executive branch.
For example, from an early date Congress vested in certain
subordinate executive officials the duty to carry out specified
``ministerial'' functions without interference from the
President. On many occasions an Attorney General has advised
Presidents that they have no legal right to interfere with
administrative decisions made by the auditors and comptrollers
in the Treasury Department, pension officers, and other
officials.\2\ The President is responsible for seeing that
administrative officers faithfully perform their duties, ``but
the statutes regulate and prescribe these duties, and he has no
more power to add to, or subtract from, the duties imposed upon
subordinate executive and administrative officers by the law,
than those officers have to add or subtract from his duties.''
[19 Op. Att'y Gen. 685, 686-87 (1890).] In several decisions
the Supreme Court has recognized that Congress can impose
certain duties on executive officials that are beyond the
control and direction of the President.\3\
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\2\ 1 Op. Att'y Gen. 624 (1823); 1 Op. Att'y Gen. 636 (1824); 1 Op.
Att'y Gen. 678 (1824); 1 Op. Att'y Gen. 705 (1825); 1 Op. Att'y Gen.
706 (1825); 2 Op. Att'y Gen. 480 (1831); 2 Op. Att'y Gen. 507 (1832); 2
Op. Att'y Gen. 544 (1832); 4 Op. Att'y Gen. 515 (1846); 5 Op. Att'y
Gen. 287 (1851); 11 Op. Att'y Gen. 14 (1864); 13 Op. Att'y Gen. 28
(1869).
\3\ E.g., Kendall v. United States, 37 U.S. 522, 610 (1838); United
States v. Schurz, 102 U.S. 378 (1880); Butterworth v. Hoe, 112 U.S. 50
(1884); United States v. Price, 116 U.S. 43 (1885); United States v.
Louisville, 169 U.S. 249 (1898).
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Agencies have a direct responsibility to Congress, the body
that creates them. In 1854, Attorney General Caleb Cushing
advised departmental heads that they had a threefold relation:
to the President, to execute his will in cases in which the
President possessed a constitutional or legal discretion; to
the law, which directs them to perform certain acts; and to
Congress, ``in the conditions contemplated by the
Constitution.'' Agencies are created by law and ``most of their
duties are prescribed by law; Congress may at all times call on
them for information or explanation in matters of official
duty; and it may, if it sees fit, interpose by legislation
concerning them, when required by the interests of the
Government.'' [6 Op. Att'y Gen. 326, 344 (1854).]
sole organ in foreign affairs
During debate in the House of Representatives in 1800, John
Marshall said that the President ``is the sole organ of the
nation in its external relations and its sole representative
with foreign nations.'' [Annals of Cong., 6th Cong. 613
(1800).] This remark was later incorporated in Justice
Sutherland's opinion in United States v. Curtiss-Wright Corp.,
299 U.S. 304, 320 (1936), to suggest that the President is the
exclusive policymaker in foreign affairs. However, Justice
Sutherland wrenched Marshall's statement from context to imply
a position that Marshall never held. At no time, either in 1800
or later, did Marshall suggest that the President could act
unilaterally to make foreign policy in the face of statutory
limitations.
The debate in 1800 focused on the decision by President
John Adams to turn over to England someone who had been charged
with murder. Because the case was already pending in an
American court, some Members of Congress recommended that Adams
be impeached for encroaching upon the judiciary and violating
the doctrine of separated powers. It was at that point that
Marshall intervened to say that there was no basis for
impeachment. Adams, by carrying out an extradition treaty
entered into between England and the United States, was not
attempting to make national policy single-handedly. Instead, he
was carrying out a policy made jointly by the President and the
Senate (for treaties). Only after the policy had been
formulated through the collective effort of the executive and
legislative branches (by treaty or by statute) did the
President emerge as the ``sole organ'' in implementing national
policy. The President merely announced policy; he did not alone
make it. Consistent with that principal, Marshall later decided
a case as Chief Justice of the Supreme Court and ruled that in
a conflict between a presidential proclamation and a
congressional statute governing the seizure of foreign vessels
during wartime, the statute prevails. Little v. Barreme, 6 U.S.
(2 Cr.) 169, 179 (1804).
Sutherland's use of the ``sole organ'' remark in Curtiss-
Wright prompted Justice Robert Jackson in 1952 to say that the
most that can be drawn from Sutherland's decision is the
intimidation that the President ``might act in external affairs
without congressional authority, but not that he might act
contrary to an act of Congress.'' Youngstown Co. v. Sawyer, 343
U.S. 579, 636 n.2 (1952). Jackson also noted that ``much of the
[Sutherland] opinion is dictum.'' [Id.] In 1981, the D.C.
Circuit cautioned against placing undue reliance on ``certain
dicta'' in Sutherland's opinion: ``To the extent that
denominating the President as the `sole organ' of the United
States in international affairs constitutes a blanket
endorsement of plenary Presidential power over any matter
extending beyond the borders of this country, we reject that
characterization.'' American Intern. Group v. Islamic Republic
of Iran, 657 F.2d 430, 438 n.6 (D.C. Cir. 1981).
department of the navy v. egan (1988)
The OLC memo (pp. 6-7) relies in part on the Supreme
Court's decision in Department of the Navy v. Egan, 484 U.S.
518 (1998). However, Egan is fundamentally a case of statutory
construction. It involved the Navy's denial of a security
clearance to Thomas Egan, who worked on the Trident submarine.
He was subsequently removed. Egan sought review by the Merit
Systems Protection Board (MSPB), but the Supreme Court upheld
the Navy's action by ruling that the denial of a security
clearance is a sensitive discretionary judgment call committed
by law to the executive agency with the necessary expertise for
protecting classified information. [Id. at 529-30.] The
conflict in this case was within the executive branch. It was
between the Navy and the MSPB, not between Congress and the
executive branch.
The focus on statutory questions was evident throughout the
case. As the Justice Department noted in its brief submitted to
the Supreme Court: ``The issue in this case is one of statutory
construction and `at bottom * * * turns on congressional
intent' '' \4\ The parties were directed to address this
question:
---------------------------------------------------------------------------
\4\ U.S. Department of Justice, Brief for the Petitioner,
Department of the Navy v. Egan, October Term, 1987, at 22 (citation to
Clarke v. Securities Industry Ass'n., No. 85-971 (Jan. 14, 1987)
omitted).
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``Whether, in the course of reviewing the removal of an
employee for failure to maintain a required security clearance,
the Merits Systems Protection Board is authorized by statute to
review the substance of the underlying decision to deny or
revoke the security clearance.'' (Italic added.)
The statutory questions centered on 5 U.S.C. 7512, 7513,
7532, and 7701. The brief submitted by the Justice Department
analyzed the relevant statutes and their legislative history
and could find no basis for determining that Congress intended
the MSPB to review the merits of security clearance
determinations.\5\ The entire oral argument before the Court on
December 2, 1987, was devoted to the meaning of statutes and
what Congress intended by them. At no time did the Justice
Department suggest that classified information could be
withheld from Congress.
---------------------------------------------------------------------------
\5\ U.S. Department of Justice, Petition for a Writ of Certiorari
to the United States Court of Appeals for the Federal Circuit,
Department of the Navy v. Thomas E. Egan, October Term, 1986, at 4-5,
13, 15-16, 18.
---------------------------------------------------------------------------
The Court's deference to the Navy did not cast a shadow
over the right of Congress to sensitive information. The Court
decided merely the ``narrow question'' of whether the MSPB had
statutory authority to review the substance of a decision to
deny a security clearance. [484 U.S. at 520.] Although the
Court referred to independent constitutional powers of the
President, including those as Commander in Chief and head of
the executive branch, id. at 527, and noted the President's
responsibility over foreign policy, id. at 529, the case was
disposed of on statutory grounds. In stating that courts
``traditionally have been reluctant to intrude upon the
authority of the Executive in military and national security
affairs,'' the Court added this key qualification: ``unless
Congress specifically has provided otherwise.'' [Id. at 530
(italic added).] \6\ Nothing in the legislative history of the
Civil Service Reform Act of 1978 convinced the Court that the
MSPB could review, on the merits, an agency's security-
clearance determination. [Id. at 531 n.6.]
---------------------------------------------------------------------------
\6\ The Court appears to have borrowed this thought, and language,
from the Justice Department's brief: ``Absent an unambiguous grant of
jurisdiction by Congress, courts have traditionally been reluctant to
intrude upon the authority of the executive in military and national
security affairs.'' U.S. Department of Justice, Brief for the
Petitioner, Department of the Navy v. Egan, October Term, 1987, at 21.
---------------------------------------------------------------------------
In citing the President's role as Commander in Chief, the
Court stated that the President's authority to protect
classified information ``flows primarily from this
constitutional investment of power in the President and exists
quite apart from any explicit congressional grant.'' [Id. at
527.] If Congress had never enacted legislation regarding
classified information, certainly the President could act in
the absence of congressional authority. But if Congress acts by
statute, it can narrow the President's range of action.
It is helpful to place Egan in the context of Justice
Jackson's three categories laid out in the Steel Seizure Case
of 1952: (1) when the President acts pursuant to congressional
authority his authority is at its maximum, because it includes
everything that he possesses under the Constitution plus what
Congress has delegated; (2) when he acts in the absence of
congressional authority he operates in a ``zone of twilight''
in which he and Congress share concurrent authority; (3) when
he acts against the expressed or implied will of Congress, his
power is at ``its lowest ebb.'' Youngstown Co. v. Sawyer, 343
U.S. 579, 637 (1952). Egan belongs in the middle category. The
President's range is broad until Congress enters the zone of
twilight and exerts its own authority.
the garfinkel case (1989)
The OLC memo also relies on the litigation that led to the
Supreme Court's decision in American Foreign Service Assn. v.
Garfinkel, 490 U.S. 153 (1989). The progression of this case
from district court to the Supreme Court and back to the
district court illustrates how a lower court may exaggerate the
national security powers of the President at the expense of
congressional prerogatives. The district court's interpretation
of executive power was quickly vacated by the Supreme Court.
In 1983, President Reagan directed that all federal
employees with access to classified information sign
``nondisclosure agreements'' or risk the loss of their security
clearance. Congress, concerned about the vagueness of some
terms and the loss of access to information, passed legislation
to prohibit the use of appropriated funds to implement the
nondisclosure policy.
In 1988, District Court Judge Oliver Gasch held that
Congress lacked constitutional authority to interfere, by
statute, with nondisclosure agreements drafted by the executive
branch to protect the secrecy of classified information.
National Federation of Federal Employees v. United States, 688
F.Supp. 671 (D.D.C. 1988). Among other authorities, Judge Gasch
relied on Egan and Curtiss-Wright. [Id. at 676, 684-85.] From
Egan he extracts a sentence (``The authority to protect such
[national security] information falls on the President has head
of the Executive Branch and as Commander in Chief'') without
acknowledging that Egan was decided on statutory, not
constitutional, grounds. [Id. at 685.] From Curtiss-Wright he
concludes that the ``sensitive and complicated role cast for
the President as this nation's emissary in foreign relations
requires that congressional intrusion upon the President's
oversight of national security information be more severely
limited than might be required in matters of purely domestic
concern.'' [Id. at 685.] In fact, the issue in Curtiss-Wright
was whether Congress could delegate its powers to the President
in the field of foreign relations. The previous year the Court
had struck down the National Industry Recovery Act because it
had delegated an excessive amount of legislative power to the
President in the field of domestic policy. Schechter Poultry
Corp. v. United States, 295 U.S. 495 (1935); Panama Refining
Co. v. Ryan, 293 U.S. 388 (1935). The question before the Court
in Curtiss-Wright: Could Congress use more general standards
when delegating its authority in foreign affairs? The Court
held that more general standards were permissible because of
the changing circumstances that prevail in international
affairs. The issue before the Court was the extent to which
Congress could delegate its power (embargo authority), not the
existence of independent and autonomous powers for the
President.
Having mischaracterized both Supreme Court decisions, Judge
Gasch concluded that Congress had passed legislation that
``impermissibly restricts the President's power to fulfill
obligations imposed upon him by his express constitutional
powers and the role of the Executive in foreign relations.''
[Id. at 685.]
On October 31, 1988, the Supreme Court noted probable
jurisdiction in the Garfinkel case, [488 U.S. 923.] Both the
House and the Senate submitted briefs objecting strongly to
Judge Gasch's analysis of the President's power over foreign
affairs. During oral argument, after Edwin Kneedler of the
Justice Department spoke repeatedly about the President's
constitutional role to control classified information, one of
the Justices remarked: ``But, Mr. Kneedler, I just can't--I
can't avoid interrupting you with this thought. The
Constitution also gives Congress the power to provide for a
navy and for the armed forces, and so forth, and often
classified information is highly relevant to their task.
Transcript of Oral Argument, March 20, 1989, at 57-58.''
On April 18, 1989, the Court issued a per curiam order that
vacated Judge Gasch's order and remanded the case for further
consideration. In doing so, the Court cautioned Judge Gasch to
tread with greater caution in expounding on constitutional
matters: ``Having thus skirted the statutory question whether
the Executive Branch's implementation of [nondisclosure] Forms
189 and 4193 violated Sec. 630, the court proceeded to address
appellees' argument that the lawsuit should be dismissed
because Sec. 630 was an unconstitutional interference with the
President's authority to protect the national security.''
American Foreign Service Assn. V. Garfinkel, 490 U.S. 153, 158
(1989). The Court emphasized that the district court ``should
not pronounce upon the relative constitutional authority of
Congress and the Executive Branch unless it finds it imperative
to do so. Particularly where, as here, a case implicates the
fundamental relationship between the Branches, courts should be
extremely careful not to issue unnecessary constitutional
rulings.'' [Id. at 161.]
On remand, Judge Gasch held that the plaintiffs (American
Foreign Service Association and Members of Congress) failed to
state a cause of action for courts to decide. American Foreign
Service Ass'n v. Garfinkel, 732 F.Supp. 13 (D.D.C. 1990). By
dismissing the plaintiff's complaint on this ground, Judge
Gasch did not address any of the constitutional issues. [Id. at
16.]
the lloyd-lafollette act
The OLC memo sweeps broadly to challenge the
constitutionality of the Lloyd-LaFollette Act, originally
enacted in 1912. The statute responded to presidential efforts
to block the flow of information from executive employees to
Congress. For example, President Theodore Roosevelt in 1902
issued a ``gag order'' prohibiting employees of the executive
department from seeking to influence legislation ``individually
or through associations'' except through the heads of the
departments. Failure to abide by this presidential order could
result in dismissal from government service. [48 Cong. Rec.
4513 (1912).] In 1909, President William Howard Taft issued
another gag order, forbidding any bureau chief or any
subordinate in government to apply to either House of Congress,
to any committee of Congress, or to any member of Congress, for
legislation, appropriations, or congressional action of any
kind,
``. . . except with the consent and knowledge of the head
of the department; nor shall any such person respond to any
request for information from either House of Congress, or any
committee of either House of Congress, or any Member of
Congress, except through, or as authorized by, the head of his
department.'' [48 Cong. Rec. 4513 (1912).]
Through language added to an appropriations bill in 1912,
Congress nullified the gag orders issues by Roosevelt and Taft.
The debate on this provision underscores the concern of
Congress that the gag orders would put congressional committees
in the position of hearing ``only one side of a case''; the
views of Cabinet officials rather than the rank-and-file
members of a department. [48 Cong. Rec. 4657 (1912).] Members
wanted agency employees to express complaints about the conduct
of their supervisors. [Id.] The stated purpose of the
legislation was to ensure that government employees could
exercise their constitutional rights to free speech, to
peaceable assembly, and to petition the government for redress
of grievances. [Id. at 5201.]
In the course of debate Members of Congress viewed the gag
orders as an effort to prevent Congress from learning ``the
actual conditions that surrounded the employees of the
service.'' [Id. at 5235.] If agency employees could speak only
through the heads of the departments, ``there is no possible
way of obtaining information excepting through the Cabinet
officers, and if these officers desire to withhold information
and suppress the truth or to conceal their official acts it is
within their power to do so.'' [Id. at 5634 (statement of Rep
Lloyd).] Another legislator remarked: ``The vast army of
Government employees have signed no agreement upon entering the
service of the Government to give up the boasted liberty of the
American citizens.'' [Id. at 5637 (statement of Rep. Wilson).]
Even more explicit was this statement during debate in the
Senate: ``Mr. President, it will not do for Congress to permit
the executive branch of this Government to deny to it the
sources of information which ought to be free and open to it,
and such an order as this, it seems to me, belongs in some
other country than the United States.'' Id. at 10674 (statement
of Senator Reed).
The language used to nullify the gag orders was added as
Section 6 to the Postal Services Appropriations Act of 1912.
[37 Stat. 539, 555 (1912).] Section 6, known as the Lloyd-
LaFollette Act, provides a number of procedural safeguards to
protect agency officials from arbitrary dismissals. The final
sentence of Section 6 reads: ``The right of persons employed in
the civil service of the United States, either individually or
collectively, to petition Congress, or any Member thereof, or
to furnish information to either House of Congress, or to any
committee or member thereof, shall not be denied or interfered
with.''
Section 6 was later carried forward in the Civil Service
Reform Act of 1978 and codified as permanent law. [5 U.S.C.
7211 (1994).] The conference report on this statute elaborates
on the need for executive employees to disclose information to
Congress:
``The provision is intended to make clear that by placing
limitations on the kinds of information an employee may
publicly disclose without suffering reprisal, there is no
intent to limit the information an employee may provide to
Congress or to authorize reprisal against an employee for
providing information to Congress. For example, 18 U.S.C. 1905
prohibits public disclosure of information involving trade
secrets. That statute does not apply to transmittal of such
information by an agency to Congress. Section 2302(b)(8) of
this act would not protect an employee against reprisal for
public disclosure of such statutorily protected information,
but it is not to be inferred that an employee is similarly
unprotected if such disclosure is made to the appropriate unit
of the Congress. Neither title I nor any other provision of the
act should be construed as limiting in any way the rights of
employees to communicate with or testify before Congress.'' S.
Rept. No. 1272, 95th Cong., 2d Sess. 132 (1978).
whistleblower protection act of 1989
Congress enacted legislation in 1989, finding that federal
employees who make disclosures described in 5 U.S.C. 2302(b)(8)
``serve the public interest by assisting in the elimination of
fraud, waste, abuse, and unnecessary Government expenditures''
and that ``protecting employees who disclose Government
illegality, waste, and corruption is a major step toward a more
effective civil service.'' [103 Stat. 16, Sec. 2(a) (1989).]
Employees may disclose information which they reasonably
believe evidences a violation of any law, rule, or regulation,
or constitutes gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety. Such disclosures are permitted unless
``specifically prohibited by law and if such information is not
specifically required by Executive order to be kept secret in
the interest of national defense or the conduct of foreign
affairs.'' [103 Stat. 21.] In signing the bill, President Bush
said that ``a true whistleblower is a public servant of the
highest order . . . these dedicated men and women should not be
fired or rebuked or suffer financially for their honesty and
good judgment.'' [Public Papers of the Presidents, 1989, I, at
391.]
congressional access to agency information
To perform its legislative and constitutional functions,
Congress depends on information available from the executive
branch. The Supreme Court remarked in 1927 that a legislative
body ``cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body
does not itself possess the requisite information--which not
infrequently is true--recourse must be had to those who do
possess it.'' McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
Investigation is a prerequisite for intelligent lawmaking, and
much of the information that Congress requires is located
within the executive branch. Congress needs information to
enact legislation, to oversee the administration of programs,
to inform the public, and to protect its integrity, dignity,
reputation, and privileges. To enforce these constitutional
duties, Congress possesses the inherent power to issue
subpoenas and to punish for contempt. Eastland v. United States
Servicemen's Fund, 421 U.S. 491, 505 (1975); Anderson v. Dunn,
19 U.S. (6 Wheat.) 204 (1821). The Supreme Court has said that
the power of Congress to conduct investigations ``comprehends
probes into departments of the Federal Government to expose
corruption, inefficiency or waste.'' Watkins v. United States,
354 U.S. 178, 187 (1957).
The power of Congress to investigate reaches to all sectors
of executive branch activity, not merely domestic policy but
also foreign, military, and national security policy. The first
major congressional investigation, in 1792, involved the ill-
fated expedition of Major General St. Clair, whose forces met
heavy losses to the Indians. A House committee was empowered
``to call for such persons, papers, and records, as may be
necessary to assist their inquiries.'' After President
Washington, met with his Cabinet to consider the House request,
it was agreed that there was not a paper ``which might not be
properly produced.'' Louis Fisher, Constitutional Conflicts
between Congress and the President 161 (4th ed. 1997).
To buttress its power to investigate, Congress frequently
has enacted statutory language to require the executive branch
to produce information. When Congress passed the Budget and
Accounting Act of 1921, it directed the newly established
Bureau of the Budget (now the Office of Management and Budget)
to provide Congress with information. The Bureau ``shall, at
the request of any committee on either House of Congress having
jurisdiction over revenue or appropriations, furnish the
committee such aid and information as it may request.'' [42
Stat. 20, 23, Sec. 212.] The current version regarding
congressional requests for information in the budget area
appears at 31 U.S.C. 1113 (1994).
As part of the National Security Act, Congress in 1991
required the Director of Central Intelligence and the heads of
all departments, agencies, and other entities of the U.S.
government involved in intelligence activities to keep the
Intelligence Committees ``fully and currently informed of all
intelligence activities,'' other than a covert action. The
procedures for covert actions are spelled out elsewhere. The
Intelligence Committees are to receive ``any information or
material concerning intelligence activities * * * which is
requested by either of the intelligence committees in order to
carry out its authorized responsibilities.'' \7\
---------------------------------------------------------------------------
\7\ Compilation of Intelligence Laws and Related Laws and Executive
Orders of Interest to the National Intelligence Community, prepared for
the use of the House Permanent Select Committee on Intelligence, 104th
Cong., 1st Sess. 20 (Committee Print July 1995); 50 U.S.C. 413a, as
added by the intelligence authorization act for fiscal 1991, P.L. 102-
88, 105 Stat. 442.
---------------------------------------------------------------------------
Congress also relies on the assistance of employees within
the executive branch. Upon the request of a congressional
committee or a committee member, any officer or employee of the
State Department, the U.S. Information Agency, the Agency for
International Development, the U.S. Arms Control and
Disarmament Agency, ``or any other department, agency, or
independent establishment of the United States Government
primarily concerned with matters relating to foreign countries
or multilateral organizations may express his views and
opinions, and make recommendations he considers appropriate, if
the request of the committee or member of the committee relates
to a subject which is within the jurisdiction of that
committee.'' [2 U.S.C. 194a (1994).]
conclusions
The text and intent of the Constitution, combined with
legislative and judicial precedents over the past two
centuries, provide strong support for congressional access to
information within the executive branch. Without that
information, Congress would be unable to adequately discharge
its legislative and constitutional duties. It could not
properly oversee executive branch agencies, which are creatures
of Congress. Part of legislative access depends on executive
employees--the rank-and-file--who are willing to share with
Congress information about operations within their agencies. On
the basis of two centuries of experience, Congress knows the
value of gaining access to information regarding agency
corruption and mismanagement that an administration may want to
conceal.
No doubt the executive branch has an interest in seeing
that agency information is disclosed only through authorized
channels. Part of that concern has been directed toward
controlling information that might be embarrassing to the
agency, and the administration, if released. There is no legal
or constitutional justification for concealing that kind of
information. To the extent that the concern of the executive
branch is directed toward the control of information that might
be damaging to national security, the Intelligence Committees
have procedures in place designed to protect against such
damage. To question these procedures would put the executive
branch in the position of asserting that only its procedures
can safely protect national security, even at the cost of
denying Congress the information it needs to discharge its
constitutional duties.
STATEMENT OF DR. LOUIS FISHER, PH.D., SENIOR SPECIALIST
(SEPARATION OF POWERS), CONGRESSIONAL RESEARCH SERVICE, LIBRARY
OF CONGRESS
Dr. Fisher. Thank you very much. I'll summarize the main
points.
As you mentioned, I've testified before Congress before and
although I am a staff member of Congress, I try in my testimony
to look at the issues in terms of the structure of government
and to see how certain reforms would affect the institutions.
In previous testimony on certain bills, I've concluded that a
bill will entrench upon the President's power or will endanger
judicial powers. I try and look at all three branches to see
how they can operate most effectively and most consistently
with their constitutional duties.
Section 306 seems to me an appropriate and constitutional
way for Congress to protect its own responsibilities and own
duties to the citizens. I think that is particularly so because
of the reforms in the 1970's that set up the two Intelligence
Committees. Unlike other Committees where many Committees may
have jurisdiction and a responsibility, the duty here to
monitor the Intelligence Community is solely on you and the
House Committee. So I think the need for you to have the access
to carry out your responsibilities is very great and should not
be restricted.
I do think the way Section 306 is written, there are
sufficient safeguards there to protect information and to
protect Executive----
Chairman Shelby. Would you say that this is a logical
extension of our oversight on both Intelligence Committees of
what we do?
Dr. Fisher. Logical.
Chairman Shelby. Very logical.
Dr. Fisher. And very consistent.
Chairman Shelby. Okay.
Dr. Fisher. The only suggestion I make in my testimony
regarding 306 is that currently it is a two step process. You
make a statement and then the policy to be implemented requires
Presidential action. One alternative is just to let the policy
be national policy, legislative policy, and not require a
second step, and the President can always issue whatever
guidelines he considers appropriate. But let it be a one step
process.
My statement begins by looking at the analysis by the
Office of Legal Counsel, which challenged this kind of
legislation in its 1996 memo, and then I turn to some other
issues.
OLC starts by saying that the President has this unusual
authority over classified information because he is Commander-
in-Chief, he's head of the Executive branch, and he is the sole
organ in the field of foreign affairs.
I think those three categories are so general they don't do
justice to the complexity of the issue that you're dealing
with. First of all, the Commander-in-Chief clause doesn't give
the President unrestricted power. The scope of the Commander-
in-Chief clause depends, in large part, on what you do in
Congress through statutory process in restricting and
channeling the Commander-in-Chief clause. There is nothing in
the history of the Commander-in-Chief clause to suggest that
Congress could be denied classified information it needs to
perform its constitutional duties.
The same with the argument of the President being head of
the Executive branch. He is that, but that depends on statutes,
on what duties you place in Executive employees, what rights
you place there.
The President is to take care that the laws are faithfully
executed. It doesn't mean that the Executive branch is
hierarchical in that every employee is subordinate to the
President. It depends on the statutory framework. There are
many statutes that have placed certain duties and rights into
other agencies, and the President may not interfere. It's well
established in law, it is well established in Supreme Court
decisions.
The third category, the President being sole organ in
foreign affairs, this is a misconception that comes out of the
famous 1936 Curtis-Wright case. It's purely dicta, and it's a
misconception in the sense that the term ``sole organ'' comes
from a speech that John Marshall gave when he was a member of
the House in 1800.
If you look at the context of the speech, John Marshall
never argued that the President has some sort of exclusive
control over foreign affairs. The issue was simply after
Congress and the President decide what national policy is,
either by a treaty or by a statute, at that point, the
President is the sole organ in communicating to other countries
what our policy is. The President doesn't have sole power to
make the policy. That's done with Congress. After the policy is
decided, then he is the sole organ.
It is an unfortunate misconception by Justice Sutherland in
the Curtiss-Wright case, and it is repeated ever since. There
is no doubt that John Marshall, even when he was on the Court,
never thought that the President had any exclusive control, and
that if a statute restricted the President, what governed was
the statute, not the Presidential action. And that's borne out
in the Little (v.) Barreme case in 1804.
The Justice Department also relies on two cases, Egan and
Garfinkel. Egan, 1988, shouldn't be used to restrict the right
of Congress to information. Egan was a statutory matter, it
wasn't a constitutional matter. It was not a conflict between
the Executive branch and Congress. It was a conflict inside the
Executive Branch between the Navy and the Merit Systems
Protection Board.
The case was briefed that was, was argued that way. The
oral argument makes it clear that is a statutory matter of
whether MSPB has this kind of authority. People asked what do
the statutes say, what did Congress mean when it wrote the
other statutes. A purely statutory matter.
There is some language in the Egan case by the Supreme
Court that talks about some constitutional issues, and if you
read it, you may think the President has unusual authority. For
instance, the Supreme Court said that courts, ``traditionally
have been reluctant to intrude upon the authority of the
Executive in military and national security affairs,'' but then
there is a qualifier, ``unless Congress specifically has
provided otherwise.''
It's also important that the courts are reluctant. It
doesn't mean that Congress has to be reluctant. Congress has
very broad authority in the field of national security, unlike
the courts.
The Garfinkel case, the next year in 1989, concerned non-
disclosure agreements. This was a case where the lower courts,
Judge Gasch, wrote in such a way to suggest that the President
had the dominant voice in foreign affairs and national
security, but as that went up the line, both the House and the
Senate filed briefs vigorously objecting to Judge Gasch's
position. The Supreme Court, when it handled the issue, sent it
back down to the District Court advising the District Court to
stay away from generalizations that are not necessary,
particularly constitutional generalizations. And the District
Court complied.
The rest of my statement has to do with other issues, like
the Lloyd-LaFollette Act. It's been in place since 1912, where
President Taft and President Teddy Roosevelt issued gag orders
so that Executive employees could not come to Committees or to
Members to provide information. Congress responded with a
statute to give them that right. It's been in place since 1912.
To my knowledge, not until 1996 was there a challenge
constitutionally----
Chairman Shelby. I assume the statute was never vetoed, the
legislation.
Dr. Fisher. It was signed into law.
Chairman Shelby. Signed into law: Go ahead.
Dr. Fisher. And when you look at the history of this,
whatTaft and Teddy Roosevelt were saying is that don't get information
from agency employees. You come to the Cabinet heads and we'll spoon
feed legislators. Congress felt that it couldn't discharge its
constitutional duties being given such a limited amount of information.
So this is part of the history of Congress to obtain
information, not just from Cabinet officials, but from lower
level employees. Next is the Whistleblower Protection Act of
1989. When that was signed into law by President Bush, he said
that ``a true whistleblower is a public servant of the highest
order * * * these dedicated men and women should not be fired
or rebuked or suffer financially for their honesty and good
judgment.''
My statement concludes with a number of statutes and
constitutional decisions by the Court that give Congress the
opportunity and the right to obtain whatever information it
needs to carry out probes of the Executive branch into
corruption, waste, inefficiency. Our Constitution has been read
that way from the start, even in national security matters.
The first investigation by Congress was 1792 into the St.
Clair Expedition. There was never any doubt on the Executive
branch side that whatever information Congress needed to
conduct its investigation, it would obtain, and received the
cooperation of the Executive branch.
So those are some of my initial comments, Mr. Chairman. I'd
be happy, after Mr. Raven-Hansen speaks, to respond to any
questions after his testimony.
Thank you very much.
Chairman Shelby. Professor Raven-Hansen.
Mr. Raven-Hansen. Thank you.
Chairman Shelby. Your entire written statement will be made
part of the record. You proceed as you wish.
Mr. Raven-Hansen. I had previously submitted a more
comprehensive analysis of the issues that I prepared with
Professor Banks of Syracuse Law School, and I would ask that
that be made part of the record.
Chairman Shelby. It will be made part of the record in its
entirety.
Mr. Raven-Hansen. Thank you very much.
[The statements referred to follow:]
Statement of Professor Peter Raven-Hansen, Glen Earl Weston Research
Professor of Law, George Washington University Law School
Thank you for the invitation to testify today about the
constitutional issues raised by disclosure bills like S. 858. I have
previously (Oct. 22, 1997) submitted a more comprehensive analysis of
the issues that I prepared with my colleague and co-author, Professor
William C. Banks of Syracuse University College of Law, and I ask that
it be made part of the record together with this statement.
Let me begin by anticipating the argument that may be made on
behalf of the executive branch that bills like S. 858 are
unconstitutional. That argument will center on the Supreme Court's
statement in Department of the Navy v. Egan \1\ that the President's
``authority to classify and control access to information bearing on
national security . . . flows primarily from [the Commander in Chief
Clause] and exists quite apart from any explicit congressional grant.''
Consequently, the argument will conclude, as the Office of Legal
Counsel did in 1989 regarding another disclosure statute, that the
President has ``ultimate and unimpeded authority over the collection,
retention, and dissemination of intelligence and other national
security information'' \2\ and that any statutory limitation on this
authority is therefore unconstitutional.
---------------------------------------------------------------------------
\1\ 484 U.S. 518, 527 (1988).
\2\ Memorandum from Christopher H. Schroeder (Acting Assistant
Attorney General, Office of Legal Counsel) to Michael J. O'Neil at 4
(``OLC memo'') (quoting Brief for Appellees at 42, American Foreign
Serv. Ass'n v. Garfinkel, 490 U.S. 153 (1989) (No. 87-2127)).
---------------------------------------------------------------------------
The premises of this logic are incomplete and the conclusion is
wrong.
I. The President and Congress share constitutional authority to
regulate classified information
Both the constitutional text and historical practice establish that
the President and Congress share constitutional authority to regulate
classified information.
In the first place, there is no express constitutional text
regarding the collection, retention, and dissemination of intelligence
and national security information. The President's authority on this
subject is implied, flowing from his constitutional designation as
Commander in Chief. But if regulation of national security information
is implicit in the command authority vested in the President by the
Commander in Chief Clause, it is equally implicit in the nine express
textual grants of national security and foreign affairs authority to
Congress. These range from the authority provide for the Common Defense
to the authority to make rules for the government and regulation of the
land and naval forces.\3\ It is also implicit in Congress' residual
authority to make all laws which shall be necessary and proper for
carrying into execution not just this broad collection of national
security authorities, but also all the national security authority
vested in the President and the executive branch.\4\
---------------------------------------------------------------------------
\3\ U.S. Const. art. I, Sec. 8, cl. 10-16.
\4\ Id. cl. 18.
---------------------------------------------------------------------------
In fact, the only express constitutional authority for keeping
governmental information secret is given not to the President, but to
Congress. The Constitution vests each house with the authority to
except from publication ``such Parts [of its journal] as may in their
Judgment require Secrecy.'' \5\
---------------------------------------------------------------------------
\5\ Id. Sec. 4, cl. 3.
---------------------------------------------------------------------------
Because the President has implied constitutional authority to
regulate classified information, he does not need congressional
authority, as Egan stated. But the Egan dictum acknowledged only that
he has such constitutional authority, not that he alone has it. Indeed,
the Court's ultimate holding in Egan--that an executive decision to
deny a security clearance to an executive branch employee was not
reviewable by the Merit Systems Protection Board--expressly depended on
the fact that Congress has not ``specifically * * * provided
otherwise.'' \6\ Egan is therefore consistent with the conclusion that
the President and Congress share authority in the regulation of
national security information. To paraphrase Justice Jackson, Egan,
``intimated that the President might act [to regulate classified
information] without congressional authority, but not that he might act
contrary to an Act of Congress * * *.'' \7\
---------------------------------------------------------------------------
\6\ 484 U.S. at 530.
\7\ Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 637 n .2
(1952) Justice Jackson was explaining similar dicta in United States v.
Curtiss-Wright Export Corp., 299 U.S. 304 (1936), which, like Egan, is
also frequently mis-cited as authority for plenary and exclusive
presidential power.
---------------------------------------------------------------------------
In fact, the President and Congress have acted together to regulate
classified information since the beginnings of our organized system for
protecting national security information. In our previously submitted
analysis, Professor Banks and I cite over a dozen statutes ranging over
an eighty-year period to demonstrate this point, ranging from to the
Espionage Act of 1917, which first criminalized certain uses of
national security information to harm the United States, to the
Protection and Reduction of Government Secrecy Act of 1994 \8\ which
established the framework and minimum procedures for deciding access to
classified information on which the current executive order is based.
What these statutes have in common is that they pervasively regulate
the dissemination and protection of classified information and
consistently reserve the right of Congress, at large or by its
intelligence committees, to receive such information. The Supreme
Court's recognition that there is ``abundant statutory precedent for
the regulation and mandatory disclosure of documents in the possession
of the Executive Branch'' \9\ therefore applies as fully to classified
as to unclassified materials.
---------------------------------------------------------------------------
\8\ Pub. L. No,. 103-236, 108 Stat. 525 (1994), codified at 50
U.S.C. Sec. 435 (1994).
\9\ Nixon v. Administrator of General Services, 433 U.S. 425, 445
(1977).
---------------------------------------------------------------------------
In short, it is far too late in the day for anyone credibly to
assert that the President's constitutional authority to regulate
national security information is somehow plenary and exclusive.
Instead, the constitutional text and history establish that the
President and Congress share implied constitutional authority in this
area.
II. Any intrusion on the President's constitutionally assigned national
security functions resulting from the disclosure provision is
justified by an overriding need to promote constitutional
objectives of Congress
The pertinence of the foregoing conclusion, according to Justice
Kennedy, is this: when a constitutional power is ``not explicitly
assigned by the text of the Constitution to be within the sole province
of the President,'' but instead is only an implied power, the
constitutionality of a statute affecting it is decided by ``a balancing
approach.'' Using this approach, we must ask whether the statute at
issue prevents the President ``from accomplishing [his]
constitutionally assigned functions,'' and whether the extent of the
intrusion on the President's powers `is justified by anoverriding need
to promote objectives within the constitutional authority of
Congress.'' ' 10 In this balancing, the Court has also said,
undifferentiated claims by one branch must yield to the specific needs
of another.11 But it has also found that ``regulation of
material generated in the Executive Branch has never been considered
invalid as an invasion of its autonomy.'' 12
---------------------------------------------------------------------------
\10\ Public Citizen v. United States Dept. of Justice, 491 U.S.
440, 485 (1989) (quoting Morrison v. Olson, 487 U.S. 654, 695 (1988))
(in turn, quoting Nixon v. Administrator, 433 U.S. at 443).
\11\ United States v. Nixon, 418 U.S. 683 (705-06) (1974).
\12\ Nixon v. Administrator, 433 U.S. at 445 (emphasis added). The
only decision to the contrary, National Federation of Federal Employees
v. United States, 688 F. Supp. 671 (D.D.C. 1988), was promptly vacated
by the Supreme Court, 490 U.S. 153 (1989), which disparaged the
district court's analysis as ``abbreviated'' and admonished the court
on remand not to ``pronounce upon the relative constitutional authority
of Congress and the executive Branch unless it finds it imperative to
do so.'' Id. at 161.
---------------------------------------------------------------------------
a. The disclosure provisions intrusion on the President's
national security functions
The Office of Legal Counsel has asserted that a disclosure under S.
858 would ``circumvent[]'' the orderly executive branch procedure for
disclosure of classified information, which involves access
determinations by executive delegates of the President, and the
corresponding chain of command. Such a disclosure may therefore deny
the President and his delegates the opportunity to invoke
constitutionally-based claims of executive privilege and claims of
state secrets, as well as to take steps to protect their ``sources and
methods.''
This assessment of the disclosure provision's intrusion on the
President's functions is substantially exaggerated for several reasons.
First, the disclosure provision encourages disclosure of only a
small subset of classified information: that which provides ``direct
and specific evidence'' of: ``a violation of law, rule, or regulation;
a false statements to Congress on an issue of material fact; or gross
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.'' Under the
President's own executive order, ``[i]n no case shall information be
classified in order to . . . conceal violations of law, inefficiency,
or administrative error [or to] prevent embarrassment to a person,
organization, or agency.'' 13 False statement to Congress
are themselves violations of law.14 Unless, therefore, gross
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety is not
either ``inefficiency'' or ``administrative error,'' none of the
information targeted by the disclosure provision is properly classified
according to the President's own standards.
---------------------------------------------------------------------------
\13\ Exec. Order No. 12,958 Sec. 1.8(a), 60 Fed. Reg. 19,825
(1995).
\14\ Although the Supreme court has recently suggested that the
false statements criminal statute, 18 U.S.C. Sec. 1001 (1994), does not
apply to statements made to Congress, Hubbard v. United States, 514
U.S. 695 (1995), such statements may still constitute obstruction of
justice, 18 U.S.C. Sec. 1505 (1994), or perjury. 18 U.S.C. Sec. 1621
(1994).
---------------------------------------------------------------------------
Second, the disclosure provision is aimed at encouraging--and
ultimately protecting--only the employee who ``reasonably'' believes
that the classified information falls into this subset. The employee
who discloses information he knows falls outside this subset, or which
he unreasonably believes falls within it, is not covered by the bill.
As a result, deliberate or reckless disclosure of classified
information which falls outside the disclosure provision is neither
encouraged nor protected by it.
Third, the bill encourages disclosure only to members of
congressional committees with oversight over the governmental unit to
which the information relates. and not to the world oreven to the
Congress at large. Because section 306(c) covers only ``employees'' of
agencies within the national intelligence community, most of the
classified information they are encouraged to disclose would relate to
that community, and the contemplated disclosures would be made chiefly
to the intelligence committees. As you, of course, intimately know,
these committees operate under specially-enacted rules ``to protect
from unauthorized disclosure all classified information, and all
information relating to intelligence sources and methods, that is
furnished to the[m]. . . .'' \15\
---------------------------------------------------------------------------
\15\ Id.
---------------------------------------------------------------------------
In light of these limitations in the disclosure provision, we can
now describe more precisely the provision's intrusion on the
President's constitutionally assigned functions. The intrusion that the
provision risks is that (1) executive branch employees with access to
classified information will reasonably, but erroneously, conclude that
such information provides direct and specific evidence of the actions
listed in the disclosure provisions, and (2) disclose it to a member or
staff member of a congressional committee that either is not subject to
the protective safeguards governing the intelligence committees, or who
is, but disregards them, with the result that (3) lawfully classified
information--including information that may be subject to executive or
state secrets privileges--is compromised, harming the national
security.
b. The congressional interests
The chief legislative interest advanced by the disclosure provision
is the oversight of the national security and intelligence communities.
The Supreme Court has declared that the right to information is
inherent in the power to legislate \16\ and is a broad as the power to
enact and appropriate.\17\ The Court has also acknowledged a related
congressional interest in regulating information in the executive
branch.\18\
---------------------------------------------------------------------------
\16\ McGrain v. Daughtery, 273 U.S. 135, 175 (1927).
\17\ Barenblatt v. United States, 360 U.S. 109, 111 (1959). In
Barenblatt, the Court added that Congress ``cannot inquire into matters
which are within the exclusive province of one of the other branches of
the Government.'' Id. at 111-12. As I have noted, supra, the
constitutional text and historical practice refute any claim that
national security or foreign affairs are within the ``exclusive''
province of the executive.
\18\ Nixon v. Administrator, 433 U.S. 425.
---------------------------------------------------------------------------
Whether the congressional need for information is ``overriding''
for purposes of the mandated constitutional balancing analysis,
however, turns in part on how specific it is Generalized congressional
interests do not weigh as heavily in the balancing as more specifically
defined interests and do not override specific executive interests.
The disclosure provision, however, does narrow Congress's
generalized interest in national security information to three specific
interests. The first--the congressional interest in direct and specific
evidence of ``a false statement to Congress on an issue of material
fact''--is among the weightiest interests Congress can assert, because
it protects the integrity of Congress's fact-finding process. As Judge
Gerhard Gesell emphasized in the North litigation, ``[i]t is essential
that Congress legislate based on fact, not falsifications, in the realm
of foreign affairs as well as in domestic legislation.'' \19\ Without
access to evidence showing that it been given false information,
Congress is wholly dependent on the executive branch to police the
accuracy of its own submissions. Ironically, therefore, this provision
permits Congress--and this Committee in particular--to trust the
information which it is officially given by the executive branch, by
giving it an independent check on such information.
---------------------------------------------------------------------------
\19\ United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988).
---------------------------------------------------------------------------
It is no rebuttal to assert that national security sometimes
requires the executive to lie to Congress. There is no executive or
state secret privilege to lie, as Judge Gesell also emphatically
stated. Addressing precisely the kind of lies that the disclosure
provision targets, he said that ``where, as here, power is shared among
the branches, willful and deliberate deceit . . . cannot be excused on
constitutional grounds.'' \20\
---------------------------------------------------------------------------
\20\ Id.
---------------------------------------------------------------------------
Nor, it follows, can a denial of access by Congress to direct and
specific evidence of such deceit be excused on constitutional grounds.
I believe that there is no question that Congress's overriding need for
such information justifies any intrusion on the President's authority
resulting from the ``false statement'' subprovision of the disclosure
provision.
The disclosure provision also seeks to insure that Congress obtains
evidence of ``a violation of any law, rule, or regulation.'' This, too,
is a concrete and specific need that is ``overriding'' in this setting.
In addition to the obvious utility of such information for carrying out
the congressional oversight function, as well as for revising existing
law and enacting new law, the need for this category of information is
underscored by the fact that this information indicates that executive
oversight and execution has, by definition, failed. Furthermore, the
President has himself recognized Congress's and the public's need for
such information by prohibiting classification ``to conceal violations
of law.''
Finally, the disclosure provision also encourages disclosure of
direct and specific evidence of ``gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial andspecific danger to
public health or safety.'' Although this subprovision corresponds
roughly to the executive prohibition on the classification of
information to conceal ``inefficiency'' or ``administrative error,''
its terms are intrinsically ambiguous, leaving the employee to make a
difficult judgment with little direct guidance from Congress. This
subprovision therefore potentially targets the largest category of
classified information, and, in so doing, poses the greatest risk of
error by the disclosing employee. Moreover, as a sort of catch-all,
this provision reflects a congressional interest that is hardly more
specific than a generalized need for oversight information, which may
not be sufficiently overriding to justify an intrusion on specific
executive national security functions.
An important countervailing consideration, however, is that the
general secrecy and attenuated oversight to which the national
intelligence community is subject heightens the congressional need for
this kind of evidence from executive branch employees. As the members
of this Committee know better than anyone, under the existing statutory
regime, not only do national security official enjoy enormous
discretion with few specific statutory restraints, but they are largely
spared the fiscal accountability to which other, more ``transparent''
public bureaucracies are routinely subjected.\21\ Secret budgets,
secret spending, and classified information conspire to limit media
oversight of the national intelligence community as well. One does not
have to suspect the national security and intelligence communities of
bad faith or worse, and I emphatically do not, to recognize that the
system under which they currently operate fosters bureaucracy and
hampers accountability. For this reason, Congress may, after all, have
a special need for employee disclosures in the bill's third category to
compensate for the severe restraints on other methods of assuring the
accountability of the national security and intelligence communities to
Congress and the public.
---------------------------------------------------------------------------
\21\ See, e.g., William C. Banks & Peter Raven-Hansen, National
Security Law and the Power of the Purse 51-53, 100-105 (1994).
---------------------------------------------------------------------------
III. The disclosure provision could be revised to strengthen its
constitutionality
Professor Banks and I have made several suggestions to strengthen
the constitutionality of the disclosure provision in our prior
submission to the Committee. I will close by noting the most important
of these.
As written, the provision encourages executive branch employees to
bring their information to any committee with jurisdiction over the
subject. But most of these committees are not presently subject to
security rules and do not have safeguards in place to protect
classified information. We therefore recommend that the ``covered
individuals'' defined in section 306(a)(3) be narrowed to members or
security-cleared staff of the intelligence committees. Because a
statute \22\ requires these committees to operate under house rules to
protect classified information from unauthorized disclosure, employee
disclosures of classified information to them are less likely to
compromise such information than disclosures to less secure committees,
their members, or staff. Although we understand that our committees,
including notably the appropriations committees, may also have a
legitimate legislative need for such information, each intelligence
committee is already directed by statute, in accordance with secure
procedures, ``to promptly call to the attention of this respective
House, or to any appropriate committee or committees of the respective
House, any matter relating to intelligence activities requiring the
attention of such House or such committee or committees.'' \23\
---------------------------------------------------------------------------
\22\ See, e.g., 50 U.S.C. Sec. 413(d)(1994).
\23\ Id.
---------------------------------------------------------------------------
Altelrnatively, if jurisdictional considerations, as a practical
matter, prevent the suggested limitation of ``covered persons'' to just
the members and staff of the intelligence committees, the disclosure
provision might be enhanced by inclusion of a subprovision requiring
the application of the existing rules and procedures for protecting
classified information to any committees to whom disclosures may be
made under the provision.\24\ In any case, specific identification of
the covered committees by name would reduce the risk that an employee
will mistakenly disclose to persons who are not covered by the
disclosure provision. The provision as currently drafted leaves an
ambiguity that invites such error.
---------------------------------------------------------------------------
\24\ Such a subprovision would largely track 50 U.S.C.
Sec. 413(d)(1994).
---------------------------------------------------------------------------
That completes my testimony. Thank you.
__________
The George Washington University
Law School,
Washington, DC, October 22, 1997.
Senator Richard C. Shelby, Chairman,
Senator J. Robert Kerrey, Vice Chairman,
U.S. Senate, Select Committee on Intelligence, Washington, DC.
Dear Senators Shelby and Kerrey: We are pleased to respond to the
invitation in your letter of October 7 to provide comments and opinions
concerning section 306, entitled ``Encouragement of Disclosure of
Certain Information to Congress'' (hereinafter ``The Disclosure
Provision''). In addition to the disclosure provision, we have reviewed
the November 26, 1996, memorandum from Christopher H. Schroeder (Acting
Assistant Attorney General, Office of Legal Counsel) to Michael J.
O'Neil regarding congressional access to classified information (``OLC
memo''), the June 18, 1997, Statement of Administration Policy on S.
858, and various other authorities pertinent to this debate.
We conclude that the disclosure provision is clearly constitutional
insofar as it relates to classified information that provides direct
and specific evidence of a false statement to Congress on an issue of
material fact. Although the question is closer, we also conclude that
the balance of the disclosure provision is constitutional. The case for
its constitutionality, however, could be strengthened by several
changes to narrow and/or clarify its coverage.
In the following four sections, we briefly describe the two
analytic approaches taken by the Supreme Court to resolve separation-
of-powers disputes, explain why the OLC memo errs by taking the wrong
approach to answer the separation-of-powers question posed by the
disclosure provision,\1\ apply the proper balancing approach to this
question to reach our conclusions concerning the constitutionality of
the provision, and suggest a few changes that would strengthen the case
for the provision's constitutionality.
---------------------------------------------------------------------------
\1\ In National Federal Employees v. United States, 688 F Supp. 671
(D.D.C. 1998), vacated sub nom. American Foreign Serv. Assn's v.
Garfinkel, 490 U.S. 153 (1989), the district court made the same error
in striking down and appropriations rider designed to limit enforcement
of nondisclosure agreements. Its decision--apparently the first and
only decision in our history in which a federal court found an
appropriations law unconstitutional for intruding impermissibly on
executive power--was subsequently vacated for mootness by the Supreme
Court. The Supreme Court disparaged the district court's analysis as
``abbreviated'' and admonished the court on remand not to ``pronounce
upon the relative constitutional authority of Congress and the
Executive Branch unless it finds it imperative to do so.'' Id. at 161.
Garfinkel is therefore not sound authority for the separation-of-powers
question posed by the instant disclosure provision. We have elsewhere
analyzed and criticized its reasoning. See Peter Raven-Hansen and
William C. Banks, Pulling the Purse Strings of the Commander in Chief,
80 Va. L. Rev. 933, 923-42 (1994) (enclosed).
---------------------------------------------------------------------------
I. There are two analytic approaches to the resolution of separation-
of-powers disputes
Over the last decade, Supreme Court decisions and separate opinions
of some of the Justices, along with the analyses of many scholars, have
clarified the constitutional law of separation of powers. In one line
of Supreme Court separation-of-powers decisions the Court has
determined that ``the Constitution by explicit text commits the power
at issue to the exclusive control of [another branch].'' \2\ In such
cases, explains Justice Anthony Kennedy, courts do not balance the
interests of the branches: ``[w]here a power has been committed to a
particular Branch of Government in the text of the Constitution, the
balance already has been struck by the Constitution itself.'' \3\
---------------------------------------------------------------------------
\2\ Public Citizen v. Department of Justice, 491 U.S. 440, 485
(1989) (Kennedy, J., concurring).
\3\ Id. at 486.
---------------------------------------------------------------------------
United States v. Lovett \4\ was such a case. There, after secret
hearings, the House Committee on Un-American Activities had found three
federal employees guilty of ``subversive activity.'' As a result, the
House voted a rider to a wartime appropriation forbidding the executive
branch from disbursing salaries to the employees unless they were
reappointed with the advice and consent of the Senate. Because the
House would not approve any appropriation without the rider, the Senate
agreed to it and the President reluctantly signed it into law. The
Supreme Court held that the rider was an unconstitutional bill of
attainder. Once the Court characterized the rider as a bill of
attainder, the constitutional text supplied a clear and unequivocal
standard against which to measure the rider. By retroactively punishing
specific federal employees without benefit of judicial trial, Congress
attempted to excerise a ``power which the Constitution unequivocally
declares Congress can never exercise.'' \5\ Congress had violated an
express textual command of the Constitution, as well as the textual
assignment of ``[t]he judicial power of the United States'' to the
judicial branch; no further balancing of Congress's interests in the
legislation was needed or appropriate.
---------------------------------------------------------------------------
\4\ 328 U.S. 303 (1946).
\5\ 328 U.S. at 307.
---------------------------------------------------------------------------
When the explicit constitutional text does not strike its own
balance by assigning the power solely to one branch or denying a power
to it, however, the Court has employed a different analysis. It has
then taken ``a balancing approach,'' as Justice Kennedy explains it,
``asking whether the statute at issue prevents the President `from
accomplishing [his] constitutionally assigned functions,' '' and
``whether the extent of the intrusion on the President's powers `is
justified by an overriding need to promote objectives within the
constitutional authority of Congress.' '' \6\ This balancing approach
is appropriate for deciding separation-of-powers disputes involving
shared constitutional powers. The Court has also suggested that in the
balancing, undifferentiated claims by one branch must yield to the
specific needs of another.\7\
---------------------------------------------------------------------------
\6\ Public Citizen, 491 U.S. at 485 (quoting Morrison v. Olson, 487
U.S. 654, 695 (1988)) (in turn, quoting Nixon v. Administrator of
General Service, 433 U.S. 425, 443 (1977)).
\7\ United States v. Nixon, 418 U.S. 683, 705-06 (1974).
---------------------------------------------------------------------------
For example, in Morrison v. Olson, the Court determined that the
President's power to remove Executive officers, a necessary but
implicit component of the ``executive Power'' in Article II, section 1,
could be subordinated in a balancing analysis to the overriding need of
Congress, expressed in the Ethics in Government Act, to provide an
Independent Counsel mechanism free from the taint of political
influences. Similarly, in Nixon v. Administrator of General
Services,\8\ the Executive Branch's power to dispose of presidential
materials, implicitly integral to the President's ability to performed
his assigned functions, was balanced against the Congress's need to
promote objectives within its constitutional powers.
---------------------------------------------------------------------------
\8\ 433 U.S. 427 (1977).
---------------------------------------------------------------------------
For present purposes, the important point is that, before the
constitutional separation of powers analysis is performed, the dispute
between the branches must be carefully characterized according to the
precise constitutional powers at issue.
II. The executive and legislative branches share constitutional
authority, and the President does not have exclusive,
``ultimate or unimpeded'' authority, over the regulation of
classified information
The OLC memo asserts that the Constitution vests the President with
``ultimate and unimpeded authority over the collection retention and
dissemination of intelligence and other national security
information,'' and that any statutory intrusion on this authority must
therefore be unconstitutional.\9\ It thus assumes that ``the
Constitutional by explicit text commits the powers at issue to the
exclusive control'' of the President,\10\ and that there is no
constitutional room for weighing the congressional interest.
---------------------------------------------------------------------------
\9\ OLC memo at 4 (quoting Brief for Appellees at 42, American
Foreign Serv. Ass'n v. Garfinkel, 490 U.S. 153 (1989) (No. 87-2127)).
\10\ Public Citizen, 491, U.S. at 485 (Kennedy, J., concurring).
---------------------------------------------------------------------------
This assumption is both textually and historically wrong.
On the first place, there is no explicit constitutional text
regarding the collection, retention, and dissemination of intelligence
and national security information. The President's authority on this
subject is the paradigm of implied authority, in this case flowing from
his constitutional designation as Commander in Chief and his sparse,
but explicit foreign affairs authority to appoint and receive
ambassadors and to make treaties. But the latter grants of authority
are explicitly shared with the Senate. And if regulation of national
security information is implicit in the broad array of national
security and foreign affairs authorities explicitly vested in Congress,
including the authority to provide for the Common Defense; \11\ to
regulate foreign commerce; \12\ to define and punish offences against
the law of nations; \13\ to declare war and grant letters of marque and
reprisal; \14\ to raise and support armies; \15\ to provide and
maintain a navy; \16\ to make rules for the government and regulation
of the land and naval forces; \17\ to provide for calling forth the
militia to executive the laws of the union, suppress insurrections, and
repel invasions; \18\ to provide for organizing, arming, and
disciplining the militia; \19\ and to make all laws which shall be
necessary and proper for carrying into execution not just this broad
collection of national security authorities, but also all the national
security authority vested in the President and the executive
branch.\20\
---------------------------------------------------------------------------
\11\ U.S. Const. art. I, Sec. 8, cl. 1.
\12\ Id. cl. 3.
\13\ Id. cl. 10.
\14\ Id. cl. 11.
\15\ Id. cl. 12.
\16\ Id. cl. 13.
\17\ Id. cl. 14.
\18\ Id. cl. 15.
\19\ Id. cl. 16.
\20\ Id. cl. 18.
---------------------------------------------------------------------------
In fact, the only explicit constitutional provision for keeping
governmental information secret authorizes Congress, not the President.
Article I, section 5, clause 3, vests each house with the authority to
except from publication ``such Parts [of its journal] as may in their
Judgment require Secrecy.'' \21\
---------------------------------------------------------------------------
\21\ Id. Sec. 4, cl. 3.
---------------------------------------------------------------------------
Unable to identify explicit constitutional text for the presumed
assignment of exclusive control over national security information to
the President, the OLC memo instead predictably cites United States v.
Curtiss-Wright Export Corp.\22\ In Curtiss-Wright, Justice Sutherland
alluded in dicta to ``the very delicate, plenary and exclusive power of
the President as the sole organ in the field of international
relations.'' \23\ But as we have explained elsewhere,\24\ Sutherland's
``sole organ'' reference (which OLC quotes in its analysis \25\ ) was
wrested from the context in which then-Representative (and later Chief
Justice) John Marshall spoke: a House debate on President John Adams'
extradition of a British subject to England pursuant to the Jay Treaty
of 1795. Defending Adams, Marshall noted the following:
---------------------------------------------------------------------------
\22\ 299 U.S. 304 (1936).
\23\ Id. at 320.
\24\ 80 Va. L. Rev. at 900-901 (quoting from 6 Annals of Cong. 613-
14 (1800) (statement of Rep. Marshall) (emphasis added)).
\25\ OLC memo at 4.
---------------------------------------------------------------------------
``The treaty, which is law, enjoins the performance of a particular
object. . . . Congress, unquestionably, may prescribe the mode, and
Congress may devolve on others the whole execution of the contract;
but, till this be done, it seems the duty of the executive department
to execute the contract by any means it possesses.''
President Adams was executing not his own foreign policy, but a
treaty of the United States made with the consent of the Senate. Had
Congress prescribed the mode of execution, the President would have
been obliged to follow it. The President, Marshall was saying, is not
the sole organ for making foreign policy, but rather the sole organ for
communicating it.
Curtiss-Wright, properly understood, does not stand for the
proposition that the President is the ``sole'' regulator of national
security information. Furthermore, Justice Jackson subsequently
reminded us that Curtiss-Wright ``intimated that the President might
act in external affairs without congressional authority, but not that
he might act contrary to an Act of Congress . . .'' \26\
---------------------------------------------------------------------------
\26\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 n. 2
(1952).
---------------------------------------------------------------------------
Nor is Department of Navy v. Egan \27\ to the contrary. There the
Court observed that the President's authority to classify and control
access to information bearing on national security ``flows primarily
from [the Commander-in-Chief clause] . . . and exists quite apart from
any explicit congressional grant.'' \28\ But this observation confirms
only that the President has such constitutional authority, not that it
is exclusive. Indeed, the Court's ultimate holding in Egan--that an
executive decision to deny a security clearance to an executive branch
employee was not reviewable by the Merit Systems Protection Board--
expressly depended on the fact that Congress had not ``specifically . .
. provided otherwise.'' \29\ Egan is therefore perfectly consistent
with the conclusion that the President and Congress share authority in
the regulation of national security information.
---------------------------------------------------------------------------
\27\ 484 U.S. 518 (1988).
\28\ Id. at 527
\29\ Id. at 530.
---------------------------------------------------------------------------
Historical practice confirms this conclusion. Senator Daniel
Patrick Moynihan, writing as Chairman of the Commission on Protecting
and Reducing Government Secrecy, has traced the origins of our system
for protecting national security information to a statute: the
Espionage Act of 1917,\30\ which criminalized certain uses of national
security information to harm the United States. We have sketched the
later history elsewhere.\31\
---------------------------------------------------------------------------
\30\ Report of the Commission on Protecting and Reducing Government
Secrecy A-7 (1997) (citing 40 Stat. 451 (1917)) (``Secrecy Commission
Report'').
\31\ 80 Va. L. Rev. at 931-33 (selected footnotes retained, but
renumbered).
---------------------------------------------------------------------------
Until 1940, information classification ``existed as a military
hobby in a legal limbo.'' \32\ In that year, President Roosevelt for
the first time issued an executive order adopting the military
classification system.\33\ But he did not advance inherent
constitutional authority for his order. Instead, he cited an act \34\
that empowered him to ``define[] certain vital military and naval
installations or equipment as requiring protection.'' \35\. . .
---------------------------------------------------------------------------
\32\ Arthur M. Schlesinger, Jr., The Imperial Presidency 338
(1973).
\33\ Exec. Order No. 8381, 3 C.F.R. 634 (1938-1943).
\34\ Act of Jan. 12, 1938, ch. 2 Sec. 1, 52 Stat. 3 (codified as
amended at 18 U.S.C. Sec. 795(a) (1994)).
\35\ Id.
---------------------------------------------------------------------------
World War II and its immediate aftermath saw a slew of additional
statutes giving momentum to the classification of national security
information.\36\ One of the first statutes actually to acknowledge
``classified information'' was enacted in 1951,\37\ but it also
provided that nothing therein ``shall prohibit the furnishing, upon
lawful demand, of information'' to congressional committees.\38\
---------------------------------------------------------------------------
\36\ E.g., Atomic Energy Act of 1954, ch. 1073, sec. 1, Sec. 142,
68 Stat. 919, 941 (codified as amended at 42 U.S.C. Sec. 2162 (1994));
National Security Act of 1947, ch. 343, Sec. 102(d)(3), 61 Stat. 495,
498 (codified as amended at 50 U.S.C. Sec. 403(d)(3) (1994))
(authorizing the Central Intelligence Agency to protect ``intelligence
sources and methods from unauthorized disclosure''); Internal Security
Act of 1950, ch. 1024 Sec. 4(b), 64 Stat. 987, 991 (codified as amended
at 50 U.S.C. Sec. 783(b) (1994)). See generally Foreign Affairs Div.,
Congressional Research Serv., for Senate Comm. on Foreign Relations,
92d Cong., 1st Sess., Security Classification as a Problem in the
Congressional Role in Foreign Policy 9-12 (Comm. Print 1971)
(``Security Classification Report'') (discussing the impact of the
National Security, the Internal Security, and the Atomic Energy Acts in
the context of classified information).
\37\ Act of Oct. 31, 1951, ch. 655, sec. 24(a), Sec. 798, 65 Stat.
710, 719-20 (codified as amended at 18 U.S.C. Sec. 798(c) (1994)).
\38\ Id. sec. 24(a), Sec. 798(c), 65 Stat. at 720.
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Executive orders in 1951 and 1953 laid the foundation for the
present system of classification.\39\ These cited no specific statutory
authority, but a 1957 Report of the Commission on Government Security
defended the legality of the latest by asserting that ``in the absence
of any law to the contrary, there is an adequate constitutional and
statutory basis upon which to predicate the Presidential authority to
issue Executive Order 10501.'' \40\ The same report emphasized that
``various statutes do afford a basis upon which to justify the issuance
of the order.'' \41\
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\39\ Exec. Order No. 10,290, 3 C.F.R. 789 (1949-1953); Exec. Order
No. 10,501, 3 C.F.R. 979 (1949-1953).
\40\ Commission on Gov't Sec. Report 160 (1957) (emphasis added).
Pressed for the legal authority for Executive Order 10,501 in 1970 by
the Senate Foreign Relations Committee, the Legal Advisor to the State
Department cited this report. Security Classification Report, supra
note 36, at 5.
\41\ Commission on Gov't Sec. Report, supra note 40, at 158.
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Subsequently, Congress continued to pass legislation acknowledging
authority in the executive to classify national security information,
including the Freedom of Information Act,\42\ the Hughes-Ryan Amendment
to the Foreign Assistance Act of 1961,\43\ the Civil Service Reform Act
of 1978,\44\ the Intelligence Indentities Protection Act of 1982,\45\
and the Intelligence Authorization Act, Fiscal Year 1991.\46\ But
Congress was also careful to reserve its own right to classified
information by consistently providing that nothing in such legislation
should be construed as authority to withhold information from it.\47\ .
. .
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\42\ Act of June 5, 1967, Pub. L. No. 90-23, sec., 1,
Sec. 552(b)(1), 81 Stat. 54, 55 (codified as amended at 5 U.S.C.
Sec. 552(b)(1) (1994)).
\43\ Foreign Assistance Act of 1974, Pub. L. No. 93-559, sec. 32,
Sec. 662(a), 88 Stat. 1795, 1804, repealed by Intelligence
Authorization Act, Fiscal Year 1991, Pub. L. No. 102-88, Sec. 601, 105
Stat. 429, 441.
\44\ Civil Service Reform Act of 1974, Pub. L. No. 95-454,
Sec. 101(a), 92 Stat. 1111, 1116 (codified as amended at 5 U.S.C.
Sec. 2302(b)(8)(A) (1994)).
\45\ Intelligence Identifies Protection Act of 1982, Pub. L. No.
97-200, sec. 2(a), Sec. 606(1), 96 Stat. 122, 123-24 (codified as
amended at 50 U.S.C. Sec. 426(1) (1994)).
\46\ Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No.
102-88, sec. 602, Sec. 502(c)(2), 105 Stat. 429, 443 (codified as
amended at 50 U.S.C. Sec. 413b(c)(2) (1994)).
\47\ E.g., 5 U.S.C. Sec. Sec. 552(b)(1), 2302(b) (1994); 50 U.S.C.
Sec. Sec. 413(e), 425 (1994).
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[This] history of national security information control is
consistent with implied constitutional authority of the President to
protect security information. Yet the practice of formal security
classification by executive order is of relatively recent vintage and
hardly calculated to give notice of any claim of plenary or exclusive
presidential power to oversee national security information. In fact,
Congress has expressly and consistently declined to recognize or yield
plenary authority to the President. every important statute by which
Congress can be said to have acquiesced in executive authority to
protect classified information has also expressly preserved Congress'
own rights to such information (at least through designated secure
channels of disclosure). Moreover, Congress has legislated so
comprehensively that ``[t]he classification system is impotent without
that network of legislation, for Congressional statutes--not an
administrative system--establish the criminal offenses for security
violations, their conduct and intent standards, the judicial
procedures, the weight to be given to the fact of classification, and
the punishment for such offenses.'' \48\
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\48\ Memorandum of the Speaker and Leadership Group in Opposition
to Defendants' Motion to Dismiss at 35-36, American Foreign Serv. Ass'n
v. Garfinkel, 732 F. Supp. 13 (D.D.C. 1990) (No. 88-0400-OG) (footnotes
omitted).
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That the President and Congress share constitutional authority in
the regulation of national security information has been demonstrated
anew even more recently. In 1994, for example, Congress by statute
required the President to promulgate procedures ``to govern access to
classified information'' in the executive branch, including, ``at a
minimum,'' several specific procedures or standards set out in the
statute.\49\ In response, President Clinton promulgated Executive Order
No. 12,968,\50\ the most far-reaching overhaul of the clearance system
since it was first established. We are unaware of any constitutional
protest made by him or on his behalf to this assertion of shared
congressional authority over access to national security information.
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\49\ 50 U.S.C. Sec. 435 (1994).
\50\ 60 Fed. Reg. 40,245 (1995).
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In 1994 also, Congress for the first time criminalized the
unauthorized removal of classified materials without requiring proof of
any intent to harm the United States.\51\ This statute plugged a
statutory gap in the protection of classified information, effectively
criminalizing leaks by executive officials. It is today arguably the
lynchpin, with the espionage laws, of the executive branch's control
over classified information. Yet this very statute, again, expressly
exempt disclosures to Congress from that control by providing that
``the provision of documents and materials to Congress shall not
constitute an offense'' under the statute.\52\
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\51\ 18 U.S.C. Sec. 1924 (1994).
\52\ 18 U.S.C. Sec. 1924(b) (1994).
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In short, it is far too late in the day for anyone credibly to
assert that the President's constitutional authority to regulate
national security information is plenary and exclusive. Instead, the
constitutional text and pertinent history establishes that the
President and Congress share authority in this area. Exercising its
authority, Congress has understandably vested enormous discretion in
him to regulate such information, but it has also consistently,and
usually with his acquiescence, taken pains to preserve its own
unhampered access to such information. The instant disclosure provision
falls squarely within this historical tradition.
III. Any intrusion on the president's constitutionally assigned
national security functions resulting from the disclosure
provision is justified by an overriding need to promote
constitutional objectives of congress
Because the constitutional text and historical practice establish
beyond peradventure that the President and Congress share
constitutional authority to regulate national security information, the
proper analytic approach to determining the constitutionality of the
disclosure provision is ``a balancing approach, asking whether the
statute at issue prevents the President `from accomplishing [his]
constitutionally assigned functions,' '' and whether the extent of the
intrusion on the President's powers `is justified by an overriding need
to promote objectives within the constitutional authority of Congress.'
'' \53\
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\53\ Public Citizen, 491 U.S. at 485 (Kennedy, J., concurring).
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a. The disclosure provision's intrusion on the President's
national security functions
As Commander in Chief and head of the executive branch, the
President unquestionably enjoys implied constitutional authority to
regulate national security information. Indeed, the assignment of such
authority to him reflects his functional advantages in collecting,
protecting, and disseminating such information:
``[H]e, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this
true in time of war. He has his confidential sources of information. He
has his agents in the form of diplomatic, consular and other officials.
Secrecy in respect of information gathering by them may be highly
necessary, and the premature disclosure of it productive of harmful
results.'' \54\
---------------------------------------------------------------------------
\54\ Curtiss-Wright, 299 U.S. at 320.
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Thus, it is ultimately the constitutionally assigned (albeit
implied) function of collecting, protecting, and disseminating
classified national security information which is impacted by the
disclosure provision; an executive branch employee's unilateral
disclosure of classified information to Congress may be ``premature''
and therefore cause ``harmful results.'' More specifically, the OLC
memo suggests that such a disclosure would ``circumvent[]'' the orderly
executive branch procedure for disclosure of classified information,
which involves access determinations by executive delegates of the
President, and the corresponding chain of command. Such a disclosure
may therefore deny the President and his delegates the opportunity to
invoke constitutionally-based claims of executive privilege \55\ and
claims of state secrets, \56\ as well as to take steps to protect their
``sources and methods.'' \57\
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\55\ See, e.g., United States v. Nixon, 418 U.S. 683, 705-06
(1974); In re Sealed Case, 116 F.3d 550 (D.C. Cir. 1997).
\56\ United States v. Reynolds, 345 U.S. 1, 10(1953); Nixon, 418
U.S. at 706.
\57\ See 50 U.S.C. Sec. 403-3(c)(6) (1994).
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This assessment of the disclosure provision's intrusion on the
President's functions, however, is substantially exaggerated for
several reasons.
First, the disclosure provision encourages disclosure of only a
small subset of classified information: that which provides ``direct
and specific evidence'' of violations of law, rule, or regulation; a
false statement to Congress on an issue of material fact; or gross
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. Under the
President's own executive order, ``[i]n no case shall information be
classified in order to . . . conceal violations of law, inefficiency,
or administrative error [or to] prevent embarrassment to a person,
organization, or agency.'' \58\ False statements to Congress are
themselves violations of law.\59\ Unless, therefore, gross
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety is not
either ``inefficiency'' or administrative error,'' none of the
information targeted by the disclosure provision is properly classified
according to the President's own standards. The employee who reasonably
and correctly determines that the putatively ``classified'' information
provides direct and specific evidence of the listed actions cannot
compromise the information by disclosing it to congress for the simple
reason that it is not lawfully classified.
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\58\ Exec. Order No. 12,958 Sec. 1.8(a), 60 Fed. Reg. 19,825
(1995).
\59\ Although the Supreme Court has recently suggested that the
false statements criminal statute, 18 U.S.C. Sec. 1001 (1994), does not
apply to statements made to Congress, Hubbard v. United States, 514
U.S. 695 (1995), such statements may still constitute obstruction of
justice, 18 U.S.C. Sec. 1505 (1994), or perjury. 18 U.S.C. Sec. 1621
(1994).
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Second, the disclosure provision is aimed at encouraging--and
ultimately protecting--only the employee who ``reasonably'' believes
that the classified information falls into this subset. The employee
who discloses information he knows falls outside this subset, or which
he unreasonably believes falls within it, is not covered by the act. As
a result, deliberate or reckless disclosure of classified information
which falls outside the disclosure provision is not encourages or
protected by it.
Third, the disclosure which the disclosure provision encourages is
only to members of congressional committees with oversight over the
governmental unit to which the information relates, and not to the
world or even to the Congress at large. Because section 306(c) targets
only ``employees'' of agencies within the national intelligence
community, most of the classified information they are encouraged to
disclose would relate to that community, and the contemplated
disclosures would be made chiefly to the intelligence committees.\60\
These committees operate under specially-enacted rules ``to protect
from unauthorized disclosure all classified information, and all
information relating to intelligence sources and methods, that is
furnished to the[m]. . . .'' \61\
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\60\ As we discuss below, the constitutionality of the disclosure
provision would be strengthened by narrowing the ``covered
individuals'' to members and staff of the intelligence committees
subject to rules of protecting classified information. See, e.g., 50
U.S.C. Sec. 413(D) (1994).
\61\ Id.
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In light of these limitations in the disclosure provision, we can
now describe more precisely the provision's intrusion on the
President's constitutionally assigned functions. The intrusion that the
provision risks is that (1) executive branch employees with access to
classified information will reasonably, but erroneously, conclude that
such information provides direct and specific evidence of the actions
listed in the disclosure provision, and (2) disclose it to a member of
staff member of a congressional committee that either is not subject to
the protective rules governing the intelligence committees, or who is,
but disregards them, with the result that (3) lawfully classified
information--including information that may be subject to executive or
state secrets privileges--is compromised, harming the national
security.
b. The Congressional interests
Assuming this intrusion by the disclosure provision on executive
functions, it remains to consider whether the extent of the intrusion
is justified by an overriding need to promote objectives within the
constitutional authority of Congress.
The chief legislative interest advanced by the disclosure provision
is the oversight of the national security and intelligence
communities.\62\ As we have explained elsewhere: \63\
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\62\ Congress also has an interest in protecting the First
Amendment rights of executive employees. Indeed, members of Congress
are not only constitutionally authorized, but ``bound by Oath or
Affirmation, to support [the] Constitution.'' U.S. Const. art. VI. In
exercise of this authority and furtherance of this duty, Congress as
early as 1912 enacted the Lloyd-LaFollete Act, providing that ``[t]he
right of [employees], individually or collectively, to petition
Congress or any Member thereof, or to furnish information to [Congress]
. . . shall not be denied or interfered with.'' Act of Aug. 24, ch.
389, Sec. 6, 37 Stat. 539, 555 (codified as amended at 5 U.S.C.
Sec. 7211 (1994)). This Act was intended to nullify a gag order by
President Taft forbidding a federal employee from requesting Congress
to act on any matter without prior authorization from the head of her
department. Congress has since enacted similar legislation protecting
the right of military personnel to communicate with Congress, 10 U.S.C.
Sec. 1034 (1994), and of executive employees in agencies and
departments concerned with foreign relations to speak, on request, to
committees of appropriate oversight jurisdiction. Foreign Relations
Authorization Act of 1972, Pub. L. No. 92-352 Sec. 502, 86 Stat. 489,
496 (codified as amended at 2 U.S.C. Sec. 194a (1994)).
We do not stress Congress's undoubted constitutional authority to
protect the constitutional rights of federal employees because, as far
as we know, the sponsors of the disclosure provision have not.
\63\ Raven-Hansen & Banks, 80 Va. L. Rev. at 938-39 (selected
footnotes omitted or modified).
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``[T]he national security and foreign affairs authority assigned to
Congress by the Constitution logically carries with it attendant rights
of oversight and information access. As early as 1927, the Supreme
Court acknowledged the constitutionality of the general investigative
function of Congress and the need for information access in
lawmaking.\64\ Indeed, more recently it has said that Congress'
investigatory powers are as ``penetrating and far-reaching as the
potential power to enact and appropriate under the Constitution.'' \65\
. . . The post-World War II growth of the defense and intelligence
community has only increased Congress' need for classified information
to aid oversight in peacetime.''
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\64\ McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
\65\ Barenblatt v. United States, 360 U.S. 109, 111 (1959). In
Barenblatt, the Court added that Congress ``cannot inquire into matters
which are within the exclusive province of one of the other branches of
the Government.'' Id. at 111-12. As we have shown in Part II supra,
however, the constitutional text and historical practice refute any
claim that national security or foreign affairs are within the
``exclusive'' province of the executive.
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The Court has also acknowledged a related congressional interest in
regulating information in the executive branch. In rejecting a
constitutional challenge to one regulatory statute, the Supreme Court
in Nixon v. Administrator of General Services \66\ took notice of
``abundant statutory precedent for the regulation and mandatory
disclosure of documents in the possession of the Executive Branch'' and
stated flatly that ``[s]uch regulation of material generated in the
Executive Branch has never been considered invalid as an invasion of
its [executive] autonomy.'' \67\
---------------------------------------------------------------------------
\66\ 433 U.S. 425 (1977)
\67\ Id. at 445.
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The executive branch has acknowledged the congressional fact-
gathering and investigatory authority, as it must, but has tried to
minimize it by arguing that it ``is nowhere expressed in the
Constitution [and just] implied from Congress's power to make laws,''
in alleged contrast to the President's ``plenary control over the
disclosure of national security information'' which is ``integral'' to
his roles as Commander in Chief and sole organ for foreign affairs.\68\
But, as we have shown in Part I, the President's power is also nowhere
expressed in the Constitution and only implied in his roles. In any
event, the Supreme Court answered this argument when, in upholding a
congressional inquiry, it observed that at the time the Constitution
was framed legislative fact-gathering ``was regarded and employed as a
necessary and appropriate attribute of the power to legislate--indeed,
was treated as inhering in it.'' \69\ In short, access to national
security information is an inherent power, integral to both the
President's and Congress's constitutionally assigned functions in the
area of national security.
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\68\ Brief of Appellees supra note 9, at 49 n. 42.
\69\ McGrain, 273 U.S. at 175 (emphasis added).
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Whether the congressional need for information is ``overriding,''
however, turns in part on how specific it is. Generalized congressional
interests do not weigh as heavily in the balancing as more specifically
defined interests, and do not override specific executive interests.
For example, in Senate Select Committee on Presidential Campaign
Activities v. Nixon,\70\ the Court of Appeals held that the generalized
investigatory need cited by a Senate Committee for electronic tapes of
presidential communications was ``too attenuated and too tangential to
its functions'' to overcome the President's interests in the
confidentiality of those communications in light of the more specific
impeachment inquiry then underway in the House Judiciary Committee.
---------------------------------------------------------------------------
\70\ 498 F. 2d 725 (D.C. Cir. 1974).
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The disclosure provision, however, does narrow Congress's
generalized interest in national security information to three specific
categories. We believe that the specific congressional interest in
direct and specific evidence of ``a false statement to Congress on an
issue of material fact'' is among the weightiest interests Congress can
assert, because it protects the integrity of Congress's fact-finding
process. As one federal court has emphasized, in rejecting the claim
that the executive may lie to Congress to protect national security,
``[i]t is essential that Congress legislate based on fact, not
falsifications, in the realm of foreign affairs as well as in domestic
legislation.'' \71\ Indeed, access to such information is necessary to
make the formal provision of authorized national security information
from the executive branch to Congress work. Without such access,
Congress is wholly dependent on the executive branch to police the
accuracy of its own submissions.
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\71\ United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988).
---------------------------------------------------------------------------
It is no rebuttal to assert that national security sometimes
requires the executive to lie to Congress. There is no executive or
state secret privilege to lie.
``The thought that any one of the hundreds or thousands of persons
working for the President can affirmatively and intentionally mislead
Congress when it seeks information to perform one of its assigned
functions for any reason--including self-interest or the belief that
the President would approve--is unacceptable on its face. Such a
disdainful view of our democratic form of government has no
constitutional substance. Where, as here, power is shared among the
branches, willful and deliberate deceit . . . cannot be excused on
constitutional grounds.'' \72\
---------------------------------------------------------------------------
\72\ Id.
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Nor, it follows, can a denial of access by Congress to direct and
specific evidence of such deceit be excused on constitutional grounds.
We believe that there is no question that Congress's overriding need
for such information justifies any intrusion on the President's
authority resulting from the ``false statement'' subprovision of the
disclosure provision.
The disclosure provision also seeks to insure that Congress obtains
evidence of ``a violation of any law, rule, or regulation.'' This, too,
is concrete and specific need that we believe is ``overriding'' in this
setting, although we add one caveat to this conclusion. In addition to
the obvious utility of such information for carrying out of the
congressional oversight function, as well as for revising existing law
and enacting new law, the need for this category of information is
underscored by the fact that this information indicates that executive
oversight--and, therefore, execution--has, by definition, failed.
Furthermore, the executive has itself recognized Congress's and the
public's need for such information by prohibiting classification ``to
conceal violations of law.''
Our caveat concerns the phrase ``rule, or regulation.'' Without
further refinement, rules may be construed by administrative lawyers to
include internal interpretive or housekeeping rules that usually lack
the force and effect of law and are therefore generally understood to
be unenforceable outside the agency that makes them.\73\ The
congressional need for this subprovision is strongest if the ``rule, or
regulation'' subprovision is understood, or ideally, redrafted, to mean
only those legislative or substantive rules or regulations having the
force and effect of law.
---------------------------------------------------------------------------
\73\ See 5 U.S.C. Sec. 553(b)(A)(1994); see generally Alfred C.
Aman, Jr., & William T. Mayton, Administrative Law Sec. Sec. 4.2-4.3
(1993).
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Finally, the disclosure provision also encourages disclosure of
direct and specific evidence of ``gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to
public health or safety.'' Although this subprovision corresponds
roughly to the executive prohibition on the classification of
information to conceal ``inefficiency'' or ``administrative error,''
and is drawn from the Whistleblower Protection Act,\74\ its terms are
intrinsically ambiguous, leaving the employee to make a difficult
judgment with little direct guidance from Congress. This subprovision
therefore potentially targets the largest category of classified
information, and, in so doing, poses the greatest risk of error by the
disclosing employee. Moreover, viewed as a sort of catch-all, the
congressional interest expressed in this subprovision is hardly more
specific than a generalized need for oversight information, which may
not be sufficiently overriding to justify an intrusion on specific
executive national security functions.
---------------------------------------------------------------------------
\74\ 5 U.S.C. Sec. 2302(1994).
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An important countervailing consideration, however, is that the
general secrecy and attenuated oversight to which the national
intelligence community is subject may themselves add to the weight of
the congressional need for this kind of evidence from executive branch
employees. Not only does existing national security legislation give
enormous discretion to national security bureaucrats with few specific
statutory restraints, but they are largely spared the fiscal
accountability to which other, more ``transparent'' public
bureaucracies are routinely subjected.\75\ Their budget lines are kept
secret not only from the public, but also from most of Congress, and
they do not publicly account for how they spend their budgets either.
Secret budgets, secret spending, and classified information conspire to
limit media oversight of the national intelligence community as well.
Max Weber's analysis of bureaucracy therefore applies with special
force to the national security and intelligence community.
---------------------------------------------------------------------------
\75\ See, e.g., William C. Banks & Peter Raven-Hanse, National
Security Law and the Power of the Purse 51-53, 100-105 (1994).
---------------------------------------------------------------------------
``Every bureaucracy seeks to increase the superiority of the
professionally informed by keeping their knowledge and intentions
secret. Bureaucratic administration always tends to be an
administration of ``secret sessions'' in so far as it can, it hides its
knowledge and action from criticism. . . . In facing a parliament, the
bureaucracy, out of a sure power instinct, fights every attempt of the
parliament to gain knowledge by means of its own experts or from
interest groups. The so-called right of parliamentary investigations is
one of the means by which parliament seeks such knowledge. Bureaucracy
naturally welcomes a poorly informed and hence a powerless parliament--
at least in so far as ignorance somehow agrees with the bureaucracy's
interest.'' \76\
---------------------------------------------------------------------------
\76\ Max Weber, Essays in Sociology 233-34 (H.H. Gerth & C. Wright
Mills ed. 1946), quoted in Secrecy Commission Report supra note 30, at
A-15 to A-16.
---------------------------------------------------------------------------
One does not have to share Weber's views about government
bureaucracies in general, or to suspect the national security and
intelligence communities of bad faith or worse, to recognize that the
system under which they currently operate fosters bureaucracy and
hampers accountability. For this reason, Congress may, after all, have
a special need for employee disclosures of classified information
evidencing ``gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health and
safety'' by agencies or departments in the national security and
intelligence communities. Such disclosures can be justified to
compensate for the severe restraints on other methods of assuring their
accountability to Congress and the public. We conclude, therefore, that
this subprovision of the disclosure provision is also constitutional.
IV. The disclosure provision could be revised to enhance its
constitutionality
Although we have concluded that the disclosure provision is
constitutional, we also believe that the case for its constitutionality
could be enhanced by several changes.
First, the ``covered individuals'' defined in section 306(a)(3)
could be narrowed to members or security-cleared staff of the
intelligence committees. Because a statute \77\ requires these
committees to operate under house rules to protect classified
information from unauthorized disclosure, employee disclosures of
classified information to them are less likely to compromise such
information than disclosures to less secure committees, their members,
or staff. Although we understand that other communities, including
notably the appropriations committees, may also have a legitimate
legislative need for such information, each intelligence committee is
already directed by statute, in accordance with secure procedures, ``to
promptly call to the attention of its respective House, or to any
appropriate committee or committees of the respective House, any matter
relating to intelligence activities requiring the attention of such
House or such committee or committees.'' \78\ Alternatively, if
jurisdictional considerations, as a practical matter, prevent the
suggested limitation of ``covered persons'' to just the members and
staff of the intelligence committees, the disclosure provision might be
enhanced by inclusion of a subprovision requiring the application of
the existing rules and procedures for protecting classified information
to any committees to whom disclosures may be made under the
provision.\79\ In any case, specific identification of the covered
committees by name would reduce the risk that an employee will
mistakenly disclose to persons who are not covered by the disclosure
provision; the provision as currently drafted leaves an ambiguity that
invites such error.
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\77\ See e.g., 50 U.S.C. Sec. 413(d) (1994).
\78\ Id.
\79\ Such a subprovision would largely track 50 U.S.C. Sec. 413(d)
(1994).
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Second, section 306(a)(2)(A) could be narrowed to cover only
violations of law or substantive rules or regulations with the force
and effect of law, thus excluding violations of mere procedural,
housekeeping, and interpretive rules, as discussed above. This revision
would again reduce the risk of erroneous disclosure by narrowing the
range of disclosable classified information.
Third, section 306(a)(2)(C) could be revised to track more directly
the President's own classification prohibition in Executive Order No.
12,958, section 1.8(a)(1).\80\ This revision would not narrow the reach
of the disclosure provision, but it would make it more difficult for
the President and his lawyers to argue that this subprovision goes too
far, for it would target precisely the information that the President
has admitted should not be classified.
---------------------------------------------------------------------------
\80\ 60 Fed. Reg. 19,825 (1995).
---------------------------------------------------------------------------
Finally, the intrusion on presidential functions could be reduced
if the covered employees was required to exhaust certain administrative
remedies before disclosing classified information to covered persons.
For example, an employee might be required first to disclose the
information to the agency or department Inspector General, if there is
one, or to the Office of Special Counsel of the Merits Systems
Protection Act. Such a revision would require amendment of the
Whistleblower Protection Act,\81\ as well, ideally, as the addition of
a requirement that such offices adopt special rules for the protection
against unauthorized disclosures of classified information disclosed to
them. This revision would also presumably require deadlines for
responses by these offices, and/or exceptions to the exhaustion
requirement for time-urgent information. Such a revision would enhance
the constitutionality of the act by offering executive branch officials
an opportunity to review the proposed disclosure and to use an orderly
process for deciding whether the disclosure should be made pre-
emptively, but officially, thus reducing if not in many cases
eliminating, the intrusion on the executive function.
---------------------------------------------------------------------------
\81\ 5 U.S.C. Sec. 2302(b)(8)(A) (1994).
---------------------------------------------------------------------------
In conclusion, we assume that it was in part to give the President
the opportunity to impose such exhaustion requirements (as well as
other procedures that could minimize the intrusion on his functions
without denying Congress the information it needs) that the disclosure
provision is not framed in terms of employee rights, but instead as a
request to the President to take appropriate actions to encourage
employee disclosures. While such voluntary action by him would be in
keeping with a long and successful history of negotiated solutions to
inter-branch disputes,\82\ and while we applaud the sponsors' evident
desire for this outcome, we doubt that this provision will achieve it.
It is, after all, not merely precatory. Indeed, it ultimately commands
the President to take the required action within thirty days of
enactment. Such a command may actually be more offensive to the
executive than a straightforward declaration of employee (and,
derivatively, congressional) rights, in that it may precipitate a
direct conflict sooner than the latter.
---------------------------------------------------------------------------
\82\ See, e.g., Peter M. Shane, Legal Disagreement and Negotiation
in a Government of Laws: The Case of executive Privilege Claims Against
Congress, 71 Minn. L. Rev. 462 (1987).
---------------------------------------------------------------------------
We hope this analysis will assist you, and we would be happy to
summarize it in testimony.
Sincerely yours,
William C. Banks, Professor of Law,
Syracuse University College of
Law.
Peter Raven-Hansen, Glen Earl Weston
Research Professor of Law,
George Washington University Law
School.
STATEMENT OF PETER RAVEN-HANSEN, GLEN EARL WESTON RESEARCH
PROFESSOR OF LAW, THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF
LAW
Mr. Raven-Hansen. Well, let me begin at the same place that
Dr. Fisher began and I'll cover a little bit of the same
ground, but I think it's important to note that we have
independently come at the same conclusion.
Last year, the Office of Legal Counsel opined that Section
306 was unconstitutional and presumably would reach the same
conclusion about similar bills. And it based that conclusion
principally on this statement from the Supreme Court in
Department of Navy versus Egan. That the President's authority
to classify and control access to information bearing on
national security flows primarily from the Commander-in-Chief
clause and ``exists quite apart from any explicit Congressional
grant.''
And it was that statement that they relied on to conclude
that the President has ultimate and unimpeded authority over
classified information. And that therefore, limitations like
Section 306 are unconstitutional.
I think the premises of their logic are flawed and their
conclusion is dead wrong. The President and Congress have both
historically and as a matter of constitutional text shared
authority over classified information from the beginning.
Now, let's start with the text. There is no express text
regarding the regulation of classified information. The
President's authority on this subject is entirely implied from
his command authority asCommander-in-Chief. But if it is
implicit in the Commander-in-Chief clause, it is equally implicit in
the nine separate express provisions of the Constitution that confer
national security and foreign affairs powers on the Congress, ranging
from the authority to provide for the common defense to the authority
to make rules for the government and regulation of the armed forces.
It's also implicit in Congress' residual authority to make
all laws necessary and proper to carry out not only their own
vast national security powers, but also the President's. In
fact, the only express constitutional text that deals with
governmental information that is secret gives the Congress, and
not the President, the power to keep it secret. Each House is
permitted to keep parts of its journal secret when, in its
judgment, that's necessary.
Egan, therefore, properly read, stands simply for the
proposition that the President has inherent authority to
regulate classified information and doesn't need a statute to
do so. It does not mean that he could violate a statute if
Congress passed one regulating such matters.
And in fact, as Dr. Fisher noted, the Court was careful to
say in its actual holding in Egan, that it reached its
statutory decision in the absence of statutes to the contrary,
leaving open the possibility, and I would say the likelihood,
that if Congress had legislated on the subject, they would have
come out differently.
In short, I would paraphrase Justice Jackson on this as he
said of Curtiss-Wright, another popular decision cited by the
Office of Legal Counsel, Egan at most intimates that the
President can act without Congressional authority. It does not
say that he can act contrary to an act of Congress, like
Section 306.
In addition, the President and Congress have historically
acted together to regulate classified information for over 80
years. In my longer statement, Professor Banks and I sampled
just 12 statutes to illustrate that point, but I could give you
50 if you wished, and we had all day.
They range back to the Espionage Act of 1917, which was the
first act that criminalized the uses of national security
information to harm the country, and they go up, to most
recently, the Protection and Reduction of Government Secrecy
Act of 1994, which established minimum procedures for access to
classified information on which the President's own Executive
Order is now based.
And what these statutes have in common is not just that
they pervasively regulate classified information, but that they
also consistently reserve the right of Congress to receive that
information, either at large or through its Intelligence
Committees. One example I can give on which I testified two
years ago before your counterpart in the House is 18 U.S.C.
1924. This is the statute that for the first time criminalized
leaks of classified information by Executive branch officials.
I testified to the House Committee that Congress always
reserved its own rights when it enacts legislation in this
matter, and they then added a provision that the production of
documents to Congress was not an offense under the statute.
That is a routine reservation of rights by Congress. No one has
challenged them, to my knowledge, in 80 days.
So I think it is far too late in the day for the Office of
Legal Counsel of the Executive branch to assert that the
President has some sort of plenary and exclusive authority to
regulate classified information. Instead, the text and the
history establish beyond question that this is an area of
shared power.
The issue then is what do you do when we have a statute
that would limit the President's power in the area? And on that
subject, Justice Kennedy has said that when the constitutional
text does not assign authority exclusively to the President and
only gives him an implied authority, the constitutionality of
that statute has to be decided by balancing. What you balance
is the degree of intrusion on the President's powers against
the need to achieve objectives that are within Congress's
constitutional authority.
I should add that the Court has also said, ``The regulation
of material generated in the Executive branch has never been
considered invalid as an invasion of its autonomy.''
So with that background, let's do the balancing. What is
the actual intrusion on the Executive branch that Section 306
threatens? The Office of Legal Counsel asserted last year that
the act would circumvent the Executive branch's procedure for
the orderly disclosure of classified information by preventing
the chain of command for considering whether there were
constitutionally based privileges to be asserted or from taking
other action to protect sources and methods. Disclosure would
be made by lower ranking employees on their own authority.
I think that is partly correct, but it exaggerates
substantially the effect of Section 306. In the first place,
the disclosure that it encourages is not of all classified
information, but of a small, well defined subset: namely, the
information that would provide direct and specific evidence of
violations of law or that false statements have been made to
Congress or of gross mismanagement, etc.
The President's own Executive Order on classified
information that is now in place states, ``in no case shall
information be classified in order to conceal violations of
law, inefficiency, or administrative error, or to prevent
embarrassment.'' False statements to Congress, of course, are
violations of law. And unless gross mismanagement is neither
adminstrative error nor inefficiency, I would have to say that
none of the information targeted by Section 306 is currently
properly classified under the President's own order.
Secondly, the disclosure provision is aimed at encouraging
only employees who reasonably believe that the classified
information falls into the subset I have just described. So an
employee who knows that it is outside of that subset or who
unreasonably believes that the information is in this category,
isn't covered by the bill. It therefore does not encourage or
protect deliberate or reckless disclosures.
And third, it only encourages disclosures to Committees
that have oversight responsibility for the subject of the
disclosure. Since the covered employees are usually employees
of national Intelligence Community agencies, the information
they are going to disclose would come to this Committee and the
House Committee in most instances. Of course, both Committees
operate under elaborate safeguards to protect against
unauthorized disclosures.
So I think in the end, the intrusion, the actual scope of
the intrusion on the Executive is the following: The risk is
that Executive branch employees with access to classified
information will reasonably but erroneously conclude that that
information falls within the statute and disclose it to a
Member of a Congressional Committee or a staff member that is
either not subject to the safeguards we've described or who is
but ignores them as a result of which the information is
disclosed to the public and compromised, harming the national
security.
Now, that's a real concern, but it is not nearly as large
as the Office of Legal Counsel has described it, and what
remains is to consider whether the Congressional need is
overriding. And in that regard, I won't belabor the extensive
Supreme Court authority concerning Congress's constitutional
right to information from the Executive branch. The question is
really whether the informational need of Congress is specific
enough to overcome the Executive interest that I have just
described. General interests of Congress in the balancing
process that Justice Kennedy has described do not overcome
specific interests of the Executive branch.
The disclosure section, however, does not state a general
informational interest of Congress. It narrows Congress's
interest in three ways.
The first, I think, asserts the strongest interest I could
imagine for this Committee and the Congress as a whole. That
is, to obtain evidence that Congress has been lied to regarding
matters within the purview of this Committee. I can't think of
a weightier interest in the oversight of the national
Intelligence Community or of national security in general. This
interest protects the integrity of Congress's fact-finding
process. It, in fact, could be viewed ironically as an interest
that the Executive branch should share, because it would help
Congress have faith in official channels if you have an
independent check on the rare--hopefully rare--false statement
made through official channels.
It is no answer to this, incidentally, to say that the
President has some sort of Executive privilege or state secrets
privilege to lie. Judge Gesell squarely rejected that in the
North litigation. He said where power is shared among the
branches, willful and deliberate deceit cannot be excused on
constitutional grounds. And of course, he was talking about
national security information.
And I think it follows that nor can denial of access by
Congress to this kind of information be excused on
constitutional grounds. So I have no hesitation in saying that
as to this category of information, the bill is clearly
constitutional and very sound.
The second category is information about violations of law.
And I think that is also concrete and specific enough to
override the Executive interest that I have described. When law
has been violated, it means not only that Congress has a need
to know in order to legislate anew, but by definition, the
President has failed to take care that the law be faithfully
executed. In those circumstances, it seems to me that Congress
has a very specific and heightened need for the information.
Finally, the third provision is the most constitutionally
problematical. That's the provision that deals with information
about gross mismanagement, waste of funds, abuse of authority,
etc. This corresponds roughly to the President's own categories
of inefficiency or administrative error, which he says cannot
be properly classified. But I think it is also ambiguous, and
it leaves the employee with a difficult judgment to make, and
not too much guidance from Section 306. In other words, this
section potentially targets the largest category of classified
information, and therefore poses the greatest risk of an error
if an employee comes to Congress.
On the other hand, there is an important countervailing
consideration here, and that lies in the nature of oversight of
the national Intelligence Community in general. And with all
due respect to this Committee, I think one would recognize that
because of secrecy, because of the secret budgeting process,
that community is not as accountable, to the public at least,
and to the Congress at large, as other more transparent
agencies. It operates under a system that fosters bureaucracy
and hampers accountability. And I say that without impugning in
any way the people who work in that community. It is just a
nature of the workplace when you operate secretly and without
full fiscal accountability and outside the glare of media
scrutiny.
As a result, Congress may have a special need for
disclosures in this third category, to compensate for the very
limited accountability that the national security community
otherwise has to the Congress and to the public at large.
Let me conclude by saying I think there are some things
that you could do to enhance the constitutional argument for
this section 306. I have listed them in my more comprehensive
statement, but let me just focus on two.
The bill currently encourages employees to bring
information to any Committee with jurisdiction over the
subject. But other Committees do not operate under the same
safeguards for protecting against unauthorized disclosures that
you operate under. And I think it would be desirable to limit
disclosures to the Intelligence Committees because of those
safeguards. That would not only reduce the risk of unauthorized
disclosure and therefore reduce the intrusion on the Executive
branch, but it also brings the information where the oversight
is. I mean, to the extent that this is basically classified
information from the Intelligence Communities that you oversee,
it seems appropriate that it would come to these Committees and
not to Committees that don't operate under the same safeguards.
Finally, I would add one other point that is not in my
statement but is a concern I have had. Dr. Fisher referred to
the Lloyd-LaFollette Act. This, since 1912, has given
government employees the right to furnish information to
Congress. That is what it says. It is unconditional. I would be
disturbed if Section 306 or a bill like it was construed to
narrow the Lloyd-LaFollette Act unless that was what the
Committee intended. And so I would urge you to consider
language in a bill like this that says ``nothing in the bill is
intended to limit any existing right under law or the
Constitution of employees to communicate to Congress.''
Thank you.
Chairman Shelby. In the statement of Administration policy
drafted in response to Section 306, the Administration states
thatsection 306, ``vests lower ranking personnel in the
Executive branch with a right to furnish national security or other
privileged information to a Member of Congress without receiving
official authorization to do so.''
It is not the intent of the Committee to create any rights
for individual Intelligence Community employees. Rather, our
intent is to inform employees within the Intelligence
Community, that disclosing evidence of misconduct, fraud, and
mismanagement to this Committee is not an unauthorized
disclosure.
Assuming our proposed language become law, would individual
Intelligence Community employees obtain enforceable rights
under its provision? And if so, how would they be enforced?
Dr. Fisher, do you have any comment?
Dr. Fisher. I think that Peter is going to be better on
this than me. I think anytime you have a statute, whether it is
whistleblower for non-national security information, anytime
you give employees a statutory basis for providing information
with you, I think they know that they operate at some risk,
whatever the statutory safeguard is.
I think under the language--Peter will go more into this--
that in court, they certainly would have a statutory basis, but
they know they are taking chances in giving you information
that the Agency did not want disclosed.
Chairman Shelby. Professor Raven-Hansen, we also did not
intend to create, and do not intend to create a private cause
of action, that is, a lawsuit for money damages here, for an
individual employee within the Intelligence Community. Can our
proposed language as currently drafted be construed to create
such a cause of action?
Mr. Raven-Hansen. I think as you currently drafted it,
which is to ask the President to remind Federal employees of
the existing rights they have, that it would not be construed
in that fashion, and if the legislative history were clear that
Congress has not such intent, I think it unlikely that courts
would imply a cause of action here.
I might add that they have implied a cause of action under
the Lloyd-LaFollette Act, and I presume that law would remain
in place.
Chairman Shelby. But if either one of you has some
suggestions to tighten the language without destroying what our
intentions are, we will consider that.
Dr. Fisher. Thank you.
Chairman Shelby. The proposed Senate language requires the
President to, ``take appropriate actions to inform employees
that they may disclose information to this Committee'' if they
reasonably believe that it is a direct and specific evidence of
an act that falls within certain parameters.
We do not expressly say that employees within the
Intelligence Community have a ``right'' to provide information
to this Committee. Could we, however, expressly grant an
employee a right to bring such information to Congress, and
remain within the constitutional limits of our authority? And
if we can, what argument could we expect from the
Administration if we did so?
Dr. Fisher first?
Dr. Fisher. At this point I would like to submit a response
better reasoned on this than I can give you right now. I'd be
happy to do that.
I think the legislative language would grant an employee a
right to bring information to the Intelligence Committees, and
I further believe that the legislative language would be within
the constitutional authority available to Congress. Apparently
the Administration would continue to challenge such language on
constitutional grounds, but I do not think the DOJ argument is
persuasive as it now stands. Regarding your earlier question on
a cause of action, courts will rely on the intent of Congress.
Thompson v. Thompson, 484 U.S. 174, 179 (1988). In the
legislative history, Congress can clarify its intent not to
create a cause of action.
Chairman Shelby. I would like that.
Professor Raven-Hansen.
Mr. Raven-Hansen. I think you could clearly phrase this as
a declaration of Congressional--of employee rights, although I
think it is best defended as an exercise of Congressional
right. What it does now is remind employees of rights they
already have and give them a channel for exercising them. I
would see no objection to phrasing it as a right. I understand
that the way it's been framed now is basically as an
accommodation to the President, urging him to remind employees
of their rights. Sort of an invitation for him to follow
through. But if he doesn't take that invitation, I would
rephrase this as a statement of both employee and Congressional
rights.
Chairman Shelby. The Administration emphasizes the, ``need
to know factor'' a great deal in its policy statements,
Executive Orders and legal briefs. In fact, Executive Order
number 12,958 states that a person has, ``a need to know if
access to classified information is required in order to
perform or assist in a lawful and authorized governmental
function.''
The language offered at the Conference with the House
Intelligence Committee narrowly defines the type of information
that may be provided by an employee on the Committee. It
includes only information, classified or otherwise, that the
employee reasonably believes to provide direct and specific
evidence of a violation of any law, rule, or regulation, a
false statement to Congress on an issue of material fact, or
gross mismanagement, a gross waste of funds, an abuse of
authority or a substantial and specific danger to public health
or safety.
Do you two professors, do you agree that these categories
of information are appropriately limited and specifically
pertain to the oversight responsibilities of the Senate
Intelligence Committee so as to be required to perform our
lawful and our authorized governmental function as expressed in
Executive Order number 12958.
Dr. Fisher.
Dr. Fisher. I think these categories that you mentioned,
306, are appropriate, and I want to talk to some of my
colleagues to see if any other categories occurred to them.
Chairman Shelby. Would you submit some information to----
Dr. Fisher. I'll submit it.
Chairman Shelby. Both of you, on that?
Dr. Fisher. I will. And I also want to say, Executive
Orders, of course, are issued by the President to guide the
Executive branch. The Executive Order can't restrict the powers
and duties of Congress as a separate institution.
Chairman Shelby. Okay.
Do you agree that these categories of information are
appropriately limited? You know, you're going to send that to
me.
Dr. Fisher. Uh-huh; I will.
Chairman Shelby. Looks to be, but you want to do more.
Dr. Fisher. Oh, I think the ones you have are appropriate,
and maybe my friends in CRS have some other categories.
Chairman Shelby. Could they be expanded and remain within
our lawful and authorized functions?
Dr. Fisher. I think they can. These categories come out of
the whistleblower statute, and since you have a specific duty
here in national security, there may be other language that
would be also appropriate. But I want to submit that to you.
Chairman Shelby. You know, both of you know that the
President argues that it is his exclusive authority to
determine who has, ``a need to know'' a particular piece of
classified information, even if that individual is a Member of
Congress.
In the American Foreign Service Association versus
Garfinkel, however, the government brief refers repeatedly to
the concept of need to know and specifically argues that,
``this important limitation is preserved when national security
information is furnished through official agency channels to a
relatively few Members of Congress who serve on a Committee
that has been designated by that House to be responsible for a
particular jurisdiction and area of defense, foreign affairs or
intelligence.''
It seems to me that the government in its brief in the
Garfinkel case basically acknowledges that the Intelligence
Oversight Committees have a need to know particular information
within their specific jurisdiction.
Do either one of you agree with that?
Mr. Raven-Hansen. Absolutely. It is hard to imagine what
information from the national security community is not within
the appropriate jurisdiction of this Committee.
Dr. Fisher. I think the Justice Department concedes the
legitimacy of access----
Chairman Shelby. In their brief, do they not?
Dr. Fisher. In their brief and in other statements. And
they--I think that the dispute comes down to the Administration
trying to think up certain situations where there might be some
embarrassment. But those situations, hypotheticals, shouldn't
stand in the way of access that you need to fulfill your
mission.
Chairman Shelby. Is there any basis for the President to
argue that evidence of misconduct within the Intelligence
Community is not within the jurisdiction of the Senate
Intelligence Committee?
Dr. Raven-Hansen. Not at all.
Dr. Fisher. I don't think so.
Chairman Shelby. You gentleman realize, you can tell from
the absence of Members here, we have a vote in progress, we
have, I understand four or five consecutive roll call votes, so
that is going to eat the rest of the morning up. It's just part
of the hearing process.
I appreciate the first panel being here. I apologize to the
second panel, and I don't know when we can continue this, but
we will certainly do this and we'll schedule, because we want
to hear from the other side, too. And we appreciate any
information written to this Committee by you, Professor Raven-
Hansen, or Dr. Fisher, will help us make this legislation work.
Dr. Fisher. Thank you.
Chairman Shelby. The Committee is going to adjourn.
Thank you.
[Thereupon, at 10:51 a.m., the Committee was adjourned.]
DISCLOSURE OF CLASSIFIED INFORMATION TO CONGRESS
----------
WEDNESDAY, FEBRUARY 11, 1998
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Select Committee met, pursuant to notice, at 9:00 a.m.,
in Room SH-216, Hart Senate Office Building, the Honorable
Richard Shelby, Chairman of the Committee, presiding.
Present: Senators Shelby, Kerrey of Nebraska, and Graham of
Florida.
Also Present: Taylor Lawrence, Staff Director; Chris
Straub, Minority Staff Director; Dan Gallington, General
Counsel; and Kathleen McGhee, Chief Clerk.
Chairman Shelby. The Committee will come to order. We
apologize for the delay last week, and now, but we do have
intervening votes, as most of you realize, in the Senate.
The Committee will meet today to continue hearings on the
proposed legislation that would allow employees of the
Intelligence Community to disclose certain types of information
to an appropriate oversight Committee of Congress. Last week,
the Committee heard from Dr. Louis Fisher, a senior specialist
on separation of powers, with the Congressional Research
Service, and Professor Peter Raven-Hansen, a professor of law
at George Washington School of Law. Dr. Fisher and Professor
Raven-Hansen presented arguments supporting the proposition
that Congress and the Executive branch share constitutional
authority over the regulation of national security information.
Dr. Fisher is again with us today to continue discussions
because a number of Members did not have an opportunity to
question him prior to the series of Floor votes last week. Dr.
Fisher, we thank you for being here.
Seated with Dr. Fisher is Mr. Randolph D. Moss. Mr. Moss is
the Deputy Assistant Attorney General for the Office of Legal
Counsel within the Department of Justice. It was the Office of
Legal Counsel that wrote the legal memoranda, which is at Tab D
in the Members briefing books. On which the Administration
based their constitutional objection to section 306 last year.
Mr. Moss, we look forward to hearing from you today.
Senator Kerrey.
Vice Chairman Kerrey. Thank you very much, Mr. Chairman.
Last November, the two of us made a commitment during the
conference Committee that we would pass legislation to
establish procedures for government employees to bring
information of wrongdoing to Congress, even if the information
was classified. And today's hearing is Part II of the process
of you and I keeping our commitment.
For me this is not about a particular Administration or a
particular incident. This is about the freedom of Americans,
some of whom are government employees, and it's about making
this government work the way the founders intended.
Today's hearing will help us further improve the
legislation passed by the Senate last year and will also help
inform the public on the need for this legislation.
On some topics, such as reforming the Internal Revenue
Service, the need for legislation is blindingly obvious because
of problems that are apparent to all of us. However, on this
topic, the need is present, but in a much more subtle fashion.
We cannot quantify the number of government employees who would
bring classified information of wrongdoing to Congress if the
law established a procedure for doing it.
Today these employees can take their concerns to their
superiors, to the inspector general of their agencies, to the
general counsels of their agencies, or even to the Attorney
General. But if the employee feared for his or her career,
these might not be appealing options.
If the employee believes his boss to be guilty of or aware
of the wrongdoing, or if agency management, or even the highest
level of government were implicated in the wrongdoing, these
would not be appealing options. If the employee believes
himself to be in such circumstances, unable to safely report
the wrongdoing in Administration channels, he or she is faced
with two choices--neither of them good: come to Congress and
take the consequences from his employer, or go to the press and
risk even greater legal penalties for leaking.
We can never know how many government employees are faced
with this dilemma. I hope and presume the number is small. The
quality and motivation of the Clinton Administration's foreign
policy, national security and intelligence teams suggest to me
that the number of employees with something to report is very
low.
This Administration has done more than any other to keep
Congress informed on intelligence matters, including instances
of wrongdoing. And it is aggressively declassifying old secrets
and opening intelligence to the public to an unprecedented
degree.
So my support for this legislation is not connected to my
concerns about a particular Administration. My concerns are for
the access of government employees to Congress and the right of
Congress to have the information it needs to carry out its
constitutional responsibilities.
There are already two laws--the Lloyd-Lafollette Act of
1912 and the Whistleblower Protection Act of 1989--which give
government employees the right to bring information of
wrongdoing directly to Congress.
The Administration apparently believes classified
information is different because such information is created by
the Executive branch and so much be controlled exclusively by
the Executive branch on the grounds of what the Administration
claims is the President's sole authority in national security
matters.
But the Constitution clearly gives Congress its own
authorities in national security. Congress, not the President,
raises armies and maintains navies. Congress, not the
President, calls out the militia. And Congress, not the
President, declares war. Congress, therefore, has the right to
national security information. And in fact, Congressional
Committees in the national security and foreign policy fields
have been successfully working with and storing this
information securely for many years.
Further, Congress's annual responsibility to authorize and
appropriate funds for national security and foreign policy
purposes, and its continuing responsibility to oversee how
those funds are spent gives Congress a need to know which
justifies its access to the information.
I stress with much certainty that this information is held
closely and securely in Congress. As CIA Director Tenet told
this Committee last week, Congress has a better record at
keeping secrets than does the executive branch, which he said,
quote, leaks like a sieve, end of quote.
I don't claim perfection. Congress can always do better.
But the argument that Congress doesn't have a need to know or
can't be trusted with this information is a false one. In fact,
our legislation has the potential to reduce damaging leaks by
giving government employees less rationale for taking their
classified concerns to the news media.
Particularly in the murky and potentially dangerous world
of intelligence, it seems self-evident that an employee who
knew of serious wrongdoing in some classified program might not
want to clear with her boss or her agency's inspector general
or even with the Justice Department the fact that she was going
to an oversight Committee of Congress with the information.
It is equally obvious that Congressional oversight of these
sensitive activities cannot take place without information.
Mr. Chairman, it is our charge and our duty to protect and
keep America and Americans safe. This legislation flows from
that charge and that duty. We need to act this year to make
these truths clear in our law.
I thank you, Mr. Chairman, again for following up on our
commitment that we made last November in the conference
Committee.
Chairman Shelby. Senator Graham, do you have an opening
statement?
Senator Graham of Florida. No opening statement, Mr.
Chairman.
Chairman Shelby. Mr. Moss, your entire written statement
will be made part of the record in its entirety. You may
proceed as you wish.
Mr. Moss. Thank you, Mr. Chairman.
Chairman Shelby. We're glad to have you.
STATEMENT OF RANDOLPH D. MOSS, DEPUTY ATTORNEY GENERAL, OFFICE
OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE
Mr. Moss. Mr. Chairman, Mr. Vice Chairman, members of the
Committee, I'm pleased to be here to address Section 306 of
last year's Intelligence Authorization Bill as originally
passed by the Senate. Last year, the Department of Justice
concluded that the provision was unconstitutional. I'm here
today at the Committee's request to explain our reasons for
reaching that conclusion. I will present a summary of our
position and would be happy to answer any questions that the
Committee may have.
I do want to note that, because Section 306 is the only
proposal we have thoroughly reviewed, I'm not able today to
provide the department's position on other proposals that might
be developed. The department would, however, be pleased to
review future proposals and to provide comments to the
Committee at a later time. Section 306 would have required the
President to inform employees of covered Federal agencies that
their disclosure to Congress of classified information that the
employer reasonably believes provides direct and specific
evidence of misconduct is not prohibited by law, Executive
Order or regulation or otherwise contrary to public policy.
Congress, of course, has important oversight
responsibilities and a corollary interest in receiving the
information that enables it to carry out those
responsibilities. Those interests obviously include
Congress'sability to bring to light evidence of misconduct by Executive
branch employees, including evidence that Executive branch employees
have misled or misinformed Congress.
We are committed to seeking to accommodate Congress's
oversight needs in ways that are consistent with the Executive
branch's constitutional responsibilities.
Moreover, I would emphasize that our concern with Section
306 focuses on the process by which you would secure disclosure
of evidence of misconduct. It is clear that misconduct be
ferreted out. In that respect, I would note, as the Vice
Chairman noted, that existing rules require an Executive branch
employee who discovers waste, fraud, abuse or corruption to
bring such misconduct to the attention of appropriate
authorities who in turn can and should take appropriate
corrective measures. In some cases, this may mean going to
someone within the employee's own agency. In other cases, it
may mean going to someone outside the agency, for example the
Department of Justice.
The critical flaw in Section 306 is that it would vest any
Federal employee--I should say any covered Federal employee--
having access to classified information with a unilateral right
to circumvent the process by which the Executive and
Legislative branches accommodate their respective interests in
that information. Under Section 306, any Federal employee with
access to classified information that, in the employee's
opinion, indicates misconduct can determine how, when and under
what circumstances that information is shared with Congress.
The provision would do so, moreover, no matter what the effect
on the President's ability to accomplish his constitutionally
assigned functions in the areas of national security and
foreign relations. Such a rule would violate separation of
powers.
A host of precedents beginning at the founding of the
republic support the view that the President has unique
constitutional responsibilities with respect to national
defense and foreign relations. John Jay, later the first Chief
Justice of the United States, argued in the Federalist Papers
that secrecy is at times essential to the Executive branch's
discharge of its responsibilities in these core areas. As long
ago as 1792, President Washington, with the concurrence of his
distinguished cabinet, took the position that Congress could
not require the Executive branch to produce documents whose
disclosure would be contrary to the public interest.
Since the Washington Administration, Presidents and their
senior advisers have repeatedly concluded that our
constitutional system grants the Executive branch authority to
control the disposition of secret information. Then-Assistant
Attorney General William Rehnquist, for example, concluded over
30 years ago, and I quote, The President has the authority to
withhold from Congress information in the field of foreign
relations or national security if, in his judgment, disclosure
would be incompatible with the public interest, end quote.
The Supreme Court has similarly recognized the importance
of the President's ability to control the disclosure of
classified information. In the Egan case, the court noted that
the President possesses, ``the authority to classify and
control access to information bearing on national security,''
and continued, ``quite apart from any explicit Congressional
grant.''
Similarly, Justice Stewart, in his concurring opinion in
the Pentagon Papers case, said, ``It is elementary that the
successful conduct of international diplomacy and the
maintenance of an effective national defense require both
confidentiality and secrecy. In the area of basic national
defense, the frequent need for absolute secrecy is of course
self-evident.'' He continued, ``I think there can be but one
answer to this dilemma if dilemma it be. The responsibility
must be where the power is. If the Constitution gives the
Executive a large degree of unshared power in the conduct of
foreign affairs and in the maintenance of national defense,
then under the Constitution, the Executive must have the
largely unshared duty to determine and preserve the degree of
internal security necessary to exercise that power
successfully. It is clear to me,'' that is, Justice Stewart,
``that it is the constitutional duty of the Executive to
protect the confidentiality necessary to carry out its
responsibilities in the fields of international relations and
national defense.''
The principal flaw in Section 306 is that it would permit
individual Federal employees unilaterally to determine how,
when and under what circumstances classified information will
be shared with Congress. It would authorize any Federal
employee to circumvent a Presidential determination--and again
I should say any covered employee--to circumvent a Presidential
determination that restricted Congressional access to certain
classified information in extraordinary circumstances.
In the National Security Act, for example, Congress itself
recognized the need for heightened scrutiny in certain,
``extraordinary circumstances affecting vital interest of the
United States.'' and the Congress authorized the President to
sharply limit Congressional access to information relating to
covert actions in such cases.
In contrast, Section 306 would deprive the President of the
authority to decide, based on the national interest, how, when
and under what circumstances particular classified information
should be disclosed. This is an impermissible encroachment on
the President's ability to carry out core executive functions.
The decision when, whether and under what circumstances to
disclose classified information must be made by someone who is
acting on the official authority of the President, and who is
ultimately responsible to the president.
The Constitution does not permit Congress to authorize
subordinate Executive officials to bypass the orderly
procedures for review and clearance by vesting them with a
unilateral right to disclose classified information, even to
Members of Congress. Such a law would squarely conflict with
the framers' considered judgment, embodied in Article II of the
Constitution that, within the Executive branch, all authority
over matters of national defense and foreign affairs is vested
in the President as chief executive and Commander in Chief.
Professor Raven-Hansen last week suggested that Section
306, at least with modest revision, would strike an acceptable
balance between the competing Executive and Legislative
interest relating to the control of classified information.
That balance under Section 306, however, would be based on an
abstract notion of what information Congress might need to know
relating to some future inquiry and what information the
President might need to protect in light of some future set of
world events. Such an abstract resolution of the competing
interests at stake is simply not consistent with the
President's constitutional responsibilities respecting national
security and foreign affairs. He must be free to determine,
based on particular and perhaps currently unforeseeable
circumstances, that the security or foreign affairs interests
of the nation dictate a particular treatment of classified
information.
In sum, Section 306 would vest any Federal employee, any
covered Federal employee, who has access to classified
information, with a unilateral right to disregard the
President's procedures for the dissemination of such
information, as well as to bypass the accommodation process
between the two branches and disclose that information to
Congress, no matter how grave the risk to national security or
the President's foreign affairs initiatives. Such an enactment
would constitute an impermissible intrusion on the President's
constitutional authority.
Thank you, Mr. Chairman.
Chairman Shebly. I'm going to start with a question to Dr.
Fisher, and then I'll go to you, Mr. Moss.
There's been a great deal of debate among my colleagues in
the House, Dr. Fisher, on whether there are any--any
nonstatutory alternatives to this legislation. We've discussed
here numerous variations on our conference language. We've
entertained various alternatives to statutory enactments. In
the end, our goal is to preserve our constitutional prerogative
to receive classified information that may be evidence of
misconduct within the Intelligence Community. However, as long
as the President asserts a plenary authority to withhold
information from Congress as he sees fit, I believe we will be
unable to do the job the American people elected us to here.
Dr. Fisher, do you believe that there are any nonstatutory
means by which we can reach our goal or will the ``prior
authorization'' problem still exist?
STATEMENT OF LOUIS FISHER, CONGRESSIONAL RESEARCH SERVICE
Dr. Fisher. I think there was a nonstatutory remedy. That's
what we've done up to now. But as you say, once the President
and the Justice Department begin to draw the line to say that
the President has some plenary and exclusive duty here, then I
think, you see that the nonstatutory process is not going to be
that reliable and you need some statutory language.
Chairman Shelby. Mr. Moss, I believe your presentation, at
least as I understand it, is based on the version of 306--of
the 306 passed by the Senate, and not on the version considered
at conference as Senator Kerrey alluded to. The conference
language provided to the department prior to last week's
hearing is much narrower in scope. The legislation we're
considering today does not give, ``any Federal employee having
access to classified information a unilateral right to come to
Congress.'' The language we're considering today pertains only
to the Intelligence Community personnel. It also restricts
disclosure to those Committees having primary responsibility
for oversight of the agency involved.
Our goal is to allow a limited universe of Executive branch
employees to come forward to an appropriate Committee without
fear of reprisal.
Having said that, could you explain to the Committee today
how your analysis would change with the narrowing of the
language, if it would at all? And can you keep the new version
of the language--legislation in mind as you address, you know,
the following questions I'll get into?
Mr. Moss. I would be happy to do that, Mr. Chairman, and I
apologize to the extent there is any confusion regarding the
provision we were addressing.
Chairman Shelby. Sure.
Mr. Moss. The answer to your question, I believe though, is
that as a matter of constitutional law, I do not believe that
the limitation on the scope of who may make a disclosure and to
whom the disclosure may be made significantly changes the
constitutional analysis. I think the same concern exists that
employees now in covered--within covered agencies could
determine for themselves to come forward with classified
information without first determining whether the President or
his senior advisers may believe that the information needs to
be revealed in a particular manner at a particular time for
national security or foreign affairs reasons.
Chairman Shelby. But you understood what we're trying to do
here? Our goal here, is to limit in scope our legislation to
people in the Intelligence Community that would have knowledge
of fraud, corruption and so forth, that they could come to
members of Intelligence Committees in both houses that are
privileged to have all this classified information to begin
with.
Mr. Moss. I do understand that, Mr. Chairman, and----
Chairman Shelby. Do you see where we're going, or trying to
go?
Mr. Moss. I do see where you're going with that. And what I
would note is that I think that, as has previously been noted
by the Vice Chairman, there is a tremendous amount of
classified information that this administration has shared with
this Committee and its House counterpart. And I don't mean to
suggest in any way that the Administration should not be fully
sharing that information and fully cognizant of the very
legitimate oversight needs of this Committee.
The concern, though, just goes to the question of whether
the President or his delegees will maintain an ultimate
decision in the very, very rare extraordinary circumstance of
whether it's necessary to disclose information in a particular
manner.
And as I mentioned in my testimony, and example of that
comes to mind is the National Security Act where, I think,
Congress wisely noted that there could be circumstances in
which disclosure should be very limited and gave the President
authority to limit disclosure in that manner. I should note
though even with respect to that provision in the National
Security Act, President Bush expressly reserved his
constitutional authority even to take a narrower approach with
respect to the sharing of information. And Congress, I think
disagreed with that approach, but simply said the President's
view is his view. We have our view on this and whatever the
constitutional rule is in this areas will actually control.
Chairman Shelby. Mr. Moss, shouldn't employees in the
Intelligence Community of the United States government have a
safe harbor, an outlet where they know there's corruption going
on, they know there's wrongdoing? They ought to know, people
here in the Congressought to know, especially people that serve
on the Committees of both Houses, shouldn't there be an outlet for
that?
Mr. Moss. Well, you know, I'm not a policy specialist by
any means, but what you suggest is, I think, a sensible point.
I think that there does need to be an outlet of some sort. I
think that current law does provide for a number of outlets. I
can understand circumstances in which an employee, for example,
might not want to go to someone in their agency.
Chairman Shelby. Sure.
Mr. Moss. And they might then be able to go, for example,
to the Attorney General.
Chairman Shelby. If they knew somebody they were working
for in their agency was lying to Congress, lying about a lot of
things, covering up things, and was really deeply troubled with
this, and then had no outlet. We're trying to provide them an
outlet. That's our goal.
Mr. Moss. I understand that and I think that is a laudable
goal, and I think that there is just a very real tension
between some very significant interests at stake here--the
interest in the President in controlling the access to national
security information; Congress' legitimate interest in
oversight and maintaining, by that same virtue, the secrecy of
information.
Chairman Shelby. Sure.
Senator Kerrey?
Vice Chairman Kerrey. Mr. Moss, like the Chairman, I was a
bit confused. You cited the Egan case. You seemed to imply that
we're asking that covered individuals bring information to
unauthorized persons. And we've narrowed this legislation in
Section 306 to deal with this Oversight Committee. So it does
lead us to be a bit confused when you cite something that
actually references the Executive branch's legitimate concern
about the need to control the dissemination of classified
information to unauthorized people.
I mean, you make a very good case there, but we're not
asking for information to be disseminated to unauthorized
people. Everybody on this Committee is authorized. It's not a
question of dissemination of information to unauthorized. We're
talking about relevant situations that, Mr. Moss, that I think
have three components of concern for me. One is the trust to
the people. I mean this is a--anytime you classify, it's an act
that by its very nature is an anathema to government of, by and
for the people. We do it for a very good reason. I'm not
against the maintenance of secrets for the purpose of keeping
the American people safe. But it's important for us to
recognize that it's an anathema to an open system of
government. And unlike other Committees on which I sit, I don't
have the press, and I don't have open sources that are out
there evaluating how these agencies are doing their business.
Because we've classified them, it's only our eyes and ears that
determine whether or not we're getting the information. So I
think trust is number one.
Money is very much an issue because you're making decisions
about taxpayers' money. And overriding all of these things is
the question of the American people's security. I mean every
classification decision and every dollar that we spend has to
add value to keeping the American people safe. That's our
mission. And if all I'm doing is keeping myself safe from
people seeing what I'm doing because I've just made a terrible
mistake and I don't want anybody to know about it, then that,
it seems to me, needs to be brought to the Committee in an
environment where the man or woman doing it can bring it
without fear that they're going to lose their job.
You used St. Clair's Expedition, 1791. Let me bring one a
bit more relevant, closer to this time frame, since, as you no
doubt know, there's been a tremendous widening of authority to
classify things since 1791--since we begin to talk about an
enemy within, as well as an enemy without, since we begin to
presume that some people in the United States can be an enemy
of our own interests. It gets a bit confusing sometimes and we
treat the American people as if they could potentially be an
enemy as well.
So let me take a more current example. In 1992, this
Committee, through an audit of the National Reconnaissance
Office, discovered a building that the NRO was going to occupy
out in suburban Virginia. And the existence of that building
and the use of that building was classified at the highest
level. So our auditing discovered that at every turn, every
turn in the decision making process--the American people need
to understand it's not easy to make decisions in a secret
environment. It is not easy. It's done for the purpose of
keeping the American people safe, and it's easier in a secret
environment to make mistakes because you don't have people
watching you. You don't have the kind of oversight that you
need. You need that check. So at every turn, when the decision
was made about how to build this building, they took the
expensive turn. And at the end of the day we ended up with a
building that cost at least twice as much as it should have,
maybe three times as much as it should have. It went way beyond
what was necessary.
And then in 1993, we find ourselves with a situation--well,
what do we do about it? You know, the bad guys knew about this
building. Everybody knew what this building was. It was sitting
out in suburban Virginia like a rather sore and embarrassing
thumb. And we pressed DCI Woolsey to declassify, and he did
declassify. And there was an awful lot of wailing and gnashing
of teeth, and I think it was quite healthy. That kind of public
disclosure, that kind of declassification, I give the President
and Director Woolsey full credit for declassifying. They didn't
get a lot of credit for the act and the decision to declassify.
But that's the kind of thing we're talking about: a decision
that's made that's wrong.
And I'm sitting out there as a GS-12 and I'm worrying about
whether or not I'm going to get advanced if I bring that kind
of mistake to the Oversight Committee. So--I mean our concern
is trust with the people. We do not want to classify something
if we're not adding value in terms of security. Our concern is
making certain that taxpayers money is being well spent. And
our concern, at the end of the day as well, is making sure that
the American people are safe, that this intelligence effort
adds value to the safety of their lives.
And it seems to me that what we're asking for in Section
306--although I, you know, I hear the--I'm not a constitutional
lawyer and you make very compelling cases, but they're narrow
cases. And I think that we have to consider this legislation in
the context of maintaining the trust of the people that we're
not overclassifying, maintaining the trust of the people that
we're spending their money well, and maintaining the trust of
the people that we're making the best effort that we possibly
can to make sure that this intelligence keeps them safe.
Now none of this was for the purpose of provoking an answer
from you necessarily, but I want you to know that I listened to
your testimony and found myself making notes here, thinking I
could go item by item and dissect and disagree at any point in
the testimony. But it would not serve the purpose of explaining
to you why I think Section 306, though you make a
constitutional argument--let's, you know, let's examine and
let's hear the counter argument. I think there is an urgency to
change the law. There is urgency in all three of the categories
that I have described.
Mr. Moss. Mr. Vice Chairman, I want to make clear that I
concur in your view fully that wrongdoing must be ferreted out
and cannot be tolerated. I concur in your view that this
Committee has an extremely important oversight function.
Vice Chairman Kerrey. If I could interrupt you, Mr. Moss,
ferreting out implies that there is some sort of dark and evil
conspiracy out there where people are intentionally, you know,
that one day, that one morning they wake up and they drink a
cup of coffee and they become a bad person. And I think it is
very important for me to say a second time, I'm deeply
appreciative of the difficulty of making decisions when you
close the doors and you don't let the American people see what
you are doing because you are concerned about their security.
It is not because we--the initial classification decision
is done for good and legitimate reasons.
Mr. Moss. Right.
Vice Chairman Kerrey. But it creates difficulty, because
you don't have the same kind of oversight that we have got in
other areas and all of us are going to make mistakes. So when I
hear you use the verb ferret out, I mean, I want to make sure
that I once more insert this notion that the American people
should not suffer the illusion that I have got a bunch of nasty
people out there intentionally trying to do bad things. It's
just--it's not easy to make decisions in a secret or higher
environment.
Mr. Moss. And I appreciate that clarification and I did not
mean to suggest anything to the contrary.
Vice Chairman Kerrey. I understand. I just wanted to----
Mr. Moss. But your point that you make I think kind of
highlights for me what is significant about this is that to the
extent that we are talking about judgments regarding abuse,
excessive spending, should someone have authorized spending the
extra $1,000, $10,000, $100,000 on a particular piece of
equipment or something within a building, those sorts of
decisions are, of course, judgment calls that people need to
make. And to authorize any covered employee to make that
judgment for themself and say, you know I think this is really
grossly wasteful and shouldn't be tolerated, to allow an
individual who has then made that decision for themselves to
bypass the procedure for sharing classified information and to
take the President and his senior advisers out of the process
of deciding whether sharing information is in the national
interest, I think, raises a constitutional concern.
Vice Chairman Kerrey. Mr. Moss, may I just beg the chairman
to indulge us to do one follow up on that.
Give me some comments on our concern as we hear from not
just employees that are in covered positions but any employee.
I mean, you are sitting out there as an employee, you've got a
good job, you've got a family, you've got a family that depends
on your income. You say I've got a process to take this up the
food chain. I can run it up to an inspector general, I can take
it to--but I could also lose my job. I mean, my superior may
not like the fact that I have reached a conclusion that they
are wasting government money or that they are doing something
wrong. They may take a dim view of the conclusion; they may
disagree with. You know, the old joke about the major telling
the general exactly what happened. The general throws him out
of the office and the major says, I mean, sir, you didn't get
to be general did you by just kissing everybody's rear end. He
said, no, but that's how I got to be lieutenant colonel.
And you know, it seems to me that you have got to talk to
us a little about it, at least acknowledge that employees are
concerned that there could be adverse consequences of
disclosure through the normal process.
Mr. Moss. Well, I think that's a fair point. But to the
extent that that is the concern, I think that there are ways of
getting at that sort of problem, providing protection for
employees that if they go to an inspector general or go to the
Attorney General with information that they cannot be punished
for having done that--whistleblower protection in that respect
without undermining the Executive branch's authority.
Vice Chairman Kerrey. Bingo, you agree with us then. That's
all we are trying to do. We have common ground here.
Mr. Moss. I think we have a great deal of common ground and
I think what we are talking about here really is the rare
circumstance, but I think that it is essential the Executive
branch at some level maintain control over how the information
is shared with respect to that rare circumstance.
Vice Chairman Kerrey. Dr. Fisher, are you chomping at the
bit or do you want to----
Chairman Shelby. He's wanting to.
Dr. Fisher. I had two comments on listening to the
statement by OLC. One comment was I think most of the
statements in there have to do with a situation where Congress
is going to the President for information, and the President
says I am sorry I can't release that to you. There is a long
history and I think Members of Congress would agree that lots
of times Members of Congress and Committees don't have a right
to certain information, but that's not Section 306. That's a
different issue.
And I also find in the statement from OLC, a lot of
references to what courts have said, lower courts and the
Supreme Court, about thePresident's powerful position in
foreign affairs and national security. Most of that's dicta, but still
it is interesting to read dicta from the courts. But what the courts
are doing here is saying that when it comes to a conflict between the
courts asking for information and the President, as with the Watergate
tapes case on page 11 of the OLC's statement, any time it has to do
with military, diplomatic or sensitive national security secrets,
courts have traditionally shown the most--utmost deference to
Presidential responsibilities.
That is fine for the courts to make that judgment because
they don't have much of a role in foreign affairs and national
security. But Congress doesn't have to defer.
So I think that much of the statement doesn't relate to the
objective of Section 306 and much of the strength in terms of
Presidential responsibility goes to judicial deference and that
is not an issue with Section 306. It is Congressional deference
and Congress has such a powerful, explicit role in national
security to carry out its mission.
Vice Chairman Kerrey. Thank you.
Chairman Shelby. Mr. Moss, you want to respond to that?
Mr. Moss. I would be happy to.
With respect to Dr. Fisher's point that these issues
usually arise in the context of Congress going to the President
requesting information, the President making a determination
about whether he thinks, in the interest of national security,
the information could be shared, how, when and under what
circumstances, that is to argue the way the system should work.
And in fact, I have some recollection that very early on in
this nation's history, there was a question of whether the
request should be directed to the President or to his
subordinates and determination was made that the request should
be made to the President. And the reason for that is that it is
the President or delegee that has to make the ultimate decision
regarding national security and his foreign affairs powers.
That authority, at least within the Executive branch, is vested
in one place.
With respect to the Supreme Court decisions, I agree that
there is no Supreme Court decision directly on point here.
There is language in cases which I think is supportive of the
view that we are stating. And the reason that there are not
Supreme Court decisions directly on point is that by and large
the accommodation process between the Executive branch and the
Legislative branch works and they work it out between
themselves to serve both interests. But that is in a process
which needs to take place at a level in which the President or
his delegees can make determinations about how the system
should work and not simply any covered employee believes they
have discovered abuse of some sort.
And finally--let me leave it at that.
Chairman Shelby. Senator Robb.
Senator Robb. Thank you, Mr. President. I regret that after
the vote, I had to participate in a hearing in the Foreign
Relations Committee and did not have the benefit of the opening
statements of our participants or the questions that you and
the Vice Chairman have asked.
I understand there is one area that has not been explored
that I would like to explore very briefly and then I will wait
for the next round, if that should take place before I have to
go to yet another meeting that involves the Armed Services
Committee, all three being conveniently scheduled at the same
time which is frequently the case for which I apologize.
I would like to ask the question about the need-to-know
aspects. It sounded to me like you were getting close to it
just a minute ago. But is it the position of the Executive
branch of government that the president has the authority,
under the Constitution, to withhold classified information that
may be direct and specific evidence of a violation of law, a
material false statement to Congress, or gross mismanagement
within the intelligence community? Is that the position that
the Executive branch takes in this case? And if so, from whence
does that particular authority derive?
Mr. Moss. Senator Robb, it's the position of the Executive
branch that the President needs to maintain ultimate
responsibility regarding how, when and under what circumstances
information that could affect the national security or foreign
affairs is shared with Congress. This is--that is not to
suggest that the information shouldn't be shared with Congress,
but rather that the President or his senior advisers need to
make the decision to at least have the opportunity to make the
decision about how, under what circumstances and what manner
that information should be shared so that they can protect
national security and foreign affairs interests.
Senator Robb. Okay. I don't think there would be any
disagreement as to the old questions of sources and methods and
nondisclosure in those areas. But in terms of the absoluteness
of the question, when push comes to shove, assuming that there
is some appropriate venue for resolving that particular matter,
is it your view or Dr. Fisher's view that the President act or
those acting in his stead have the absolute authority to make
the final decision, in effect to withhold, perhaps based on the
disclosure of sources and methods being inevitable if
information is disclosed, notwithstanding the security
classification of any of the material and the clearances of the
Members of Congress or the Committee to deal with that kind of
sensitive information?
Mr. Moss. Well, I'll let Mr. Fisher address the question,
as well. But the Executive branch's view with respect to the
question you raised is that the President does need to maintain
ultimate responsibility to decide whether in a particular
circumstance--and I think what we're talking about is
extraordinary, very, very rare circumstances--that information
should not be shared, or that it can only be shared under very
limited circumstances.
Senator Robb. Again, I'm suggesting that direct evidence of
some kind of wrongful conduct, something that would fall into
the purview of the general discussion that has been carried on
here. If there--it's your view that if the Executive branch
feels strongly enough about it--is that the criteria, that it's
too important, under any circumstances to be shared even though
it's in essence evidence of wrongdoing by some element of the
Executive branch?
Mr. Moss. Well, I think that if one goes back to the time
President Washington first looked at this question following
the St. Clair expedition, that what we were talking about there
was not dissimilar from what we're talking about here today.
There were charges of mismanagement regarding the expedition.
The Army was devastated in the expedition and there was an
investigation of what happened. Where did this go wrong? Was
there misconduct involved here? President Washington convened
his Cabinet, including the likes of Thomas Jefferson, and they
all agreed that the President needed to maintain ultimate
authority to decide whether it was in the public interest to
share the information.
There they did decide to share the information and I think
that that is what we would likely see in most circumstances.
But I think the ultimate answer to the question that you're
seeking is that the President does need to maintain ultimate
authority to decide not to share information or I think, more
likely, to limit the time or manner in which information is
shared, even if that information arguably relates to
wrongdoing.
Senator Robb. I think the qualification of time or manner
is certainly understandable. But again, when you push the
question to the limit--and I appreciate the fact that in
support of the argument, you have quoted two Virginians, which
is always persuasive with this particular Member.
But again, sometimes the only way we can test the validity
of a particular proposal is to subject it to the toughest case
scenario. And again, I would ask that--do you believe--and I
will leave it at this--do you believe that there are
circumstances that the--let's isolate it a little bit more--
that the sole matter of concern is a violation or a misdeed or
something by the Executive branch, that there are no collateral
matters involved but because the disclosure of that misdeed
itself would be so significant that the Executive branch or
those operating under the authority of the Executive branch
could invoke that defense or privilege and withhold the
information from a body duly constituted? Again, we did not
have the oversight Committees back in the days of Mr.
Washington and Mr. Jefferson.
Mr. Moss. I do think that it is a decision that the
President ultimately needs to make, and I think that it's a
decision that will depend very much on the context. I mean, one
can imagine a circumstance--and I hate to get into
hypotheticals here because it's not my field, and I think
it's--I don't want to get into--I think it's a question of
principle rather than hypothetical. But let me just give you an
example. One can imagine a circumstance in which the President
meets with a leader of another nation, just the President and
the leader of the other nation and their two interpreters in
the room, and the leader of the nation says I need to share
some information with you so we can negotiate this very
important issue. But if I'm going to share this information
with you, I need your absolute commitment that the information
will never leave this room. The information is then shared
after the President makes the commitment.
The question is, can that interpreter on his or her own
decide, you know, I think there may have been something that
Congress should know about here, perhaps, relating to some
abuse. But that interpreter or lower level government employee
is deciding for his or herself and could therefore require the
President in essence to break his word in that context and
undermine the ability of the Executive branch to negotiate in
the future.
Senator Robb. Mr. Chairman, my time is expired, but could I
just ask Dr. Fisher if he has a response to that same general
question?
Chairman Shelby. Go right ahead; you certainly can.
Dr. Fisher. I did. When you raised that point I think the
concern I have is that, unlike the St. Clair expedition where
every bit of information was given to Congress for its
investigation, there are recent cases where the Executive
branch takes this point of view that foreign affairs is
exclusive for the President and Congress is denied information.
I'm thinking of the case in the Reagan years where Congress
looked into a dispute with Canada. Secretary of the Interior
Watt said, sorry, you can't have that information. That relates
to foreign affairs.
And this was foreign commerce, something explicitly given
to Congress in Article I. Well, eventually the information was
revealed. But you can see the frame of mind where, once
something falls under foreign affairs and national security,
the door supposedly closes to Congress.
Senator Robb. Mr. Chairman.
Chairman Shelby. Yes, sir?
Senator Robb. I just----
Chairman Shelby. You go ahead.
Senator Robb [continuing]. Conjured up one hypothetical and
I'll----
Chairman Shelby. You're doing well. You keep on.
Senator Robb [continuing]. Quit at this, if I may.
But let's assume, for the purposes of the question, that a
President issues a Finding that is clearly contrary to U.S.
law, and the consequences of the disclosure of that Finding
would bring about repercussions that are clearly contrary to
the national interests in a significant way. That puts it, I
think, as close as you could put it to the question we're
trying, at least I'm trying, to grapple with.
Does that change your view in any way if it is put in that
manner? In other words, there--I'll use an even more specific
hypothetical, because it's been discussed a great deal lately
with respect to the question of what opinions are available to
the United States against Saddam Hussein, and if a specific
directive that was contrary in terms of assassination of
foreign leaders or whatever was to be given. Again, I'm--this
is nothing classified that I'm talking about. I'm talking about
a hypothetical that could not, under our current law, be given.
But let's say that for whatever reason, such as
hypothetical finding was issued and this by itself would
trigger the kind of an international reaction that would be
adverse in ways that I think all of us could understand. What
would be the result of an attempt by the President not to share
that Finding with the Congress or some other designated group?
Dr. Fisher. Well, the response is mostly for Mr. Moss. But
I would say if the President has signed a Finding that's in
violation of law, that would be against the law as it now
stands, as it was changed afterIran-Contra, or if the
President, in violation of the Executive Order was to authorize
assassination, then your question would be, would someone in the
Executive branch, a lower level employee, be able to share that----
Seator Robb. In the Whistleblower, yes.
Dr. Fisher [continuing]. To share that with the Committee
without going through superiors. I would think that would be a
healthy thing to do. But let's see what Mr. Moss says.
Mr. Moss. Well, I would note that, in fact, the National
Security Act does require reporting to Congress by the
President and prompt reporting of violations of the
intelligence laws. I think that one could imagine some
extraordinary circumstance in which a President might determine
not to, at least at a particular time or in a particular
manner, report a violation of law where there were grave
national security implications to doing so. I mean it's
obviously an extremely difficult question that you raised that
I think goes to, in a very significant manner, the competing
tensions at stake here. There are very legitimate interests
this Committee, this Congress and the American public has in
this area. And there are also potentially very grave national
security and foreign affairs ramifications.
The point that I hope to make today is just that those very
difficult pressing decisions need to be made not by any covered
employee who might form a judgment, which could well be
misinformed, but needs to be made through the accommodation
process and with the input of the President and his senior
advisers.
Seator Robb. Thank you.
I ought to reiterate that I'm not suggesting that the
scenario that I have just discussed in any way relates to
reality. I don't anyone to be--to misinterpret that particular
fact. And indeed it, Mr. Chairman, is one of the reasons that I
prefer that the majority of these sessions be held in closed
session rather than open session.
But with that, I thank both the Chairman and the Vice
Chairman very much for allowing me to extend a little beyond my
time.
Chairman Shelby. Senator Robb, I agree with you. We don't
hold many sessions that are open. I though this, in this
particular part of what we're doing, should be open to the
public because I think the public has a great interest in what
we're doing and what our goal is here.
Mr. Moss, as I understand it, the Administration argues
that the President has exclusive and unimpeded authority to
control the collection, the retention and dissemination of
intelligence and national security information. I understand,
however, that case law, as you--supports the proposition that a
grant of exclusive power is recognized only if that grant is
explicit in the text of the Constitution, In fact, the only
statutes that have been struck down by the Supreme Court on
separations of powers grounds have been determined to have
violated specific, textual constitutional problems. That's my
understanding now. I haven't practices law in a long time, and
you're doing it today.
Could you, Mr. Moss, please direct me to the explicit
constitutional text that grants the President of the United
States the exclusive authority to regulate national security
information? I have a copy of the Constitution here. You've
probably got one.
Mr. Moss. Sure.
Chairman Shelby. But, I don't find it in the Constitution
and you admitted earlier, at least my understanding, that the
Supreme Court has never rules on this directly. Is that
correct?
Mr. Moss. That is correct, Mr. Chairman. The one
opportunity they had to do so was in the Garfinkel case----
Chairman Shelby. Absolutely.
Seator Robb [continuing]. Where they ended up remanding and
vacating the decision as moot.
Chairman Shelby. Okay.
Mr. Moss. But the answer to your question is, of course,
that there is no provision in the Constitution which says the
President maintains exclusive authority with respect to
national security information.
Chairman Shelby. That's what I thought. Okay.
Mr. Moss. The authority that we're asserting flow from what
are express grants to the President in his--in the areas
dealing with national security and foreign affairs. And I
should note, just more by a point of interest, that the
standard that you articulated regarding the balancing is in one
of the great Supreme Court decisions on the subject: Justice
Jackson's concurring opinion in the Youngstown Steel case, the
steel seizure case. And the point of interest that I note is,
is that when Justice Jackson----
Chairman Shelby. But that case is not controlling of what
we're trying to do.
Mr. Moss. No, not at all, rather it simply states the
standardthat you're referring to here where there is not an
express grant of authority to the President, that one engages in an
analysis of the competing interests of the branches, and you look to
what Congress has said respecting the President's authority in the area
as well.
The point I wanted to make was that Justice Jackson, who
authored that famous opinion, when he was Attorney General
declined to provide to Congress information relating to the
FBI--that the FBI had in its possession regarding labor unrest
on national security grounds and asserted exactly the point of
authority that we're asserting here today.
Chairman Shelby. Isn't there an extensive precedent for
Congressional regulation of government information?
Let me give you some examples. The Freedom of Information
Act, you're familiar with that? The Privacy Act of 1974; the
Government in the Sunshine Act; the Federal Records Act; the
Central Intelligence Agency Information Act; the Foreign
Intelligence Surveillance Act; the Classified Information
Procedures Act; Presidential approval in reporting of covert
actions and the espionage laws. You're familiar with that.
Isn't that getting into this area?
Mr. Moss. Well, I don't dispute at all, Mr. Chairman, that
Congress does have authority to legislate in the area of
classified information and, in fact, Congress has made criminal
certain disclosures of classified information.
Chairman Shelby. Absolutely.
Mr. Moss. The point I mean to make is that, in this area
where there are foreign affairs and serious national security
interests at stake, the President at least needs the
opportunity, though, to assert on behalf of the Executive
branch that his power, his authority to fulfill his
constitutional responsibilities not be undermined.
Chairman Shelby. But not pre-imminent authority, is it?
You're not saying that he's asserting a pre-imminent authority
in this area, are you?
Mr. Moss. I think there are certain areas in which the
President does have unique authority, but I don't dispute that
Congress also has authority respecting foreign affairs and
national security. As Dr. Fisher mentioned, Congress has
authority dealing with the regulation of foreign commerce.
Chairman Shelby. You mentioned the Mink case, the
Environmental Protection Agency versus Mink--I know you're
familiar with it--but didn't the Supreme Court of the United
States, in that case, confirm, quote, ``that classified or
national security information is not insulated from
Congressional control.'' In other words, it's not denied to us.
Mr. Moss. I'm not familiar with that, Mr. Chairman, but I'd
be happy to----
Chairman Shelby. Review it.
Mr. Moss [continuing]. Look into it and report back.
Chairman Shelby. Would you get back with us on that?
Mr. Moss. I would be happy to.
Chairman Shelby. If the Constitution, Mr. Moss, does not
explicitly grant the President exclusive authority to control
classified information--I think you conceded that, at least I
thought you did--and the Supreme Court recognizes our
authorities in this area, why does the President argue that we
may not act upon this particular subject?
Mr. Moss. Well, I think the point is not that Congress
lacks authority in this area. As I indicated earlier, Congress
has adopted laws dealing with the treatment of classified
information, namely in criminalizing certain disclosures of
classified information. The point that I want to stress though,
is that the President also has substantial authorities in this
area in that if individual Executive branch employees are
allowed to take it upon themselves to determine how, when, and
under what circumstances information will be disclosed, it
takes the President and his senior advisers out of the process.
Chairman Shelby. I don't mean to be rude--that they would
take it upon themselves what information would be disclosed.
We're not talking about disclosed to the leading media people
in town. We're not talking about disclosing to anybody on the
street. We're talking about, as Senator Kerrey mentioned
earlier, to disclose to Members of the Intelligence Committee
in the Senate and the House who are dealing with classified
information every day that we're here. Is that right, Senator
Kerrey?
Vice Chairman Kerrey. That's what the law says.
Mr. Moss. Absolutely, Mr. Chairman, and again, it's my
understanding that an enormous quantity of intelligence
information is shared with these Committees. And what I am
talking about is the rare, extraordinary circumstance in which
the President might determine, for national security or foreign
affairs reasons, that there is some need to limit the
disclosure to determine how, when and under what circumstances
that the information will be disclosed. And I note in that
regard that Congress itself has recognized that need itself in
certain circumstances. This National Security Act does permit
limited disclosures of particularly sensitive, confidential
information that may be--where there may be a vital national
interest at stake.
Chairman Shelby. So, Mr. Moss, are you saying that it is
within our constitutional authority to pass legislation
governing the handling of national security information between
the branches of government?
Mr. Moss. No, Mr. Chairman.
Chairman Shelby. Well, okay. We have done some of that,
have we not?
Mr. Moss. Well, there certainly are laws that relate to the
subject. I mean, for example----
Chairman Shelby. Some of them that I've recited earlier.
Mr. Moss. Yes, Mr. Chairman. For example, in addition to
the laws dealing with the imposition of criminal sanctions,
there are laws that require the Executive branch to share with
Congress information, which presumably would be classified
information. And again, I am thinking principally of the
National Security Act.
But in that context, and what distinguishes that context
from this context, is that the information is shared through
the normal process where the President or his senior advisers--
those individuals to whom hehas delegated authority--can make
determinations regarding the national interest in how, when and under
what circumstances the information is shared.
Chairman Shelby. Senator Kerrey.
Vice Chairman Kerrey. I am still--Mr. Moss, I must say, I
am a little confused by your conclusions. I mean, you make it
very clear. You say there is a critical constitutional flaw in
Section 306 and that is because at best any--and you have added
the word appropriately covered Federal employee having access
to classified information with a unilateral right to circumvent
the process which the Executive and Legislative branches
accommodate each others interests in sensitive information.
I hear the narrowly drawn argument, but again I don't--
given what this legislation is attempting to do and given
especially the broad powers that the Legislative branch is
given under Section 8, Article I of the Constitution, let me
just ask both of you in simple terms. Let's say Congress passes
this law this year, which I hope they do. And let's say, God
forbid, the President vetoes it and we override the veto. Now,
let's fast forward a couple of years. and some employee decides
to bring information to Congress and the President decides to
sue to prevent that employee from doing it and now it goes to
the court.
You know, given the Section 8, Article I powers that are
granted to this Congress, I just ask both of you, do you think
that the United States Supreme Court would rule that the law is
a constitutional or unconstitutional?
Dr. Fisher. Well, I would say that Congress is operating
under the authority it has and the court would uphold the
statute. and I think that relates to what Mr. Moss said about
Justice Jackson and the concurrence in Youngstown. The
Presidential power is particularly broad when Congress is
silent or passive. I think we all agree that is a zone of
twilight and if Congress doesn't do anything, the President has
a lot of room to roam. But here Congress is stepping in and
placing restrictions under the authority it has under the
Constitution. I think the court would uphold it.
Mr. Moss. I think that--and I would leave it to the
litigators in the Department of Justice perhaps to more
definitively resolve kind of a prediction of how the court
would handle it. But my own sense is that the court would do
one of two things. Either it would uphold the position of the
Executive branch and conclude that the President does need to
maintain at least the ability to determine how, when and under
what circumstances the information is shared. Or the court
would do what courts have done in this area as well, which is
avoid the question. In the Garfinkel case, the court sent the
decision back to the District Court vacating the decision as
moot and said to the District Court, if you can avoid the
constitutional question here, you should do so.
The Court of Appeals for the District of Columbia Circuit
tried valiantly to do the same thing in the AT&T case some
years ago. And I think that, in part, the message that the
court is sending in that context is that this is the sort of
issue that the Executive and Legislative branches ought to work
out between themselves. They ought to find some way to
accommodate the fair interests and that there ought to be a
continuation of the accommodation process whereby the
President, whenever possible, shares information with Congress.
And if the President and Congress have different views on
whether particular information can be shared, they work it out.
Vice Chairman Kerrey. And I would say in response to that,
Mr. Moss--and I'll let Dr. Fisher respond as well--I have great
respect for the argument. But, I mean, we are a nation of laws.
And what we're talking about, establishing a legal protection
for employees who bring information to authorized individuals
on this Committee for the purpose of maintaining trust of the
American people, and protecting their money and keeping them
safe. My own view is that--and self-interest is no doubt
driving me in this direction--that Dr. Fisher's opinion of what
the Supreme Court would do if the President were to sue the
prevent an employee from bringing information that couldn't be
demonstrably proven, put the nation at absolute risk. I agree
with you, there would be extraordinary circumstances. You're at
war, for example. There'd be situations where the court is
likely to hold in a President's favor in that narrow situation.
But you can't put that--you can't describe the National
Reconnaissance Office buildings or many other things that need
to be delivered to this Committee that aren't going to get
delivered if the law doesn't protect the employee and give that
employee the right to do it.
Dr. Fisher.
Dr. Fisher. I wanted to comment on what Mr. Moss said about
those cases, the AT&T cases. I don't think that--I think those
arevery interesting, but I don't think they apply to the
question you raised because those AT&T cases involved a dispute between
a House Committee wanting information and the Justice Department
wanting to deny that information. Judge Leventhal, through a series of
cases, tried to work out an accommodation. And Mr. Moss is correct,
they found an accommodation.
But that's a situation where there was no law, where the
two branches were contesting ground, and Judge Leventhal was
trying to guide them to a solution. But you asked the question
whether this law if it happened to be vetoed and overridden,
would the court uphold it? Now we're talking about a law, and I
think the court would uphold it.
Chairman Shelby. Existing statutes. Section 413(b) of Title
50 of the U.S. Code directs the President to, quote, ``ensure
that any illegal intelligence activity is reported promptly to
the Intelligence Committees.'' Section 13E states the
following: ``Nothing in this Act shall be construed as
authority to withhold information from the Intelligence
Committees on the grounds that providing the information to the
Intelligence Committees would constitute the unauthorized
disclosure of classified information or information relating to
intelligence sources or methods.''
How is our proposed legislation, Mr. Moss, conceptually
different from Section 413 of Title 50? Are you familiar with
that?
Mr. Moss. I am, Mr. Chairman.
The conceptual difference between the two is that Section
413(b) permits the information to flow to Congress through the
President, or whatever senior adviser the President may choose
to handle matters of that sort. It allows the Executive branch
to determine how, when and under what circumstances the
information would be shared. And it permits the Executive
branch in an appropriate circumstance which, again, I would
stress, I would imagine to be extraordinarily rare, but to
assert a constitutionally based form of privilege, and not to
provide the information based on some constitutionally based
privilege.
In that respect, I don't know that President Bush was
referring specifically to Section 413(b), but he did make clear
his view that nothing in the National Security Act would trump
the President's authority to determine the circumstances in
which classified information was shared with Congress.
Chairman Shelby. Last year there was some discussion among
my colleagues in the House on whether employees within the
Intelligence Community could already bring information to the
Committee, that is, to the Intelligence Committee under Section
413(e) of Title 50, and avoid, Mr. Moss, being accused of an
unauthorized disclosure.
None of us are interested in unauthorized disclosures. You
know what we're after. We're after a safe harbor, a way to have
people that know about corruption, know about wrongdoing, to
come to the Intelligence Committees if it's in a classified
area, to disclose that to us on the Committee--anybody. You
understand that?
Mr. Moss. I do understand.
Chairman Shelby. You want to answer the question on that? I
said that they could already bring information to the
Committee. You know, there was some discussion. I don't know if
they could do that or not, but some of the people in the House
thought they could. Section 413 seemed to be very clear on this
issue. In fact, Executive Order 12333 directs Executive agency
heads engaged in intelligence activities to cooperate with
Congress in accordance with Section 413, Title 50, that I just
cited of the U.S. Code.
I understand, however, that the Administration interprets
the term withhold--a very important term--withhold to mean that
they may not withhold information specifically requested by a
Committee with proper jurisdiction--dealing with intelligence,
for example. In other words, if we don't ask for it, it's not
being withheld. Is that right?
Mr. Moss. I don't know. I'm not familiar with the history
that you've discussed.
Chairman Shelby. Okay. So you're not familiar with the
Administration's interpretation of Section 413(e) then, is that
correct?
Mr. Moss. Well, as I sit here now, I don't recall whether
the Section 413(e) was expressly addressed in the opinion that
the Office of Legal Counsel prepared on a related issue a
little over a year ago. But the theory of that opinion was that
in light of the constitutional concerns in this area, that
existing statutes had to be construed in a fashion which was
consistent with the President's constitutional authority to
control how, when, under what circumstances classified
information is shared.
Chairman Shelby. You seem to imply that the President's
authority, Executives's authority, to withhold information is
not absolute, but may be, perhaps, a matter of timing.
Mr. Moss. Well, I think that the authority is absolute to
the extent that it is consistent with legitimate foreign
affairs or national security interests. I think that----
Chairman Shelby. Excuse me a minute. How can it be absolute
in view of some of these other statutes that have been upheld
that we've been talking about?
Mr. Moss. Well. I don't think a statute has ever been
upheld holding--which provided that the President--that the
President may not control the access, providing of information
to Congress.
Chairman Shelby. Senator Kerrey.
Vice Chairman Kerrey. Done. Thank you.
Chairman Shelby. We have a number of questions we'd like to
submit to both of you for the record, and other Members that
are in other Committees. But we appreciate your attendance
today. We appreciate your suggestions and your concerns, but
we're going to push this legislation because we believe it's in
the best interests of the American people
Thank you, both.
Mr. Moss. Thank you, Mr. Chairman.
Dr. Fisher. Thank you, Mr. Chairman.
[Thereupon, at 11:40 a.m., the hearing was concluded.]