Congressional Access to Secrets Showdown

The Executive branch has always argued that it can deny Congress access to secret national security information, but the Bush administration has been particularly adept at flouting Congressional requests.  The latest example is the denial of a request by Senate Judiciary Chairman Patrick Leahy (D-Vermont) for policy documents on the detention and interrogation of suspected terrorists.  Expect this to be one of many showdowns over Congressional access to classified information between a Congress, where newly-in-charge Democrats and many Republicans alike are ready to assert their constitutional perogative of oversight, and the hyper-secretive Bush administration. 

Congressional Quarterly reports:

The Justice Department has rebuffed a Senate request for documents related to the Bush administration's policy on the detention and interrogation of suspected terrorists, particularly those held by the CIA.

Patrick J. Leahy, D-Vt., soon to take the helm of the Senate Judiciary Committee, requested the documents from Attorney General Alberto R. Gonzales on Nov. 16, after the CIA acknowledged the existence of two of them in the course of a Freedom of Information Act lawsuit brought by the American Civil Liberties Union.

The Executive branch is wrong to argue that Congress can't see classified information.  To start, there seems to be an assumption that disclosure to Congress is the same as public disclosure.  That is why acting Assistant Attorney General James H. Clinger said, in his denial to Senator Leahy, that, "Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them."  Now there may be information that the American government or most of of the public may not want Al Qaeda or other terrorists to know.  However, neither the public or terrorists will know this information unless it is declassified or leaked.  Many have noted that much more leaking comes from the Executive branch rather than Congress.   Senator Richard Shelby (R-Alabama) stated in 1998, "As CIA Director Tenet told this [Senate Intelligence] 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." (see page 45 of this pdf)

And Congress has never used its own rules to declassify documents on its own, but has relied on the Executive to declassify documents when it believes the public should see them.   The rules are: Senate Resolution 400, section 8, agreed to May 19, 1976 (94th Congress, 2nd Session) and Rules of the 109th Congress, U.S. House of Representatives, Rule X.

Documents can remain classified and kept from the public, yet still be shared with Congress for purposes of oversight. Congress, by and large, has been good at keeping secrets and its Members, Senators and cleared staffers have the authority to receive them.

Also to keep in mind, the Executive branch is denying Congress policy documents, not detailed information on what we actually know about Al Qaeda that could tip them off--again, if they were publicly disclosed.  If the Executive gets away with keeping these documents from Congress, then our constitutional system of separation of powers will have totally failed because Congress cannot oversee without basic information such as the policies of the Executive.  Leahy, Congress and the American public should fight for these documents.  This is a clear case where the War on Terrorism has wrongly skewed us away from one of the most fundamental principles of our constitutional Republic.

-- Nick Schwellenbach