The "Full Access Doctrine": Congress's Constitutional Entitlement to National Security Information from the Executive

By Divoll, Vicki | Harvard Journal of Law & Public Policy, Spring 2011 | Go to article overview
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The "Full Access Doctrine": Congress's Constitutional Entitlement to National Security Information from the Executive


Divoll, Vicki, Harvard Journal of Law & Public Policy


 I. CONGRESS MUST HAVE BROAD ACCESS TO INFORMATION FROM THE EXECUTIVE
 II. CONGRESSIONAL ACCESS TO CERTAIN TYPES OF INTELLIGENCE
     A. Complete Access to the "Analytic Products" of the
        Intelligence Agencies
     B. Intelligence Committees: Broad Access to "Operational
        Information"
     C. Operational Information Constituting Core Intelligence Matters
        to which Congress Must Have Full Access
III. PRESIDENTIAL DENIALS OF INTELLIGENCE INFORMATION: WITHOUT
     CONSTITUTIONAL BASIS
     A. Executive Privilege
     B. "Unitary Executive" Theory: An Independent Constitutional
        Basis to Withhold?
        1. The "Removal Power" Theory
        2. An Even More Expansive Theory
        3. The Bush White House Goes Even Further
 IV. THE INADEQUACY OF ASSERTIONS OF COMITY AND SECRECY
     A. The Failure of President Obama's Assertion of a
        History of Comity
     B. Current Rules Protecting Secrecy are Adequate
  V. THE WEAKNESS OF EXISTING STATUTES GOVERNING CONGRESSIONAL
     ACCESS TO INTELLIGENCE
     A. Full Access Critical for the Exercise of Constitutional
        Duties
     B. Greater Access for the Intelligence Committees and
        Less Discretion for the President
     C. The Weakness of the Current Regime Governing Notification
        of Covert Action Programs
 VI. GUIDING PRINCIPLES FOR REFORM: THE CONSTITUTIONAL PRINCIPLE
     OF "FULL ACCESS".
CONCLUSION

INTRODUCTION

Students of U.S. government are taught that there has been a decades-long trend of American presidents successfully claiming more and broader powers for the executive branch, particularly when faced with threats from abroad. (1) Since World War II, we have lived through years of war and years of presidential assertions that only they can truly keep us safe. Proponents of expansive executive power have made these arguments more aggressively since September 11, 2001, claiming that the Framers gave the President vast plenary powers to protect the nation, some of which were inchoate and only fully revealed themselves after the 9/11 attacks. (2) Perhaps skeptical of its own ability to protect the American people in times of danger, and paralyzed by the political optic of seeming to object to the use of "strength against our enemies," Congress has acquiesced in the area of national security even if, as has often been the case, it has meant compromising its own core Article I powers. (3)

Is it true that the Framers strongly favored executive power, and expected Congress to yield its own expressed and implied powers whenever our country is faced with a dangerous world? In a charming quip in Federalist No. 69, (4) Alexander Hamilton, the leading proponent among the Framers of a strong executive, reassured his readers that the President would not have overly broad power, and scoffed at the notion that his "unitariness" would serve to enhance that power:

   [T]he executive authority, with few exceptions, is to be vested in
   a single magistrate. This will scarcely, however, be considered as
   a point upon which any comparison can be grounded; for if, in this
   particular, there be a resemblance to the king of Great Britain,
   there is not less a resemblance to the Grand Seignior, to the khan
   of Tartary, to the Man of the Seven Mountains, or to the governor
   of New York. (5)

And James Madison, in Federalist No. 48, observed that each branch should jealously guard its own authority:

   After discriminating, therefore, in theory, the several classes of
   power, as they may in their nature be legislative, executive, or
   judiciary, the next and most difficult task is to provide some
   practical security for each, against the invasion of the others.
   What this security ought to be is the great problem to be
   solved. (6)

Nevertheless, a debate about the Framers' intent regarding the proper balance of power among the branches has become little more than an amusing academic parlor game, for the shift in power from the second half of the twentieth century until today is easily observable, and shows no signs of abating.

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