SOUNDING BOARD
A 'religion of secrecy'
By Fr. Joaquin G. Bernas, S.J.
Inquirer
Last updated 10:15am (Mla time) 10/01/2007
Re-posts to correct attribution of column.
'I was struck dumb with astonishment at the sentiments . . . [t]hat the executive alone shall have the right of judging what shall be kept secret, and what shall be made public, and that the representatives of a free people, are incompetent to determine on the interests of those who delegated them.' 'Benjamin Franklin.
'Bureaucracy naturally welcomes a poorly informed and hence a powerless parliament'at least in so far as ignorance somehow agrees with the bureaucracy's interests.' 'Max Weber
MANILA, Philippines - Ironically, three months before Watergate, US President Richard M. Nixon had this quote: "[W]hen information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and'eventually'incapable of determining their own destinies."
Arthur Schlesinger Jr. wrote in his "The Imperial Presidency": a "religion of secrecy" serves as an "all-purpose means by which the American Presidency [may] dissemble its purposes, bury its mistakes, manipulate its citizens, and maximize its power."
This, apparently, is the model for Secretary Romulo Neri's appeal to executive privilege.
But is executive privilege without constitutional foundation? This was the view of Raul Berger in his book 'Executive Privilege: a Constitutional Myth.' Most scholars together with the US and Philippine Supreme Court do not agree with Berger.
Indeed, executive privilege did not yet have that name when Washington denied a congressional request for presidential material regarding the failure of a 1791 military expedition by Gen. Arthur St. Clair against American Indians.
Thomas Jefferson withheld correspondence deemed secret from both the public and Congress.
So did James Madison and later President Monroe and much later Eisenhower.
Early Presidents all recognized that executive privilege occasionally was necessary for the effective discharge of the President's duties. But it was not until the Nixon presidency that the US Supreme Court officially baptized presidential secrecy with a name. The Court recognized the necessity for the President to be able to consult with his advisers without fear of public disclosure of their advice. Averell Harriman expressed it well: "[T]he President is entitled to receive the frank views of his advisers and therefore must be able to protect the personal or confidential nature of their communications with him.' So did William P. Bundy: '[I]f officers of an administration should come to feel that their confidential advice would be disclosed, short of a period of many years, I do believe that the consequences in terms of honesty, candor, courage and frankness within the executive branch could be very serious indeed."
In United States v. Nixon, the Supreme Court agreed: "The valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties ... is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.... [T]he confidentiality of Presidential communications has ... constitutional underpinnings.... The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."
Like any good thing, however, executive privilege can be misused and abused. It has been. Observers give numerous examples, especially after the post-Watergate period. As one scholar noted, such examples give executive privilege a bad reputation. For this reason Presidents Ford, Carter and the older Bush avoided using the words executive privilege and protected secrecy through other means.
The current administration's aggressive use of executive privilege through EO 464 calls for a serious examination of the legitimacy of its uses. No amount of exorcism, however, will drive away executive privilege. After all, it has its legitimate place. What is needed is a proper balance. Toward this end there are certain basic guidelines that must be kept in mind.
First, in a constitutional regime that is predicated on official accountability, executive privilege must be the exception and executive transparency the rule.
Second, since executive privilege is not an unfettered power, Congress has the right and sometimes the duty to challenge presidential claims of privilege. This is especially true when the presidential claim is not based on the need to protect national security or to protect the privacy of Cabinet deliberations when needed in the public interest.
Third, both sides of the debate must recognize that there are no precise boundary lines that divide transparency and secrecy. The precise demarcation lines cannot be determined in advance. The lines must be determined through the political dynamics of separation of powers. In the end, the Court must draw the line, if need be, after an in camera hearing.
For that matter, the limits on the often abused power of legislative inquiry in aid of legislation or the oversight function of Congress are not clear either.
It is in this light that we should measure what is expected of Neri. But my sense is that he is hiding something that is illicit and explosive. If the controversy turns out to be a case of an irresistible force facing an immovable wall, Congress is not without weapons to batter the wall. Aside from its subpoena and contempt powers, Congress can also withhold support for the presidential agenda or tighten its control of government purse strings. The ultimate weapon, of course, is impeachment, or the threat thereof.
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