Presidential Secrecy and the Law

Steve Aftergood (in full):

Presidential Secrecy and the Law

Presidential secrecy is best understood not as an expression of executive strength but as a sign of weakness and insecurity, according to a provocative new book on the subject.

"When the president lacks diplomatic or interpersonal skill, he is likely to compensate by shielding his activities -- even shielding his very self -- from the public, relying on secrecy rather than diplomacy," write political scientists Robert M. Pallitto and William G. Weaver in "Presidential Secrecy and the Law."

The authors explore how the growth of executive branch secrecy has transformed the institution of the presidency and the character of American government.

Secrecy, they say, "has depoliticized the president's role in governmental action. Where a president may do what is desired in secret, there is no reason to withstand the ordeal of a political battle to achieve the same ends."

"Increasingly, our governmental institutions are unable to hold the president accountable for actions undertaken in secret in the name of national security. In a subtle but sweeping way, this failure is working detrimental changes in our federal government institutions."

The authors review the landscape of national security secrecy and the accumulation of unchecked executive authority and they proceed to critique the performance of the legislative and judicial branches.

Legislative initiatives such as the War Powers Act and the Foreign Intelligence Surveillance Act that were intended to restrain the executive branch have consistently backfired, they contend, serving instead to legitimize the presidential actions that they were intended to restrict.

"As counterintuitive as it may seem, we conclude that congressional efforts to control executive abuse in areas of purported national security concerns are ill-advised. These efforts insulate the president and establish a bureaucratic machinery and process for engaging in precisely the kinds of activity that were meant to be avoided."

"We argue that aggressive action to control executive branch abuse of secrecy should not come from Congress but from the courts, which are in a position to provide the scrutiny necessary to discourage presidential abuse of secrecy powers."

For more information, see "Presidential Secrecy and the Law" by Robert M. Pallitto and William G. Weaver, Johns Hopkins University Press, 2007.

A White House obsession with secrecy should not be confused with a commitment to good security. Rep. Henry Waxman yesterday itemized several gross violations of classified information security policy in the Bush White House (pdf) and called upon former White House chief of staff Andrew Card to explain security practices during his tenure.