Secrecy News

OLC: President May Withhold WMD Info from Congress

Despite an explicit statutory requirement to keep Congress “fully and currently informed” about the proliferation of weapons of mass destruction, the President may withhold proliferation-related information from Congress if he determines that doing so could harm the national security, according to a sweeping opinion from the Justice Department Office of Legal Counsel (OLC) that was prepared in 2003.

The opinion, written by then-OLC deputy John C. Yoo, was released this week under the Freedom of Information Act. See Presidential Authority to Protect National Security Information, January 27, 2003.

The OLC opinion takes an uncompromising view of presidential authority. It reviews multiple statutes that mandate disclosure of various types of information to Congress, including requirements to report on WMD proliferation and to keep the intelligence committees “fully and currently informed of all intelligence activities.” It then concludes that those statutes cannot override, modify or limit the President’s constitutional prerogatives.

“Despite Congress’s extensive powers under the Constitution, its authorities to legislative [sic] and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security,” the OLC opinion said.

Even to a layman, the Yoo opinion seems muddled and poorly argued, in several respects.

*    Yoo claims that the statute requiring reporting of WMD proliferation was obviated by a signing statement issued by President Clinton in 1999. “In signing the legislation, President Clinton stated that section 1131 and similar provisions raised serious constitutional questions.” But upon examining the text of that 1999 signing statement, one finds that Clinton did not mention section 1131 at all, and the President’s comments there have no bearing on WMD proliferation or congressional reporting requirements.

*    Yoo uses the word “disclosure” throughout the opinion to refer to classified reporting to Congress, which excludes public release of the information. At no point does he try to explain how such reporting through classified channels “could harm the national security” if the information never became public.

*    Yoo does not acknowledge or mention the Supreme Court’s 1952 Youngstown decision which addressed Presidential authority in the face of contrary statutory imperatives: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” To sustain his position, Yoo cannot admit the existence of any relevant constitutional powers of Congress, since those would diminish the President’s freedom of action.

*    Yoo does allow that “the President can disclose such information as a matter of inter-branch comity to members of Congress of his choosing when he judges it consistent with the national security.” But this is incoherent, even by Yoo’s own lights, since whenever disclosure is consistent with national security, the President’s authority to withhold it evaporates. Then disclosure to Congress would not be a matter of comity at all, but a binding requirement.

The six page OLC opinion does have some positive features.

*    It was prompted by an inquiry to OLC from then-White House Counsel Alberto R. Gonzales as to “whether the President has the constitutional authority to withhold sensitive national security information from Congress involving the proliferation of weapons of mass destruction by other nations.” So the very fact of the inquiry is an indication that the authority to withhold was not self-evident even to the George W. Bush White House.

*    The opinion discloses the title of at least one previously unknown OLC opinion on Congressional Notification for Certain Special Operations (November 1, 2002).

It is unclear whether the 2003 Yoo OLC opinion has had any enduring impact or influence on executive branch policy.

The first known public reference to the opinion appeared in a declassified version of the 2009 Joint Inspector General report on the President’s Surveillance Program (Stellar Wind) that was obtained by the New York Times this year in response to a FOIA lawsuit.

Footnote 192 on page 167 of the DOJ volume of the Joint Report (p. 504 in the NYT PDF) reads in part: “Citing… a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, ‘including authority to determine the extent to which disclosure may be made outside the Executive Branch’.”

The reference to the 2003 OLC opinion was first noticed by Marcy Wheeler last May.

In its response to a Freedom of Information Act request, the Office of Legal Counsel said that the 2003 Yoo opinion “is protected by the deliberative process and attorney-client privileges and [is] exempt from mandatory disclosure pursuant to FOIA Exemption Five.”

Nevertheless, wrote OLC Special Counsel Paul P. Colborn, “we are releasing it to you as a matter of discretion.”