Executive Branch Oversight, Here & There

Government oversight can take diverse forms even among Western democracies.

A new report from the Law Library of Congress surveys the mechanisms of parliamentary oversight of the executive branch in Canada, Germany, Italy, Japan, Poland, Sweden, the United Kingdom, and the United States.

In Sweden, for example, “Any member of the public may ask the JO [Justitieombudsman, or parliamentary ombudsman] to investigate a breach of law committed by an agency or employee. The complaint must be made in writing and cannot be anonymous.”

The Law Library report does not provide comparative analysis, but simply presents a descriptive summary of each nation’s government oversight practices, with links to additional resources. Any policy conclusions to be drawn are left to the reader.

See Parliamentary Oversight of the Executive Branch, Law Library of Congress, August 2017.

ODNI: Annexes to Intelligence Bills are not “Secret Law”

A recent article in Secrecy News indicated that the classified annexes that accompany the annual intelligence authorization bills are legally binding and constitute “secret law” (A Growing Body of Secret Intelligence Law, May 4).

Robert S. Litt, the General Counsel of the Office of the Director of National Intelligence, wrote in last week to dispute that characterization:

    I read your piece on secret law and the classified annex to the Intelligence
    Authorization bills with interest.  I thought it was worth responding to let you know
    that I believe you are incorrect in saying that the classified annex has the force of
    law.  Each year’s Intelligence Authorization Act contains a provision — usually
    Section 102 in recent years — that provides that the amounts authorized to be
    appropriated are those set out in the schedule of authorizations in the classified
    annex.  It is only that schedule of authorizations that has the force of law.  The
    remainder of the annex is report language explaining the positions of the committee
    on a variety of issues, and has no more force than any other committee report.  That
    is to say, it expresses the views of the Congress, and it therefore would ordinarily be
    followed as a matter of comity, but does not have the force of law.

    In this regard, it is worth noting that the unclassified Joint Explanatory Statement
    accompanying the Intelligence Authorization Act for FY 2015 states (160 Cong. Rec.
    S6464, Dec. 9, 2014):

    “This joint explanatory statement shall have the same effect with respect to the
    implementation of this Act as if it were a joint explanatory statement of a
    committee of conference.

    “This explanatory statement is accompanied by a classified annex that contains
    a classified Schedule of Authorizations.  The classified Schedule of
    Authorizations is incorporated by reference in the Act and has the legal status of
    public law.”

    Bob Litt

In short: The schedule of authorized amounts that is contained within the classified annex does have the force of law, but the rest of the classified annex does not.

We accept the correction.

A congressional intelligence committee staff member concurred.

“The majority of the classified annexes are distinct from the schedules of authorization and are where the Committees opine on and direct various things,” the staff member said. “As a technical point, I believe that Bob is correct — they don’t have the force of law as they are not incorporated in the same way as the schedules.”

“That said, we very much expect that the Executive Branch will follow them, which in fact it does. I don’t know that this matters much, though.  While it may not be secret law, it is secret text that the Congress approves and is presented to the President at the time of his signature and that we believe is binding in practical terms,” the staff member added.

Thus, even if they do not entirely qualify as “secret law,” the classified annexes still have normative force, helping to shape the direction and execution of intelligence policy.

They therefore retain their significance for government accountability, including congressional accountability. And yet as a category of documents, the annexes are completely withheld from the public even decades after they are produced. Unfortunately, that remains undisputed.

*    *    *

Its specific content aside, Mr. Litt’s message is noteworthy as an uncommon act of official participation in public dialog.

In an open society, government officials ought to be reasonably accessible to the members of the public whom they ostensibly serve. But with some exceptions, they are not. Either they are insulated by layers of security, or they are isolated by hierarchical bureaucratic structures that make them unreachable. The secrecy-intensive culture of intelligence only aggravates the problem. Even an open government law like the Freedom of Information Act creates a procedural buffer that often impedes any kind of direct dialog.

Unlike most of his colleagues, Mr. Litt has been willing to engage with members of the public with some frequency. You can ask him a question. You can argue with him. He will argue with you. The point is that he is available to non-governmental interlocutors in a way that should be ordinary but is in fact unusual and exemplary. (See, for example, here, here and here.)

Mr. Litt’s attentiveness to the nuances of an article in Secrecy News brings to mind a passage from Robert M. Gates’ 1996 CIA memoir From the Shadows that is dear to the heart of small newsletter writers. The author was recalling Director of Central Intelligence Bill Casey whom he described as an omnivorous consumer of information from even the most obscure sources.

“Bill Casey was one of the smartest people I have ever known and certainly one of the most intellectually lively,” Gates wrote (p. 217). “He subscribed to newsletters and information sheets that I sometimes thought couldn’t have more than five readers in the world, and then he would ask if I had seen one or another item in them.”

Making Government Accountability Work

The U.S. Constitution does not explicitly recognize a “public right to know.” But without reliable public access to government information, many features of constitutional government would not make sense. Citizens would not be able to evaluate the performance of their elected officials. Freedom of speech and freedom of the press would be impoverished. Americans’ ability to hold their government accountable for its actions would be neutered.

The conditions that make government accountability possible and meaningful are the subject of the new book Reclaiming Accountability by Heidi Kitrosser (University of Chicago Press, 2015).

The author introduces the term “substantive accountability,” which she contrasts with mere “formal accountability.” While formal accountability includes such things as the right to vote, substantive accountability requires that people must “have multiple opportunities to discover information relevant to their votes….”

This may seem obvious, but the trappings of formal accountability are often unsupported by the information that is needed to provide the substance of accountability, especially in matters of national security.

Kitrosser, a professor of law at the University of Minnesota Law School, shows that the principles of substantive accountability are deeply rooted in the text, structure and history of the Constitution. She uses those principles to provide a framework for evaluating contemporary assertions of presidential power over information, including executive privilege, state secrets, secret law, and prosecutions of unauthorized disclosures.

It cannot be the case, for example, that unauthorized disclosures of classification information are categorically prohibited by law and also that the President has discretion to classify information as he sees fit. If that were so, she explains, then the President would have unbounded authority to criminalize disclosure of information at will, and the classification system would have swallowed the First Amendment. As she writes: “The First Amendment’s promise would be empty indeed if its protections did not extend to information that the president wishes to keep secret.”

Kitrosser reviews the relevant case law to find openings and lines of argument that could be used to bolster the case for substantive accountability. She notes that Supreme Court rulings over the years “contain the seeds of an affirmative case for strongly protecting classified speakers.” In a 1940 ruling in Thornhill v. Alabama, for example, the Court declared that “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”

There is, of course, an opposing school of thought which posits a largely unconstrained presidential authority over government information. Moreover, this presidentialist view has been on “an upward historical trajectory” in recent decades. Leak investigations and prosecutions have risen markedly, and so have assertions of the state secrets privilege. Secret law blossomed after 9/11. The very term “executive privilege” is a modern formulation that only dates back to 1958 (as noted by Mark Rozell).

One of the deeply satisfying features of Kitrosser’s book (which is a work of scholarship, not a polemic) is her scrupulous and nuanced presentation of the presidential supremacist perspective. Her purpose is not to ridicule its weakest arguments, but to engage its strongest ones. To that end, she traces its origins and development, and its various shades of interpretation. She goes on to explain where and how substantive accountability is incompatible with presidential supremacy, and she argues that the supremacist viewpoint misreads constitutional history and is internally inconsistent.

The book adds analytical rigor and insight to current debates over secrecy and accountability, which it ultimately aims to inspire and inform.

“We can seek to harness and support those aspects of American law, politics, and culture that advance substantive accountability,” she writes.

“Reclaiming accountability is no single act. From internal challenges or external leaks by civil servants, to journalistic inquiries and reports, to congressional oversight, to FOIA requests, accountability is claimed and reclaimed every day by countless actors in myriad ways.”