Congress Questions Secret Directives, Weakly

By classifying some recent Presidential directives on homeland security and restricting their disclosure, the Bush Administration has impeded their effective implementation, the Senate Appropriations Committee reported last month.

“The Committee notes the administration has released several Homeland Security Presidential Directives over the last year, including ones concerning the deterrence of the use of improvised explosive devices and efforts to enhance cyber security.”

“However, in both cases these documents are classified, putting them out of the reach of many of the people responsible for their implementation,” the Appropriations Committee said in its June 23 report on the 2009 Homeland Security Appropriations Act.

But instead of taking corrective action, the Committee could only beg the Administration to reconsider:

“While making determinations about the classification of sensitive materials is ultimately the responsibility of the executive branch, the Committee strongly urges the agencies responsible to re-examine their policies to be certain that the public good would not be better served if these documents and the information contained in them were more accessible to appropriate State, local, and private sector officials.”

This is an anemic, self-defeating approach to congressional oversight. It imposes no requirements and makes no demands. The Committee could have directed the Administration to prepare unclassified versions of the directives for broad dissemination. It could have asked the agencies to justify the directives’ secrecy with a report on the asserted basis for continued classification, including the costs and benefits involved. The Committee could even have mandated disclosure of key elements of the classified directives. But instead it merely “urged” reexamination, a rhetorical posture that cannot be expected to generate a meaningful response from a rule-driven bureaucracy.

Worst of all, the Committee preemptively surrendered its own authority with a mistaken declaration that classification “is ultimately the responsibility of the executive branch.”

Though the Committee seems to have forgotten it, Congress has its own role to play in defining the national security classification system.

Coincidentally, that point was stressed in a court ruling last week.

“The authority to protect national security information is neither exclusive nor absolute in the executive branch,” wrote Judge Vaughan R. Walker of the Northern District of California in a July 2 opinion (pdf) which affirmed the Foreign Intelligence Surveillance Act as the only legal mechanism for domestic intelligence surveillance.

“When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required,” he found (at page 22).

If there were any doubt about that, he noted, “many Congressional enactments regulate the use of classified materials by the executive branch,” including some statutes that restrict disclosure of information or impose safeguarding requirements, and other statutes that require disclosure of information outside of the executive branch.

“Congressional regulation of the use of classified information by the executive branch… is therefore well-established,” Judge Walker concluded.