Whistleblower Protections for Classified Disclosures

Opinion

Whistleblower Protections for Classified Disclosures

A S enate bill addressing the disclosure to C ongress o f classified “ w histleblow er” inform ation con­ cern in g th e in telligence com m unity is unconstitutional because it would deprive the President of the op p o rtu n ity to d eterm ine how, w hen and under w hat circum stances certain classified inform a­ tion should be d isclosed to M embers o f C ongress.

A H ouse bill addressing the sam e subject is constitutional because it contains provisions that allow for the ex ercise o f the P resident’s constitutional authority.

May 20, 1998

St a t e m e n t B e f o r e t h e P e r m a n e n t S e l e c t C o m m it t e e o n I n t e l l ig e n c e U .S . H o u s e o f R e p r e s e n t a t i v e s

I am pleased to be here to present the analysis of the Department of Justice concerning the constitutionality o f S. 1668 and H.R. 3829, two bills that address disclosure to Congress of classified “ whistleblower” information concerning the intelligence community.

As the Department has previously indicated, it is our conclusion that S. 1668, like the Senate passed version of section 306 of last year’s Intelligence Authoriza­ tion bill, is unconstitutional.1 It is unconstitutional because it would deprive the President of the opportunity to determine how, when and under what cir­ cumstances certain classified information should be disclosed to Members of Con­ gress— no matter how such a disclosure might affect his ability to perform his constitutionally assigned duties. In contrast, H.R. 3829 is constitutional because it contains provisions that allow for the exercise of that authority.

I begin by briefly summarizing the principal provisions of S. 1668 and H.R. 3829. I then review the relevant constitutional history and doctrine. I conclude by applying the relevant constitutional principles to the two bills. Because other witnesses at the hearing today can best address the practical concerns posed by legislation in this area, my remarks are limited to the relevant constitutional considerations.

I.

A.

S. 1668 would require the President to inform employees of covered federal agencies (and employees of federal contractors) that their disclosure to Congress

1 In addition, the Department o f Justice took a similar position with respect to comparable legislation in a brief that it filed in the Supreme Court in 1989 See B rief for Appellees, American Foreign Serv A ss'n v Garfinkel, 488 U.S 923 (1988) (No. 87-2127).

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of classified information that the employee (or contractor) reasonably believes pro­ vides direct and specific evidence o f misconduct “ is not prohibited by law, execu­ tive order, or regulation or otherwise contrary to public policy.” 2 The misconduct covered by the bill includes not only violations of law, but also violations of “ any . . . rule[] or regulation,” and it encompasses, among other things, “ gross mismanagement, a gross waste of funds, [or] a flagrant abuse of authority.” 3 S. 1668 would thus vest any covered federal employee having access to classi­ fied information with a unilateral right to circumvent the process by which the executive and legislative branches accommodate each other’s interests in sensitive information. Under S. 1668, any covered federal employee with access to classi­ fied information that— in the employee’s opinion—indicated misconduct could determine how, when and under what circumstances that information would be shared with Congress. Moreover, the bill would authorize this no matter what the effect on the President’s ability to accomplish his constitutionally assigned functions. As discussed below, such a rule would violate the separation of powers.4

B.

H.R. 3829 would amend the Central Intelligence Agency Act and the Inspector General Act of 1978 to provide a means for covered executive branch employees and contractors to report to the Intelligence Committees certain serious abuses or violations of law or false statements to Congress that relate to “ the administra­ tion or operation of an intelligence activity,” as well as any reprisal or threat of reprisal relating to such a report. Under H.R. 3829, any employee or contractor who wishes to report such information to Congress would first make a report to the inspector general for the Central Intelligence Agency or their agency, as appropriate. If the complaint appears credible, the relevant inspector general would be required to forward the complaint to the head of his or her agency, and the head of the agency would generally be required to forward the report to the Intel­ ligence Committees. Moreover, if the inspector general does not transmit the com­ plaint to the head of the agency, the employee or contractor would generally be

2 Section 1(a)(1)(A) 3 A/. 1(a)(2)(A), (C) 4 The Supreme Court has employed three principles in resolving separation of powers disputes First, where “ lejxphcit and unambiguous provisions of the Constitution prescribe and define just how [governmental] powers are to be exercised," INS v Chadha, 462 U S 919, 945 (1983), the constitutional procedures must be followed with precision Second, where the effect of legislation is to vest Congress itself, its members, or its agents with ‘“ either executive power or judicial power,’ ” the statute is unconstitutional Metropolitan Wash Airports Auth. v Citizens fo r the Abatement o f Aircraft Noise, Inc., 501 U.S 252, 274 (1991) (citation omitted). Finally, legislation that affects the functioning of the Executive may be unconstitutional if it either ‘“ impermissibly underm ine^]’ the powers of the Executive B ranch" or “ ‘disrupts the proper balance between the coordinate branches [byj preventling] the Executive Branch from accomplishing its constitutionally assigned functions ’ ” Morrison v Olson, 487 U S 654, 695 (1988) (citations omitted) Because we conclude that S 1668 would violate separation of powers under even the most lenient of these tests, there is no need to resolve whether one of the more stringent standards applies

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permitted to submit the complaint— under defined conditions— to the Committees directly.

Significantly, unlike S. 1668, H.R. 3829 provides that the head of the agency or the Director of Central Intelligence may determine “ in the exceptional case and in order to protect vital law enforcement, foreign affairs, or national security interests” not to transmit the inspector general’s report to the Intelligence Committees and not to permit the employee or contractor directly to contact the Intelligence Committees.5 Whenever this authority is exercised, the head of the agency or the Director of Central Intelligence must promptly provide the Intel­ ligence Committees with his or her reasons for precluding the disclosure. In this manner, H.R. 3829 would provide a mechanism for congressional oversight while protecting the executive interest in maintaining the strict confidentiality of classi­ fied information when necessary to the discharge of the President’s constitutional authority. As a result, unlike S. 1668, H.R. 3829 is consistent with the constitu­ tional separation of powers.

II.

A host of precedents, beginning at the founding of the Republic, support the view that the President has unique constitutional responsibilities with respect to national defense and foreign affairs.6 As was recognized in the Federalist Papers and by the first Congresses, secrecy is at times essential to the executive branch’s discharge of its responsibilities in these core areas. Indeed, Presidents since George Washington have determined on occasion, albeit very rarely, that it was

'S e e id § 2 (a ), proposed new paragraph (5)(E ) to be added to subsection (d ) o f section 17 o f the C entral Intel­ ligence A gency A ct o f 1949, 50 U S .C §403q (1 9 9 4 & Supp. li 1996), H R 3829, at § 2(b )(1 ). proposed new section 8H (e) to be added to the Inspector G eneral A c t o f 1978. 5 U S .C app § 8 (1994 & Supp. 11 1996).

6 T h e P re sid e n t’s national secu rity and foreign affairs pow ers flow , in large part, from his position as C h ie f E xecu­ tive, U S. C o n st art 11, § 1, cl 1, and as C om m aH der in C hief, id art II, § 2, cl 1 T h ey also d en v e from ihe P re sid e n t’s m o re sp ecific pow ers to “ make T re a tie s ,” id art II, § 2 , cl. 2, to “ appoint A m bassadors and C o n su ls,” i d , and to “ receive A m bassadors an d o th e r public M in iste rs,” id. a n 11, § 3 S ee The F ederalist N o 64, at 3 9 2 -9 4 (John Jay ) (C linton R ossiter e d , 1961) T he S uprem e C ou rt has repeatedly reco g n ized the P resid en t’s au th o n ty w ith resp ect to foreign policy See, e g , D epartm ent o f th e N avy v E gan, 484 U S 518, 529 (1988) (the S u p rem e C o u rt has “ recognized ‘the generally ac cep te d view that foreign po licy w as the pro v in ce and responsibility o f th e E x e c u tiv e ’ ” ) (q u o tin g H aig v A g e e , 453 U .S 280, 2 9 3 -9 4 (1981)), A lfr e d D unhill o f L o n d o n , Inc v R epublic o f C u b a , 425 U S 68 2 , 705 n. 18 (1976) ( “ [TJhe c o n d u c t o f Iforeign policy] is com m itted p rim arily to the Executive B r a n c h ” ), U n ite d S ta te s v. L o u isia n a , 363 U S I, 35 (1960) (th e President is “ the co n stitu tio n al representative o f th e U nited S tates in its dealings w ith foreign n a tio n s ” ); N ew York Tim es C o v U nited S ta tes, 403 U.S 713, 741 (1 9 7 1 ) (M arsh all. J , co n cu rrin g ) ( “ it is b e y o n d cavil that th e President has broad pow ers by v irtue o f his prim ary re sp o n sib ility for the conduct o f our fo reig n affairs and his position as C om m ander in C h i e f ’), id at 761 (B lack m un, J , dissenting) ( “ A rticle II vests in the Executive B ranch prim ary pow er o v er th e conduct o f foreign affairs and p la ces in that branch the responsibility for the N atio n ’s safety ” ), see also U n ited S tates v K in -H o n g, 110 F .3 d 103, 1JO (1st C ir 1997) ( “ |0 ]u r co n stitu tio n al structure . places prim ary responsibility fo r foreign affairs in the e x e cu tiv e branch . . . .” ), Ward v. S k in n e r, 943 F 2 d 157, 160 (1st C ir 1991) (B reyer, J ) ( “ [T]he C o n stitu tio n m akes th e E xecutive Branch p rim arily re sp o n sib le” for th e exercise o f “ the foreign affairs p o w e r ” ), cert, d e n ie d , 503 U S 959 (1992), Sanch ez-E sp in o za t-. R eagan, 7 7 0 F 2 d 2 02, 2 1 0 (D C C ir 1985) (S calia, J ) ( “ [B Jroad le e w a y ” is “ traditionally a c co rd ed the E xecutive in m atters o f foreign affairs ” )

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necessary to withhold from Congress, if only for a limited period of time, extremely sensitive information with respect to national defense or foreign affairs.7 Perhaps the most famous of the Founders’ statements on the need for secrecy is John Jay’s discussion in the Federalist Papers. Jay observed:

There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular assembly. The convention have done well, therefore, in so disposing o f the power of making treaties that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.8

Our early history confirmed the right of the President to decide to withhold national security information from Congress under extraordinary circumstances. In the course of investigating the failure of General St. Clair’s military expedition of 1791, the House of Representatives in 1792 requested relevant documents from the executive branch.9 President Washington asked the Cabinet’s advice as to his proper response “ because [the request] was the first example, and he wished that so far as it should become a precedent, it should be rightly conducted.” 10 Washington’s own view was that “ he could readily conceive there might be papers of. so secret a nature, as that they ought not to be given up.” 11 A few days later a unanimous Cabinet— including Secretary o f State Thomas Jefferson, Secretary of the Treasury Alexander Hamilton, and Attorney General I See History o f Refusals by Executive Branch Officials to Provide Information Demanded by Congress, 6 O p O .L .C . 751 (1982) (com piling historical exam ples o f ca ses in w hich th e President w ithheld from C ongress in form ation the release o f which he determ ined could jeo p ard ize national security).

s Tke Federalist No. 64, at 392 9 3 (John Jay) (C linton R ossiter e d ., 1561). 9 F or recent scholarly discussions o f this episode and its significance for the d evelopm ent o f separation o f pow ers, see G erh ard C asper, Separating Power 28-31 (1997); D avid P. C u n ie , The Constitution in Congress: The Federalist Period 1789-1801, at 1 6 3 -6 4 (1997).

A n e a rlie r episode had occurred in 1790 w hen, in response to a request from th e House o f R ep resentatives, S ec­ retary o f S tate T hom as Jefferson furnished that b o d y w ith a report on M editerranean trade. T h e report also to uched on ad v ice provided by a confidential European source on the possibility o f b u y in g peace w ith A lgiers, w h ich was en d an g ering that trade. Jefferson relayed the so u rc e ’s advice to th e H ouse, b ut stated th at h is o r h er “ n am e is n o t free to be m entioned here.” R eport of S ecretary o f State Jefferson, S ubm itted to the H o u se o f R epresentatives (D ec. 3 0 , 1790) and S enate (Jan. 3, 1791), in I American Slate Papers. Foreign Relations 105 (1791). Jefferso n also su bm itted the report w ith a request that the S p eak e r treat it a s a secret d ocum ent; a n d w hen th e rep o rt was receiv ed , the H ouse’s galleries w ere cleared. See C asp er, supra at 4 7 - 5 0 The ex ecu tiv e branch co ntinues th e p ractice o f red acting identifying inform ation on confidential so u rces when providin g secret inform ation to C ongress.

10 1 W ntings o f Thomas Jefferson 303 (A ndrew L ipscom b ed. 1903) (The A nas). II Id.

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Edmund Randolph— concurred. T he Cabinet advised the President that, although the House “ might call for papers generally,” “ the Executive ought to commu­ nicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public.” 12 The Executive “ consequently w[as] to exercise a discretion” in responding to the House request.13 The Cabinet subsequently advised the President that the documents in question could all be disclosed consistently with the public interest.14 Although President Washington ultimately decided to produce the requested documents, they were actually produced only after the House, on April 4, 1792, substituted a new request apparently recognizing the President’s discretion by asking only for papers “ of a public nature.” 15 Two years later, President Washington adhered to his conclusion regarding the respective authorities of the executive and legislative branches. Acting upon the advice of Attorney General William Bradford and other Cabinet officers, Wash­ ington responded to an unqualified request from the Senate for correspondence between the Republic of France and the United States minister for France by pro­ viding the relevant correspondence, except for “ those particulars which, in [his] judgment, for public considerations, ought not to be communicated.” 16 In 1796, when a controversy arose regarding whether President Washington could be required to provide the House of Representatives with records relating to the negotiation of the Jay Treaty, James Madison— who was then a Member of the House— conceded that even where Congress had a legitimate purpose for requesting information the President had authority “ to withhold information, when of a nature that did not permit a disclosure of it at the time.” 17 12 Id. at 304. n Id. '“Id at 305 15 3 A n n als o f C o n g 536 (1792); see also A b ra h a m D. S ofaer, War, Foreign Affairs and Constitutional Power 8 2 -8 3 (1 9 7 6 ), C asper, supra at 29.

56 4 A n n als o f C o n g 56 (1 794), see Sofaer, supra at 8 3 -8 5 . T h e C abinet officers w hom W ashington consulted and w h o all ag ree d that he c o u ld w ithhold at le a s t part o f the m aterial from th e Senate w ere H am ilton, R andolph and K nox. Id. at 83 R andolph also informed W ash in g to n that he h ad m et p n v a te ly with M adison and w ith Justice Jam es W ilson (an o th er influential Framer), w ho provided sim ilar advice Id at 8 3 -8 4 n *. “ [NJo fu rth er Senate action w as ta k en to o b ta in the m aterial withheld ” Id. at 85.

17 5 A nnals o f C ong. 773 (1796) A s President W ashington o b serv ed in d eclin in g the H o u se’s request T h e n atu re o f foreign negotiations requires caution, an d th e ir success m ust often d epend on secrecy , an d ev e n , w hen bro u g h t to a conclusion, a fu ll disclosure o f all the m easures, dem ands, o r eventual co n c es­ sio n s w hich m ay have been proposed or co n tem p lated w o u ld be extrem ely im politic: fo r this m ight h ave a p ern icio u s influence on fu tu re negotiations; or produce im m ediate inconveniences, p erh ap s d an g er and m isc h ief, in relatio n to o th e r Pow ers Id at 7 60. W a sh in g to n had p rev io u sly sought and received ad v ice from A lex an d er Ham ilton, then in private practice in N ew Y ork H am ilton provided W ashington w ith a draft an sw er to the H ouse, w hich had stated in part “ A d iscre­ tion in th e E x ecu tiv e D ep artm en t h ow far and w h e re to co m p ly in such ca ses is essential to the d ue co n d u ct o f foreign neg o tiatio n s ” L e tte r from Alexander H am ilto n to G eo rg e W ashington (M ar 7, 1796), in 20 T h e Papers o f A lex a n d er H am ilton at 68 (H aro ld C Syrett ed , 1974)

A lth o ugh the E x e cu tiv e’s co n c ern s wiih the co n fid en tiality o f diplom atic m aterials certain ly loom ed large in the 1796 d isp u te, it w o u ld o v ersta te th e point to v ie w the entire controversy as turning ex clu siv ely on th e issue o f “ e x e cu tiv e p riv ileg e ” W ash in g to n rested his p o s itio n partly on th e alternative ground th at th e C o n stitution gave the H o u se no ro le in the tre aty -m a k in g process M oreover, it ap p e ars that the controversy “ h ad a som ew hat ‘aca-

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Congressional recognition of this power in the President extends well into recent times.18 Moreover, since the Washington Administration, Presidents and their senior advisers have repeatedly concluded that our constitutional system grants the executive branch authority to control the disposition of secret information. Thus, then-Attorney General Robert Jackson declined, upon the direction of Presi­ dent Franklin Roosevelt, a request from the House Committee on Naval Affairs for sensitive FBI records on war-time labor unrest, citing (among other grounds) the national security.19 Similarly, then- Assistant Attorney General William Rehnquist concluded almost thirty years ago that “ the President has the power to withhold from [Congress] information in the field of foreign relations or national security if in his judgment disclosure would be incompatible with the public interest.” 20 The Supreme Court has similarly recognized the importance of the President’s ability to control the disclosure of classified information. In considering the statu­ tory question whether the Merit Systems Protection Board could review the rev­ ocation of an executive branch employee’s security clearance, the Court in D epart­ ment o f the Navy v. Egan also addressed the President’s constitutional authority to control the disclosure of classified information:

The President . . . is the “ Commander in Chief of the Army and Navy of the United States.” U.S. Const., Art. II, §2. His authority to classify and control access to information bearing on national security . . . flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. . . . This Court has recognized the Govern­ ment’s “ compelling interest” in withholding national security information from unauthorized persons in the course of executive business. . . . The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.21

Similarly, in discussing executive privilege in United States v. Nixon, a unani­ mous Supreme Court emphasized the heightened status of the President’s privilege

d em ic' character because the S enate had received ail the papers, and the H ouse m em bers ap p aren tly co u ld inspect them at the S en ate.” C asper, supra a t 65 iZSee, e.g , S Rep. N o. 8 6 -1 7 6 1 , at 22 (1960) (the S enate C om m ittee o n Foreign R elations, after failin g to p er­ su ad e P resident K ennedy to abandon his claim o f executive privilege w ith respect to in form ation relatin g to the U -2 incident in M ay, 1960, criticized the P resident for his refusal to m ake th e in form ation av ailab le but ackn o w led g ed his legal right to do so' “ T h e com m ittee recognizes that the adm inistration h as the legal right to refuse the inform ation un d er the doctrine o f executive p rivilege.” ).

19 See Position o f the Executive Department Regarding Investigative Reports , 4 0 O p. A tt’y G en. 45, 4 6 (1941) 20 M em orandum from John R. S tevenson, Legal A dviser, D epartm ent o f State, an d W illiam H R ehnquist, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re: The President's Executive Privilege to Withhold Foreign Policy and National Security Information at 7 (D ec. 8, 1969).

21 Department o f the Navy v. Egan, 484 U S. at 527 (citations om itted)

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in the context of “ military, diplomatic, or sensitive national security secrets.” 22 Although declining in the context of that criminal case to sustain President N ixon’s claim of privilege as to tape recordings and documents sought by sub­ poena, the Supreme Court specifically observed that the President had not “ place[d] his claim of privilege on the ground that they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.” 23 Other statements by individual Justices and the lower courts reflect a similar understanding of the President’s power to protect national security by maintaining the confidentiality of classified information.24 Justice Stewart, for example, dis­ cussed this authority in his concurring opinion in New York Times Co. v. United States (the “ Pentagon Papers” case):

[I]t is elementary that the successful conduct of international diplo­ macy and the maintenance o f an effective national defense require both confidentiality and secrecy. . . . In the area of basic national defense the frequent need for absolute secrecy is, of course, selfevident .

I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is. If the Con­ stitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. . . . [I]t is clear to me that it is the constitutional duty of the Executive . . . to protect the confidentiality necessary to carry out its respon­

22 United States v. N ixon , 418 U S. 68 3 , 706 (1 9 7 4 ), see also id at 710, 712 n 19 23 Id. a t 710, see also United States v. Reynolds, 345 U S 1 (1953) (recognizing p riv ileg e in jud icial proceedings fo r “ state s e c re ts ” based on determ ination by sen io r E xecutive officials)

24 See, e g , Webster v D oe , 4 8 6 U .S 592, 6 0 5 -0 6 (1988) (O ’C o nnor, J , concurring in part and dissenting in part) ( “ T h e fu n ctio n s perform ed by th e Central In tellig en ce A gency and the D irector o f C entral Intelligence lie at the co re o f ‘th e very d elicate, plenary and ex c lu siv e pow er o f the P resid en t as the sole organ o f the federal g o v ern m en t in th e field o f in tern atio n al relations ’. . The authority o f the D irecto r o f C en tral Intelligence to control access to sen sitiv e national secu rity inform ation b y discharging em ployees deem ed to be untrustw orthy flow s p ri­ m arily fro m th is co n stitu tio n al po w er o f the P resid en t ” ) (citation o m itted ), New York Times Co. v. United States, 403 U S at 741 (M arshall, J , concurring) (case presented no issue “ regarding the P resid en t’s pow er as C h ie f E x e cu tiv e and C o m m an d er m C hief to p ro te ct national security by discip lin in g em ployees w ho disclose in fo rm atio n a n d by taking p recautions to prevent le a k s” ), Greene v. McElroy, 360 U.S 4 74, 513 (1959) (C lark, J , d issen tin g ) (it is “ b a s ic ” that “ no person, save th e President, has a con stitutional right to access to governm ental se c re ts ” ); Guillot v Garrett, 970 F 2 d 1320, 1324 (4th C ir 1992) (P residen t has “ exclusive constitutional au thonty ov er access to national security inform ation” ); D o rfn o n t v Brown, 913 F 2 d 1399, 1405 (9th C ir 1990) (K ozinskj, J , co n c u rrin g ) ( “ U nder the C on stitu tio n , the P re sid e n t has unreview able discretion o v er secu n ty decisions m ade p u rsu an t to his pow ers as c h ie f ex e cu tiv e and C o m m an d er-in -C h ief ” ), cert denied, 499 U S. 905 (1991)

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sibilities in the fields of international relations and national defense.25

m.

In applying these constitutional principles to S. 1668 and H.R. 3829, we take as a given that Congress has important oversight responsibilities and a corollary interest in receiving information that enables it to carry out those responsibilities.26 Those interests obviously include Congress’s ability to consider evidence of mis­ conduct and abuse by the Executive’s agents. H.R. 3829, however, demonstrates that it is possible to develop procedures for providing Congress information it needs to perform its oversight duties, while not interfering with the President’s ability to control classified information when necessary to perform his constitu­ tionally assigned duties.

A.

In analyzing S. 1668, there is no need to resolve the precise parameters of the President’s authority to control access to classified diplomatic and national secu­ rity information. Instead, we have focused on the specific problem presented by the bill, which, in defined circumstances, gives a unilateral right of disclosure to every executive branch employee with access to classified information.27 The reach of S. 1668 is sweeping: it would authorize any covered federal employee to foreclose or circumvent a presidential determination that restricts congressional access to certain classified information in extraordinary circumstances.

S. 1668 is inconsistent with Congress’s traditional approach to accommodating the executive branch’s interests with respect to national security information. In the National Security Act, for example, Congress itself recognized the need for heightened secrecy in certain ‘ ‘extraordinary circumstances affecting vital interests of the United States,” and authorized the President to sharply limit congressional access to information relating to covert actions in such cases.28 An example of 25 N e w York T im es C o v U nited States, 403 U S at 7 2 8 -3 0 (S tew art, J., co n curring) (footnote om itted) 26See, e g., M cG ram v. D augherty, 273 U S 135 (1927) 27W e d o not use the w ord “ rig h t” in th e sense o f a legally enforceab le right. Rather, the term is intended to co n v ey our understanding that the bill w ould purport to require the P resident to inform em ployees th a t they have standing authorization or perm ission to convey national security inform ation directly to C o n g ress w ithout receiving sp ecific authorization to convey th e particular inform ation in question W e h av e not analyzed the possible im plications this legislation m ight have w ith respect to ju d icia l enforcem ent o f em ployee legal rights.

2SS ee 5 0 U .S.C § 4 1 3b(c)(2) (1994) ( “ If the President determ ines that it is essential to lim it access to th e finding to m eet extraordinary circum stances affecting vital interests o f the U nited States, the finding m ay b e reported to the ch airm en and ranking m inority m em bers o f the intelligence com m ittees, the S peaker an d m inority leader o f th e H ouse o f R epresentatives, the m ajority and m inority leaders o f the Senate, and such o th er m em ber o r m em bers o f the congressional leadership as m ay be included by the P resident ” ). Even w ith this m ore p rotective standard. P resident Bush expressly reserved his constitutional a u th o n ty to w ithhold disclosure for a p en o d o f tim e S ee S R ep. No. 1 0 2-85, at 40 (1991) S ee also 50 U S C . § 413b(c)(3> (1994) ( “ W h en ev er a finding is n o t rep o rted pursuant C o n tinued

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accommodation between the branches that is even more directly applicable to the present context is the National Security Act’s recognition that the intelligence agencies on occasion need to redact sources and methods and other exceptionally sensitive intelligence information from materials they provide to the Intelligence Committees.29 In contrast, S. 1668 would deprive the President of his authority to decide, based on the national interest, how, when and under what circumstances particular classi­ fied information should be disclosed to Congress.30 This is an impermissible encroachment on the President’s ability to carry out core executive functions. In the congressional oversight context, as in all others, the decision whether and under what circumstances to disclose classified information must be made by someone who is acting on the official authority of the President and who is ulti­ mately responsible to the President. The Constitution does not permit Congress to authorize subordinate executive branch employees to bypass these orderly procedures for review and clearance by vesting them with a unilateral right to disclose classified information—even to Members of Congress. Such a law would squarely conflict with the Framers’ considered judgment, embodied in Article II of the Constitution, that, within the executive branch, all authority over matters of national defense and foreign affairs is vested in the President as Chief Executive and Commander in Chief.31 It has been suggested that S. 1668 (at least with modest revisions) would strike an acceptable balance between the competing executive and legislative interests relating to the control of classified information, and would thus survive review under ordinary separation of powers principles.32 That balance under S. 1668, however, would be based on an abstract notion of what information Congress might need to know relating to some future inquiry and what information the President might need to protect in light of some future set of world events. Such an abstract resolution of the competing interests at stake is simply not consistent with the President’s constitutional responsibilities respecting national security and foreign affairs. He must be free to determine, based on particular— and perhaps

to p arag ra p h (1) o r (2) o f th is section, the P resident shall fully inform the intelligence com m ittees in a tim ely fashion and shall p ro v id e a statem en t o f th e reasons for not giving prior n o tice.” ).

29See 50 U .S C § 4 1 3 a (1994) ( “ T o the ex ten t consistent w ith d u e regard fo r the protection from unauthorized d isclo su re o f classified in fo rm atio n relating to sen sitiv e intelligence sources an d m ethods o r o th er ex ceptionally sen­ sitive m a tte rs, th e D ire c to r o f C en tral Intelligence and the heads o f all d epartm ents, agencies, and o ther entities o f th e U nited S tates G o v ern m en t involved in in tellig en ce activities shall . . k eep the intelligence com m ittees fully and cu rren tly in fo rm ed o f all in tellig en ce activities ”)

10C / U nited States ex rel Touhy v Ragen, 34 0 U S 462, 468 (1951) ( “ W hen one co n sid ers the variety o f in fo rm ation co n tain ed in th e files o f any governm ent departm ent and the p ossibilities o f harm from u nrestricted d isclo su re , the usefu ln e ss, indeed the necessity, o f centralizing d eterm in atio n as to w hether subpoenas duces tecum w ill b e w illin g ly o b ey e d o r challenged is o b v io u s ” )

31 T h is is not to su g g est that C ongress w holly lacks a u th o n ty regarding the treatm ent o f classified inform ation, see N ew York Times Co v United States, 403 U S at 740 (W hite, J., co n c u m n g ), but rather that C o n g ress m ay not ex e rc ise th a t a u th o n ty in a m a n n er that underm ines the P resid en t’s ability to perfo rm his co n stitu tio n ally assigned duties.

32 See Whistleblower Protections f o r Classified D isclosures* Hearings Before the Senate Select Comm on Intel­ ligence , 105th C o n g . 8 (1998) (statem en t of Prof. P ete r R aven-H ansen)

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currently unforeseeable— circumstances, that the security or foreign affairs interests of the Nation dictate a particular treatment of classified information.

Furthermore, S. 1668 also undermines the traditional, case-by-case process of accommodating the competing needs of the two branches—a process that reflects the facts and circumstances of particular situations. As one appellate court has observed, there exists “ an implicit constitutional mandate to seek optimal accommodation [between the branches] through a realistic evaluation of the needs of the conflicting branches in the particular fa c t situation.” 33 Rather than enabling balances to be struck as the demands of specific situations require, S. 1668 would attempt to legislate a procedure that cannot possibly reflect what com­ peting executive and legislative interests may emerge with respect to some future inquiry. It would displace the delicate process of arriving at appropriate accom­ modations between the branches with an overall legislated “ solution” that paid no regard to unique— and potentially critical— national security and foreign affairs considerations that may arise. This approach contrasts with that of H.R. 3829, which would balance the competing legislative and executive interests at stake in a manner that would permit rational judgments to be made in response to real world events.

B.

H.R. 3829 does not present the constitutional infirmity posed by S. 1668. H.R. 3829 does not vest any executive branch employee who has access to classified information with a unilateral right to determine how, when and under what cir­ cumstances classified information will be disclosed to Members of Congress and without regard for how such a disclosure might affect the President’s ability to perform his constitutionally assigned duties.

Instead, H.R. 3829 would establish procedures under which employees who wish to report to Congress must first submit their complaint to an inspector gen­ eral, who would review it for credibility and then submit the complaint to the agency head before it is forwarded to Congress. This process would allow for the executive branch review and clearance process that S. 1668 would foreclose. H.R. 3829 would further authorize heads of agencies and the Director of Central Intelligence, upon the completion of that process, to decide not to transmit an employee’s complaint to the Intelligence Committees, or allow the employee to contact the Committees directly, “ in the exceptional case and in order to protect vital law enforcement, foreign affairs, or national security interests.” 34 If such

33 United States v. American Tel & T e l C o , 567 F 2 d 121, l2 7 (D .C .C ir. 1977) (emphasis added). 34 In light of S 1668’s focus on the intelligence community and classified information, the Department’s analysis of the bill’s constitutionality has focused on its interference with the President’s authonty to protect confidential national security and foreign affairs information. O f course, other constitutionally-based confidentiality interests can be implicated by employee disclosures to Congress H R 3829 appropriately recognizes that such disclosures also should not compromise vital law enforcement interests

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a decision were made, then the head of agency or Director of Central Intelligence would be required to provide the Committees with the reason for the determina­ tion.

Not only would H.R. 3829 thus avoid the constitutional infirmity of S. 1668 by allowing for review by the President or officials responsible to him, it would also allow for the operation of the accommodation process traditionally followed between the legislative and executive branches regarding disclosure of confidential information. Upon receipt of the explanation for a decision not to allow an employee complaint to go forward, the Intelligence Committees could contact the agency head or Director of Central Intelligence to begin the process of seeking to satisfy the Committees’ oversight needs in ways that protect the executive branch’s confidentiality interests. The bill’s procedures are thus consistent with our constitutional system of separation of powers.

rv.

We recognize that Congress has significant interests in disclosure of evidence of wrongdoing or abuse. There is an inevitable tension, however, between pre­ serving the secrecy necessary to permit the President to perform his constitu­ tionally assigned duties and permitting the disclosures necessary to permit congressional oversight. Under relevant constitutional doctrine, Congress may not resolve this tension by vesting in individual federal employees the power to con­ trol disclosure of classified information. For this reason, we have concluded that S. 1668 is unconstitutional. H.R. 3829 does not contain this constitutional infirmity and is constitutional.

RANDOLPH D. MOSS

D eputy Assistant Attorney General Office o f Legal Counsel