... if the president determines that doing so could harm the national security of this country.
So much for the explicit federal statute that forces the executive branch to keep Congress “fully and currently informed” about the proliferation of weapons of mass destruction.
The opinion was written by then-OLC deputy John Yoo. It was released this week under a FOIA request. Here's how it was written: 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.
Here's
the link to FAS:
John C. Yoo Really? The torture guy? REALLY?
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
I know there's been a concerted effort on the part of the executive branch over time for more and more power. I also know Congress has in part shamelessly facilitated this power grab.
Regardless, I want the Obama from his first campaign for POTUS back. You know the guy. The one who said this...
“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America.”
Senator Barack Obama, 2008
What ever happened to that guy anyway?