As we all know, GW has been proclaiming Executive Privilege to cover a host of issues, from Janet Reno to Cheney's Oil Roundtable to the recent spats of district attorney firings and Pat Tillman's death. He doesn't even feel he needs to fully explain the basis for his claims.
Executive Privilege has always been controversial, but this much is true: Almost every president has ultimately complied with the request or compulsion to provide evidence of their decision making. The exceptions are noteworthy. More below the fold.
The most recent successful use of executive privilege was that of Eisenhower against McCarthy in the Army hearings. McCarthy wanted to subpoena members of Eisenhower's inner circle and army advisers on the loyalty board. Eisenhower invoked the privilege in part to halt McCarthy and in part to hide knowledge of a meeting led by the Attorney General with members of the Army board to create a chronology of McCarthy and Cohn's efforts to secure favorable treatment for a protege in the Army. This chronology was leaked to the press and damaged McCarthy a great deal.
Nixon and Clinton both invoked the privilege, but Nixon's claim was rejected as too broad and "not absolute" and Clinton's since (via At Largley):
...independent counsel Kenneth W. Starr's need to collect evidence in his obstruction of justice probe outweighs Clinton's interest in preserving the confidentiality of White House discussions, the lawyers said.
With Eisenhower, his broad refusal to have any aides testify was not challenged primarily because his opponent was already starting his political downfall, having made numerous enemies and lost the support of the public. It did not drag on. Nixon and Clinton envoked the privilege during investigations that were pursuing possible criminal wrongdoing. This made their claims weaker. Both investigations had also started before their 2nd terms, and were well underway.
While Eisenhower's claims appear to be too broad, they were used to cover activity that was political, and not directly about national security. An argument could be made that McCarthy's witchhunts and unethical efforts to place his allies in key positions of power could constitute a threat to national security, and by blocking his efforts Ike was acting in the best interest of security. I am not sure how I fall on this particular issue.
Eisenhower's claims did open a can of worms, and George W. Bush is spreading it over every aspect of executive activity. This is clearly out of bounds, and need to be curbed, not just now but in the future as well. It is damaging to the public, and will in all likelihood be used by future presidents to protect and expand the powers of the presidency. I do not think presidents of either party are likely to scale back executive power, and we have no Claudius, Marcus Aurelius, or Maximus on the horizon.
My argument for oversight and limitation is based on the 3 claims of executive privilege above.
First, executive privilege should only be made in issues of national security and regarding the offices and departments directly related to it (I will not go on about these, as the idea is tentative).
Second, a detailed rationale must be provided for each instance of privilege.
Third, all claims of executive privilege should prompt a review by a court, most likely the Supreme Court whole or in part, though perhaps one modeled on the Foreign Intelligence Surveillance Court could be used.
Fourth, these rules would be codified by law or amendment.
Fifth, if the national security activity being covered by the claim is unconstitutional or breaks existing laws, privilege cannot be claimed.
George W. Bush is pushing the boundaries of privilege and has his whole life. He is also pushing the boundaries of law and order and American Democracy. However, absent an ongoing investigation by a prosecutor, any challenge to his assertion of privilege will take time and an aggressive Congress. I believe that in he end Congress would win, but I also think it may very well not win til after Bush is out of office.
I do not think that should stop such a challenge to executive privilege. If it helps to define and limit such privilege, then good. If it opens the doors to criminal investigations and prosecutions of the half dozen or more usual suspects in the White House, even better. And if it weakens future power plays of the Executive Branch, then that is an added important bonus. It is too important, in this particular instance most of all but also for the future of the nation, to limit executive privilege and increase oversight of decisions and actions that lead us down the road of political despotism, military aggression and mismanagement, fiscal abuse, and the erosion of inalienable rights.