Throughout our history, Presidents have often moved to claim certain powers not expressly mentioned in the Constitution. Some of these power grabs have been adjudicated and confirmed, in a limited way. For example, in United States v. Nixon, the Supreme Court confirmed the existence and necessity of "executive privilege", but made clear that such claims were limited in scope. More below the fold.
Writing for the majority, Chief Justice Warren Burger said:
Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.
Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of [418 U.S. 683, 706] Presidential communications has similar constitutional underpinnings.
So, while there is no specific grant of "executive privilege" in the Constitution, the Court held that the power was derivative, in that it relates to the discharge of Presidential Power. The Court also placed clear limits on when and how this new power should rightfully be used.
However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
So the derivative "executive privilege" power is limited to a need to protect "military, diplomatic, or sensitive national security secrets". This is the foundation for the Bush administrations (and now the Obama administrations) claims of executive privilege using the national security, or "state secrets" argument. As reported here on DKos last night, the Ninth Circuit Court of Appeals has rejected the governments state secrets argument, at least in certain cases, which is a welcome development indeed.
While I fully support the conclusions reached by the Court in United States v. Nixon, I also believe that use of executive privilege must be reviewable by the Judiciary as a check on excessive executive powers. The attempt of the Bush and Obama administrations to use this argument to have cases dismissed even before discovery were an unprecedented and dangerous grab of power, and I applaud the Ninth Circuit on their decision.
It is obvious, as Chief Justice Burger made clear, that the President has a need for confidentiality in discharging his duties as President. Matters of national security, diplomatic strategies, and military decisions simply must be protected. But Presidents should use such power sparingly, ensuring that they do not unfairly interfere with the people's basic rights as enumerated in the Constitution. The repeated use of executive privilege to deny basic rights, prevent subpoenaed testimony, and cover up wrongdoing weakens our system of checks and balances, and needs to be dealt with through actions of both the legislative and judicial branches as soon as possible.
In my next diary, I will look at President Bush's claim of wartime powers permitting warrentless wiretapping of American citizens without utilizing the FISA court process.