June 20, 2012

Is Executive Privilege Anti-Freedom?

By Don Kirk in Philosophy of Freedom, Philosophy of Human Rights

As today’s Bloomberg national poll explodes with the news that Mr. Obama has just surged to a very large lead over Mr. Romney in their election race, the president has declared the documents demanded by the Congressional committee investigating the government’s gun-running program for Mexican drug cartels are protected by executive privilege. He will not give up the documents, arguing “serious damage” would be done if he did.

Richard Nixon redux. ‘Serious damage’ to whom???? Watergate documents were refused to Congress nearly forty years ago by Mr. Nixon invoking executive privilege. National security was never involved; his political survival was. The Chief Executive says the request for internal documents is merely political gamesmanship by Congress overstepping its Constitutional restraints in separation of powers, while Congress argues it is merely performing its Constitutional mandate to act as a check on the Executive.

The Supreme Court has ruled that the privilege exists, but is qualified if the Congress can show that it is in pursuit of suspected actual instances of criminality and not merely fishing for evidence. Traditionally, the Executive invokes the privilege but then releases all of the documentation “voluntarily,” instead of in response to a Congressional summons.

It is freedom that is lost in the Executive’s long-running argument for invoking privilege (George Washington originally invoked it, and many other presidents have as well). Any president could invoke the secrecy of privilege for anything he or she declared to be national security. If Nixon could keep secret illegal searches, and Mr. Obama can keep secret who ordered guns be sold to drug cartels, then a future president could invoke privilege to keep secret any manner of crimes or corruption.

Not to be too lurid, but privilege could be invoked by the Executive to maintain secrecy over moving trainloads of undesirable citizens. Hitler never ordered those trains, and could have argued he never knew anything about them. So? His deliberate ignorance shelters the crime?

The potential threat to freedom from Executive Privilege is too great for it to stand, and if it does stand, then all of the American people are worse off by the privilege being privileged.