Saturday, April 15, 2006

Breaking the law, breaking the law

My friend Wintermute has a great post up today, going deeper into the "leaking classified documents" issue, diving deeper historically than most, which makes sense, since he's actually an attorney who knows about such stuff:
Given the White House's outing of a covert CIA agent and disclosing cherry-picked intelligence for political purposes, we the people might wish that even the President himself would follow the procedure prescribed for "any other entity within the executive branch that comes into the possession of classified information." However, this White House has repeatedly cited a 1988 Supreme Court decision as authority for its claims that the President can control access to classified national security information however he likes, even in derogation of oversight statutes passed by Congress.

A little history is in order, and we will consider the version offered by the Supreme Court in that 1988 opinion, Department of Navy v. Egan, wherein the Court decided that the Merit Systems Protection Board did not have authority to review the Navy's decision to deny a security clearance to a shipyard employee. From Part III of the opinion:

The President, after all, 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 and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant....
. . .
To bolster its "unitary executive" theory, the Bush administration has included language adapted from the Egan case -- "flows from the Constitution and does not depend upon a legislative grant of authority" -- in its signing statements on defense appropriations laws of 2002 and 2005 (requiring advance notice to Congress before covert actions are commenced), to the effect that the President reserves the "right" not to so inform Congress.

Go, read, it's really good.