Congress: Beware of the Justice Department’s Attempt to Change Rule 6(e)

In a decision issued this summer, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia considered a petition to unseal the transcript of former President Nixon’s grand jury testimony in 1975. For reasons explained below, the court’s decision to grant the petition has important implications for the ability of congressional committees to access grand jury information. However, a change to the rules of grand jury secrecy proposed by Attorney General Holder this week would undercut both Judge Lamberth’s ruling and future congressional oversight.

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More Legal Misinformation About Congress

If there were an award for cramming the most amount of legal misinformation into the shortest segment, Friday’s edition of “Nightly Scoreboard” would surely earn a nomination. The subject was a potential congressional subpoena for White House emails concerning Solyndra, and the discussion took place between host David Asman and former federal prosecutor Annmarie McAvoy.

The premise of the piece was that a congressional subpoena for presidential emails would be “unprecedented” and would raise novel issues of executive privilege and separation of powers. McAvoy explained that “[t]here are certain communications that are not available to the Congress.” The following colloquy ensued:

 McAvoy: The argument will be made that the President has to be able to have full and free and open communications with those who are advising him, be those his senior staffers or be those other people in the industries that he is looking at who can come to him and openly talk to him and that he can communicate with them without having to worry about those communications going over to Congress.

 Asman: But have those statutes even been written- about emails- because this is new territory we’re in?

 McAvoy: It is and it raises a very interesting question because what happens is as we have new technologies essentially the law has to eventually catch up with the technology and it hasn’t as of yet. So they’ll be looking at your basic laws relating—and cases relating—to executive privilege in trying to figure out where this would fit in but there really isn’t a statute that directly applies to emails because it didn’t exist beforehand and none of the presidents before Obama had ever used email.

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Kathleen Clark on the “Right to Counsel” in Intelligence Oversight

Professor Kathleen Clark recently published this article regarding congressional oversight of intelligence. In brief, she argues that when leaders of the intelligence committees are given restricted briefings by the executive branch, they should be able to share the information with cleared committee staff members from whom they need to obtain “counsel” (by which she means expert, not necessarily legal, advice). She proposes that the committees proactively establish rules or policies to “clarify that the committee leadership can share information with staff where necessary to carry out its oversight responsibilities, including with respect to covert actions.”

I basically agree with this proposal, which is similar in approach to what I have suggested with regard to sharing information with other committee members:

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

It would make sense for such a rule to address both sharing of information with other committee members and with congressional staff.

I would suggest that the default rule for Gang of Four briefings on non-covert action matters should be that each member of the Gang of Four is free to discuss the information with designated committee staff for purposes of obtaining advice on legislative or oversight matters. If the executive branch wished to alter this rule for purposes of a particular briefing, it would have to provide a justification in advance of the briefing, which the intelligence committee leadership could then decide whether to accept or reject.

It should be noted that staff are not necessarily excluded from Gang of Four briefings; for example, selected staff members were included in the Gang of Four briefings on enhanced interrogations. Gang of Eight briefings on covert action, however, are statutorily limited to the Gang of Four plus the four congressional leaders. Therefore, one would not expect staff to be in attendance.

Because of the highly sensitive and time-limited nature of covert operations, I think that different arrangements may be needed with respect to briefings on such operations. The statute recognizes that the President may withhold prior notification entirely with respect to covert operations (as, for example, was the case with regard to the May 1, 2011 operation against Osama bin Laden).  It therefore may be wise or necessary for the intelligence committees to agree not to share information with staff without prior notice to the executive branch (in the same manner as I suggested with regard to sharing information with other committee members).

Finally, I think that it would be preferable to embody these procedures in House and Senate rules, rather than merely in committee rules. However, because of the difficult of amending the Senate’s rules in particular, Clark’s approach may be prove to be more feasible.

For further background, see Al Cummings’s reports on Gang of Eight and Gang of Four briefings.

 

 

Law Professors Lecture Congress on Stuff They Know Nothing About

A group of law professors and labor policy experts have written this letter to Darrell Issa, Chairman of the House Oversight and Government Reform Committee (COGR), expressing their grave concerns over “threats to compel disclosure of privileged documents” from the National Labor Relations Board. COGR is investigating the NLRB’s decision to bring an action against Boeing for shifting work from a union plant in Washington State to a new non-union facility in South Carolina. Yesterday COGR issued a subpoena to the NLRB, seeking a broad range of documents relating to the agency’s investigation of Boeing in order to obtain “complete facts about the NLRB’s rationale and its decision making process in this matter.”

The letter asserts that the documents COGR is seeking will likely include some relating to settlement discussions, litigation strategy and “other key factors in deciding to file the Complaint.” It suggests that these documents are privileged, and that the privileged nature of the documents is illustrated by the Administrative Law Judge’s refusal to order that they be produced in the pending litigation.

The law professors claim that “[u]nder current law, Congress must look to how the courts would handle the assertion of attorney-client and work product privilege claims when determining whether to press for these documents.” In support of this proposition, they cite Mort Rosenberg’s “Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry” 32-37(1995). No other support is provided.

If you go to page 32 of the cited Rosenberg report (which evidently none of the professors did), you will see the following: “The precedents of the Senate and the House of Representatives, which are founded on Congress’ inherent constitutional prerogative to investigate, establish that the acceptance of a claim of attorney-client or work product privilege rests in the sound discretion of a congressional committee regardless of whether a court would uphold the claim in the context of litigation.” (emphasis added)

Hmm, that sounds like the exact opposite of what the professors said.

As anyone who knows Mort Rosenberg would realize, he does not support the proposition that the courts can dictate, even indirectly, how Congress conducts its oversight activities. As he explains on page 36 of the same report: “the suggestion that the investigatory authority of the legislative branch of government is subject to non-constitutional, common-law rules developed by the judicial branch to govern its proceedings is arguably contrary to the concept of separation of powers. It would, in effect, permit the judiciary to determine congressional procedures and is therefore difficult to reconcile with the constitutional authority granted each House of Congress to determine its own rules.”

Moreover, while it is true that Congress will normally follow judicial precedents with respect to determining the contours of the attorney-client privilege with respect to private parties, it is not at all clear that government agencies like NLRB even have the right to assert attorney-client privilege as against Congress. Cf. In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), cert. denied 525 U.S. 996 (1998) (government attorney may not invoke attorney-client privilege in a grand jury proceeding). There is no reason why the advice given by executive branch lawyers should be entitled to special protection in a congressional investigation.

When a government agency wishes to withhold information from Congress regarding a pending litigation or investigation, the matter is typically evaluated under the deliberative process privilege. The issues raised by the professors with regard to the NLRB proceeding, such as the potential for interference with an ongoing proceeding and the disclosure of litigation strategy, etc., must be weighed against considerations that militate in favor of immediate congressional action, such as the need to consider a legislative fix to resolve the economic hardship caused by Boeing’s inability to commence operations in South Carolina. Ultimately the weighing of these competing considerations is in the discretion of the committee.

Again to quote Rosenberg, “[d]espite objections by an agency, either house of Congress, or its committees or subcommittees, may obtain and publish information it considers essential for the proper performance of its constitutional functions. There is no court precedent that requires committees to demonstrate a substantial reason to believe that wrongdoing occurred before seeking disclosures with respect to the conduct of specific criminal and civil cases, whether open or closed. Indeed, the case law is quite to the contrary.”

If these labor law professors want to opine on congressional procedure, perhaps they should learn a little about it first.

 

“This is Not a Love Making Process”

So explained Charles Tiefer, former Solicitor and Deputy General Counsel to the House and former Assistant Senate Legal Counsel, speaking at a hearing of the House Committee on Oversight and Government Reform yesterday. Tiefer was not talking about the latest congressional sex scandal, but advocating for an aggressive congressional posture when the executive branch withholds information sought by a committee in the course of conducting oversight.

Tiefer was joined on the panel by Mort Rosenberg, Lou Fisher and Todd Tatelman. I would explain who these guys are, but you probably already know, or else you would have stopped reading after learning that this post is not Weiner-related.

The panel ably laid out the constitutional and historical basis for congressional oversight of the executive, including the House’s 1792 decision to appoint a special committee to investigate General Arthur St. Clair’s failed military operation against Indian tribes (referenced in my last post). They were speaking in the context of the Justice Department’s failure to comply with a congressional subpoena for documents related to  “Operation Fast and Furious,” an ATF weapons sting that appears to have gone about as well as General St. Clair’s expedition. Most of the testimony, however, did not focus on the specifics of the particular information dispute, but on numerous historical examples of executive branch recalcitrance in the face of congressional oversight, and the need for persistence in overcoming these types of objections.

The hearing and/or written testimony is well worth reviewing by anyone interested in congressional oversight. The witnesses are certainly among the foremost experts on the subject. As Chairman Issa aptly concluded, “we haven’t brought this much intellectual capital to a hearing in a very, very long time.”

 

Gang Territory: Improving Congressional Oversight of Intelligence

In the most recent edition of the Harvard Journal of Law and Public Policy, Vicki Divoll (former counsel to the Senate Select Committee on Intelligence) argues for what she terms the “Full Access Doctrine”  (FAD). That doctrine would provide that  “under the Constitution, Congress is entitled to seek and receive any information from the executive branch that it needs to carry out its core responsibilities to make laws, appropriate funds, and investigate all matters relating to the intelligence functions of our government.” The executive branch, she contends, has no right to withhold any information from Congress, apart from a narrow category of presidential communications protected under United States v. Nixon, 418 U.S. 683 (1974).

Divoll writes in the context of congressional oversight of the intelligence community, and she makes clear that she is dissatisfied with Congress’s ability to get information needed for such oversight. Specifically, she decries the process by which the executive will brief certain sensitive intelligence matters only to the “Gang of Four” (the chairs and ranking members of the two intelligence committees).

Divoll criticizes the restricted briefings as “meaningless access” because they do not assist Congress in carrying out its Article I responsibilities. She points to the briefings received by the Gang of Four on enhanced interrogation techniques during the Bush Administration. Although the briefings were later cited as evidence that the recipients, including Representative Nancy Pelosi, had implicitly sanctioned waterboarding and other controversial practices, Divoll argues that there was little that the Gang of Four could have done with the information. She notes that they “receive nothing in writing, are told not to take notes, often have no staff assistance, and cannot discuss the material with anyone but the other three Gang of Four members.” In short, the restricted briefing “serves to give the executive branch a scapegoat if a controversial program becomes public, but it provides absolutely nothing to assist Congress in the performance of its lawmaking, appropriations and oversight duties.”

Divoll’s solution to this problem is for Congress to pass legislation establishing new rules governing congressional access to intelligence. Although she does not spell out the details, the legislation would be “based on the constitutional principles that Congress is entitled to demand anything it wants to serve its proper duties, and the President is required to provide it.” While Congress might choose not to receive some types of information (particularly details of covert actions or similar ongoing operations), the President would not have the discretion to withhold information or to provide it only to a select group of Members.

Divoll’s frustration with the current oversight process is understandable, but her proposal misses the mark, IMHO, in several respects. First, it should be noted that she significantly overstates the extent to which FAD represents established law. Certainly it has never been regarded as the law by the executive branch. It was George Washington who first enunciated the authority of the President to withhold from Congress information that would “injure the public,” following the unanimous recommendation of a 1792 cabinet meeting that included Alexander Hamilton, Edmund Randolph and Thomas Jefferson. Since that time, presidents have often asserted the authority to withhold information from Congress for a variety of reasons, including national security. See, e.g., Mark Rozell, Executive Privilege: The Dilemma of Secrecy and Democratic Accountability 32-53 (1994). No president has ever endorsed FAD or anything like it.

Nor has the judicial branch endorsed the doctrine. Divoll primarily relies on Nixon and United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977), but neither supports her position. Nixon involved a criminal, not a  congressional, subpoena, and it did not suggest that the executive lacked authority to withhold national security information. The Court suggested, in fact, that the outcome might have been different if national security were involved, noting that Nixon “does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties, the courts have traditionally shown the utmost deference to Presidential responsibilities.”

United States v. AT&T did involve a congressional attempt to access national security information (evidence regarding potential abuses of executive branch wiretapping). The court, however, declined to resolve the competing constitutional claims of the executive and legislative branches, instead attempting to steer the parties toward a negotiated settlement. The court’s dicta suggests that it rejected the executive’s claim of absolute authority to withhold national security information, but also that it rejected the assertion of an absolute legislative right to access such information (“We have not accepted the contention that the executive determination that national security may be involved is conclusive and not subject to any further inquiry, nor have we accepted the rival claim that Congressional right of access to documents for legislative purposes is at any time absolute.”). Like Mark Rozell, the court appears to favor an intermediate approach that would weigh the competing interests of the executive and legislative branches with respect to a particular dispute.

Thus, neither the executive nor judicial branches have endorsed FAD. But even if one thinks that Divoll’s view of the law is the correct one, it is hard to see how new legislation would advance the ball. Congress, as she notes, was unwilling to stand up to the Obama administration over relatively minor changes to the law governing covert action notifications. There would seem to be little chance the Congress would be able to enact a far more ambitious statute along the lines she proposes. And even if such a law were enacted, there is no guarantee that the executive would obey it. (See the War Powers Act).

Yet new legislation is not necessary to address the problem of restricted briefings. Congress already has the power to share the information in these briefings with all the members of the intelligence committees. As far as I have been able to determine, there is nothing in law or congressional rules now that would prevent any member of the Gang of Four from sharing the contents of a restricted briefing with their colleagues on the intelligence committees.

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

These types of procedures make sense because there are situations in which it is preferable that sensitive information be as tightly contained as possible. It may be true, as Divoll suggests, that the tendency of the intelligence committees to leak information has been overstated, but it cannot be seriously disputed that there are risks involved in sharing information with all members of the intelligence committees. There have been cases in which members of these committees have released sensitive information, and common sense suggests that Members of Congress are more likely to release information inadvertently than are career intelligence officials.

The major difference between Divoll’s approach and mine is that I would put the burden on the members of the Gang of Four to determine when further dissemination is required. By making it clear that the Gang of Four has the power to seek further dissemination of restricted briefings, my proposal would entail greater responsibility and political risk on their part. Just as there may be a tendency for the executive to use restricted briefings as a means of scapegoating the recipients, so there may be a tendency for the recipients to avoid any accountability for the information they receive. But if the intelligence committees wish to be full partners in the conduct of U.S. intelligence activities, they must be prepared to accept a degree of responsibility as well.

 

 

The 9/11 Commission Recommendation Congress Forgot

As a former member of the 9/11 Commission noted today, Congress has failed to implement one key recommendation of that Commission—relating to how Congress organizes its own homeland security and intelligence committees.  The Hill states that “[f]ormer Sen. Bob Kerrey (D-Neb.) said that Congress’s failure to adopt [this recommendation] contributes to problems at the country’s intelligence agencies in the wake of the failed Christmas Day attack.” What follows is a piece I wrote, but never published, right after the 2006 elections.

           

9/11 COMMISSION’S MESSAGE TO CONGRESS: REFORM YOURSELF 

Nancy Pelosi, the incoming Speaker of the House of Representatives, has promised that a Democratic-led House will move immediately to enact all of the unfulfilled recommendations of the 9/11 Commission.  She has also promised to make dramatic changes in the way Congress does business. 

Her willingness and ability to keep these promises will be tested by what is unquestionably the most important unfulfilled recommendation of the 9/11 Commission: that Congress reform itself.  Specifically, the Commission recommended significant changes with regard to how Congress is organized for oversight of intelligence and homeland security. 

Of particular note is the Commission’s call for strengthening congressional oversight of the intelligence community.  The Commission found that the House and Senate intelligence committees lack adequate authority and capability to conduct effective oversight  Indeed, the Commission concluded starkly that “congressional oversight for intelligence—and counterterrorism—is now dysfunctional.” 

The institutional weakness of the intelligence committees stems in large part from the secrecy of the intelligence community they oversee.Information on highly classified programs is difficult to obtain and, when the information is shared with the committees, may be provided in such a compartmented fashion as to make it of little or no use.

For example, during the recent inquiry by the House Permanent Select Committee on Intelligence (HPSCI) into the activities of former Representative Duke Cunningham, we discovered a potentially relevant computer disk in Cunningham’s classified file at HPSCI.Because HPSCI did not have the technology to read the disk, it had to request assistance from an intelligence agency.After the agency obtained the disk, however, it refused to provide access to the files contained on the disk on the grounds that HPSCI was not cleared for the information in question.

The secretive nature of the intelligence community also deprives the intelligence committees of some of the most powerful oversight tools: the ability to hold public hearings and to issue public reports.Other congressional authorizing committees can use public hearings and reports to pressure agencies to modify policies and practices or simply to be more forthcoming with information, but the intelligence committees usually cannot.

Theoretically, the intelligence committees should have leverage over the intelligence agencies as a result of the legal requirement in section 504 of the National Security Act of 1947 that that intelligence expenditures be specifically authorized as well as appropriated, which would appear to require the approval of the intelligence committees as well as the appropriators.However, experience indicates that the appropriators have found ways to circumvent this requirement, ranging from putting expenditures in budget categories (such as military intelligence) which are not subject to the legal requirement to simply waiving the requirement outright.As a result, the appropriators are perceived to have far more sway over intelligence spending than the intelligence committees, a fact that undercuts the oversight capabilities of the latter.

To address these deficiencies, the 9/11 Commission recommended major changes in how the intelligence committees are structured, such as combining the appropriating and authorizing authorities in a single committee for each House.These new intelligence committees would be composed of relatively few members (with majority party representation never exceeding that of the minority by more than one) who would be “clearly accountable for their work” and would be served by a nonpartisan staff working for the entire committee.

The 9/11 Commission stressed the critical importance of the congressional reform portion of its recommendations, noting that “the other reforms we have suggested . . . will not work if congressional oversight does not change too.”Weak and divided congressional oversight makes it difficult for Congress to ensure proper and effective implementation of the Commission’s executive branch intelligence reforms, which were enacted into law by the Intelligence Reform and Terrorism Prevention Act of 2004.

Divided congressional oversight also enables agencies, contractors and others to play one committee off against another, exploiting committee rivalries for their own advantage and profit.In addition, it wastes the time and effort of agencies and high level officials who must report to and appear before many different committees.

As the 9/11 Commission recognized, however, getting Congress to reform itself is no easy task.It noted that “[f]ew things are more difficult to change in Washington than committee jurisdiction and prerogatives.To a member, these assignments are almost as important as the map of his or her congressional district.”

It is not surprising, therefore, that Congress has largely failed to implement the Commission’s congressional reform recommendations.As Thomas Mann and Norman Ornstein note in their recent book, The Broken Branch, congressional leaders responded “limply and inadequately” to these recommendations and the steps that were taken, particularly with regard to intelligence oversight, “[fell] far short of the constructive recommendations of the 9/11 Commission.”

Effective oversight of the executive branch requires more than a simple willingness to demand information and to issue a subpoena if necessary.Congressional oversight must be serious, systematic and ongoing.Oversight must be focused on improving intelligence and homeland security, rather than on getting contracts for friends or constituents, or on scoring political points.

It is much easier for Congress to reform the executive branch than to reform itself.By enacting the congressional reform recommendations of the 9/11 Commission, however, Congress can show that it is no longer business as usual on Capitol Hill.