Senior Seminar, Part 5 of 12

Introduction

            This is the unedited paper I wrote for my senior seminar back in 2007.  I am posting it as a sort of trip down memory lane during our current apocalypse.

            I have become a better writer since creating this.

            I have become much better informed since writing this.

            I am a very different person than when I wrote this.

Full Introduction Here

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Executive Privilege: an Assumed Power

The President through broad interpretations of the Constitution has assumed numerous duties, and created positions in that line of thought.  One of the rights that the President has assumed in recent times to insure the confidentiality of units under his command and the safety of covert agents in the power of Executive Privilege.  This is the ability of the President to simply withhold testimony, documents, and participation in Congressional probes under the guise of national security.  Short of the Congress ordering the release of documents, and even this ability is unenforceable due to this assumed power, the Congress has no way of accessing the inner workings of the President.

Unfortunately the power of Executive Privilege remains even though it has proven to act as a cover for illegal activities in the past, through the efforts of President Richard Nixon, and it has been used to obscure unethical activities in the office of President Bill Clinton.  As such Executive Privilege has been tainted and simply cannot be trusted as a legitimate use of Presidential immunity to authority.  But it remains.

Should Executive Privilege Remain?

Executive Privilege flows from a decision made by the Supreme Court preceding the resigning of Nixon from the office of President.  President Nixon was ordered to allow a lower court judge access to the confidential tapes of the Presidents conversations and reveal only those pertinent to the investigation of the President’s involvement in the Watergate scandal.[1]

The problem is that the President could have simply refused to comply asserting that the Supreme Court had no authority to review the President on his performance of his duties in the realm of National Security, and since they had no purview there, then they could not order review of any of his conversations, as they all could relate to national security issues.  Since this can be verified only by review, a review that will not be granted, then such a position cannot be over ridden, essentially, since the benefit of the doubt is granted to those under investigation, including the purview of the Fifth Amendment of the Constitution, the tie goes to the runner, and the President can choose not to comply with the attainment of any documents in his office as they all could be said to interrelate to national security, and are beyond the reach of the courts.

This is not conducive to a socially responsible government.  Government requires transparency, and accountability.  The ambitions of political beings cannot check each other if an office is unassailable.  Executive Privilege is not protected by the Constitution and should be removed as an ethically questionable source of power for the office of the President.

The Need for Executive Privilege

            If you were to strip away the President’s ability to withhold documentation, making their every consideration public it would be impossible to address any number of issues in a candid and direct manner.  The President is elected not to sit in a clear plastic bubble and be analyzed, he is elected to be the nimble enforcement branch of the government, and the fact that the modern media systems work at fantastic speed to distribute considerations, possibilities, and even speculations, the idea that actual military and political planning would be distributed in such a fast and context free environment would be politically, and even literally, damaging to the United States.  If it was reveled that the President was given a list of potential nuclear strike targets within a nation that could be invaded for failure to fulfill treaty obligations, the ramifications would be unimaginable, regardless of whether or not the nuclear option was being thoroughly explored or considered only as a last resort, or even if such projections were included to complete a policy of thorough strategic planning on part of the military.  News like this causes havoc, and the President is elected to act as an agent of the public and insulate them from these considerations.

            Opaque is a necessary quality of the President’s work, for security reasons, and for political reasons.  This privilege could be abused, but if it were, a rational actor of the United States Congress or Court system could see through it and act accordingly against the President.

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[1] United States vs. Nixon