Filed: May 20, 1998
Latest Update: Mar. 03, 2020
Summary: 3, S. 1668 would thus vest any covered federal employee having access to classi-, fied information with a unilateral right to circumvent the process by which the, executive and legislative branches accommodate each others interests in sensitive, information., 17 5 A nnals o f C ong.
Whistleblower Protections for Classified Disclosures
A S enate bill addressing the disclosure to C ongress o f classified “ w histleblow er” inform ation con
cern in g th e in telligence com m unity is unconstitutional because it would deprive the President of
the op p o rtu n ity to d eterm ine how, w hen and under w hat circum stances certain classified inform a
tion should be d isclosed to M embers o f C ongress.
A H ouse bill addressing the sam e subject is constitutional because it contains provisions that allow
for the ex ercise o f the P resident’s constitutional authority.
May 20, 1998
St a t e m e n t B e f o r e t h e
P e r m a n e n t S e l e c t C o m m it t e e o n I n t e l l ig e n c e
U .S . H o u s e o f R e p r e s e n t a t i v e s
I am pleased to be here to present the analysis of the Department of Justice
concerning the constitutionality o f S. 1668 and H.R. 3829, two bills that address
disclosure to Congress of classified “ whistleblower” information concerning the
intelligence community.
As the Department has previously indicated, it is our conclusion that S. 1668,
like the Senate passed version of section 306 of last year’s Intelligence Authoriza
tion bill, is unconstitutional.1 It is unconstitutional because it would deprive the
President of the opportunity to determine how, when and under what cir
cumstances certain classified information should be disclosed to Members of Con
gress— no matter how such a disclosure might affect his ability to perform his
constitutionally assigned duties. In contrast, H.R. 3829 is constitutional because
it contains provisions that allow for the exercise of that authority.
I begin by briefly summarizing the principal provisions of S. 1668 and H.R.
3829. I then review the relevant constitutional history and doctrine. I conclude
by applying the relevant constitutional principles to the two bills. Because other
witnesses at the hearing today can best address the practical concerns posed by
legislation in this area, my remarks are limited to the relevant constitutional
considerations.
I.
A.
S. 1668 would require the President to inform employees of covered federal
agencies (and employees of federal contractors) that their disclosure to Congress
1 In addition, the Department o f Justice took a similar position with respect to comparable legislation in a brief
that it filed in the Supreme Court in 1989 See B rief for Appellees, American Foreign Serv A ss'n v Garfinkel,
488 U.S 923 (1988) (No. 87-2127).
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Whistleblower Protections fo r Classified Disclosures
of classified information that the employee (or contractor) reasonably believes pro
vides direct and specific evidence o f misconduct “ is not prohibited by law, execu
tive order, or regulation or otherwise contrary to public policy.” 2 The misconduct
covered by the bill includes not only violations of law, but also violations of
“ any . . . rule[] or regulation,” and it encompasses, among other things, “ gross
mismanagement, a gross waste of funds, [or] a flagrant abuse of authority.” 3
S. 1668 would thus vest any covered federal employee having access to classi
fied information with a unilateral right to circumvent the process by which the
executive and legislative branches accommodate each other’s interests in sensitive
information. Under S. 1668, any covered federal employee with access to classi
fied information that— in the employee’s opinion—indicated misconduct could
determine how, when and under what circumstances that information would be
shared with Congress. Moreover, the bill would authorize this no matter what
the effect on the President’s ability to accomplish his constitutionally assigned
functions. As discussed below, such a rule would violate the separation of
powers.4
B.
H.R. 3829 would amend the Central Intelligence Agency Act and the Inspector
General Act of 1978 to provide a means for covered executive branch employees
and contractors to report to the Intelligence Committees certain serious abuses
or violations of law or false statements to Congress that relate to “ the administra
tion or operation of an intelligence activity,” as well as any reprisal or threat
of reprisal relating to such a report. Under H.R. 3829, any employee or contractor
who wishes to report such information to Congress would first make a report
to the inspector general for the Central Intelligence Agency or their agency, as
appropriate. If the complaint appears credible, the relevant inspector general would
be required to forward the complaint to the head of his or her agency, and the
head of the agency would generally be required to forward the report to the Intel
ligence Committees. Moreover, if the inspector general does not transmit the com
plaint to the head of the agency, the employee or contractor would generally be
2 Section 1(a)(1)(A)
3 A/. 1(a)(2)(A), (C)
4 The Supreme Court has employed three principles in resolving separation of powers disputes First, where
“ lejxphcit and unambiguous provisions of the Constitution prescribe and define just how [governmental] powers
are to be exercised," INS v Chadha, 462 U S 919, 945 (1983), the constitutional procedures must be followed
with precision Second, where the effect of legislation is to vest Congress itself, its members, or its agents with
‘“ either executive power or judicial power,’ ” the statute is unconstitutional Metropolitan Wash Airports Auth.
v Citizens fo r the Abatement o f Aircraft Noise, Inc., 501 U.S 252, 274 (1991) (citation omitted). Finally, legislation
that affects the functioning of the Executive may be unconstitutional if it either ‘“ impermissibly underm ine^]’
the powers of the Executive B ranch" or “ ‘disrupts the proper balance between the coordinate branches [byj
preventling] the Executive Branch from accomplishing its constitutionally assigned functions ’ ” Morrison v Olson,
487 U S 654, 695 (1988) (citations omitted) Because we conclude that S 1668 would violate separation of powers
under even the most lenient of these tests, there is no need to resolve whether one of the more stringent standards
applies
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Opinions of the Office o f Legal Counsel in Volume 22
permitted to submit the complaint— under defined conditions— to the Committees
directly.
Significantly, unlike S. 1668, H.R. 3829 provides that the head of the agency
or the Director of Central Intelligence may determine “ in the exceptional case
and in order to protect vital law enforcement, foreign affairs, or national security
interests” not to transmit the inspector general’s report to the Intelligence
Committees and not to permit the employee or contractor directly to contact the
Intelligence Committees.5 Whenever this authority is exercised, the head of the
agency or the Director of Central Intelligence must promptly provide the Intel
ligence Committees with his or her reasons for precluding the disclosure. In this
manner, H.R. 3829 would provide a mechanism for congressional oversight while
protecting the executive interest in maintaining the strict confidentiality of classi
fied information when necessary to the discharge of the President’s constitutional
authority. As a result, unlike S. 1668, H.R. 3829 is consistent with the constitu
tional separation of powers.
II.
A host of precedents, beginning at the founding of the Republic, support the
view that the President has unique constitutional responsibilities with respect to
national defense and foreign affairs.6 As was recognized in the Federalist Papers
and by the first Congresses, secrecy is at times essential to the executive branch’s
discharge of its responsibilities in these core areas. Indeed, Presidents since
George Washington have determined on occasion, albeit very rarely, that it was
'S e e id § 2 (a ), proposed new paragraph (5)(E ) to be added to subsection (d ) o f section 17 o f the C entral Intel
ligence A gency A ct o f 1949, 50 U S .C §403q (1 9 9 4 & Supp. li 1996), H R 3829, at § 2(b )(1 ). proposed new
section 8H (e) to be added to the Inspector G eneral A c t o f 1978. 5 U S .C app § 8 (1994 & Supp. 11 1996).
6 T h e P re sid e n t’s national secu rity and foreign affairs pow ers flow , in large part, from his position as C h ie f E xecu
tive, U S. C o n st art 11, § 1, cl 1, and as C om m aH der in C hief, id art II, § 2, cl 1 T h ey also d en v e from ihe
P re sid e n t’s m o re sp ecific pow ers to “ make T re a tie s ,” id art II, § 2 , cl. 2, to “ appoint A m bassadors and
C o n su ls,” i d , and to “ receive A m bassadors an d o th e r public M in iste rs,” id. a n 11, § 3 S ee The F ederalist N o
64, at 3 9 2 -9 4 (John Jay ) (C linton R ossiter e d , 1961) T he S uprem e C ou rt has repeatedly reco g n ized the P resid en t’s
au th o n ty w ith resp ect to foreign policy See, e g , D epartm ent o f th e N avy v E gan, 484 U S 518, 529 (1988) (the
S u p rem e C o u rt has “ recognized ‘the generally ac cep te d view that foreign po licy w as the pro v in ce and responsibility
o f th e E x e c u tiv e ’ ” ) (q u o tin g H aig v A g e e , 453 U .S 280, 2 9 3 -9 4 (1981)), A lfr e d D unhill o f L o n d o n , Inc v R epublic
o f C u b a , 425 U S 68 2 , 705 n. 18 (1976) ( “ [TJhe c o n d u c t o f Iforeign policy] is com m itted p rim arily to the Executive
B r a n c h ” ), U n ite d S ta te s v. L o u isia n a , 363 U S I, 35 (1960) (th e President is “ the co n stitu tio n al representative
o f th e U nited S tates in its dealings w ith foreign n a tio n s ” ); N ew York Tim es C o v U nited S ta tes, 403 U.S 713,
741 (1 9 7 1 ) (M arsh all. J , co n cu rrin g ) ( “ it is b e y o n d cavil that th e President has broad pow ers by v irtue o f his
prim ary re sp o n sib ility for the conduct o f our fo reig n affairs and his position as C om m ander in C h i e f ’), id at 761
(B lack m un, J , dissenting) ( “ A rticle II vests in the Executive B ranch prim ary pow er o v er th e conduct o f foreign
affairs and p la ces in that branch the responsibility for the N atio n ’s safety ” ), see also U n ited S tates v K in -H o n g,
110 F .3 d 103, 1JO (1st C ir 1997) ( “ |0 ]u r co n stitu tio n al structure . places prim ary responsibility fo r foreign
affairs in the e x e cu tiv e branch . . . .” ), Ward v. S k in n e r, 943 F 2 d 157, 160 (1st C ir 1991) (B reyer, J ) ( “ [T]he
C o n stitu tio n m akes th e E xecutive Branch p rim arily re sp o n sib le” for th e exercise o f “ the foreign affairs
p o w e r ” ), cert, d e n ie d , 503 U S 959 (1992), Sanch ez-E sp in o za t-. R eagan, 7 7 0 F 2 d 2 02, 2 1 0 (D C C ir 1985)
(S calia, J ) ( “ [B Jroad le e w a y ” is “ traditionally a c co rd ed the E xecutive in m atters o f foreign affairs ” )
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Whistleblower Protections fo r Classified Disclosures
necessary to withhold from Congress, if only for a limited period of time,
extremely sensitive information with respect to national defense or foreign affairs.7
Perhaps the most famous of the Founders’ statements on the need for secrecy
is John Jay’s discussion in the Federalist Papers. Jay observed:
There are cases where the most useful intelligence may be obtained,
if the persons possessing it can be relieved from apprehensions of
discovery. Those apprehensions will operate on those persons
whether they are actuated by mercenary or friendly motives; and
there doubtless are many of both descriptions who would rely on
the secrecy of the President, but who would not confide in that
of the Senate, and still less in that of a large popular assembly.
The convention have done well, therefore, in so disposing o f the
power of making treaties that although the President must, in
forming them, act by the advice and consent of the Senate, yet he
will be able to manage the business of intelligence in such manner
as prudence may suggest.8
Our early history confirmed the right of the President to decide to withhold
national security information from Congress under extraordinary circumstances.
In the course of investigating the failure of General St. Clair’s military expedition
of 1791, the House of Representatives in 1792 requested relevant documents from
the executive branch.9 President Washington asked the Cabinet’s advice as to his
proper response “ because [the request] was the first example, and he wished that
so far as it should become a precedent, it should be rightly conducted.” 10
Washington’s own view was that “ he could readily conceive there might be
papers of. so secret a nature, as that they ought not to be given up.” 11
A few days later a unanimous Cabinet— including Secretary o f State Thomas
Jefferson, Secretary of the Treasury Alexander Hamilton, and Attorney General
I See History o f Refusals by Executive Branch Officials to Provide Information Demanded by Congress, 6 O p
O .L .C . 751 (1982) (com piling historical exam ples o f ca ses in w hich th e President w ithheld from C ongress in form ation
the release o f which he determ ined could jeo p ard ize national security).
s Tke Federalist No. 64, at 392 9 3 (John Jay) (C linton R ossiter e d ., 1561).
9 F or recent scholarly discussions o f this episode and its significance for the d evelopm ent o f separation o f pow ers,
see G erh ard C asper, Separating Power 28-31 (1997); D avid P. C u n ie , The Constitution in Congress: The Federalist
Period 1789-1801, at 1 6 3 -6 4 (1997).
A n e a rlie r episode had occurred in 1790 w hen, in response to a request from th e House o f R ep resentatives, S ec
retary o f S tate T hom as Jefferson furnished that b o d y w ith a report on M editerranean trade. T h e report also to uched
on ad v ice provided by a confidential European source on the possibility o f b u y in g peace w ith A lgiers, w h ich was
en d an g ering that trade. Jefferson relayed the so u rc e ’s advice to th e H ouse, b ut stated th at h is o r h er “ n am e is
n o t free to be m entioned here.” R eport of S ecretary o f State Jefferson, S ubm itted to the H o u se o f R epresentatives
(D ec. 3 0 , 1790) and S enate (Jan. 3, 1791), in I American Slate Papers. Foreign Relations 105 (1791). Jefferso n
also su bm itted the report w ith a request that the S p eak e r treat it a s a secret d ocum ent; a n d w hen th e rep o rt was
receiv ed , the H ouse’s galleries w ere cleared. See C asp er, supra at 4 7 - 5 0 The ex ecu tiv e branch co ntinues th e p ractice
o f red acting identifying inform ation on confidential so u rces when providin g secret inform ation to C ongress.
10 1 W ntings o f Thomas Jefferson 303 (A ndrew L ipscom b ed. 1903) (The A nas).
II Id.
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Opinions o f the O ffice o f Legal Counsel in Volume 22
Edmund Randolph— concurred. T he Cabinet advised the President that, although
the House “ might call for papers generally,” “ the Executive ought to commu
nicate such papers as the public good would permit, and ought to refuse those,
the disclosure of which would injure the public.” 12 The Executive “ consequently
w[as] to exercise a discretion” in responding to the House request.13 The Cabinet
subsequently advised the President that the documents in question could all be
disclosed consistently with the public interest.14
Although President Washington ultimately decided to produce the requested
documents, they were actually produced only after the House, on April 4, 1792,
substituted a new request apparently recognizing the President’s discretion by
asking only for papers “ of a public nature.” 15
Two years later, President Washington adhered to his conclusion regarding the
respective authorities of the executive and legislative branches. Acting upon the
advice of Attorney General William Bradford and other Cabinet officers, Wash
ington responded to an unqualified request from the Senate for correspondence
between the Republic of France and the United States minister for France by pro
viding the relevant correspondence, except for “ those particulars which, in [his]
judgment, for public considerations, ought not to be communicated.” 16
In 1796, when a controversy arose regarding whether President Washington
could be required to provide the House of Representatives with records relating
to the negotiation of the Jay Treaty, James Madison— who was then a Member
of the House— conceded that even where Congress had a legitimate purpose for
requesting information the President had authority “ to withhold information, when
of a nature that did not permit a disclosure of it at the time.” 17
12
Id. at 304.
n
Id.
'“Id at 305
15 3 A n n als o f C o n g 536 (1792); see also A b ra h a m D. S ofaer, War, Foreign Affairs and Constitutional Power
8 2 -8 3 (1 9 7 6 ), C asper, supra at 29.
56 4 A n n als o f C o n g 56 (1 794), see Sofaer, supra at 8 3 -8 5 . T h e C abinet officers w hom W ashington consulted
and w h o all ag ree d that he c o u ld w ithhold at le a s t part o f the m aterial from th e Senate w ere H am ilton, R andolph
and K nox.
Id. at 83 R andolph also informed W ash in g to n that he h ad m et p n v a te ly with M adison and w ith Justice
Jam es W ilson (an o th er influential Framer), w ho provided sim ilar advice Id at 8 3 -8 4 n *. “ [NJo fu rth er Senate
action w as ta k en to o b ta in the m aterial withheld ”
Id. at 85.
17 5 A nnals o f C ong. 773 (1796) A s President W ashington o b serv ed in d eclin in g the H o u se’s request
T h e n atu re o f foreign negotiations requires caution, an d th e ir success m ust often d epend on secrecy ,
an d ev e n , w hen bro u g h t to a conclusion, a fu ll disclosure o f all the m easures, dem ands, o r eventual co n c es
sio n s w hich m ay have been proposed or co n tem p lated w o u ld be extrem ely im politic: fo r this m ight h ave
a p ern icio u s influence on fu tu re negotiations; or produce im m ediate inconveniences, p erh ap s d an g er and
m isc h ief, in relatio n to o th e r Pow ers
Id at 7 60. W a sh in g to n had p rev io u sly sought and received ad v ice from A lex an d er Ham ilton, then in private practice
in N ew Y ork H am ilton provided W ashington w ith a draft an sw er to the H ouse, w hich had stated in part “ A d iscre
tion in th e E x ecu tiv e D ep artm en t h ow far and w h e re to co m p ly in such ca ses is essential to the d ue co n d u ct o f
foreign neg o tiatio n s ” L e tte r from Alexander H am ilto n to G eo rg e W ashington (M ar 7, 1796), in 20 T h e Papers
o f A lex a n d er H am ilton at 68 (H aro ld C Syrett ed , 1974)
A lth o ugh the E x e cu tiv e’s co n c ern s wiih the co n fid en tiality o f diplom atic m aterials certain ly loom ed large in the
1796 d isp u te, it w o u ld o v ersta te th e point to v ie w the entire controversy as turning ex clu siv ely on th e issue o f
“ e x e cu tiv e p riv ileg e ” W ash in g to n rested his p o s itio n partly on th e alternative ground th at th e C o n stitution gave
the H o u se no ro le in the tre aty -m a k in g process M oreover, it ap p e ars that the controversy “ h ad a som ew hat ‘aca-
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Whistleblower Protections fo r Classified Disclosures
Congressional recognition of this power in the President extends well into recent
times.18 Moreover, since the Washington Administration, Presidents and their
senior advisers have repeatedly concluded that our constitutional system grants
the executive branch authority to control the disposition of secret information.
Thus, then-Attorney General Robert Jackson declined, upon the direction of Presi
dent Franklin Roosevelt, a request from the House Committee on Naval Affairs
for sensitive FBI records on war-time labor unrest, citing (among other grounds)
the national security.19 Similarly, then- Assistant Attorney General William
Rehnquist concluded almost thirty years ago that “ the President has the power
to withhold from [Congress] information in the field of foreign relations or
national security if in his judgment disclosure would be incompatible with the
public interest.” 20
The Supreme Court has similarly recognized the importance of the President’s
ability to control the disclosure of classified information. In considering the statu
tory question whether the Merit Systems Protection Board could review the rev
ocation of an executive branch employee’s security clearance, the Court in D epart
ment o f the Navy v. Egan also addressed the President’s constitutional authority
to control the disclosure of classified information:
The President . . . 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 . . . flows primarily from this constitutional investment of
power in the President and exists quite apart from any explicit
congressional grant. . . . This Court has recognized the Govern
ment’s “ compelling interest” in withholding national security
information from unauthorized persons in the course of executive
business. . . . The authority to protect such information falls on
the President as head of the Executive Branch and as Commander
in Chief.21
Similarly, in discussing executive privilege in United States v. Nixon, a unani
mous Supreme Court emphasized the heightened status of the President’s privilege
d em ic' character because the S enate had received ail the papers, and the H ouse m em bers ap p aren tly co u ld inspect
them at the S en ate.” C asper, supra a t 65
iZSee, e.g , S Rep. N o. 8 6 -1 7 6 1 , at 22 (1960) (the S enate C om m ittee o n Foreign R elations, after failin g to p er
su ad e P resident K ennedy to abandon his claim o f executive privilege w ith respect to in form ation relatin g to the
U -2 incident in M ay, 1960, criticized the P resident for his refusal to m ake th e in form ation av ailab le but ackn o w led g ed
his legal right to do so' “ T h e com m ittee recognizes that the adm inistration h as the legal right to refuse the inform ation
un d er the doctrine o f executive p rivilege.” ).
19 See Position o f the Executive Department Regarding Investigative Reports , 4 0 O p. A tt’y G en. 45, 4 6 (1941)
20 M em orandum from John R. S tevenson, Legal A dviser, D epartm ent o f State, an d W illiam H R ehnquist, A ssistant
A ttorney G eneral, O ffice o f Legal C ounsel, Re: The President's Executive Privilege to Withhold Foreign Policy
and National Security Information at 7 (D ec. 8, 1969).
21 Department o f the Navy v. Egan, 484 U S. at 527 (citations om itted)
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Opinions o f the Office o f Legal Counsel m Volume 22
in the context of “ military, diplomatic, or sensitive national security secrets.” 22
Although declining in the context of that criminal case to sustain President
N ixon’s claim of privilege as to tape recordings and documents sought by sub
poena, the Supreme Court specifically observed that the President had not
“ place[d] his claim of privilege on the ground that 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.” 23
Other statements by individual Justices and the lower courts reflect a similar
understanding of the President’s power to protect national security by maintaining
the confidentiality of classified information.24 Justice Stewart, for example, dis
cussed this authority in his concurring opinion in New York Times Co. v. United
States (the “ Pentagon Papers” case):
[I]t is elementary that the successful conduct of international diplo
macy and the maintenance o f an effective national defense require
both confidentiality and secrecy. . . . In the area of basic national
defense the frequent need for absolute secrecy is, of course, self-
evident.
I think there can be but one answer to this dilemma, if dilemma
it be. The responsibility must be where the power is. If the Con
stitution gives the Executive a large degree of unshared power in
the conduct of foreign affairs and the maintenance of our national
defense, then under the Constitution the Executive must have the
largely unshared duty to determine and preserve the degree of
internal security necessary to exercise that power successfully. . . .
[I]t is clear to me that it is the constitutional duty of the Executive
. . . to protect the confidentiality necessary to carry out its respon
22 United States v. N ixon , 418 U S. 68 3 , 706 (1 9 7 4 ), see also id at 710, 712 n 19
23 Id. a t 710, see also United States v. Reynolds, 345 U S 1 (1953) (recognizing p riv ileg e in jud icial proceedings
fo r “ state s e c re ts ” based on determ ination by sen io r E xecutive officials)
24 See, e g , Webster v D oe , 4 8 6 U .S 592, 6 0 5 -0 6 (1988) (O ’C o nnor, J , concurring in part and dissenting in
part) ( “ T h e fu n ctio n s perform ed by th e Central In tellig en ce A gency and the D irector o f C entral Intelligence lie
at the co re o f ‘th e very d elicate, plenary and ex c lu siv e pow er o f the P resid en t as the sole organ o f the federal
g o v ern m en t in th e field o f in tern atio n al relations ’. . The authority o f the D irecto r o f C en tral Intelligence to control
access to sen sitiv e national secu rity inform ation b y discharging em ployees deem ed to be untrustw orthy flow s p ri
m arily fro m th is co n stitu tio n al po w er o f the P resid en t ” ) (citation o m itted ), New York Times Co. v. United
States, 403 U S at 741 (M arshall, J , concurring) (case presented no issue “ regarding the P resid en t’s pow er as
C h ie f E x e cu tiv e and C o m m an d er m C hief to p ro te ct national security by discip lin in g em ployees w ho disclose
in fo rm atio n a n d by taking p recautions to prevent le a k s” ), Greene v. McElroy, 360 U.S 4 74, 513 (1959) (C lark,
J , d issen tin g ) (it is “ b a s ic ” that “ no person, save th e President, has a con stitutional right to access to governm ental
se c re ts ” ); Guillot v Garrett, 970 F 2 d 1320, 1324 (4th C ir 1992) (P residen t has “ exclusive constitutional au thonty
ov er access to national security inform ation” ); D o rfn o n t v Brown, 913 F 2 d 1399, 1405 (9th C ir 1990) (K ozinskj,
J , co n c u rrin g ) ( “ U nder the C on stitu tio n , the P re sid e n t has unreview able discretion o v er secu n ty decisions m ade
p u rsu an t to his pow ers as c h ie f ex e cu tiv e and C o m m an d er-in -C h ief ” ), cert denied, 499 U S. 905 (1991)
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Whistleblower Protections fo r Classified Disclosures
sibilities in the fields of international relations and national
defense.25
m.
In applying these constitutional principles to S. 1668 and H.R. 3829, we take
as a given that Congress has important oversight responsibilities and a corollary
interest in receiving information that enables it to carry out those responsibilities.26
Those interests obviously include Congress’s ability to consider evidence of mis
conduct and abuse by the Executive’s agents. H.R. 3829, however, demonstrates
that it is possible to develop procedures for providing Congress information it
needs to perform its oversight duties, while not interfering with the President’s
ability to control classified information when necessary to perform his constitu
tionally assigned duties.
A.
In analyzing S. 1668, there is no need to resolve the precise parameters of the
President’s authority to control access to classified diplomatic and national secu
rity information. Instead, we have focused on the specific problem presented by
the bill, which, in defined circumstances, gives a unilateral right of disclosure
to every executive branch employee with access to classified information.27 The
reach of S. 1668 is sweeping: it would authorize any covered federal employee
to foreclose or circumvent a presidential determination that restricts congressional
access to certain classified information in extraordinary circumstances.
S. 1668 is inconsistent with Congress’s traditional approach to accommodating
the executive branch’s interests with respect to national security information. In
the National Security Act, for example, Congress itself recognized the need for
heightened secrecy in certain ‘ ‘extraordinary circumstances affecting vital interests
of the United States,” and authorized the President to sharply limit congressional
access to information relating to covert actions in such cases.28 An example of
25 N e w York T im es C o v U nited States, 403 U S at 7 2 8 -3 0 (S tew art, J., co n curring) (footnote om itted)
26See, e g., M cG ram v. D augherty, 273 U S 135 (1927)
27W e d o not use the w ord “ rig h t” in th e sense o f a legally enforceab le right. Rather, the term is intended to
co n v ey our understanding that the bill w ould purport to require the P resident to inform em ployees th a t they have
standing authorization or perm ission to convey national security inform ation directly to C o n g ress w ithout receiving
sp ecific authorization to convey th e particular inform ation in question W e h av e not analyzed the possible im plications
this legislation m ight have w ith respect to ju d icia l enforcem ent o f em ployee legal rights.
2SS ee 5 0 U .S.C § 4 1 3b(c)(2) (1994) ( “ If the President determ ines that it is essential to lim it access to th e finding
to m eet extraordinary circum stances affecting vital interests o f the U nited States, the finding m ay b e reported to
the ch airm en and ranking m inority m em bers o f the intelligence com m ittees, the S peaker an d m inority leader o f
th e H ouse o f R epresentatives, the m ajority and m inority leaders o f the Senate, and such o th er m em ber o r m em bers
o f the congressional leadership as m ay be included by the P resident ” ). Even w ith this m ore p rotective standard.
P resident Bush expressly reserved his constitutional a u th o n ty to w ithhold disclosure for a p en o d o f tim e S ee S
R ep. No. 1 0 2-85, at 40 (1991) S ee also 50 U S C . § 413b(c)(3> (1994) ( “ W h en ev er a finding is n o t rep o rted pursuant
C o n tinued
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accommodation between the branches that is even more directly applicable to the
present context is the National Security Act’s recognition that the intelligence
agencies on occasion need to redact sources and methods and other exceptionally
sensitive intelligence information from materials they provide to the Intelligence
Committees.29
In contrast, S. 1668 would deprive the President of his authority to decide, based
on the national interest, how, when and under what circumstances particular classi
fied information should be disclosed to Congress.30 This is an impermissible
encroachment on the President’s ability to carry out core executive functions. In
the congressional oversight context, as in all others, the decision whether and
under what circumstances to disclose classified information must be made by
someone who is acting on the official authority of the President and who is ulti
mately responsible to the President. The Constitution does not permit Congress
to authorize subordinate executive branch employees to bypass these orderly
procedures for review and clearance by vesting them with a unilateral right to
disclose classified information—even to Members of Congress. Such a law would
squarely conflict with the Framers’ considered judgment, embodied in Article II
of the Constitution, that, within the executive branch, all authority over matters
of national defense and foreign affairs is vested in the President as Chief Executive
and Commander in Chief.31
It has been suggested that S. 1668 (at least with modest revisions) would strike
an acceptable balance between the competing executive and legislative interests
relating to the control of classified information, and would thus survive review
under ordinary separation of powers principles.32 That balance under S. 1668,
however, would be based on an abstract notion of what information Congress
might need to know relating to some future inquiry and what information the
President might need to protect in light of some future set of world events. Such
an abstract resolution of the competing interests at stake is simply not consistent
with the President’s constitutional responsibilities respecting national security and
foreign affairs. He must be free to determine, based on particular— and perhaps
to p arag ra p h (1) o r (2) o f th is section, the P resident shall fully inform the intelligence com m ittees in a tim ely fashion
and shall p ro v id e a statem en t o f th e reasons for not giving prior n o tice.” ).
29See 50 U .S C § 4 1 3 a (1994) ( “ T o the ex ten t consistent w ith d u e regard fo r the protection from unauthorized
d isclo su re o f classified in fo rm atio n relating to sen sitiv e intelligence sources an d m ethods o r o th er ex ceptionally sen
sitive m a tte rs, th e D ire c to r o f C en tral Intelligence and the heads o f all d epartm ents, agencies, and o ther entities
o f th e U nited S tates G o v ern m en t involved in in tellig en ce activities shall . . k eep the intelligence com m ittees fully
and cu rren tly in fo rm ed o f all in tellig en ce activities ”)
10C / U nited States ex rel Touhy v Ragen, 34 0 U S 462, 468 (1951) ( “ W hen one co n sid ers the variety o f
in fo rm ation co n tain ed in th e files o f any governm ent departm ent and the p ossibilities o f harm from u nrestricted
d isclo su re , the usefu ln e ss, indeed the necessity, o f centralizing d eterm in atio n as to w hether subpoenas duces
tecum w ill b e w illin g ly o b ey e d o r challenged is o b v io u s ” )
31 T h is is not to su g g est that C ongress w holly lacks a u th o n ty regarding the treatm ent o f classified inform ation,
see N ew York Times Co v United States, 403 U S at 740 (W hite, J., co n c u m n g ), but rather that C o n g ress m ay
not ex e rc ise th a t a u th o n ty in a m a n n er that underm ines the P resid en t’s ability to perfo rm his co n stitu tio n ally assigned
duties.
32 See Whistleblower Protections f o r Classified D isclosures* Hearings Before the Senate Select Comm on Intel
ligence , 105th C o n g . 8 (1998) (statem en t of Prof. P ete r R aven-H ansen)
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currently unforeseeable— circumstances, that the security or foreign affairs
interests of the Nation dictate a particular treatment of classified information.
Furthermore, S. 1668 also undermines the traditional, case-by-case process of
accommodating the competing needs of the two branches—a process that reflects
the facts and circumstances of particular situations. As one appellate court has
observed, there exists “ an implicit constitutional mandate to seek optimal
accommodation [between the branches] through a realistic evaluation of the needs
of the conflicting branches in the particular fa c t situation.” 33 Rather than
enabling balances to be struck as the demands of specific situations require, S.
1668 would attempt to legislate a procedure that cannot possibly reflect what com
peting executive and legislative interests may emerge with respect to some future
inquiry. It would displace the delicate process of arriving at appropriate accom
modations between the branches with an overall legislated “ solution” that paid
no regard to unique— and potentially critical— national security and foreign affairs
considerations that may arise. This approach contrasts with that of H.R. 3829,
which would balance the competing legislative and executive interests at stake
in a manner that would permit rational judgments to be made in response to real
world events.
B.
H.R. 3829 does not present the constitutional infirmity posed by S. 1668. H.R.
3829 does not vest any executive branch employee who has access to classified
information with a unilateral right to determine how, when and under what cir
cumstances classified information will be disclosed to Members of Congress and
without regard for how such a disclosure might affect the President’s ability to
perform his constitutionally assigned duties.
Instead, H.R. 3829 would establish procedures under which employees who
wish to report to Congress must first submit their complaint to an inspector gen
eral, who would review it for credibility and then submit the complaint to the
agency head before it is forwarded to Congress. This process would allow for
the executive branch review and clearance process that S. 1668 would foreclose.
H.R. 3829 would further authorize heads of agencies and the Director of Central
Intelligence, upon the completion of that process, to decide not to transmit an
employee’s complaint to the Intelligence Committees, or allow the employee to
contact the Committees directly, “ in the exceptional case and in order to protect
vital law enforcement, foreign affairs, or national security interests.” 34 If such
33 United States v. American Tel & T e l C o , 567 F 2 d 121, l2 7 (D .C .C ir. 1977) (emphasis added).
34 In light of S 1668’s focus on the intelligence community and classified information, the Department’s analysis
of the bill’s constitutionality has focused on its interference with the President’s authonty to protect confidential
national security and foreign affairs information. O f course, other constitutionally-based confidentiality interests can
be implicated by employee disclosures to Congress H R 3829 appropriately recognizes that such disclosures also
should not compromise vital law enforcement interests
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a decision were made, then the head of agency or Director of Central Intelligence
would be required to provide the Committees with the reason for the determina
tion.
Not only would H.R. 3829 thus avoid the constitutional infirmity of S. 1668
by allowing for review by the President or officials responsible to him, it would
also allow for the operation of the accommodation process traditionally followed
between the legislative and executive branches regarding disclosure of confidential
information. Upon receipt of the explanation for a decision not to allow an
employee complaint to go forward, the Intelligence Committees could contact the
agency head or Director of Central Intelligence to begin the process of seeking
to satisfy the Committees’ oversight needs in ways that protect the executive
branch’s confidentiality interests. The bill’s procedures are thus consistent with
our constitutional system of separation of powers.
rv.
We recognize that Congress has significant interests in disclosure of evidence
of wrongdoing or abuse. There is an inevitable tension, however, between pre
serving the secrecy necessary to permit the President to perform his constitu
tionally assigned duties and permitting the disclosures necessary to permit
congressional oversight. Under relevant constitutional doctrine, Congress may not
resolve this tension by vesting in individual federal employees the power to con
trol disclosure of classified information. For this reason, we have concluded that
S. 1668 is unconstitutional. H.R. 3829 does not contain this constitutional infirmity
and is constitutional.
RANDOLPH D. MOSS
D eputy Assistant Attorney General
Office o f Legal Counsel
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