THE LIMITS OF OBSESSION: FENCING IN THE NATIONAL SECURITY CLAIM

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THE LIMITS OF OBSESSION:
FENCING IN THE
"NATIONAL SECURITY" CLAIM
Harlan Cleveland
Stuart Gerry Brown
Reprinted from the Administrative Law Review, Volume 28,
Number 3, Summer 1976.
A quarterly publication of the Section of Administrative Law,
American Bar Association
Copyright ? 1976, American Bar Association
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THE LIMITS OF OBSESSION:
FENCING IN THE
"NATIONAL SECURITY" CLAIM
Harlan Cleveland*
Stuart Gerry Brown'
It is very important for the United States not to become so obsessed with
security matters that laws are freely violated.
-Secretary of State WILLIAM P. RoGElts
on August 21, 1973, a few days
before he left office
T he term "Watergate," at first confined to the break-in at Demo-
cratic headquarters in June, 1972, has now entered the American
language as catchall for the variety of crimes, allegations of crimes,
illegal transactions, personal tragedy, and constitutional crisis in the
Nixon Administration. Our inquiry will focus not on the ethical
lapses and, legal transgressions of government officials who should
have known better, but on why they did not know better, and what
can be done to build fences around such behavior in the future.
Testimony before the Senate Select Committee on Presidential
Campaign Activities revealed that many of the miscreants, from the
Cubans'who entered the Watergate building to the highest officials
involved in authorizing and obscuring dirty tricks, burglaries, and
eavesdropping, considered their actions necessary to protect the na-
tion's security-though in the glare of public revelation, indictments,
trials, and convictions most of them later doubted it. What is this
'*Director, Program in International Affairs, Aspen Institute of Humanistic Stud-
ies, Princeton, N.J.; former President of the University of Hawaii.
tProfessor of American Studies, University of Hawaii.
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328 ADMINISTRATIVE LAW REVIEW
"national security" claim which in the thinking of a good many
highly placed lawyers and a few laymen was thought to launder
otherwise illegal acts? Where did it come from, and what are the
reasonable limits on its exercise?
THE DEVELOPMENT OF
EXECUTIVE DISCRETION
During the nineteenth century most Presidents and most pundits
seem to have been satisfied with a cautious interpretation of the
President's power to act on his own. Except for Lincoln, a wartime
President, young scholar Woodrow Wilson, and to. some degree
Grover Cleveland, the accepted theory for most was what Theodore
Roosevelt later called the "Buchanan principle"-that a President
should do only what is required by law or by the Constitution. On
this principle initiative was often left to the Congress, which felt no
remorse in derailing an uncleared Presidential initiative. For ex-
ample, Grant tried to annex San Domingo and achieved a treaty, only
to have it rejected by the Senate. The limiting case of the Buchanan
principle occurred when Grant in his final State of the Union mes-
sage said that "whatever amount Congress may deem proper for these
purposes [public works] will be expended." The President had no
budget recommendation, and gave advance assurance that there
would be no "impounding."
What then seemed the other end of the spectrum was tested in the
1904 election. Theodore Roosevelt had already proclaimed that a
President has the power to do in the national interest whatever he is
not forbidden to do by law or by the Constitution.' In his campaign
he laid down what he thought the national interest required, and his
resounding victory gave him a mandate to proceed. After interludes
,of Buchananesque administration, Wilson, during his 1912 campaign
and Franklin Roosevelt, especially in 1936, followed the Theodore
Roosevelt example. And where they were frustrated in doing what they
thought needed to be done within the law and Constitution, it was
because they took major initiatives that went so far beyond an electoral
mandate (Wilson on the League of Nations, Roosevelt on his pro-
posal to appoint more Supreme Court justices) that opponents were
1"My belief was that it was not only his [the President's] right but his duty to do
anything that the needs of the Nation demanded unless such action was. forbidden
by the Constitution or by the laws." T. ROOSEVELT, THEODORE ROOSEVELT: AN
AUTOBIOGRAPHY 464 (1913).
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THE "NATIONAL SECURITY" CLAIM 329
able to prevail by focussing on arguments about Presidential power
and initiative.2
There comes now out of a generation of war-World, Cold, Korea,
Vietnam-a doctrine that extends the spectrum well beyond the
activism of Theodore Roosevelt. Paul Appleby, New Dealer and
philosopher of public administration, had already said it succinctly:
"The government, that is the executive, always has the power to,do
what it has to do." Attorneys for the government had justified wartime
martial law in Hawaii in similar terms: "The law of necessity is the
law of necessity." The clearest contemporary exponent of this doc-
trine is John Ehrlichman, who seemed to be telling the Senate Select
Committee that the President has the power to do what he has to do
if the national security is at stake-the requirements of national
security being determined in secret by the President. This doctrine
was explicitly offered in explanation of the short-lived proposal to
sanction illegal intelligence activities (the Huston Plan), the various
commissions to the notorious "Plumbers" and in defense of their
fruitless burglary of Daniel Ellsberg's psychiatrist's office. Questioned
as to where a line might be drawn beyond which the President could
not go-did his power extend to murder, for example?-Mr. _Ehrlich-
man's reply was not much help: "I do not know where the line is,
Senator." Hearings in 1975 before congressional committees investi-
gating intelligence agencies reveal that at least the contemplation of
murder under cover of national security has in fact been frequent.
In three landmark cases, extension beyond the bounds of law-for-
ordinary-people of the principle that a President has power to do
what he thinks he has to do has been tested and found wanting in
the courts,
In 1952, during the Korean War, President Truman judged that a
prolonged strike in the steel industry was impeding the war effort,
and issued an executive order empowering the Secretary of Com-
merce to seize and operate the steel mills until the strike was.settled.
The steel industry complied and the mills were reopened under gov-
ernment control. At the same time the industry went to court for an
injunction on the ground that the Executive had exceeded his powers.
The court thought so too. On review the Supreme Court told the
President that he had no basis in law or the Constitution for his
action, and told him to go to Congress for authority.3 Two of Presi-
2These and other cases involving the notion of "mandate" are discussed in S. G.
BROWN, THE AMERICAN PRESIDENCY (1966).
3Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The case. is popu-
larly known as the Steel Seizure case. -
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dent Truman's appointees to the court voted with the 6-3 majority.
Truman promptly gave the mills back to their owners, thus accepting
limitation upon presidential power in a matter of national security
even in time of war.
In another test of where the line might be drawn, the Supreme
Court, with no dissents, ruled in 1972 that the President's constitu-
tional-power "to take such measures as he deems necessary to protect
the United States against the overthrow of the government by force
or other unlawful means, or against any other clear and present
danger to the structure or existence of the government" did not mean
that he could violate the Fourth Amendment by conducting elec-
tronic. surveillance without a search warrant.4 The issue, said justice
Powell, requires "sensitivity both to the government's right to protect
itself from' unlawful subversion and attack and to the citizen's right
to be secure-in his privacy against unreasonable Government intru-
sion. . . ."5
Two years later, July 24, 1974, the Supreme Court by unanimous
decision upheld a lower court order to President Nixon to turn over
subpoenaed tapes to the Special Prosecutor., The only exception was
that. passages deemed by the judge to be clearly critical to national
security might be withheld. This decision seemed to say that executive
privilege may not be invoked to cover evidence needed in a criminal
trial or, probably, an impeachment proceeding. While it precipitated
the President's resignation, it still left the matter of defining "national
security" in the hands of the executive.6
But Judicial review and congressional sanction are weak and in-
termittent weapons against executive discretion. While the justices
were deciding two cases, the executive was making law through a
hundred actions encouraged or acquiesced in by (or unknown to)
Congress and unreviewed by the Court.
? .It organized a secret tribal army in Laos, reached into Guatemala
and Iran to change their governments, and attempted to do the
same in Chile and Cuba-frustrated in the last case not by the
other two branches of the U.S. Government but by Cuban execu-
tive action. .
? The doctrine of counterinsurgency built up the U.S. military
presence in Southeast Asia. When the President thought. the
covert action had to become much bigger and therefore overt, the
4United States v. United States Dist. Court, 407 U.S. 297,(1?72).
51d. at 299.
6U.S. v. Nixon, 418 U.S. 683 (1974).
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THE "NATIONAL SECURITY" CLAIM 331
Senate gave him a blank check. The Supreme Court was silent,
and not for lack of cases in which it could have accepted jurisdic-
tion.
? The volume of the government's classified business grew at ex-
ponential rates. Court and Congress did not effectively complain.
When an aspect of the secrecy issue finally reached the judiciary
(the Pentagon Papers), the case was dismissed-partly because the
government had fouled up the prosecution.
? White House fears produced an array of actions against Ameri-
cans- warrantless wiretaps, electronic interception of . telephone
conversations, abuse of the Internal Revenue Service, attempted
subordination of the CIA and the FBI in obstruction of justice-
justified by the claim that national security. was somehow at
stake.
In the revealing light of the Vietnam conflict we can see that the
overreaching of the "national security". claim inhered as much in
our-ends as in our means. If the U.S. is very ambitious in its aims
abroad;- its Executive is likely to be drawn into very ambitious tactics
to attain them. And the overseas ambitions will then seem to justify
uninhibited tactics-dirty tricks, official lying, secret surveillance-in
dealing with Americans who seem to make more difficult the prose-
cution of America's uninhibited aims abroad.
The Constitution makes clear that treaties with foreign nations
have the force of domestic law. What we have seen in recent years is
the corruptive extension of this doctrine, by which the Executive
(without the formality of the Senate's advice and consent) acts at
home beyond the pale of domestic law on the basis not of an explicit
foreign agreement but a vague and unreviewed threat to the national
security.?
THE DEVELOPMENT OF NATIONAL SECURITY
The "obsession with security matters" which Secretary of State
William Rogers complained about in 1973 can be traced to that
moment when Marshal Stalin, in 1946, told the Supreme Soviet that
the world's 'Communists-he still presumed to speak for the Chinese
-could not collaborate in peacetime with the capitalist governments
of .the West, that the business of the Communists was to build social-
ism, not mere accommodation and reform.
7A full discussion of the informal, or de facto, increase in the President's foreign
affairs powers in recent decades is found in L. HENKIN, FOREIGN AFFAIRS AND THE
CONSTITUTION 37-123 (1972).
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To coordinate this postwar militancy, the Cominform was estab-
lished. Agreements to hold free elections were torn up and Soviet
rule was consolidated over Eastern Europe. In the U.S. Earl Browder,
a Communist who favored accomodation and reform, was dumped by
the indirect but effective Stalinist tactic of criticizing him in the
French Communist press. The first Berlin crisis, and the airlift it pro-
voked, began a war called Cold that periodically threatened to heat
up East-West relations. The Russians rejected the U.S. offer to in-
ternationalize nuclear know-how and stock piles, and scientists in
the United States, Canada and Britain defected to the-Soviet Union
with nuclear secrets. Mao Tse-tung was leading his kind of Com-
munists in China to decisive victory over "our" Nationalists, close
and traditional friends, who had incidentally sustained the most
effective propaganda campaign ever conducted by a foreign country
in the United States. And eventually Nikita Khrushchev, visiting
America, threatened to "bury" the Americans.
The early response, in President Truman's time, was typically
American-to establish a special organization to deal with the newly
perceived threat. The National Security Act of 19478 created the
National Security Council. That was not significant in itself; over
the years the National Security Council has not often been called
together to deal with a crisis at White House level. But it was sig-
nificant that national security was conceptually separated from
foreign policy-which made "national security" available as a justifi-
cation for government actions at home as well as overseas.
The 1947 Act reincarnated the wartime secret intelligence opera-
tion (O.S.S.) as the Central Intelligence Agency, placed it under the
National Security Council, chartered it to gather facts anywhere
abroad if U.S. security would be served thereby, and; if the President
gave the word, authorized a variety of clandestine activities in the
name of security.
Secrecy, the handmaiden of intelligence, became a fetish. Agencies
were multiplied in bureaucratic competition. To the older intelli-
gence agencies in the army and the navy were added a new Defense
Intelligence Agency and a stronger domestic security function in the
FBI. Finally, Congress authorized the National Security Agency to
specialize in communications intelligence, includingwidespread
electronic eavesdropping, in a law unique in American history-the
law does not specify what the agency is fora
561 Stat. 495 (1947).
91d.
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THE "NATIONAL SECURITY" CLAIM - 333
THE "NEED TO KNOW" DOCTRINE
The structure of official secrecy rests on both law and practice.
Security classification of papers and of personal knowledge is covered
by the President's war powers and blessed by the National Security
Act and the Atomic Energy Act of 1954. The Freedom of Information
Act exempts matters specifically authorized tinder criteria established
by Executive Order to be kept secret in the interest of national se-
curity or foreign policy and which are in fact properly classified pur-
suant to the order.10 But the philosophy of secrecy seems to be based
on two dubious propositions: (a) the fewer the people who know, the
greater the security; and (b) only those should know who "need to
know." The crucial determinations-who is in the know and who is
out-are made by the first possessor of the secret, on his unreviewed
judgment about the requirements of national security.
One consequence is to deprive the national legislature of its policy
function on whatever the President and his advisers decide to handle
alone. Congress is said to be much too large a body to be trusted to
keep secrets-though the White House staff is larger. To maintain a
show of cooperation the Executive keeps a few members of Congress
informed, especially those who control the funding of the intelligence
agencies. If most members of Congress do not know the facts, it fol-
lows that they cannot be meaningfully consulted on policies derived
from analysis of the facts. That makes the Executive less accountable
on precisely those issues most likely to be matters of life and death
for Americans at large. "Separation of powers" in national security
matters means separating Congress from the power to make policy.
Within the Executive Branch, secrecy also redistributes the power
to affect policy. The "intelligence community" produces facts which
are so closely held that they can be interpreted-and consequent
policy recommendations made-only by those who know the facts.
Since the intelligence people are among those in the know, they come
105 U.S.C.A. ? 552(b)(1) (1976 Supp.). But Congress could review and override the
President's power to classify to some extent. Justice White, writing for the majority
in EPA v. Mink, 410 U.S. 73, 83 (1973), said, "Congress could certainly have pro-
vided that the Executive Branch adopt new procedures [for classifying documents]
or it could have established its own procedures ..." Legislation was introduced in
Congress during 1973 to establish a statutory, rather than Executive Order, basis
for security classification and to sharply limit the volume of papers classified, the
duration of their classification, and the agencies and officials authorized to classify
them. "Whatever secrecy is to be permitted concerning government records," former
Chief Justice Earl Warren said in a 1973 speech, ". . . should be fixed by law."
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to have a disproportionate influence on policy as compared with
"policy-makers."
The doctrine of "the fewer who know the greater the security"
is seductive. On its face it makes sense, but decision-making about
complex national security matters produces grotesque results so often
that there must be something wrong with the picture. Some examples
from recent history show how badly the principle works in practice:
* The Bay of Pigs fiasco resulted directly from insufficient candor in
too small a group-some members of which, according to a former
member of the joint Chiefs of Staff, thought that in the presence
of the new young political hero they "should speak only when-
spoken to." . . . At the U.N. General Assembly, Ambassador
Adlai Stevenson was defending the U.S. non-involvement in the
"refugee" raids on Cuba. He asked Washington for the true
story, and the CIA provided the State Department with a false
"cover story" which Stevenson used his global credibility to trum-
pet as the truth. The cover blew off in less than 24 hours.
? During the first few days of the Cuban Missile Crisis, only a few
people were let in on the secret. During this period proposals to
overreact by "surgical" air strikes were taken seriously in the
small in-group. It was no accident that a more moderate (and
certainly more effective) policy prevailed after a second tier of
staff people had been brought in to sift the options and illumi-
nate the risks, costs, and benefits. '
? In the period after 1965 the circle of trusted Presidential advisors
running the war in Vietnam was progressively narrowed, and the
war policy got progressively more out of touch with public and
Congressional opinion, or even with staff-level reactions in the
Executive Branch.11 Only when President Johnson, in early 1968,
rather suddenly widened the circle of consultation, even seeking
the views of known opponents, did he sharply alter course.12
11". .. I cannot, in retrospect, square the Viet Nam War with my concept of
democratic government. What President Johnson did not do, when he had made
up his mind in 1965, was to lay out fairly and frankly for Congress and the Ameri-.
can people the choices facing us, the risks we were taking, and the possible conse-
quences of our intervention. His failure to do so led in the. end directly to attacks
upon his credibility and to a serious erosion of the trust and confidence of the
public in the President." Katzenbach, Foreign Policy, Public Opinion and Secrecy,
FOREIGN AFFAIRS, Oct. 1973, at 11. .
12The story of one straw in that new wind is told in H. CLEVELAND, THE FUTURE
EXECUTIVE 19-21 (1972).
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THE "NATIONAL SECURITY" CLAIM 335
? A matter so vital to the conduct of foreign policy as the decision
to deploy anti-ballistic missiles was decided without consultation
with NATO allies or even the U.S. Department of State; together
they learned about a new American policy from news dispatches
of a speech by a Secretary of Defense in San Francisco.
? In the Nixon years, the damage caused by failures of presidential
consultation-on Cambodia (3,630 secret air raids between March
1969 and May 1970, on the tactics of rapprochement with
Peking, and on the world-wide military alert in 1973-is still
fresh in the memory of Americans, and of Japanese and Euro-
pean allies as well.
? The delegation head responsible for negotiating strategic arms
limitations with the Soviet Union apparently did not "need to
know" that the White House had already agreed to a fallback
position. He continued to bargain hopelessly for what had al-
ready been surrendered, while his opposite number on the Rus-
sian side of the table already knew that a deal had been made at
higher levels.13
THE TROUBLE WITH SECRECY
The notion that secrets should be limited to those with a "need to
know" has at least three defects. One is that those who already know
make the need-to-know determination. They can scarcely be expected
to welcome to the charmed circle potential heretics within the Execu-
tive Branch, or potential critics and opponents in Congress and the
country.
A second defect is that the "need to know" doctrine is extremely
corruptible. Once the system permits the President and his agents to
decide who should know what about executive intelligence and opera-
tions, it is overwhelmingly likely that government officials will use
the system to hide their mistakes and their debatable judgments from
colleagues, subordinates, inspectors, controllers, Congressmen, courts,
and constituents by deciding that none of those have a "need to
know." The opera bouffe of the White House tapes bears witness.
A third defect of the "need to know" doctrine is even more basic:
it inhibits asking the underlying question whether secrecy in a par-
ticular case serves the national interest anyway.
Being let in on a secret is a status symbol-in small-town gossip, in
international diplomacy, or in Washington politics. If you are favored
13See J. NEWHOUSE, COLD DAWN: THE STORY of SALT (1973).
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.336 Al)\IINISTRATIVE LAW REVIEW
with a confidence, you are likely to be anion- the last to question
whether the confidence really needs to be confidential, since your "in-
ness" depends on its confidentiality. Those to whom the secret is not
whispered are much more likely to call for openness, candor and par-
ticipatory process.
Yet in our most famous cases of crisis management, even some of
the crisis managers now question procedures that automatically
equated national security with the need for secrecy. "Unhappily," says
Nicholas Katzenbach, "secrecy in foreign affairs-and particularly in
the atmosphere we have lived in for the past 25 years-is easily ration-
alized. Yet the reasons seldom have much to do with the rationaliza-
tions. In recent years, at least, the real motive has been precisely to
avoid the difficulties inherent in our political system and hopefully
to present the public with triumphant faits accomplis."14
In retrospect it appears that the insistence on secrecy in crisis man-
agement has often been the product of not only presumed military
necessity but also of the desire of a president or his staff to avoid be-
ing scooped on an important policy announcement-a natural human
motivation, but not to be confused with the nation's security. In
three of the cases mentioned above-the discovery of Russian missiles
in Cuba in 1962, the President's intent to visit Peking in 1971, and
the U.S. effort to prevent a possible unilateral Soviet intervention in
the Middle East in 1973-it is now doubtful that elaborate measures
to maintain secrecy until the President was ready to go on television
served any higher purpose than to enhance and personalize the drama
of the President of the United States in action. They served that
purpose very well indeed. But from whom were the secrets kept? The
Russians knew the missiles were there. The Chinese knew that Nixon
was coming to call. The Russians had been told that we did not favor
their apparent intent to send armed forces to the Mideast. Those kept
in the dark until a television drama could be arranged included, re-
spectively, our Western Hemisphere allies in 1962, our Japanese and
Korean allies in 1971, our NATO allies in 1973-and, in all three
cases, the governed in America.
In. the 1962 case, the drama was so great that it included almost
immediate . hemispheric and domestic support for the President's
policy. Yet without secrecy that support might well have been avail-
,able from the start. In 1971, the drama was very costly in' U.S.-Japan
relations. In 1973, the President's decision to call a global military
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THE "NATIONAL SECURITY" CLAIM 337
alert with no Atlantic consultation drove a wedge into NATO unity
which was then further pierced by European unwillingness to coor-
dinate with Washington on Arab oil policy. Were the histrionics of
personal presidential diplomacy worth the transpacific and trans-
atlantic heartburn they are still causing?
If the costs of secrecy in the name of national security can so
readily outweigh the benefits even in crisis situations, it is even more
important in the day-to-clay politics of domestic and international
policy-making to make sure, as Katzenbach suggests, that rationaliza-
tions of secrecy are not substituted for the reasons. One of the lessons
from Watergate is that public officials are well advised to apply even
to their secret actions the test of how they would look if scrutinized
in public; so many secret actions do become widely known sooner or
later anyway. The cautionary principle is: if the validity of your
action depends on its secrecy, watch out! Perhaps this warning should
also be inscribed on the wall of the White House Cabinet Room
where the National Security Council meets in times of tranquility
and ad hoc advisors to the President gather in times of crisis.
THE "NATIONAL SECURITY" CLAIM
Reasons of national security, determined behind a screen of
secrecy, have long been used as justification for "dirty tricks" prac-
ticed on other nations, especially if they happened to be declared or
undeclared adversaries at the time. "All's fair in love and war," as
the saying goes. In the past generation, featuring regional wars and
a global arms race, tactics considered acceptable or even heroic when
used overseas against enemies have been adapted by federal agencies
for use also against those seen as helping our enemies at home. Prac-
tices become familiar in World War II-the unannounced search, the
preventive arrest, the warrantless wiretap-have continued; the wide-
ranging system of official secrecy expanded far beyond wartime prac-
tice in the "postwar" period. And Presidents have taken to doing,
with only whatever consultation they personally deemed necessary,
what they personally thought needed to be done to protect a
mestastisizing concept of the national security.
The interesting thing about the "national security" claim as a basis
for extra-legal activity is that it seems very strong when adduced in
private, and withers away when challenged in public. Just as Presi-
dent Truman backed away from his steel seizure when the court de-
clared it unconstitutional, so President Nixon (according to his own
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testimony) accepted the Court's reversal15 of what he had earlier called
"a reasonable belief that in certain circumstances the Constitution
permitted-and sometimes even required-such measures [wire-tap-
ping without a search warrant in violation of the Fourth Amend-
ment] to protect the national security in the public interest."16
No defendant in the criminal cases growing out of the 1972 elec-
tion was able to bring himself or his attorneys to define persuasively a
concept of national security that would have justified him in going
beyond the Theodore Roosevelt principle to the committing of
crimes against the laws and Constitution of the United States in the
name of higher purpose as determined by an Executive sworn to up-
hold them.
Egil Krogh, Jr., who supervised the special White House leak-in-
vestigating unit called the Plumbers, had intended to assert in his
defense that the break-in of Ellsberg's psychiatrist's office was designed
to defend national security. But his conscience, he said, would not
permit him to do that; he had come to feel the break-in was a viola-
tion of constitutional rights.
The President had already cut the ground from under such a de-
fense. In his August 15, 1973 television talk, he had criticized "the
assumption by those involved [in Watergate] that their cause placed
them beyond the reach of those rules that apply to other persons and
that hold a free society together. That attitude can never be tolerated
in our country." He continued, "... if we lose our liberties we will
have little use for security." The irony that Nixon's own behavior,
as later revealed, belied his words does not detract from their good
sense.
What has happened, during a generation of obsession, is that con-
stitutional government has become presidential government through
a process no one overtly intended.
The debility of Congress, which it shares with other collective
bodies organized as legislatures (professional associations, democratic
trade unions, academic faculties, stockholders' meetings, student gov-
ernments), is less the result of plotting by the Executive than the
consequence of the complexity of the problems Congress is supposed
to solve. The degree to which Congress has become "the separate but
unequal branch of the federal government" can even be quantified:
up to 1971 Congress had acquired only four computers, and used
15United States v. United States Dist. Court, 407 U.S. 297 (1972).
16President Nixon's television address to the nation on Watergate, August 15,
1973.
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THE "NATIONAL SECURITY" CLAIM 339
them mostly for payrolls and housekeeping; the Executive Branch
had four thousand computers (all authorized by Congress), working
mostly on substantive policy.17
We have already suggested that the federal judiciary, with honor-
able but only occasional exceptions, has been hardly more successful
than Congress in stemming the flow of power into the White House.
Thus the arrogance and open contempt with which Nixon staff men
treated Congress and the courts reflected all too accurately the true
distribution of power among the three constitutional branches of gov-
ernment. The Presidential assistants' lack of politesse, heightening the
drama of illegal actions they sponsored and tried to hide from public
view, finally aroused the citizenry because it illustrated in easy-to-
understand terms how "separation" no longer meant a balancing divi-
sion of powers.
A popular cliche has it that Watergate was a blessing in disguise.
It was not a blessing of any kind, disguised or exposed. It was and
remains a very large self-inflicted wound in that unique institution
which is the Presidency of the United States. But it is a comprehen-
sible injury, resulting quite directly from the corruption of Presiden-
tial power in the "national security" era.
The problem is not to limit the President's powers-they will, on
the contrary, have to be expanded in future years to deal with such
comprehensive challenges as the supply of energy, the control of
pollution, and the building of peace in a technological world. The
problem is to .build a structure of accountability in which the Presi-
dent and his agents have every incentive to use his powers in ways
that can be explained with a straight face outside the narrow circle
of White House staff and Presidential appointees.
We can no longer comfort ourselves, as Louis Brownlow did, with
the thought that no President of the United States "has been recreant
to his high trust."18 We must, on the contrary, assume that if the
President has authority to violate laws and Constitution for reasons
he must justify only to himself, the chances are that the laws and the
Constitution will be violated.
There are, broadly, two antidotes to the excesses of the Executive
and his agents. One is to fence them in with the constraints of con-
17J. Califano, Cited in H. CLEVELAND, supra note 12, at 42.
18L. BROWNLOW, THE PRESIDENT AND THE PRESIDENCY 51 (1962).
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340, ADMINISTRATIVE LAW REVIEW
sultation. The other is to hold their feet to the fire of the general
opinion of mankind."
The main benefit of consulting others about one's actions is not so
much that they may be persuaded as that the quality of one's own de-
cisions may be improved by knowing in advance who would think
and do what, once the decision is taken.19 In other words: it is not
only the President who should decide what the national security re-
quires. In a separation-of-powers government, no one branch can have
a monopoly of so important a determination-and the more life-and-
death the issue, the less appropriate is a one-branch monopoly of in-
formation and decisions about it. The Congress, despite the obstacles
to concentrating its attention and mobilizing it for considered action,
must play its part; and the "national security" justification for both
executive and legislative action must be reviewable by the courts.
How can the President be induced to open up channels of consulta-
tion with agencies and branches of the Federal Government that
have the independence and competence and jurisdiction to question
him sharply whenever national security is used as a justification for
action which would otherwise be unjustifiable?
The courts have the requisite independence. But they are inhibited
by. the antique notion that they should address themselves not to
public, policy issues (which have many sides) but only to two-sided
arguments between defined adversaries in particular cases. The Con-
gress has the jurisdiction, but often neither the competence nor the
independence (remember the Gulf of Tonkin Resolution) to act as a
valid respondent to a Presidential initiative. Professional agencies
within the Executive Branch, such as the State and Defense Depart-
ments, the FBI and the CIA, and the Department of Justice, usually
have the competence and the jurisdiction, but lack the independence
to argue with a President who has made up his mind-or whose de-
sires are regarded by his staff not as propositions to be argued among
professionals sworn. to promote the public interest but (in General
'
Haig
s later regretted phrase) as "orders from your Commander in
The Federal Courts would be 'a more useful buffer against? the
abuse of the "national security" claim if they could render advisory
opinions in important matters touching the constitutional powers
of the President and the Congress. As a common law practice, state
19A general theory of consultation is suggested in H. CLEVELAND, NATO: THE
TRANSATLANTIC BARGAIN 13-33 (1970).
200n this general subject see G. REEDY, THE TWILIGHT OF THE PRESIDENCY (1970).
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courts do sometimes give advisory opinions, but in United States v.
Hudson and Goodwin2l the Supreme Court ruled that the common
law is "not a law of the United States." Further, an advisory function
for the federal courts is said by some to be ruled out by implication
in Article III of the Constitution which extends the federal jurisdic-
tion only to certain types of cases and "controversies" specified as to
parties at interest. But despite precedents and other obstacles, it seems
wise for Congress to find means to extend the jurisdiction of the
Federal Courts. In recent articles Professor Raoul Berger has effec-
tively argued that legal obstacles to advisory opinions are no more
than obstacles and can be overcome if there is the will to do so.22
It would certainly be useful for the Congress, by concurrent reso-
lution not subject to Presidential veto, to be able to ask the Supreme
Court directly whether the President in a particular situation (such as
the hidden bombing of Cambodia or warrantless surveillance of
journalists) is exceeding his constitutional authority. We would still
be depending on presidents voluntarily to abide by such opinions, as
they have abided so far by opinions in case law (the steel seizure rul-
ing and the 1972 wiretap decision); but that is merely to say that we
would still rely, as we have for two centuries, on our collective good
sense not to elect presidents who would use the ultimate Executive
-power, military force, to rule by fiat.
How can the competence and independence of Congress be en-
hanced? Asa large collective body, whose members must ultimately
do as their several constituencies would like them to do, Congress is
no match for a vigorous Executive backed by departmental bureauc-
racies in every specialized field. Indeed, though a hard-working vet-
eran committee chairman can usually get his imprint on it too, much
legislation is actually written in the Executive Branch.
Yet Congress has one executive-type servant who in recent years
has demonstrated the competence and the independence to pit him-
self successfully against the executive agencies. He is the Comptroller
General of the United States, appointed by the President (with Senate
2111 U.S. (7 Cranch) 32 (1812).
22"A happier approach is to submit a controversy between Congress and the
President, arising out of conflicting claims to power, to the Court, as Andrew
Johnson wished to do. That approach met with the approval of Chief Justice Chase.
... Conflicting boundary claims are preeminently suited to judicial arbitrament,
the. least disruptive of solutions. Such arbitrament calls for a realization by both
Congress and the President that neither can unilaterally decide the scope of the
other's powers." R. BERGER,.IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 3004f1
(1973). -
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342 ADMINISTRATIVE LAW REVIEW
confirmation) for a fifteen-year term. He presides over a sizeable
bureaucracy called the General Accounting Office, which used to con-
sist mostly of accountants and auditors, but now includes many man-
agement experts and-some lawyers as well.
The countervailing power of Congress would be enormously
strengthened if the Office of the Comptroller General were granted
the power to subpoena papers and witnesses relevant to its investiga-
tions, and .empowered to go directly to the courts when dealing with
executive agencies and individuals. Although the Comptroller Gen-
eral unearthed some of the early indications, of illegal spending by
the. 1972 Committee to Re-elect the President, only the Department
of Justice could take follow-up action to prosecute in the courts.
The anomaly of one Executive Department as the sole agency to
prosecute another was unhappily emphasized in 1973 when one
Attorney General was indicted for conspiracy, another resigned be-
cause' his friends were principal actors in the Watergate scandals,
while a third resigned, .as did his deputy, in protest against presiden-
tial firing of a special prosecutor assigned to investigate and prosecute
Executive wrong-doing, including allegations against the. President
himself. An earlier Attorney General had used his authority as a
screen for corruption of various sorts highlighted by the Teapot
Dome scandal of 1924. It seems. reasonable to suggest that if the De-
partment of justice can bring Members of Congress into court the
Comptroller General, acting on behalf of the. Congress as a body,
should have power. to bring against executive agencies or individuals
actions designed to keep them -honest. To perform this function, the
.Comptroller General would have to add legal staff competence to his
present arsenal of experts; the same legal counsel. could handle the
technical aspects of asking for advisory opinions once such action had
been voted by both Houses of Congress.23
In "national security": matters the President's obligation to- consult
with Congress should probably be formalized.. At present, the initia-
tive in such consultation, and the decision about which bits and
pieces of classified information to select and reveal to Members of
Congress, rest wholly with the Executive. Congressional leaders are
usually brought in after the President has already decided what to do;
sometimes the "consultation" occurs a few hours or even a few
23Senator Mondale's bill, introduced in 1973, to establish an Office of Congres-
sional Counsel is another possible alternative. Senator Weicker's 1976 bill to create
a permanent special prosecution office in the justice Department has the defect that
the office's independence of the Executive could not be guaranteed.
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THE "NATIONAL SECURITY" CLAIM 343
minutes before the President goes on national television with a policy
announcement. The problem is to get congressional leaders in on the
act before the President makes up his mind.
One device would be to provide, by amendment to the National
Security Act of 1947, that designated leaders of the two houses of
Congress serve as members of the National Security Council. To pre-
vent the Executive from bypassing the N.S.C. in order to bypass the
Members of Congress, the amendment might also provide that on
certain classes of decisions (such as the dispatch of U.S. troops to, or
the bombing of, foreign lands) the President must convene and seek
the advice of the N.S.C. members, though he could not, of course, be
bound to accept it.
The War Powers Act of 1973, passed over President Nixon's veto,
limits to some extent the executive power to use armed forces in com-
bat for national security purposes. If troops are used without prior
Congressional consent, the President must secure such consent within
60 days. If consent is not forthcoming the President must withdraw the
troops within not more than 90 days and cease other actions at once.
This provision will no doubt inhibit some presidential war-making,
especially in slow-breaking crises. But the law does not require prior
consultation, and Congress would find it difficult if not impossible to
veto a war once our forces are engaged.
Some of the recent damage to executive-legislative relations.. will
have to be. repaired by better manners, not just better machinery.
The extreme suspicion and arrogance of the. Haldeman-Ehrlichman
regime is mercifully past. Voluntary compliance by appointees and
agents of the President with the elementary obligation to account to
Congress for their policies can do much to restore public confidence.
But voluntary compliance is obviously not enough. .
Confusion about congressional consultation has been produced by
the claim that "executive privilege" covers not only direct advice to
the President but a vast array of actions by subordinates who con-
sidered themselves invisible and untouchable yet whose activities
were not, according to the White House story, even known to the
President. Thus, in considering fences to be built around executive
excess (without reducing executive power to deal with the world as
it is), we should not neglect the White House staff itself. When the
Executive Office of the President was established in 1939, President
Roosevelt asked only for six nearly anonymous assistants in the White
House to help him do the work required by law. That such assistants
should be accountable only to the President seemed. reasonable
enough. Three decades and three major wars later, there are not six
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but hundreds of White House staff people: in sonic of them immense
power is vested, not by law but by the President or by inertia.
To re-establish the White House staff by statute as an accountable
agency of the Federal Government will stretch the skill of the most
astute political analysts and legislative draftsmen. But it seems es-
sential, now that so much of the executive power is ultimately exer-
cised not by the statutory departments but by ad hoc agencies and
special-purpose Presidential counselors and assistants. At the least, the
principal presidential assistants should be. available to answer ques-
tions of appropriate congressional committees, that is, about public
policy and about what they do, as distinct from what they say in con-
versation with the President. Congress might also require such as-
sistants to justify their share of expenditures under White House
budget headings. And it is surely not too much to suggest that all
presidential assistants should be answerable to criminal charges of
misfeasance, with no recourse to "superior orders" as a defense.24
Presidential accountability ought to begin before a candidate be-
comes President. Exercising the powers of the President is preceded
by running for election. There is consequently a chance to distinguish
between the powers a President inherits with the office, and those he
has because he has a "mandate" from the electorate.
Both President Johnson and President Nixon were re-elected with
massive majorities, and promptly interpreted them to justify Presi-
dential actions which the'candidate either had denied he would take
.(sending American combat troops to Vietnam) or had . neglected to
mention . during the electoral campaign (dismantling the poverty
agency and other social and educational programs). In Johnson's
case the Congress bought the "national security" argument for a more
active role in the Vietnam War, but the people's will to get out finally
brought down his administration. Richard Nixon defied this same les-
son from history when, in early 1973, he tried to dismantle long-stand-
ing domestic programs and agencies with no popular mandate and
dubious legal authority to do so. Yet he dared not go. to Congress to
ask for enabling authority because the measures he wished to take ran
contrary to the expressed will of the Congress-and the Democratic
Congress had been re-elected by a majority similar to his own.25 Before
long the courts found Nixon's veto by impounding 'unconstitutional
in several cases.
24Senator Mondale's bill to require Senate confirmation of presidential assistants
is a step, but only a step, toward enforceable accountability.
255. BROWN, supra note 2, at 111-20; S. BROWN, THE PRESIDENCY ON TRIAL 108-12
(1972).
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THE "NATIONAL SECURITY" CLAIM 345
The general lesson for the future seems to be that unless a presi-
dential action has been quite explicitly "cleared" with the electorate
in a winning campaign, it had better be the subject of careful ex-
planation and visible "clearance" with the Congress (in the case of 'a
policy change) or with the courts (in case executive power is to be
used beyond the understood limits of the laws and the Constitution,
as in "national security" surveillance).
PUBLIC FACE AND PRIVATE FACE
We have suggested a complex of institutional fences that might be
built around the claim, by a President or his agents, that they are
justified in overstepping the bounds of law and Constitution because
the national security is at stake. The new fences would all be varia-
tions on a single theme: the President should be obligated to expose
his national-security decisions before they are taken, to persons who
are not obligated to say "Yes, sir."
1. The Supreme Court might interpret the law in timely fashion
through advisory opinions.
2. The Comptroller-General, as an agent of Congress, might par-
ticipate through subpoena-supported inquiry into, and prosecu-
tion in the courts of, executive excess.
3. Congressional leadership might participate more directly, and of
right, in the Presidential decision-making process.
4. The claim of executive privilege, buttressed as it is by a wide-
spread system of security classification, might be defined more
specifically and interpreted more narrowly. U.S. v. Nixon was a
useful signpost along this road.
5.-The White House staff might be defined and established by
statutes and its members made accountable "in another place"
for their actions (as distinct from their advice to the President).
6. Presidents might learn from history the danger of assuming an
electoral mandate for actions that were not explicitly "cleared"
with the people during the campaign.
But the ultimate fences against the abuse of public power will
always be in the reasoning conscience of the individuals involved.
"[T]he.. answer," President.Nixon said in his August 15, 1973 TV
talk ". . . lies in a commitment by all of us to show a renewed respect
for the mutual restraints that are the mark of a free and civilized
society." "All of us" includes but is not limited to the President.
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The most powerful agencies of the law are not the institutions of
its enforcement. These can threaten and cajole, and they can be so
fashioned that representatives (including self-appointed representa-
tives) of the affected publics can follow the play of public policy,
recognize the players who presume to act in their interest, and blow
the whistle when it appears that the public faces of their public ex-
ecutives cannot be reconciled with their private faces. But ultimately
each public official, and each citizen, is responsible for his or her own
behavior.
In a society so complex that no one can be in charge and therefore
all of us (and especially public officials) are partly in charge, each re-
sponsible individual has to ask himself or herself, several times a
day, "Does this action of mine really have to be taken behind a cur-
tain?" and if it does, "Will I still feel all right about it if the curtain
is snatched away?"
It is not a new formula for illuminating the ethics of public re-
sponsibility. John Dewey spoke of "the rehearsal of consequences,"
and one remembers the wise admonition of The Federalist (No. 63):
.. how many errors and follies would [America] not have avoided,
if the justice and propriety of her measures had, in every instance,
been previously tried by the light in which they would probably
appear to the unbiased part of mankind?" But there are new and
useful tools for use in guessing, or "gaming," what the relevant parts
of mankind might think and do about decisions not yet made.
The simulation of alternative futures is increasingly in vogue as
a guide to avoiding the least desirable ultimate outcomes by taking
the most sensible actions now. The fast computer is an enormous
advance in helping us to think ahead; even more helpful. is-the fact
that the human brain seems extraordinarily adept at framing work-
able policies, and changing them over time, when it is suitably in-
formed of their probable consequences. Game theory and other forms
of semi-computerized analysis, applied to human purposes and not
just to physical means, are likely to be more and more helpful to
public officials and their critics whose daily business. is the rehearsal
of the consequences of their own actions.
The people are corruptible by rhetoric, affectation and coverup-
some of the people, some of the time, up to a point. But in the long
run, most of the time, the people will see through the public face
to the private face. At least, a conviction to that effect seems essential
to making constitutional democracy work.
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