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Abstract:
This Article assesses the constitutional validity of executive privilege, focusing solely on executive privilege disputes between Congress and the President or other high-ranking executive branch officers. This Article defines such conflicts broadly to include clashes over information sought directly by Congress (or by a committee or subcommittee thereof), clashes over information sought by individuals through congressionally drawn public access statutes, and clashes over information sought by congressionally created agencies.

constitutional law, separation of powers, executive privilege, government secrecy

Abstract:
This Article considers the constitutional validity of executive privilege claims made by the President against statutorily authorized information requests. The Article concludes that such claims are constitutionally illegitimate and that courts, when turned to, should order compliance with statutorily authorized demands for information in the face of executive privilege claims. This conclusion is reached in two steps. First, perusal of Article I's list of legislative powers and Article II's list of presidential powers does not clearly resolve the issue. Rather, such perusal alone offers fair ground to deem control of executive branch information both within Congress' "sweeping clause" power and within the President's execution power. Second, a broader analysis of constitutional text, structure and history demonstrates that information control has special constitutional significance. Specifically, such analysis suggests that secrecy within the political branches must, to be legitimate, remain a politically controllable tool of the people. To keep such secrecy within the ultimate control of the people, mechanisms must exist to keep the secrecy "shallow" and politically checkable. In other words, mechanisms must exist to ensure that the very fact of such secrecy is subject to public debate, reconsideration and reprisal. This is particularly crucial with respect to executive branch activities, given that branch's special capacity for secrecy. The natural mechanisms to keep government secrecy shallow and politically checkable are statutory authorizations to Congress, to the public and to agencies to demand information. Furthermore, the statutory process itself is sufficiently protective of any interests in secrecy.

constitutional law, separation of powers, government secrecy

Abstract:
Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency's warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying.

These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory and doctrine on the topic - apart from how little of it exists - is that it fails adequately to integrate the separation of powers and free speech issues that the topic raises. This Article integrates these two sets of issues, considering both the free speech values at stake and the discretion and capacity constitutionally accorded the political branches to protect national security information. This Article concludes that the national security related powers of the political branches - particularly the executive branch's vast secret-keeping capacity - do not diminish the free speech protections that should apply in the realm of classified information. To the contrary, these powers make speech and transparency related checks particularly crucial in this realm.

Significant first amendment protection for classified information leaks and publications, in short, is warranted. The President's Article II capacities enable him to oversee a vast classification system. This can be inferred from constitutional structure and history, and also has been borne out over time as the classification system and the administrative infrastructure to implement it have grown dramatically. But with such capacity for, and realization of, a secrecy system, come substantial implications for an informed populace and hence for the First Amendment and the very structure of self-government. And the particular form of Presidential secrecy that is classification is so broad and so scattered in its manifestations that it cannot effectively be matched through discrete information requests from Congress or other government players. Instead, the First Amendment demands some breathing room for disclosure by those within the vast secret-keeping infrastructure as well as by the press and the public to whom information might be leaked.

This analysis explains the intuition that the press and the public should be highly protected from prosecution for classified information publication. This intuition is largely correct, although it does not preclude punishment that would meet stringent First Amendment standards. This Article's analysis also sheds light on the constitutional balance that must be struck in prosecuting government employees for information leaks. On the one hand, government employees serve as functionaries of Article II, subject to Presidential judgments with respect to national security secrets. In this sense, they bear an Article II responsibility that the press and the general public lack. On the other hand, they have special First Amendment value given their access to information within a vast and powerful secret-keeping system. Government employees thus merit a more moderate level of protection than do the press and the public, but a level substantially greater than that reflected by the automatic or presumptive criminalization of classified information leaks.

Abstract:
This article, which was prepared for a spring 2007 conference at Cardozo Law School on "The Domestic Commander in Chief," considers constitutional and policy questions regarding congressional oversight of national security activities. The article focuses on what I call an "information funnel" approach. Such an approach involves funneling information only to discrete groups of people. For example, statutory provisions require that intelligence programs be shared with the congressional intelligence committees. Other statutory provisions permit certain narrowly defined covert actions to be reported only to the congressional leadership. The intended benefits of funneling are intuitive. Funneling plainly is directed toward balancing the respective advantages of secrecy and openness. It demands some inter-branch knowledge sharing without requiring full public or even full congressional access.

This article agrees that funneling is a theoretically and practically important means of reconciling secrecy and openness needs but contends that funneling has not, in fact, been taken seriously enough. The purpose and utility of funneling have been under-explored, and funneling's propriety and implications thus are poorly understood. Questions remain, for example, over whether funneling requirements infringe on the separation of powers and thus need not always be obeyed. And it is uncertain what if anything should follow from information funneling - whether, for example, those with whom information is shared should be able to take some action in response to what they learn.

This article uses the recent controversy about warrantless surveillance by the National Security Agency as a jumping-off point to explore these questions. Specifically, the article focuses on information exchanges between Congress and the executive branch about the program. Part I examines these exchanges as well as inter-branch discussions about the same. It concludes that two major problems that these incidents reflect are widespread uncertainty as to whether Congress constitutionally may force the President to disclose information and a lack of careful consideration as to how any information funneling requirements should work. Part II lays a theoretical foundation for improving governing statutes and congressional rules. Part II(A) explains that Congress has the constitutional authority to set information-sharing requirements between the executive branch and itself. Part II(B) discusses the complicated relationships between the respective benefits of secrecy and openness, an understanding of which should guide information sharing rules. Building on Part II's theoretical foundations, Part III suggests some answers to the questions raised in Part I as to how information funneling requirements should work.

Abstract:
This article was prepared for the Minnesota Law Review's fall 2006 symposium. The article does two main things: (1) It considers the relationship between constitutional structure and government information control and (2) It uses the recent NSA surveillance controversy to exemplify its constitutional analysis. The core constitutional argument is as follows: Much of the Constitution, including provisions about political branch structure, is about facilitating inter-branch transparency and transparency between the branches and the people. At the same time, the Constitution leaves some room for government secrecy. Constitutional structure gives us a way to reconcile these two characteristics: any government secrecy must be subject to some avenue for political checking and alteration. The major means of this reconciliation is for the executive branch to have the capacity to execute secret operations, subject to legislative checking. Secret Presidential activities that not only are kept from Congress but that run counter to publicly promulgated legislative directives run afoul of this Constitutional framework. With respect to the NSA surveillance controversy, the article explains that the FISA statute and its history exemplify how the described Constitutional framework should operate. The Bush Administration's secret circumvention of FISA, on the other hand, exemplifies a dangerous breakdown in this framework.

Abstract:
This short essay was prepared as the introduction to a Brooklyn Law Review symposium issue. The symposium is entitled, Justice Blackmun and Judicial Biography: A Conversation with Linda Greenhouse. The essay considers the connection between constitutional interpretation and real world experience and change. It revisits the debate, for example, over whether the original intent that matters for purposes of constitutional interpretation is the ratifying generation's expectations as to the constitution's application, or whether the relevant intent is solely that concerning constitutional principal. Under the former view, experience and social change have little if any impact on constitutional law. Under the latter view, experience and change may substantially impact constitutional interpretation. The essay connects this discussion to a summary of seven very insightful symposium articles by Dean Harold Koh and Professors Earl Maltz, Nan Hunter, Dena Davis, Jason Mazzone, Chai Feldblum and Andrew Koppelman. Each of the summarized articles considers one or more of the following: descriptive questions as to the relationship between judges' personal experiences and their approach to the Constitution; normative questions as to how much the public should know about the human stories behind constitutional decision-making; and normative questions as to the impact that judges' perceptions of the real world should have on constitutional interpretation.

Abstract:
This Article was written for the 2008 Minnesota Law Review Symposium, Law & Politics in the 21st Century. The Article examines the core functionalist argument typically made to support unitary executive theory: that the theory advances the constitutional principle of accountability by demanding that all executive branch decisions be placed in the hands of a single, nationally elected official. This Article argues that a unitary executive undermines, rather than bolsters, government accountability. The Article also explains that one need not agree with that proposition to conclude that the accountability justification for unitary executive theory is flawed. Rather, one need only deem the point reasonably arguable - and hence within Congress' discretion to judge, subject to functional boundaries - to determine that accountability principles do not demand a unitary executive. The argument that unity reasonably can be deemed to undermine accountability rests on two prongs!

First, it turns on the meaning of constitutional accountability. The Constitution reflects different forms of accountability that correspond to different constitutional actors who check and balance one another. Underlying all forms of accountability is the need for transparency and procedural regularity sufficient to enable public and inter-branch assessment of - and responses to - government actions. Second, unity helps the White House both to secretly intervene in administrative state decisions and to manipulate the very "facts" upon which such decisions purport to rest. The problem is compounded by the capacity of the White House politically to distance itself - and thus to create public confusion over who to blame - regarding decisions over which it legally has full authority (and in which conditions of unity thus exist). The Article is intended as a companion piece to another article to be published roughly contemporaneously with it in a symposium issue of the Willamette Law Review: Accountability and Administrative Structure.

constitutional law

Abstract:
This Article was written for a symposium held by the Willamette College of Law entitled Presidential Power in the 21st Century. The Article is intended as a companion piece to The Accountable Executive, which will be published roughly contemporaneously in a symposium issue of the Minnesota Law Review. This Article begins by summarizing the major argument of The Accountable Executive: that a unitary executive is as likely (if not more likely) to diminish government accountability as to increase it. This is due in large part to the enhanced ability, under conditions of unity, of the President or his proxies to secretly influence decision-making and to manipulate data. Accountability and Administrative Structure expands on this argument in three respects. First, it situates the concern over unity's impact on information control and accountability within a broader discussion of accountability and administrative structure. Second, it supplements the functional constitutional analysis of The Accountable Executive with formal constitutional analysis and explains the link between the formalist and functionalist points. Specifically, the Article explains that unity proponents' core formalist point - that the Constitution's founders clearly understood the vesting of executive power in the President to entail exclusive power to implement legislative directives and to control others who engage in such tasks - not only is wrong, but is wrong partly because the founders were wary of the accountability risks posed by centralized presidential control. Third, this Article focuses on two recent examples to demonstrate how unity can undermine accountability.

Abstract:
This written testimony was prepared for a hearing of the U.S. Senate Judiciary Committee, Subcommittee on the Constitution. The hearing was entitled "Secret Law and the Threat to Democratic and Accountable Government," and was held on April 30, 2008. In the testimony, I discuss how the U.S. Constitution balances secrecy's dangers against the need for some government secrecy. I explain that many actions of the current administration subvert this careful constitutional design.