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'A New Era of Openness?' Disclosing Intelligence to Congress Under Obama

Constitutional Commentary, Vol. 26, No. 3, 2010

Washington U. School of Law Working Paper No. 10-02-01

26 Pages Posted: 5 Feb 2010 Last revised: 10 Jan 2011

Kathleen Clark

Washington University in St. Louis - School of Law

Date Written: February 4, 2010

Abstract

As a candidate, Barack Obama promised “a new era of openness,” and his administration has taken some significant steps to increase transparency in the executive branch. But it has also continued the Bush administration’s policy of invoking the state secrets privilege to avoid judicial scrutiny of controversial warrantless surveillance and torture programs. Many commentators have noted the parallels between the Bush and Obama policies on disclosing sensitive information to courts, but they have paid little attention to how the Obama administration compares with the Bush administration in disclosing sensitive information to Congress.

This essay fills that gap, and looks in detail at the Bush and Obama administration responses to legislative proposals for expanding intelligence disclosures to Congress. It reviews both the Bush and Obama administration positions on legislation that would require intelligence disclosure to Congress, and finds that there are substantial similarities - though not identity - between the Bush and Obama administrations. Both administrations have opposed disclosure of covert actions to the full intelligence committees as well as mandated disclosure of internal executive branch legal advice. On these most sensitive intelligence issues, we will see increased disclosure to Congress only over the objection of President Barack Obama.

Keywords: Intelligence; Intelligence Community, CIA, Covert Action, Checks And Balances, Legislation, Secrecy, Surveillance, Oversight, National Security, President, Congress

Suggested Citation

Clark, Kathleen, 'A New Era of Openness?' Disclosing Intelligence to Congress Under Obama (February 4, 2010). Constitutional Commentary, Vol. 26, No. 3, 2010; Washington U. School of Law Working Paper No. 10-02-01. Available at SSRN: https://ssrn.com/abstract=1547971

Kathleen Clark (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-4081 (Phone)
314-935-6493 (Fax)

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