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Political Science 129 April 19, 2000 Professor Duffy Executive Privilege: The Dilemma of Secrecy and Democratic Accountability by Mark J. Rozell (Baltimore: Johns Hopkins University Press, 1994) Reviewed by John R. Vile, The Journal of Politics (Volume 57, Issue 4, Nov. 1995 pp1177-1181) Overview In Mark J. Rozell's "Executive Privilege: The Dilemma of Secrecy and Democratic Accountability," he discusses the past debacles and current debates over the doctrine of executive privilege. Rozell attempts to take a neutral standpoint on the issue by exploring both positions (for and against), and evaluating the principal points of each argument. He systematically analyzes the works of many other political theorists on the subject, especially criticizing Raoul Berger on numerous occasions. The book provides a discussion of attacks and defenses of executive privilege as well as providing a comprehensive chapter about Nixon's invocation of the privilege and its effect on later administrations. Rozell provides two chapters about executive privilege controversy in the post-Watergate era, specifically the Ford, Carter, Reagan, and Bush administrations. Rozell concludes with an essay about the future of executive privilege and his personal opinion about the importance of presidential secrecy. The Arguments Against Executive Privilege Rozell opens his book with a discussion of the historical interpretations of executive privilege and explains the two political factions involved in the current debates. He first tells of the arguments against the legitimacy of executive privilege. Specifically, he finds four leading arguments: 1. There is a lack of constitutional grant of executive privilege 2. The constitutional Framers' fear of tyranny prevented such a power from being granted 3. The public and the coordinate branches of government have a right to know what the executive branch is doing 4. Presidents have abused the power of executive privilege. It is painfully evident that Rozell does not agree with these arguments, as this portion of the book is only thirteen pages long (other chapters are twenty-one to forty-one) , and the manner in which the information was presented makes the arguments look very weak and unsubstantiated. I think that if Rozell wanted to appear less biased, he should have given adequate discussion to these views instead of dismissing them as unfounded and weak. The Arguments in Favor of Executive Privilege In the same manner which he discussed arguments against executive privilege, Rozell analyzes claims of the legitimacy of the privilege. In this chapter, he finds the following seven defenses of a 'properly constrained executive privilege': 1. Theoretical and constitutional underpinnings 2. Historical precedents for its exercise 3. Demands of national security 4. A need for candid, internal White House deliberations 5. Limitations on the congressional power of inquiry 6. Historical necessities 7. Widely accepted secrecy practices of the coordinate branches of government Rozell cites many like-minded experts in this chapter, and praises them highly for their opinions. He provides very detailed and thorough discussion in support of the privilege, making this the longest, most tedious chapter of the book. In his attempt to appear unbiased, Rozell fails miserably when he tips the scales to support his thesis (which follows four chapters later). He argues that although the executive privilege was not directly specified in the Constitution, it is implied by the Framers' notion of the separation of powers, as well as recognition of the administration's need for secrecy in terms of national security and transferal of candid advice. Rozell discusses the use of the privilege by nearly every president, and also points out that every other faction of the government is granted a certain level of secrecy that should be appropriately extended to the presidency. Undermining a Constitutional Doctrine: Richard Nixon and the Abuse of Executive Privilege A pivotal change in public attitude towards executive privilege occurred at the end of the Nixon administration with the unveiling of the Watergate fiasco. Nixon's abuses of presidential powers and his inappropriate invocation of the privilege undermined the exercise of executive privilege by his successors, and fundamentally changed the way that executive privilege is perceived and exercised (6). Rozell's analysis of this critical, stigmatizing period in the history of the privilege discusses the following four aspects of the Watergate incident: 1. Nixon's official policy on the exercise of executive privilege 2. Nixon's actual use of executive privilege 3. Nixon's Watergate defense of executive privilege 4. Implications and abuses of executive privilege in the Nixon White House Rozell does an excellent job pointing out the inconsistencies between Nixon's criticism of the privilege early in his presidency (citing a protest Nixon made to Congress in regard to the executive right to withhold information from Congress) and his embarrassing abuse of the privilege at the end of his presidency. Rozell shows through historical documentation that Richard Nixon boasted of an open presidency, and frequently maintained that he was 'pledged to openness and is proud to stand on its record.' The tables soon turned on Nixon, when he found himself in the midst of a potential scandal, and called upon the privilege to withhold embarrassing and incriminating evidence rather than 'vital' as the doctrine specifies. In short, Nixon gave executive privilege a bad name by misusing it with personal relevance rather than invoking it for the sake of national defense. By setting an extremely negative precedent, the Nixon administration affected policies in regard to the doctrine for future presidencies. The Post- Watergate Years: The 'Open' Presidencies of Gerald R. Ford and Jimmy Carter In the years following the Nixon administration, the White House was forced to take a decidedly different approach to the executive privilege. Because of Nixon's tainting of the doctrine, the American public tended to view the executive branch in a negative light with regard to secrecy and withholding information from Congress and the people. Both Ford and Carter made special efforts to keep their administrations 'open' and public. Neither president rejected the legitimacy of executive privilege, but instead crafted strategies to withhold information without resorting to the privilege, such as invoking statutory law and the separation of powers doctrine. The nature of the post-Watergate environment was such that the presidency was eyed as elusive and secretive, and Ford understood that it would be in his best interests to avoid stirring up controversy over an issue so closely linked to the stigmatized Nixon presidency. In the spirit of the 'open' administration, Ford gave Congress unprecedented access to information about the activities of the CIA and the FBI. Ford failed to take a firm or official stand on his interpretation of the privilege, thus making a wise political move towards gaining public trust. When Jimmy Carter sought the presidency, he did so on a platform of 'open' government and fundamental change from the Nixon era. Like Ford, he never issued a formal directive defining his administration's policy on the use of executive privilege, and ostensibly avoided making use of the power. In October of 1980, the counsel to the president issued a set of procedures on the use of the privilege to the White House staff, and to the heads of units within the Executive Office of the President. The Carter administration recognized the need to accept but avoid the executive privilege, for politically necessary reasons of progressing beyond the Watergate scandal. The Post- Watergate Years: Ronald Reagan, George Bush, and the Era of Divided Government Following the efforts of Ford and Carter, Ronald Reagan and George Bush were somewhat more aggressive at pushing governmental secrecy, although not successful at reestablishing the viability of the executive privilege. Although Reagan invoked executive privilege on a number of occasions, he never fully exercised that power. When confronted by congressional demands for information, Reagan generally followed a pattern of initial resistance followed by accommodation of the requests. He was careful not to resist demands for information, lest his administration remind Congress of Watergate. Like Ford and Carter, Reagan did not take a firm stance on the privilege, and therefore made no progress towards altering public perception of it. The Bush administration demonstrated that it may be easier to withhold information in the post-Watergate environment by not asserting executive privilege. Instead, they avoided the controversial doctrine and claimed other justifications for withholding information. There were only two marked uses of the doctrine by the Bush administration: the A-12 aircraft controversy and the protection of his predecessor's diaries; more often than not, such actions were avoided. Rozell concludes his analysis of the post-Watergate presidencies by discussing the following five summarizing points: 1. Because of the taint of Watergate, presidents have been reluctant to exercise certain constitutional prerogatives, such as executive privilege. 2. No post-Watergate president, not even Jimmy Carter, has rejected outright the legitimacy of executive privilege. Every one has considered that power a legitimate presidential prerogative and has exercised that power at one time or another. 3. Successive presidential administrations, Republican and Democratic alike, have tried to find ways to achieve all the benefits if executive privilege while avoiding, when possible, the use of the phrase 'executive privilege.' 4. Because of Watergate, Congress has become especially vigilant in its attempts to constrain presidential exercise of prerogative powers. Consequently, Congress is less deferential to claims of executive privilege than it used to be. 5. No post-Watergate administration has been willing to take an aggressive posture toward executive privilege to reestablish the political viability of the doctrine. Clearly, each administration has perceived the political costs to be too great. Rozell does an excellent job analyzing each administration's use and avoidance of the doctrine, citing specific examples of the invocation of the privilege, and explaining the aftermath of each invocation. Although tedious at times, this chapter and the preceding one are incredibly comprehensive and systematic, and Rozell provided a concise summary of the actions of each administration at the end of the chapter. Resolving the Dilemma The conclusion and final portion of Rozell's book is devoted to his thoughts on how to 'resolve the dilemma of executive privilege.' He proposes a return to a 'pre-Watergate understanding of the legitimacy of executive privilege in a constitutional order.' Rozell asserts that there is nothing inherently wrong with the doctrine, as long as it is invoked reasonably. Because of Nixon's perversion of the doctrine, it will be nearly impossible to revert back to pre-Watergate understanding, no matter how conservatively administrations invoke the privilege. It is impossible to foresee situations in which the doctrine may be called upon, but with guidelines, limitations, and precedents in place, it is more likely now to be properly invoked. Rozell discusses the necessity of the doctrine, and claims that it is essential to protect the presidency. He proposes a set of guidelines, much like the ones established in 1980, to dictate when and to what extent the executive privilege is appropriate. This suggestion would prevent any recurrence of Watergate-like invocation, and could also alter public perception of the privilege, if constraints of the doctrine are formally imposed. Review and Conclusions "Executive Privilege" is clearly a trade book, filled with sophisticated political terminology and scattered with instances of name-dropping. According to the published review, Rozell's work is 'written in a clear, engaging style and is suitable for both beginning undergraduates and for more advanced students who will not mind turning to the back of the book to look up the scholarly documentation.' In my opinion, this couldn't be farther from the truth. I was forced to read the book with a dictionary in hand, and reread many sections of it twice to determine what the author was actually saying. I also was bothered by the fact that Rozell seemed to be a direct attack/response to Raoul Berger's "Executive Privilege: A Constitutional Myth," citing the author on nearly every single page. I think it might have been helpful if I had read Berger's piece as well, because it seemed to be a central discussion of Rozell's book. Rozell uses extensive documentation and citations of hundreds of relevant experts to make his points, but loses credibility when he makes sweeping summarizing statements such as "Critics of executive privilege not only take a too narrow view of the Constitution; they have an unrealistic understanding of how America's governing system should work" (49). He attempts to present many points of view, but does a poor job displaying them in equal light. For those who are unfamiliar with political theorists and scientists, "Executive Privilege" can be a tedious string of names and quotes strung together with Rozell's own unoriginal ideas. There are thirty pages of footnotes at the end of the book documenting of the peers which Rozell cited. Instead of an original, comprehensive work, it was more of a collection of citations and attacks on Rozell's peers. Rozell assumes that the reader is already familiar with the works mentioned, and gives little background discussion to each. Despite the meandering and diversions, I admittedly learned from the book. It was helpful to see both affirmative and negative perspectives on the order of executive privilege, as well as read historical (although partially biased toward proving Rozell's points) examples of invocations of the privilege. I think that Rozell is a very intelligent and informed author, but the book could be improved by explaining citations and discussing views rather than listing them. |
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