June 21, 2012 | By Mark Rumold

Hey Congress - Executive Privilege Getting in the Way of Public Accountability? EFF Feels Your Pain. And Here's a Way to Fix It.

Yesterday, a House Committee grabbed national attention by voting to approve a recommendation that Attorney General Eric Holder be held in contempt of Congress. The vote stemmed from the Department of Justice’s repeated refusals to release documents concerning the handling of an investigation known as “Fast and Furious” – a botched DOJ law enforcement operation aimed at slowing the flow of illegal weapons from the United States to drug cartels in Mexico. In an effort to head off a contempt vote, President Obama asserted “executive privilege” on Wednesday in an attempt to legitimize the DOJ’s refusal to disclose the requested documents. Multiple reports noted that this was the first time the President had asserted the privilege since taking office.

If only that were true of the entire executive branch. Unfortunately, the DOJ asserts the privilege in EFF’s FOIA cases all the time. So Congress, we know what you’re going through, we feel your pain, and we’ve got a way you can fix the problem.

If Congress really wants to send a message to the DOJ, it should forget about a contempt vote and focus on a long-term solution: cabining the Executive’s ability to assert the privilege in the first place.

In general, evidentiary privileges protect the compelled disclosure of information in formal government proceedings. Some of the more familiar privileges are the attorney-client privilege, the privilege against self-incrimination, and the doctor-patient privilege. The executive branch, too, has its own set of privileges, which come in a few different varieties, all with differing legal foundations and scope. For example, the presidential communications privilege (sometimes referred to, confusingly, as the executive privilege) is constitutionally grounded and, when invoked, protects any document or communication between, or generated for, the President and his closest advisors. Another type of privilege available to the Executive, the state secrets privilege, is not constitutionally grounded but, instead, has its roots in the common law. The state secrets privilege can only be used to withhold information concerning foreign relations and military affairs. 

The privilege asserted by the President on Wednesday is the deliberative process privilege (pdf), a common law-based privilege that, properly applied, is applicable to a narrower and more specific type of record than the presidential communications privilege, yet is available to a larger swath of the executive branch. The deliberative process privilege only protects internal, executive branch communications created in the course of government policy formation. The rationale behind the privilege is that, if executive officials are not allowed to keep some internal deliberations secret, officials will be inhibited from freely expressing ideas and opinions; and, as a result of this inhibition, the process of policy formulation will be less robust and resulting government policies will suffer.

In the abstract, the privilege makes sense. However, in practice – and in EFF’s FOIA cases in particular – the DOJ’s assertion of the privilege rarely aligns with the underlying rationale.

For example, in our FOIA lawsuit over a secret DOJ Office of Legal Counsel legal opinion setting forth the FBI's authority under federal surveillance law, the DOJ asserted the deliberative process privilege (along with other FOIA exemptions) to withhold the binding opinion in its entirety. The DOJ invoked the privilege despite the fact that the memo was a final version (as opposed to a draft), despite the fact that the opinion had been distributed outside DOJ to other government agencies and to members of Congress and their staffs; and despite the fact that the memo shapes and interprets the privacy rights of citizens under federal law. In effect, the DOJ relied on the privilege, at least in part, to hide a body of secret surveillance law from EFF and the American public.

In another case involving the deliberative process privilege, EFF sued to obtain records related to the High Level Contact Group – a joint EU and U.S. working group tasked with negotiating a set of common principles on the transnational sharing of citizens’ personal information for law enforcement purposes. EFF sought all DOJ records that reflected the negotiating positions of the EU and the U.S. – positions  which were necessarily disclosed outside the DOJ (to officials of foreign governments, no less) simply by virtue of the nature of bilateral negotiations. Again, the DOJ claimed the deliberative process privilege protected much of the requested information. According to the DOJ’s interpretation of the privilege, while disclosure of the information to foreign government officials was no problem at all, disclosure to EFF and the American public would cause grave harm to the agency’s deliberative process. These types of assertions of the privilege turn its legitimate rationale on its head, only serving to obstruct the public’s ability to know what its government is up to. 

At its essence, nearly every FOIA case EFF litigates is identical to the battle playing out right now between Congress and the Executive. Congress has requested documents to shed light on government practices and to keep the executive branch accountable to the public. Instead of being forthcoming and transparent, the Executive has instead chosen to rely on a tenuous interpretation of the deliberative process privilege to stymie the process and obstruct the public’s ability to hold executive officials truly accountable.

But, at least in the FOIA context, Congress can fix the problem. Instead of wasting time with a symbolic (and, ultimately, pyrrhic) contempt vote, Congress should act to change the deliberative process privilege through statute. Unlike the presidential communications privilege, the deliberative process privilege is not constitutionally based, so a law cabining the Executive’s invocation of the privilege is less likely to create constitutional separation-of-powers problems. So, for example, Congress could amend FOIA to require a Court – whenever the deliberative process privilege is invoked to withhold information – to balance the public interest in disclosure of the information against the magnitude of the potential harm to the executive agency’s deliberations. This type of balancing is already used in other FOIA exemptions and would go a long way towards preventing some of the more egregious invocations of the privilege. A balancing test would also provide an agency enough space to rely on the privilege when it is being legitimately invoked, yet would prevent agencies, in case after case, from simply repeating the same generic and speculative assertions of harm to agency deliberations. 

So Congress, if you’re serious about sending a message to the Attorney General and the DOJ, forget about the contempt vote. Instead, hit them where it counts: their FOIA exemptions.

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