Sollenberger & Rozell: Administration Jeopardizes Open Government

Posted April 30, 2010 at 3:37pm

It had to happen eventually. Despite promises of a new era of open government, the Obama administration and Congress may end up on a constitutional collision course over an access-to-information dispute.

[IMGCAP(1)]The first major such dispute of the Obama era concerns information regarding what the Defense Department, the Justice Department and the FBI knew about the alleged gunman, Maj. Nidal Malik Hasan, prior to the Nov. 5, 2009, Fort Hood shootings. The Senate Homeland Security and Governmental Affairs Committee wants access to witnesses and documents directly related to the government’s conduct with respect to Hasan before the attack. For months, despite the committee’s repeated requests for access to this information, the administration refused to cooperate.

In response, Sens. Joe Lieberman (ID-Conn.) and Susan Collins (R-Maine) issued subpoenas to Attorney General Eric Holder and Defense Secretary Robert Gates. The administration responded by giving Congress redacted versions of the Justice Department’s review of Hasan’s communications, Hasan’s Defense Department personnel file and performance evaluations, and an annex of the Pentagon’s internal report of the incident, but not access to front-line agents and certain key documents. The president has not uttered the words “executive privilege.” But the sparse response to the committee’s request suggests that his administration is assuming a broad executive privilege against cooperating with Congress without directly asserting one.

Gates maintains that disclosing the information in this case might compromise the prosecution. Such concerns about protecting the integrity of investigations deserve serious weight. But what weakens his claim is that the administration already has given private citizens access to exactly the same information that Congress has requested.

The Defense Department had earlier commissioned an investigation of the shootings. Two private citizens headed that commission and had access to witness statement summaries and transcripts. If maintaining secrecy is absolutely necessary to an executive branch investigation, then why provide information to anyone at all outside of that branch? And why, especially, is it acceptable to provide access to people outside government while denying a request from a coordinate branch for the same information?

There is precedent for administration agents providing testimony to Congress during an ongoing criminal investigation. In 1995, agents of the FBI and Bureau of Alcohol, Tobacco, Firearms and Explosives testified before Congress on the Ruby Ridge incident despite two ongoing criminal investigations. More recently, the Congressional Joint Inquiry Committee investigating 9/11 interviewed FBI agents who were potential witnesses to the criminal trial of Zacarias Moussaoui (the 20th hijacker).

Lieberman and Collins state that they are not investigating the Fort Hood shootings but “whether the government officials responsible for protecting our homeland against terrorists –– foreign or domestic –– correctly did their jobs.” That is an appropriate undertaking for the people’s branch, given its constitutional responsibility to protect the public by investigating the executive branch.

To be sure, there is a delicate balancing act that both sides have to perform in cases such as this one. The Obama administration needs to protect information that might limit its ability to bring the accused to trial. Congress has the responsibility of conducting proper oversight of the executive branch and developing policy to protect U.S. citizens from another homegrown terrorist attack. So whose interest should prevail?

The Senators have a legitimate claim in this case. It is wrong, and even insulting, to effectively tell Congress that it cannot be trusted with information that already has been given to people outside the government. On the other hand, continued conflict over this matter does not serve the interests of either branch or the public. Both sides need to find some way to come to an accommodation.

That can happen only if Congress is mindful of the executive branch’s need for confidentiality under certain circumstances and it does not seek more information than what is necessary to conduct proper oversight. And the administration should not try to provide a blanket protection of all information by asserting that somehow disclosure to Congress would interfere with an ongoing investigation. Stonewalling Congress only elevates the level of distrust and conflict.

At a minimum, the executive branch should provide Congress access to FBI and Defense Department agents, not mere summaries of their statements. Without this first-hand information, it is impossible for Congress to carry out its oversight responsibility. In addition, the administration should hand over all documents and testimony compiled by the Defense Department’s investigation of the shootings conducted by private citizens along with its final report. The administration and the committee could certainly establish protocols for questioning agents along with providing conditions for review of materials that will avoid broad public disclosure.

In the end, both sides need to reach an agreement that avoids escalating conflict or sending the matter into the federal courts. Judicial parameters would likely further complicate the relationship between the two branches. It is far better to mutually reach an accommodation where information is shared and the interests of both branches are protected.

Mitchel A. Sollenberger is assistant professor of political science at University of Michigan-Dearborn. Mark J. Rozell is professor of public policy at George Mason University. Both have written extensively on executive privilege and other separation-of-powers issues.