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A further disappointment from the Obama Administration

By Jack M. Balkin

The New York Times has posted a very interesting story headlined "Democrats Say CIA Deceived Congress for Years," based on testimony of Leon Panetta before the House Intelligence Committee. That is not the "disappointment" mentioned in my title; rather, Director Panetta deserves credit for beginning to throw some light on CIA perfidy, in the service of the Bush Administration, during the past several years. Rather, what is disappointing is the following paragraph:

In a related development, President Obama threatened to veto the pending Intelligence Authorization Bill if it included a provision that would allow information about covert actions to be given to the entire House and Senate Intelligence Committees, rather than the so-called Gang of Eight ? the Democratic and Republican leaders of both houses of Congress and the two Intelligence Committees. A White House statement released on Wednesday said the proposed expansion of briefings would undermine ?a long tradition spanning decades of comity between the branches regarding intelligence matters.? Democrats have complained that under President George W. Bush, entire programs were hidden from most committee members for years.

This exemplifies why I have become exceedingly dubious about the ability of the President, including this one, to veto legislation simply on policy, rather than on constitutional, grounds. This veto threat is nothing more than an attempt to maintain Executive Branch prerogatives and to limit the flow of information to members of the House (or Senate) with the greatest understanding of what may be at stake. If we think that members of the Intelligence Committee are just too untrustworthy, then this is one more ominous sign of the threat to democracy implicated in the modern national security/surveillance state. The "long tradition" cannot, of course, go back more than 62 years, when the CIA was founded, and it primarily signifies the acquiescence of meek legislators to Executive Branch adventurism. From my perspective, this is just another example of "delegation run riot" and the institutional structure of our "constitutional dictatorship." It also, alas, serves as yet one more example of the proposition that Madison was right at least about Presidents, that all of them, regardless of what they say during campaigns, quickly attach their own "ambition" to that of the Executive Branch.

It is especially striking that the President is willing step out in front and to threaten a veto in order to protect CIA secrecy even from the elected (and presumably trustworthy) representatives of the people at the same time he so obviously fails to exercise even a modicum of leadership on getting rid of "don't ask, don't tell" in order to assure that the armed forces will be able to draw on the talents of all Americans who wish to serve their country. It's still morning in America for me, but I'm seeing more clouds and less of the clear blue sky that I had hoped for.

Full post as published by Balkinization on July 09, 2009 (boomark / email).