Executive privilege, or executive cover-up?

Some Senators are triumphantly proclaiming that the way is clear for them to haul Cabinet Secretaries, and Executive and military officials, before investigating committees where they can be grilled to the Senators’ hearts’ content. The Senators’ boundless joy is premature.

Their menacing banging of swords against shields also betrays a troubling inability or unwillingness to comprehend exactly what the Supreme Court meant when it declared Executive Order 464 partly unconstitutional and partly valid.

The painful implication for the Senate is that whatever orders it issues, citing Cabinet members in contempt for refusing to answer questions will, in the end, not be the final word on the matter. The final word will be the Supreme Court’s, in the likely event the President, or a head of office authorized by the President, invokes "executive privilege" and Congress refuses to back down.

So what is "executive privilege?" Simply put, it is the power of the government, meaning the Executive Department, to withhold information from Congress, the courts and ultimately the public. As the US Supreme Court said in a 1974 case involving then President Richard Nixon, "The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution."

Our Supreme Court noted that it may be more accurate to speak of "executive privileges," since the privilege covers three main types: state secrets, whose disclosure endangers crucial national security, military or diplomatic objectives; the identity of informers who have given information of violations of law to law enforcement officers; records of internal deliberations, including documents, conversations, correspondence which form part of the process by which decisions and policies are formulated.

But this listing is not exclusive. Since the accepted principle seems to be that the Executive department must be afforded as much leeway and freedom as constitutionally possible in the shaping of policies and formulation of decisions, it is an open question as to whether inquiries purportedly in aid of legislation, but actually in aid of "destabilization" or undue interference in the work of executive officials, may eventually be deemed by the Court to be included within the scope of executive privilege.

Let’s start with what the Court did NOT invalidate, Section 1 of EO 464. This Section of the EO specifically refers to Article VI, Section 22 of the Constitution which states that "heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard…on any matter pertaining to their departments."

Such appearances, the Supreme Court ruled, are purely discretionary on heads of Executive departments whose presence cannot be compelled by Congress. In this type of "inquiry," executive privilege is immaterial and Executive officials do not even have to show that they possess information which might be covered by executive privilege.

Art. VI, Section 22 refers to the "Question Hour," the practice in parliamentary systems where Cabinet ministers who are also members of the legislature are required to appear before their peers in the legislature to whom they are directly accountable. That system, provided for in the 1973 Constitution, was maintained in the 1987 Constitution, despite the restoration of the presidential system, mainly to allow Congress to pursue its oversight, as distinguished from its legislative, functions.

The Court underscored the distinction between the Question Hour and inquiries in aid of legislation under Art. VI, Section 21. Attendance is compulsory in inquiries in aid of legislation UNLESS the Executive can validly claim executive privilege through the President or the Executive Secretary acting by order of the President.

The claim of privilege must be specifically asserted by the Executive. The questions the Court will ask are whether the requested information falls within one of the "traditional privileges" and whether that privilege should be respected given the circumstances in which it is claimed. The doctrine of executive privilege is premised on necessity of such high degree as to outweigh the public interest in requiring disclosure.

Certain provisions of E.O. 464, specifically Sections 2(b) and 3, were declared unconstitutional. In particular, Section 2(b) was an abuse of executive privilege because it sought to list the officials covered by the privilege, whereas the privilege is properly invoked in relation to categories of allegedly protected information.

Further, Section 3 amounted to an implied and wholesale claim of privilege. But, the Court said, the ground claimed and the circumstances surrounding that claim must be specifically alleged since the Court had to assess the claim on a case by case basis.

So, what does this mean for Congressional inquiries and investigations? For one thing, we can expect Congress to henceforth label all its inquiries "in aid of legislation" to enable it to compel attendance by Executive officials. On the other hand, we can expect more battles over executive privilege which will inevitably wind up in the laps of the Justices of the Supreme Court.

The Court will thus have many golden opportunities to sharpen current jurisprudence on the parameters of executive privilege. Inevitably, the Court will play the role of ultimate arbiter between two other warring co-equal branches of government.

The initial skirmishes are bound to be between a stubborn Senate and a determined Executive, at least as long as the majority in the House remains with the administration. At center stage will be the Garci tapes, the fertilizer fund scam, the North Rail project, and jueteng. Entreaties based on alleged public boredom with such hearings will be rejected with appeals to the claimed primordial need to know the truth.

You think the Supreme Court decision on E.O 464 settled everything? Notice how the Solicitor General is claiming victory in the Court’s junking of the government’s calibrated preemptive response policy? Do we need any more proof that beauty is, verily, in the eyes of the beholder? As things now stand, this country is headed for more turbulent political weather. Count on it!