The Imperial Presidency, Secrecy, and the Intelligence Community
By: Mitchell Nemeth
Tags: National Security, Conservatives, Donald Trump, FBI, Politics

In “The Imperial Presidency Continues to Flourish Part I,” I wrote that the consistent growth in the Executive Branch has been a bipartisan effort. In this piece, I intend to focus more on, as historian Arthur Schlesinger, Jr. calls it, “the all-purpose invocation of ‘national security’, the insistence on executive secrecy, [and] the withholding of information from Congress.” There continues to be concerted efforts to use the tools of the Executive to interpret constitutional and legislative requirements in favor of the Executive Branch, in the sphere of Separation of Powers. The current administration is no outlier; instead it is merely continuing a long-term trend.

The Intelligence Community, a set of national security institutions accountable and responsive to the President, is notorious for referencing ‘national security’ and ‘sources and methods’ as justifications for redacting classified information. The use of these defenses is largely justified, however, the large-scale use clouds a democratic prerogative — transparency. One vital tool in combating government secrecy is the Freedom of Information Act, commonly referred to as FOIA. FOIA is a 1960s law requiring the disclosure of unreleased information and documents controlled by the federal government, upon request. Legislators intended to promote transparency so that the public could more thoroughly understand issues and pressure Congress and administrative officials to address them. Often times, documents are released with little to no pushback. On occasion, the agencies will redact, or conceal certain passages deemed applicable to the FOIA exemptions.

FOIA exemptions include the following:

Properly classified as secret in the interest of national defense or foreign policy

Related solely to internal personnel rules and practices

Specifically exempted by other statutes

Privileged interagency or intra-agency memoranda or letters, except under certain circumstances

These statutory exemptions are not prima facie evidence of any concealment. The American people expect that administrative agencies take steps to protect the national interest, namely diplomatic negotiations and military operations. The question becomes: Who defines national interest and what is the national interest? As one could imagine, this standard fluctuates depending on the administration.

Each President has specific political and diplomatic goals. For example, the Obama Administration was keen on seeking more relaxed diplomatic efforts with the Iranian regime, while the Trump Administration seeks harsher sanctions on what they deem to be a hostile foreign power. Another example includes President Trump’s August 23rd, 2019 tweet wherein he “hereby” orders American companies to seek immediate alternatives to China.

Political and diplomatic goals may shift between administrations, but efforts to protect national security remain as strong as ever. Senate Minority Leader Chuck Schumer famously said, “Let me tell you: You take on the intelligence community — they have six ways from Sunday at getting back at you.” For those on the receiving end, this characterization is terrifying. The Obama Administration pursued nine cases involving whistle-blowers and leakers, tripling the amount prosecuted by all previous administrations combined.

At The New York Times, James Risen writes, the Obama Administration “has repeatedly used the Espionage Act, a relic of World War I-era red-baiting, not to prosecute spies but to go after government officials who talked to journalists.” Risen further states that the Department of Justice (DOJ) and Federal Bureau of Investigations (FBI) spied on reporters, labeled a journalist an “unindicted co-conspirator” for reporting, and “issued subpoenas to other reporters to try to force them to reveal their sources.” President Obama justified some of these prosecutions using the ‘national security issue’ mantra. As Risen reports, these leak prosecutions largely began during the Bush Administration with the Valerie Plame case. The Plame case involved the outing of Ms. Plame as a covert CIA operative, which led to “a series of high-profile Washington journalists being subpoenaed to testify before a grand jury.”

The precedent set by the Obama Administration was quickly built on by the Trump Administration. In August 2017, then-Attorney General Jeff Sessions pledged to target government officials who publicly disclosed classified information; he followed through, as the number of leak investigations has tripled under the Trump Administration. The Department of Justice announced that a recent charge was “one of six unauthorized disclosure cases in just over two years.” Why does this matter to the Imperial Presidency?

Government prosecution of unauthorized disclosure, or leak, investigations pose a challenge to the practice of journalism and effective governance. Often, elected officials or law enforcement will rely on whistle-blowers or journalists for information. For example, the well-known Mueller Report, or Report on the Investigation into Russian Interference in the 2016 Presidential Election, cites news reports ad nauseam. Such unauthorized disclosure investigations may dissuade journalists or members of Congress from discovering evidence that may implicate a given politician committing a criminal or nefarious act. Add to this the abilities of the FBI and DOJ to utilize the Foreign Intelligence Surveillance Act (FISA).

FISA is a 1970s law that solidifies the process by which the federal government can conduct authorized surveillance, or spying, of “foreign agents.” FISA authorizes a whole host of surveillance tools to be utilized under specific guidelines. In 2013, CIA employee Edward Snowden exposed global surveillance programs conducted by the federal government, with the cooperation of telecommunications companies. Under the 2001 USA PATRIOT Act, Congress granted the Intelligence Community additional tools. Most problematic with the entire operations of FISA is the Foreign Intelligence Surveillance Court’s (FISC) rubber-stamping of FISA requests. There have been allegations, floating among conservatives, that the Obama Administration weaponized the FISC against members of the Trump Campaign and utilized the National Security Agency’s databases to conduct surveillance on politicians. Additionally, a newly declassified ruling from the FISC demonstrates “a stinging rebuke to the FBI’s overreach of its ability to search surveillance intelligence databases.” Despite Republicans’ grievances with the controversial law, the law was ultimately re-authorized by President Trump