Balkinization: The Hearings Congress Should Hold After the Nunes Memo’s Release

The Hearings Congress Should Hold After the Nunes Memo’s Release

Deborah Pearlstein

You may be forgiven for missing the news that the Trump Administration on Friday released its Nuclear Posture Review, the statutorily required report the Defense Department submits to Congress every four years establishing U.S. nuclear policy until the next report. The report, among other things, calls for the development of new low-yield nuclear weapons (weapons conceived by their advocates as more readily suited toward a limited, battlefield-type context); and it effectively lowers the threshold for what might provoke a U.S. nuclear strike by including cyberattacks in the list of potentially strategic threats. Its release caps a week that saw Trump’s candidate for U.S. Ambassador to South Korea (yes, the post is still open more than a year into the presidency) – a conservative academic who served in the George W. Bush Administration – withdraw over concerns about the administration’s increasingly active consideration of a limited military strike on the North; publish a high-profile op-ed warning that such a so-called “bloody nose” strike “would be putting at risk an American population the size of a medium-size U.S. city [the 230,000 Americans living in South Korea]… on the assumption that a crazy and undeterrable dictator will be rationally cowed by a demonstration of U.S. kinetic power”; and also saw news leak that the Pentagon was considering changing its policy of allowing U.S. service members deploying to South Korea (our standing force there includes about 30,000 troops) to bring their families along (an eminently reasonable and yet ominous step reflecting the profound tensions in the region).

So what does any of this have to do with the Nunes memo – other than as an example of how much more important news the Friday memo frenzy displaced? The sweeping constitutional power over national security we have afforded presidents since the first Korean War is premised centrally on the idea that presidents – in particular their “confidential sources of information,” their “agents in the form of diplomatic, consular and other officials” (Curtiss-Wright) – have access to unique information and expertise that made empowering the presidency essential to American security. I have written before about the dubiousness of this assumption in supporting broad presidential to use force without congressional authorization. But as I explain below, the Korea crisis gives us a whole new set of associated constitutional problems to contemplate. For far more important than the content of the memo itself, the cover letter by White House Counsel Donald McGahn, conveying the President’s authorization for the Nunes memo’s release, is yet another object lesson in why the expertise assumption about presidential decision-making should be far more contingent than it typically is.

The McGahn letter begins with reference to one of the cases regularly cited to establish how broad presidential power is over national security in the modern era, Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988), quoted in this letter for the proposition that: “The Constitution vests the President with the authority to protect national security secrets from disclosure. As the Supreme Court has recognized, it is the President’s responsibility to classify, declassify, and control access to information bearing on our intelligence sources and methods and national defense.” Egan is, in this particular context, a deeply ironic case to cite. Setting aside the reality that Egan posed the rather narrow question whether a naval employee denied a security clearance had a statutory right to review of the decision by the Merit Systems Protection Board, the Court’s central rationale for ruling against a right of review was the importance in the security context of respecting expert agency discretion. As the Court put it: “Predictive judgment of this kind must be made by those with the necessary expertise in protecting classified information. For ‘reasons . . . too obvious to call for enlarged discussion,’ the protection of classified information must be committed to the broad discretion of the agency responsible.”

Here, of course, every relevant agency whose view was known on the question of whether the memo should have been released thought it should not be. And while McGahn’s letter says the President followed “established standards governing the handling of classified information” in making his decision, those standards (contained in Executive Order 13526) provide that questions about whether the public interest favors disclosure “shall be referred to the agency head or the senior agency official,” and “[t]hat official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.” McGahn may be accurate in stating that the President sought the agencies’ “input.” He sought it, and then ignored it.

Which brings us back to Korea, and how to evaluate the import of yet more news from this past week, this story reporting that the Pentagon has been slow-walking its effort to provide additional military options to the White House out of fear that giving the president too many choices might increase the odds that he will take action that could trigger a catastrophic North Korean response. The history of military foot-dragging of this nature is storied, and regularly (and rightly) triggers yet a different debate of constitutional import – the unresolved debate about what we mean by civilian control, and whether such behavior undermines it in a constitutional sense. (More than you want to know about that debate in my previous work, here.)

More difficult than the usual question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies, one prominent theory of civilian control has it that civilian leaders in a democracy “have the right to be wrong,” that the curative for bad civilian decisions is, as with all else, democratic accountability at the voting booth. Yet as important an argument that may be in some circumstances, such an ex post facto approach to executive constraint seems rather cold comfort when what may turn out to be a ‘wrong’ decision has the effect of costing tens of thousands of Americans (and many more Koreans and/or Japanese) their lives. The other leading theory of civilian control – Huntington’s idea that a “strong, integrated, highly professional officer corps…, immune to politics and respected for its military character, would be a steadying balance wheel in the conduct of policy” – seems equally unsatisfying, for Huntington thought effective objective control of this nature was made much more difficult by the constitutional decision to give both the President and Congress some power in overseeing the military. In his view, Congress’ power to, for example, call officers to testify, put military professionals in an impossible position, having to choose at times between their genuine objective judgment and loyalty to (and employment by) their Commander in Chief. As Huntington put it: “The separation of powers ... has been a major hindrance to the development of military professionalism and civilian control in the United States.”

Circumstances like the current one make me far more inclined to conclude there is something wrong with scholars’ two primary theories of “civilian control” than with our separation of powers system. For as uncomfortable as it may make our military professionals to speak their unvarnished views to the relevant congressional committees – and I think history has repeatedly shown many officers able to manage their professional discomfort better than Huntington might have surmised – it is apparent that no Commander in Chief, and above all not this one, will always act on what expertise he has available to him. What the separation of powers should – and does – give us, is at least the chance to hear those views for ourselves.

Posted 4:10 PM by Deborah Pearlstein [link]