What
Secrets Are Protected Under a Claim of Executive Privilege?
In
United States v. Nixon, the President's
lawyers claimed that he had an absolute right of executive
privilege. Since the power of executive privilege is not
expressly stated in the Constitution, there was some controversy
over this matter. For
years, Presidents had claimed executive privilege on
the grounds that there was a need to protect military,
diplomatic, or national security secrets. The prevailing
thought was that a president cannot be forced to share
with other branches of government certain conversations,
actions, or information if sharing that information
could place the United States foreign relations at risk.
This "state secrets privilege" was generally accepted.
In the Supreme Court case of United States
v. Nixon, Nixon's lawyers argued that executive
privilege should extend to certain conversations between
the president and his aides, even when national security
is not at stake. They argued that in order for aides
to give good advice and to truly explore various alternatives,
they had to be able to be candid. If they were going
to issue frank opinions, they had to know that what
they said was going to be kept confidential.
In the opinion, the Supreme Court conceded that there
is indeed a privilege for "confidential executive deliberations"
about matters of policy having nothing to do with national
security. This privilege is constitutionally based,
deriving form the separation of powers. However, the
Court held that this privilege is not absolute but can
be overcome if a judge concludes that there is a compelling
governmental interest in getting access to the otherwise
privileged conversations, as in the case of the Nixon
tapes.
Read each "secret" below. In the space to the left of
the "secret" write "SS" for "state secrets" or "CED"
for "confidential executive deliberations." To the right,
mark "P" if you think the secret should be protected
under executive privilege or "NP" if you think the secret
would not be protected. Explain why you think the secret
would or would not be protected.
| State
Secret (SS) or Confidential Executive Deliberation
(CED)? |
"Secret" |
Protected
by executive privilege (P) or not protected (NP)? |
| SS |
The
American ambassador to France has been having
a secret affair with a single woman who is not
his wife |
NP
No risk involved to United States |
| |
Tobacco
companies sued by smokers for allegedly causing
cancer want to defend against the lawsuits by
claiming that federal subsidies to tobacco growers
show that there is a national policy to allow
smoking. They want to take testimony from the
Secretary of Agriculture about her conversations
with the President about including such subsidies
in the government's budget
|
|
| |
A
team of Marines is working secretly to train North
Korean farmers to overthrow their government
|
|
| |
Representatives
from the United States and Russia have been meeting
in secret to come up with a plan to reduce the
spread of nuclear weapons
|
|
| |
Members
of the California National Guard receive secret
information that terrorists are planning to attack
the Golden Gate Bridge in San Francisco
|
|
| |
The
President's Secretary of Defense is going to give
members of the Air Force's 777 Fighter Squadron
secret strategic commands during a war.
|
|
| |
An
employee in the American embassy in Kenya has
been secretly spying on the United States
|
|
| |
The
first lady forms a task force on health care and
insists that records of all of her meetings with
government officials and health care providers
are kept secret.
|
|
| |
The
Vice-President conceals the identity of persons
with whom he consulted in developing the administration’s
energy policy.
|
|
| |
Accused
of wrongdoing, the President claims that his aides
can not be called to testify in grand jury proceedings
|
|
| |
The
House Government Reform and Oversight Committee
Requests Justice Department documents that are
related to campaign finance abuses.
|
|
| |
After
pardoning several individuals, the President refuses
to allow his top staff members to testify before
a House panel investigating the pardons. |
|
|
