A Philosopher's Blog

The Fast & The Foolish II: Executive Privelege

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on June 21, 2012
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Back when the Fast & Furious debacle hit the media, I did a critical post on the incident. To this day, I wonder about the thinking behind that plan and had hoped that this mess would at least be sorted out a bit. While congress has decided to pursue the matter (and correctly so), the Obama administration decided to evoke executive privilege to avoid releasing certain relevant documents to congress.

While Fox News tends to flip-flop on executive privilege based on the political party of the president,  I have been consistently critical of the practice. As such, I can recycle much of what I have said in the past about this matter.

In the face of the “Fast and Furious” debacle and its handling by Attorney General Holder, President Obama has decided to invoke executive privilege.

While this alleged power to invoke executive privilege is not specified in the Constitution, the gist of it is that the President can refuse to provide the public with information that he deems as privileged. This power is often invoked in the name of national security but is also justified by the claim that a President’s minions need to be able to freely provide advice without being worried that such advice will be made public. Thus, the justification is based on consequences: such things must be kept secret for the good of the country.

From a moral standpoint this practice can be justified on utilitarian grounds. To be specific, this keeping of secrets  can be justified by appealing to the fact that this practice prevents far greater harms. Although the Obama administration has done little or nothing to show that these matters must be kept secret for the good of the nation, this moral logic is reasonable. However, the challenge lies in showing that revealing the information in the documents would do undue harm to the country and hence that the president is morally justified in keeping them secret.

If, for example, the documents contained detailed information about ongoing law enforcement operations (especially those involving undercover aspects) and releasing such information could prove harmful to these operations (and put people in danger), then it would be reasonable to keep these documents secret. However, this does not seem to be the case. Also, if the documents did contain such information, then the administration would not need to use executive privilege-they could appeal to the importance of secrecy in this case.

On the face of it, the most plausible explanation is that the documents contain information that would be harmful to or embarrassing for the administration. After all, evoking executive privilege will create the impression that there is something they want to hide and, assuming that the security hypothesis is not true, the reasonable inference is that whatever is being hidden would be more damaging than the harm done by creating this impression.

It might be countered that the administration is merely acting to assert the right of the executive branch against an intrusion by congress. While this does have some appeal, congress does appear to be acting well within its legal rights and is doing its job. As such, the president seems to be wrongly impeding congress rather than rightfully defending executive turf.

It might also be countered that this is a partisan attack on the president by the Republicans calculated to score political points. While I am sure that the Republicans would be happy to score points here, they are actually doing what they should be doing, namely investigating a law enforcement debacle and what might well be a cover up that reaches (as they say in the movies) all the way to the top. As such, the points they score will most likely be earned legitimately.

Unless the administration can provide a good reason to believe that the documents contain information that must be kept from congress for legitimate reasons, then this invocation of executive privilege is wrong and it invites people to speculate as to what sort of damaging information is contained in the documents.  It should be hoped that Obama changes his mind and releases these documents voluntarily. After all, while the president does have the right to evoke executive privilege, it is not a screen that is to be used to hide misdeeds. Naturally, if there are no misdeeds, then there would seem to be nothing worth hiding-so they should be released.  If there are misdeeds, then the president has no moral or legal right to conceal them with executive privilege.

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14 Responses

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  1. FRE said, on June 21, 2012 at 1:55 pm

    I was very disappointed when Obama invoked executive privilege. Perhaps there is a good reason for his doing so, but it is responsibility to convince people that that is the case. Surely he must realize that there is a price for invoking executive privilege.

    • Michael LaBossiere said, on June 21, 2012 at 5:46 pm

      This lends credence to the claim that whatever is hiding in those documents must be rather bad.

  2. magus71 said, on June 21, 2012 at 2:31 pm

    Please note the entirely different tone taken in this article and the one linked below.


    Specifically, no mention of “Obama and his minions.”


  3. T. J. Babson said, on June 21, 2012 at 4:29 pm

    Obama is morphing into Nixon before our eyes.

    • Michael LaBossiere said, on June 21, 2012 at 5:50 pm

      That seems to be a false equivalence/analogy, unless those documents contain information that shows Obama acted in ways comparable to Nixon (such as the Watergate stuff). Getting to a Nixon level requires more than just one invoking of executive privilege. But maybe he is just warming up…

      • magus71 said, on June 22, 2012 at 7:19 am

        No one died at Watergate, Mike.

        • Michael LaBossiere said, on June 22, 2012 at 9:37 am

          That is true. Would you say that this one incident makes Obama equivalent to Nixon because one person was murdered using a gun that came from this operation?

  4. Dave said, on June 22, 2012 at 12:22 am

    Although I am a big proponent of transparency in government, it is entirely possible that the president is properly asserting executive privilege for legitimate reasons such as protecting the lives of undercover agents or avoiding compromising existing missions or undercover techniques. I would support Congress’ demand for the documents more readily, if I hadn’t seen a clip of the committee chair espouse his views that the operation was all part of an elaborate plot by the democrats to gain support for restricting gun rights in the U.S.

    • T. J. Babson said, on June 22, 2012 at 7:27 am

      We welcome your explanation of this boneheaded operation, Dave. Simple stupidity, or was there some deeper agenda?

      In 2009, the US government instructed Arizona gun sellers illegally to sell arms to suspected criminals. Agents working for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) were then ordered not to stop the sales but to allow the arms to “walk” across the border into the arms of Mexican drug-traffickers. According to the Oversight Committee’s report, “The purpose was to wait and watch, in hope that law enforcement could identify other members of a trafficking network and build a large, complex conspiracy case…. [The ATF] initially began using the new gun-walking tactics in one of its investigations to further the Department’s strategy. The case was soon renamed ‘Operation Fast and Furious.”

      Tracing the arms became difficult, until they starting appearing at bloody crime scenes. Many Mexicans have died from being shot by ATF sanctioned guns, but the scandal only became public after a US federal agent, Border Patrol Agent Brian Terry, was killed by one of them in a fire fight. ATF whistle blowers started to come forward and the Department of Justice was implicated. It’s estimated that the US government effectively supplied 1,608 weapons to criminals, at a total value of over $1 million. Aside from putting American citizens in danger, the AFT also supplied what now amounts to a civil war within Mexico.


      • Michael LaBossiere said, on June 22, 2012 at 9:53 am

        The basic idea of allowing criminals to “get away” with certain crimes so as to further a broader investigation does seem to be a viable method of police work. For example, an undercover cop probably would not bust the street dealer when he is after the bigger guys behind it.

        The key problem with the Fast and Furious operation seems to be the tracking problem. After all, if the guns go out into the darkness of crime and then resurface in the hands of a street level criminal, that just tells us the obvious: guns get from here to there.

        Tracing the guns was a potentially good idea-if they could have actually traced them through the system. They should have tested it on a small scale to see if they could actually trace a gun-putting out 1,608 guns and then realizing it didn’t work was foolish.

        Having some familiarity with bureaucracies, I would go with the poor reasoning explanation. Even if it is claimed that Obama was plotting to use this as a basis on which to erode gun rights, then I would say that would be an idea even more stupid than letting guns go out in large numbers without knowing whether they could be tracked or not. After all, suppose it had gone as planned-the guns were traced through to Mexico. This would enable Obama to do what? Enforce existing laws about not selling guns illegally?

    • Michael LaBossiere said, on June 22, 2012 at 9:31 am

      That would be the reasonable counter. However, more should be done to make that case on the part of Holder. Also, they could release the information that does not pertain to the missions or techniques. Alternatively, since congress does handle matters of national security, they information could be turned over to a committee that has the right sort of “clearance” to know about such operations and they could review it.

      The conspiracy theory does damage their credibility-after all, it does make it sound like they are, in fact, on a witch hunt and after the president rather than after the truth.

      I’m impressed with the irrationality of people that fear Obama is involved in some sort of grand anti-gun conspiracy. After all, the main gun related legislation has been to expand carry rights and no new restrictive laws have been put forth under Obama’s direction. It has been claimed that his first term was just a clever ruse and he is setting the stage for his second term in which he takes America’s guns. That seems a bit far-fetched. After all, why wait that long when he could have done it his first term?

  5. magus71 said, on June 22, 2012 at 7:21 am

    Names in any government document can always be redacted, thus protecting sources and methods, just as happens in the intelligence community.

    But it seems suspicious that the only real “scandal” this administration has been (besides the scandalously bad way it’s governed) results in the AG and President withholding key documents that it would seem, if Holder told the truth, would prove them honest. Especially in “the most open administration in history.”

    And this administration certainly hasn’t cared much fgor sources and methods when it comes to convenient intelligence leaks that make the president look strong on terrorism et al.

    • Michael LaBossiere said, on June 22, 2012 at 9:42 am

      True, the documents could be redacted or provided to a committee with the right “clearance.” After all, congress is entrusted with secret information.

      To be fair to Obama, he has done relatively well if this is his only scandal.

      We don’t know if the leaks on national security were authorized by the president. If they were and the information proves to be harmful to the US, then he acted wrongly. It is interesting that some folks are really angry about the leaks because they make Obama look good (that is, strong on terror). Presumable Obama’s successes in foreign policy are supposed to remain unknown to the voters so that he can be cast as weak and ineffective.

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