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.