436The Limits of Executive
Privilege
Deciding what information a president can be compelled
to release to the public or to other branches of government
and what information can be kept confidential requires
confronting fundamentally political questions. There are no
right answers, and the limits of executive privilege remain
unclear. On the one hand, members of Congress need facts,
predictions, and estimates from the executive branch to
make good public policy. On the other hand, the president
and his or her staff have a right to keep their deliberations
confidential, as well as a practical need to keep some
things secret.
Consider the controversy over the practice (begun during
the Bush administration and continued under Presidents
Obama and Trump) of targeting terrorists using attacks by
unmanned drone aircraft. Compared with deployments of
other military forces, on the one hand, drone attacks have the
advantages of surprise (drones are small and fly high enough
to be invisible), low cost (drones are cheaper than fighters
or bombers), and lower risk (the drones can be controlled
from anywhere, so there is no risk of American casualties in
an attack). On the other hand, drone attacks carry the risk of
collateral damage—an attack may also hurt or kill innocent
civilians. Moreover, because drone attacks are conducted
in secret, there is little to no congressional oversight of who
gets targeted by drone strikes or the potential for collateral
damage. Should drone attacks fall under executive privilege?Keep the attacks secret. Clearly, revealing the targets
of drone strikes in advance of the actual attacks would
destroy the secrecy that makes these strikes so effective—
terrorists could stop using cell phones, stay indoors as much
as possible, travel only at night, and take other actions to
make themselves hard to spot from the air. But there would
be danger even in forcing an administration to release
information after an attack, as such documents would reveal
the criteria used to decide which terrorists to target, the limits
of the drone technology, and what factors made it easier to
carry out a successful attack. All of this information would
help terror targets evade future drone attacks and perhaps
require a return to using Special Forces to attack terror
targets, which would place American lives at risk.TAKE
A S TA N DReveal the information. The problem with imposing a
high level of secrecy on drone attacks is that it is an exception
to the rule of keeping Congress informed about the use of
military force. In the end, a drone is simply a different way of
attacking terrorists or their organization. While the need for
secrecy in advance of an attack makes sense, it is not obvious
why it should continue after an attack has been carried out.
In general, presidents are required to give Congress (in the
case of secret operations, the chairs and ranking members
of the Intelligence Committees) “prompt notification” of all
secret operations. This rule was intended to govern reporting
of all covert operations. Should drone attacks be given a
higher level of secrecy, or should presidents be forced to keep
members of Congress informed?The president’s role as commander in chief of America’s
armed forces gives him or her a tremendous amount of
power—power that often can be exercised secretly. What
should be the limits on presidential secrecy?take a stand
- One argument for using drones to attack terrorist tar-
gets highlights their greater effectiveness and lower
costs than other options. But drone attacks also involve
lower political risks to the president. Explain why this
is so. - Under current law, the president has to inform only a few
members of Congress about covert operations and can
wait until an operation is in progress before releasing
information. Why would members of Congress want
expanded notification requirements, such as informing
more members or requiring disclosure during the
planning of an operation?
Chapter 12 | The PresidencyFull_13_APT_64431_ch12_418-453.indd 436 16/11/18 10:33 AM