Presidential Secrecy and the Law

  • Published

Presidential Secrecy and the Law by Robert M. Pallitto and William G. Weaver. The Johns Hopkins University Press, 2007, 280 pp.

To paraphrase a quote from former secretary of defense Donald Rumsfeld, “There are things that we know we don’t know.” Such is the case with presidential secrecy—and conspiracy theories about what we think we don’t know are only bolstered when secrets are brought to light. When the secret presidential authorization for wiretapping was exposed by the press in 2005, many people were surprised to learn that the president’s authority stretched into their living rooms. Thus, when I read the summary for this book, it immediately caught my attention; after all, how far does a president’s authority really extend? This book addresses that question and follows the legal decisions that have led to excess use of presidential secrecy within the executive branch today.

Both authors are professors of political science, and the focus of their book is on political systems and behavior, with supportive examples from legal decisions as well as multiple citations from other political science writings. Their perspective on this issue, as laid out in the introductory chapter, is that “secrecy has transformed into a systematized means of political control, a transformation that is most complete in the administration of George W. Bush (not his father)” (p. 3). This sentence is a model for the remainder of the book—an abundance of words and opinions on President Bush’s political faults. Personally, my verbal skills were not quite up to the task, and I found that a dictionary was necessary to help me through some of the more grandiose word choices (although the occasional Latin legal terminology still left me scratching my head). I understand that politics and legal history are not the most exciting subjects, but I felt that the authors’ writing style made this book unnecessarily difficult to read. Rather than choosing one or two legal cases to substantiate their conclusions, they appear compelled to include as many related cases as possible. In fact, in demonstrating the reluctance of the courts to even challenge the government’s assertion of state secrets, they quote no less than seven legal cases over three pages. In my opinion, a more thorough review of fewer cases might have proven the point more effectively and been more interesting to read.

Despite the difficulties listed above, this book does hold some worthwhile information for the enduring reader. The authors examine the many avenues available for presidential secrecy, discussing the difference between state secrets and executive privilege as well as the president’s authorities in information classification. I also found the discussion on the “mosaic theory” interesting. This theory (which has been upheld in court), stipulates that any request for unclassified information may be denied if that information could theoretically be pieced together with other unclassified information to form a classified picture of national security information. The scope of this defense is frightening, especially since the government is frequently not faced with the burden of proof beyond this assertion. Going back to our recent example of wiretapping, the book covers some of the historical data on presidential wiretap authorizations dating back to FDR; in fact, no president (or supreme court) has succeeded at blocking this power. Congress’ attempt to corral illegal wiretapping after the Watergate scandal resulted in the Foreign Intelligence Surveillance Act, or FISA, in 1978. The authors do a good job of explaining what the FISA was intended to do and how in reality it has created a system for streamlining the warrant process for surveillance with little to no judicial or congressional oversight. Although the authors fault both the judiciary and the Congress for not checking the increased powers of the executive branch, they propose that the judiciary (and not the Congress) is better able to discourage abuses of these powers.

Overall, I would only recommend this book to someone deeply interested in the political and legal history of presidential secrecy. Although it is very informative, I believe it is too dry and academic to hold the interest of the casual reader. While the realities of presidential power and the availability of operating in secret is a timely subject, I do not think that this will be the book to bring this subject to the forefront of public attention.

Maj Yvonne Carrico, USAF

Hurlburt Field, Florida

"The views expressed are those of the author(s) and do not reflect the official policy or position of the US government or the Department of Defense."