William J. Colwell, Jr. Memorial Teleforum: Security Clearances - Executive Discretion or Executive Overreach?

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International and National Security Law Practice Group, was recorded on Friday, April 19, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is the William J. Colwell, Jr. Memorial Teleforum on "Security Clearances: Executive Discretion or Executive Overreach?" My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today's call.

 

Today we are very fortunate to have with us moderating Hartmann Young, who is Senior Counsel for Government Business at GE Aviation. Hartmann will let us know the order of events today, and at the end, we'll have Q&A, so please keep in mind what questions you have for our speakers or this subject. Thank you very much for sharing with us today. Hartmann, the floor is yours.

 

Hartmann Young:  Thank you very much, Wesley. I am Hartmann Young, and thank you for that introduction. I'm going to first of all introduce our panelists. We're going to turn it over to one of them for some remarks about our honoree today who's William Colwell, and then we'll get into the discussion about clearances. But I'm really happy to say that we're joined by Paul Khoury, who's a Partner at Wiley Rein. He's someone that I've known for a number of years, and we used to run into each other on the same dog track between Los Angeles and Washington. We worked for some of the same clients and worked alongside Bill Colwell together, so I really appreciate his stepping in today and delivering some remarks for a few minutes about Bill.

 

We're also joined by Professor Dakota Rudesill, who's the Assistant Professor at the Moritz College of Law at The Ohio State University, and finally, by Professor Robert F. Turner, who's the Professor and Distinguished Fellow and Associate Director of the Center for National Security Law at the University of Virginia. Thank you very much for participating today. Look forward to a great discussion. Paul, at this point, I'll turn it over to you for a few remarks about Bill Colwell.

 

Paul Khoury:  Thanks so much, Hartmann. And thanks for the opportunity to say a few words about our friend and colleague at Wiley Rein, Bill Colwell. Thanks so much for honoring him with this memorial teleforum. This teleforum is perfect for Bill. On Good Friday, we're discussing fascinating issues relating to security clearances. Bill was a man of deep faith, a patriot who seemed happiest professionally when he was working on Class 5 matters and tackling complex issues with a great intellect, and curiosity, and humor he brought to all his endeavors.

 

Many of you know Bill and have your own fond memories of this unique lawyer Renaissance man. For those of you who did not have that pleasure, let me share just a bit of background and appreciation. After being raised in New York City and graduating from the prestigious Regis High School, Bill attended Northwestern, then later graduated from the Naval Nuclear Power School. He served our country as a Naval submarine officer. It was there that Bill got his first security clearance. By the way, here is his resume entry on the nuke school: 24 weeks of post-graduate level course work in the theoretical foundations of nuclear power, including math, physics, heat transfer, reactor dynamics, chemistry, electrical engineering, and plant operations, followed by 26 weeks of hands-on operational and supervisory experience at a nuclear reactor.

 

This was a smart guy. Bill was blessed with a beautiful mind, and he made the most of it. Who else do you know who built a personal reflecting telescope, grinding the mirror by hand? Bill did. Bill's real gift, however, which he used to great advantage time and again in his career, was making the most complex matters of aeronautical engineering or nuclear physics accessible and understandable.

 

And oh, by the way, Bill was a history major. After Bill finished Duke Law School, we snatched him right up to work at Wiley Rein in our Patent and Government Contracts Practice Groups, where he thrived. His first day and his first case were unlike those of any of our other associates. We had a highly technical, extremely sensitive case with an accelerated schedule we needed to staff. Bill was perfect for it. His clearances became very useful. So we pulled him out of training that very first day and put him on the matter. Because of the nature of the case, we had to work out of a SCIF more than an hour from our D.C. offices which the government had leased for all parties to perform their work. We were working literally every day, 15 hours or more each day, for about a month and expected the case to last about 3 1/2 months.

 

One morning, my colleague Scott McCaleb and I came into the SCIF, and the government attorney called us into his office and shut the door. He was laughing so hard he was crying. He started with, "Where did you find this guy Colwell?" He goes on to say that around 6 a.m. in the morning, his facility people were showing the SCIF space, comprised of ten individual offices and a conference room, to a prospective government tenant when they noticed a distracting noise. So they searched for the source. They approached the room that was the source, and as they opened the door, they found Bill in a sleeping bag, snoring. He was so dedicated to the work he didn't want to waste time necessary to travel back and forth to D.C. We had to tell him it was okay to get a hotel room nearby.

 

Now, it wasn't all work for Bill. Any of you who had the good fortune of being friends with Bill knows that he was a wonderful chef and mixologist. He would, for example, regularly bring in truffles he had made the night before for his colleagues to enjoy. What other colleagues do you have who do that? Bill thrived at Wiley Rein, as he would afterwards at Boeing and then at Northrop Grumman. But the absolute best thing that happened to Bill at Wiley Rein was that he met his soulmate and wife, Robin, here. Robin was the love of Bill's life, and he relished the simple things he did with her: going to hockey or a baseball game, sharing a meal, talking politics. Most of all, he just loved Robin unconditionally, and of course, his twin girls, Anna and Lauren. He was so proud of them.

 

In the end, three qualities were playing in William John Colwell, Jr. First, he was an incredibly smart guy who was energized by discussing difficult issues like the ones we're about to discuss. Second, he had a sincere love of country. Bill was a patriot. And third, his love of family and friends was completely unconditional and was paramount. That's why he would have loved this program today. It's a perfect merging of so many things that were important to him. Thanks again for the opportunity to share these memories and for the conversation we're about to have in Bill's honor.

 

Hartmann Young:  Thank you so much, Paul. Those were beautiful words, and I couldn't agree more. Bill was a great friend, a great patriot. And I wanted to stress that in an era where a lot of the communication has gotten very vituperative across the aisle and with those that we disagree, that Bill, although a card-carrying member of The Federalist Society, was always respectful of his opponent. He did enjoy engaging in discussions of great ideas, including the topic we're going to discuss today. And his appeal was really broad and wide, and I think that's why we miss him so much. So thanks again, Paul.

 

Let me turn things over to our first speaker today who will be Professor Turner. I know there's been a lot of recent news about security clearances, which is somewhat surprising in a way. The topic is evergreen, but particularly so over the last year or so where we've heard reports about the President revoking security clearances of John Brennan, for example, and on the other hand, insisting that other security clearances be granted for members of his staff even though senior officials have recommended against it. Not the normal process, to say the least, but we wanted to jump in and talk about those topics, but really, as Federalists often do, explore the historical underpinnings of the Executive's power to grant security clearances or deny them and revoke them, and then discuss Congress's role in reigning in that power, if it's possible at all.

 

So for one side of the case, we'll turn to Professor Turner for his introductory remarks. Take it away, Professor Turner. Thank you.

 

Prof. Robert Turner:  Thank you, Hartmann. It's a great pleasure to be here. As a long-standing member of The Federalist Society, I'm particularly concerned with the understanding of the Framers about the Constitution. I'm going to focus primarily on that. Since the 1970s, Congress has attempted to usurp core powers conferred by the Constitution on the President, ranging from war powers to intelligence. Many have forgotten the original understanding. When I first went to work in the Senate in the 1970s, there were no congressional oversight committees. If you go back and look at the National Security Act of 1947, you will find a variety of obligations for the President to keep Congress informed about sensitive intelligence matters, but that language was not put in the Act in 1947. It was added as amendments in the 1970s.

 

I believe there is a legitimate role for Congress related to classified information protection, but it's a supporting role. The Fifth Amendment requires or provides that no person shall be deprived of life, liberty, or property without due process of law. If the President has a problem with a leaker in the Executive Branch, he can fire him, but he cannot send him into prison without a statue enacted by Congress. Thus we have the Necessary and Proper Clause. But the Necessary and Proper Clause not only requires that statutes be necessary, but that they be proper. And it is not proper for Congress to usurp the constitutional powers of the President like deciding what information warrants protection or ordering the President to make national security information public.

 

To break the code in this area, the most important provision of the Constitution is Article II, Section 1 which grants the Executive power of the government to the President. This is almost forgotten today, but the Framers understood that it granted to the President the general control of the nation's external intercourse, save for the narrowly construed exceptions vested in the Senate and in Congress. Many people think these issues of classification and protecting secrets are new, but in fact, they were discussed. In Federalist No. 64, John Jay explained there would be valuable sources of foreign intelligence who would confide in the secrecy of the President but not in that of the Senate or a more numerous popular elected assembly like the House or like the Senate today. And thus Jay explained that the Constitution had left the business of intelligence to the discretion of the President to manage, quote, "in such manner as prudence may suggest."

 

This was accepted by Congress. Indeed, the first session of the first Congress appropriated money for foreign intercourse and the statute provided, and I quote, "The President shall account specifically for all such expenditures of the said money as in his judgement may be made public and also for the amount of such expenditures as he may think it advisable not to specify." This language was reenacted year after year and reflected congressional deference to the President. It was widely understood by the Framers that Congress could not keep secrets. At one point, John Jay, who was the Secretary of Foreign Affairs under the Second Continental Congress, remarked, and I quote, "And there was as little secrecy in this government as in a boarding school, as much intrigue as in the Vatican."

 

Thomas Jefferson was our first Secretary of Foreign Affairs, later designated Secretary of State. In an April 1790 memo to President Washington, Jefferson noted that the Constitution had vested, quote, "the nation's Executive power in the President, save for some exceptions which were to be narrowly construed." Jefferson explained, and again, I quote, "The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department except as to such portions of it are specially submitted to the Senate. Exceptions are to be construed strictly." And I would note in his original version of this draft, he added, "The Senate is not supposed by the Constitution to be acquainted with the secrets of the Executive department." It was not intended that these should be communicated to them. In his final draft, Jefferson replaced the word "secrets" with the broader word "concerns."

 

Washington shared Jefferson's memo with Congressman James Madison and Chief Justice John Jay, and both embraced Jefferson's view that the Senate's role was limited to an approbation or disapprobation of the individual nominated, all the rest being Executive in character and thus vested exclusively in the President. John Marshall, who was a Federalist member of Congress, took exactly the same position during the Jonathan Robbins debates when he said the Executive power gives the President vast, unchecked authority in this area.

 

In the February 19, 1804 message to the Treasury Secretary Albert Gallatin, then-President Jefferson explained, quote, "The Constitution has made the Executive the organ for managing our intercourse with foreign nations. The Executive being thus charged with the foreign intercourse, no law is undertaken to proscribe its specific duties." He went on to say in the same memo, "From the origins of the present government to this date, it has been the uniform opinion in practice that the whole foreign fund was placed by the legislature on the footing of a contingent fund in which they undertake no specifications but leave the whole to the discretion of the President."

 

The most famous and most frequently cited Supreme Court case on foreign affairs is United States v. Curtiss-Wright where the Supreme Court in 1936 noted that foreign affairs were different from domestic affairs, and participation in the exercise of foreign affairs was significantly limited. He notes the President makes treaties with the advice and consent of the Senate, but he alone negotiates. Into the field of negotiation, the Senate cannot intrude, and Congress itself is powerless to invade it. Similarly, in 2006 in the Hamdan case, the Supreme Court noted, "Congress cannot direct the conduct of military campaigns," for example, when Senator Obama tried to block the highly successful 2007 surge in Iraq.

 

In the 1988 case of Navy v. Egan, the Supreme Court noted, "The President's authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. The authority to protect such information falls on the President as head of the Executive Branch and Commander in Chief." The quote went on to say the Court also has recognized, quote, "the generally accepted view that foreign policy was the providence and responsibility of the Executive." As to these areas of Article II duties, the courts have traditionally shown the utmost deference to presidential responsibility.

 

Now, Dakota will point out that Congress has a number of arguably relevant powers; in Article I, Section 8 and in Article I, Section 9, has complete control of the power of the purse. But as the Supreme Court noted in Curtiss-Wright, every governmental power, quote, "must be exercised in subordination to the applicable provisions of the Constitution." Princeton Professor Ed Corwin in his seventh edition of The President: Office and Powers wrote, quote, "So far as practice and weight of opinion can settle the meaning of the Constitution, it is to date established that the President alone is final judge of what information he shall entrust to the Senate as to our relations with other governments."

 

Things began to change near the end of the Vietnam War, which, in case you've forgotten, was authorized by statute by a vote of 99.6 percent of Congress. You can round that up if you want to. But Congress then began demanding access to secrets and passed the War Powers resolution and other things. The Hughes-Ryan Amendment in 1973 was the first congressional claim to sensitive intelligence secrets, but the original version of that amendment began, "To the extent compatible with the constitutional powers of the President."

 

Under the Necessary and Proper Clause, the Congress does have some powers, but they are limited. For example, what I hear all the -- I spent five years working in the Senate, and in '84-'85, I was the Acting Assistant Secretary of State for Legislative Affairs. And I remember when members of Congress would propose new legislation, for example, an amendment that would say no money appropriated for the Department of State can be spent paying the salaries of anyone to negotiate a certain kind of treaty with a foreign country. That's absolutely unconstitutional. The power of the purse is like all other powers and must be exercised consistent with the other provisions of the Constitution.

 

Classic case was the 1946 United States v. Lovett. Back in 1942, a very conservative House Appropriations Committee Chairman had decided to stick it to three individuals who worked for the State Department and had been accused of being Reds, commies, subversives, what have you, in testimony before the House Committee on Unamerican Activities. So he inserted in a major appropriations bill that no appropriated funds could be used to pay the salaries of these three individuals unless they were appointed by the President to new positions and confirmed by the Senate.

 

The Senate refused to go along with that, but ultimately, Roosevelt needed the money for bullets, food, everything else for our troops in both theaters, and he told the Senate, "For God's sake, pass the bill." And then he issued a signing statement saying that this provision would have no effect because it was unconstitutional. It took until 1946 for it to get to the Supreme Court, and they noted that Congress had passed a bill of attainder in violation of Article I, Section 9 and struck it down, even though the House had sent their counsel in to argue that the power of the purse was a plenary power and could not be reviewed by the Supreme Court.

 

And for those who say, "Well, that's all right for Congress to pass that kind of a limit. It controls funds," I have what I used to call the Supreme Court Neutralization Act. I first used it in a talk, I think, in 1982, long before Scalia was a Supreme Court Justice, but he came up to me after the talk and said, "Bob, it's a brilliant article. I'd love to take it to the Supreme Court." And the Supreme Court Neutralization Act simply said no money available for the Supreme Court shall be spent unless or until, and you can fill in the blanks: unless the Court overturns Roe v. Wade, if the Court overturns Roe v. Wade, unless the Justices appear before the Senate Judiciary Committee the first Monday of each week they're in session to get instructions on how to decide cases. The President can't function without money, but neither can the Court. And no serious person would argue that Congress has the power to tell the courts how to decide cases. And in a similar way, they don't have the power to tell the President how to conduct the business he is entrusted with.

 

If you want some reading, I would recommend that you find the full text of Marbury v. Madison. Most of the law school casebooks that excerpt it don't include this language, but Marshall talks about the President being invested with certain important political powers in which he is to use his own discretion and is accountable to no one other than to his country and his political character. That is to say, if the people don't like what he's done, they can vote him out of office, but Congress cannot overturn what he does. And Marshall said these powers affect the nation, not individual rights, and being entrusted to the President, the decision of the President is final. That was the original understanding.

 

I did a 1700-page SJV doctoral dissertation that focused heavily. The title is "National Security in the Constitution," and it gives a lot more of this. And I'm now trying to prepare that for publication, so keep an eye out for it on Amazon in three or four years, and it will give you more information. Let me stop there and turn it over to Dakota.

 

Hartmann Young:  Thank you, Professor. Dakota, Professor Turner has given you a lot to sink your teeth into, so go right ahead.

 

Prof. Dakota Rudesill:  Thanks so much. Thanks to The Federalist Society, one of the great intellectual organizations of our time. Thanks to Hartmann Young for organizing this extremely timely podcast, to Paul for his comments about Bill Colwell. I'm just honored to be part of this teleforum and podcast named for Bill Colwell. And as always, it's an honor and a pleasure to be here with Professor Bob Turner. He and I have done a number of these debates about national security. It's always a pleasure to learn from him, and to agree reasonably and disagree reasonably with Bob.

 

So Bob, as always, marshalled a lot of valuable evidence, brings a lot of insight to his argument. I take note of it all. I agree with, certainly, all of the evidence that he presents in terms of the data points that it provides us. I'm going to disagree about the conclusions that we can draw from some of those data points. I get it. I think Bob and I agree a lot and in some really important ways that I'm going to mention about a really important role for the President. My view is, I think, probably best understood as more of a traditional, kind of majority view of separation of powers and national security as it's existed for the last 50 years or so, and a little bit less of an "Executive Branch first" view that Bob articulates. So I think that that's part of why these conversations and debates that Bob and I have are so fun because they resonate with some broader trends and some broader arguments within our field.

 

So let me just make a few points in response to Bob's many, many helpful points. First of all, the Constitution's text, which we should start with, does not explicitly address the distribution of powers over intelligence or over clearances in particular. The text is silent. Indeed, intelligence does not appear in the Constitution's text. The word is not there. The only reference to secrecy in the text of the Constitution actually is in the Article I part of the Constitution that says that Congress may keep -- it says, "Each House --"—this is Article I, Section 5, Clause 3—"Each House shall keep a Journal of its Proceedings and from time to time publish the same, excepting such parts as may in their Judgement require Secrecy." So the only textual reference to secrecy in the Constitution says Congress can keep secrets.

 

The text also does award powers over national security in foreign affairs. And here I will -- in referencing national security, I'm going to group foreign affairs under there, intelligence, war, all of that stuff. That's kind of what I'm getting at here. So the text does award national security powers, obviously, both to the President and to Congress, really, really important ones, obviously to the President. There's the provision of Article II that says that the President is the Commander in Chief of the Armed Forces. The President is given the power to negotiate treaties, appoint ambassadors. The President is also vested with the Executive Authority. And there's a general gloss on this that has been well understood to be that the President is the—and we'll come back to this—the sole organ, if you will, the entity. The President and the Executive Branch below the President interact with foreign nations.

 

Congress, however, has a lot of enumerated powers. Indeed, there are more national security powers awarded to Congress than pretty much any other type of anything you're going to find in the Constitution. It's quite extensive. In Article I, Section 8, Congress has the power to declare war, grant letters of marque and reprisal, raise and support armies, provide and maintain a Navy. Congress has the power to write rules for the government and regulation of the land and naval forces, a provision I recently wrote an extensive article on. There are two militia clauses, there's the Necessary and Proper Clause, treaty ratification, the appropriations power is completely given over to Congress, powers over appointments, the advice and consent power. So Congress has got a lot. Congress has got a lot of enumerated powers. They're a major, major player on national security.

 

So even though the Constitution's text is silent on intelligence and the one textual reference to secrecy is with Congress, I think that a fair reading of the document that the Framers gave us is one of shared power with lots of power to both branches. The originalist evidence, again, acknowledging everything that Bob mentioned, I would still find it to be indeterminate. Yes, we have these signals from Hamilton, from Jay, and from others about an important role for the President, but I don't think that one has to read that evidence -- I don't think that it compels the conclusion that the President has complete and total control over secret information, and there's no ability of Congress to do any sort of regulation in that area.

 

The reference in The Federalist—this is Jay, this is Federalist 64—it's in the context of Jay writing about the treaty power. And Jay does observe that, basically, foreigners who want to give useful intelligence to the United States might be more willing to do that, to provide it to the President instead of the Congress, but that's not -- there's nothing I see in that paragraph to say that Congress could not write a statute which would in some way regulate intelligence or regulate the process of the United States government providing access to classified information and that sort of thing. I think that the originalist evidence just doesn't -- I just don't think it dictates that sort of conclusion.

     

Moving over to the doctrine, to the judicial doctrine, there's considerable room here for Congress to exercise its enumerated powers to do an extensive amount of regulation of national security activities, which it has done, and, I think, even more room than it's exercised so far. Obviously, Youngstown is the big framework here. Justice Jackson's famous concurrence in Youngstown with its three-part framework which, really, I think, just expresses the intuitive idea that when Congress grants the President explicit power to do something and then the President does it, that's the President on the strongest footing.

 

The President can only rely on whatever powers the President has independently if Congress is silent, and where the President is trying to act contrary to what Congress has done by statue, obviously the President is at the lowest ebb. And the President's only going to win if you're talking about something where the Congress cannot fully control or extinguish the President's powers. But that's a really contested zone, and in the Youngstown decision, the Supreme Court sided with Congress. In the Hamdan decision in 2006 with regard to detainees and the UCMJ, the Supreme Court again came down on the side of Congress and said that the President cannot ignore duly enacted statute pursuant to Congress's enumerated authorities.

 

In the Zivotofsky opinion from 2015, there, the Court actually did come down with the President, but the Supreme Court took pains to point out that the reading of Curtiss-Wright, the 1936 case that Bob mentioned, which for those of you who have worked in this area and studied it know Curtiss-Wright has this almost kind of religious, talismanic quality to Executive Branch lawyers and Executive power theorists to the point where people will joke: Executive Branch lawyers, presidential lawyers, come into meetings and say, "Curtiss-Wright­, so I’m right." And it's almost like Gandalf in Lord of the Rings. They expect the adversaries just to be kind of magically blown out of the room.

 

What I think -- Curtiss-Wright has been really overread in a lot of respects, and to stand for more than it really has. And even in upholding presidential power with regard to foreign affairs activities and Zivotofsky, Justice Kennedy for the majority in Zivotofsky said, he wrote, "Curtiss-Wright did not hold that the President is free from Congress's lawmaking power in the field of international relations. The President does have a unique role in communicating with foreign governments, but whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law." The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs is at issue, and instead, we've got to do the hard work of Youngstown Category 3 in trying to figure out what are the powers of Congress and the President as they're intersecting, and really, who should win with regard to those clashes.

 

Coming around to Egan, which is one of the core cases, and probably the most important case when it comes to security clearances and classified information and that sort of thing, here again, I think the best reading of Egan is in the context of Youngstown and the context of the con law as I've described it. Egan does say that the power to control -- that Article II of the Constitution does provide the President with authority over classified information and over clearances because of the work that the President does as Commander in Chief and in intel and foreign affairs. There's no question of that, but that's a separate question, the Egan Court is telling us, from potentially whether Congress, in execution of its powers, can step in and regulate things. And Congress writes here in Egan, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs; very, very clearly in the text of Egan saying that there's a potential role here for Congress which simply was not operative in the Egan case.

 

I've got a lot more points that I would just love to make on this. I want to make sure I don't talk too long, but let me just kind of more in bullet fashion just hit a few other things, and then we'll go to some back and forth. I would just say I think it's important to recognize that we now have a very, very thick gloss of constitutional doctrine in practice about national security that gives a major role to Congress. Bob is absolutely right that there was not a lot of congressional regulation of intelligence in matters such as that until the '70s, but that's because the country learned in the '60s and the '70s about just colossal abuse of intelligence authorities. And Congress needed to respond to that, and so we've had developed since the 1970s a really thick statutory regime which includes the Intelligence Committee Covert Action Statute, the Intelligence Oversight statutes, the Foreign Intelligence Surveillance Act.

 

Every year, the Intelligence Authorization Act and the National Defense Authorization Act write a lot of hard law on national security activities. And they do it both in public law, and as I wrote about in a study in 2015 in the Harvard National Security Journal, they also regulate it through essentially what is congressional secret law. And I don't mean that pejoratively, I just mean that Congress puts stuff in a classified document and then writes something into the public law that says that that classified document about funding and operations that are secret, that that classified document has the force of statutory law. They have done this every year for 40 years. You can go check out my study on it.

 

So there's this very thick gloss of congressional action and compliance by the Executive Branch overall, and I think that there's ample authority here for Congress to step in and do some regulation with regard to security clearances. Congress has already legislated a number of things with regard to security clearance, but I think that there's abundant room within a Constitution which is in many ways indeterminate about the exact balance of power between the President and the Congress on national security. There's room there, I think, for Congress to regulate this, and I think some good rationales because as we saw with abuse of intelligence authorities that was revealed in the 1960s and '70s and led to all these statutes that I mentioned, in similar fashion, we're now seeing abuse of authority with regard to security clearances with the President of the United States very explicitly acknowledging in his letter pulling former CI Director John Brennan's clearance, he was doing this in part because of John Brennan's speech, First Amendment protected speech.

 

And there have been a number of investigative stories and other accounts about the President also in unprecedented fashion intervening in approvals of clearances for folks at the White House, Jared Kushner and others. Some accounts say 25 to 30 cases where the career people have profound concerns about foreign contact, untruthful statements, omissions. In the case of Kushner, evidently, the intelligence indicated four foreign countries were actively discussing how to manipulate Kushner because of his financial ties and his other liabilities. And so they were pushing back and say, "No way would we grant clearances," and the political people at the White House overruled them.

 

And so I think that there's enormous reason for concern and, I think, grounds for Congress to step in and to write some law here, and to be, I think, needs to be careful to write it not for -- don't try to make it a Trump law. Write good law which balances the equities well and is written for the long term and for both the most honorable and the most problematic people who could be at 1600 Pennsylvania Avenue.

 

So I'll just stop there. I know Bob's going to have responses, and I look forward to talking with him, and to taking questions as well.

 

Hartmann Young:  Great. Thanks so much, Dakota. Bob, do you want to start your rebuttal?

 

Prof. Robert Turner:  Oh, I think that might be fun. Dakota is correct in his view that his thinking today is consistent with the majority thinking in the last 50 years or so, I would say since the final years of the Vietnam War. It's almost as if the heat of the Vietnam debates across the country melted our hard drive. And after Vietnam, not even the State Department or the Justice Department would quote Article II, Section 1, the grant of Executive power to the President as a basis of authority. That was, in fact, the clause cited, or the provision cited by the Founding Fathers almost across the board: Washington, Jefferson, Hamilton -- it was Jefferson's chief rival in Washington's cabinet, John Marshall, John Jay. And virtually no one challenged it.

 

He says the text is silent on this issue. Well, that's not true. First of all, the Federalist Papers were key to understanding the Constitution. Madison's notes weren't published for many decades after it was ratified. And the Federalist Papers do talk about the business of intelligence, and they say the Constitution left it to be managed by the President as prudence may suggest. But more importantly, he's not understanding that the Executive power grant in Article II, Section 1 was understood by Framers raised on John Locke and Montesquieu, William Blackstone, as including the general control of foreign affairs, what John Locke referred to as the business of war, peace, leagues, and alliances.

 

It relies heavily on Youngstown, and this is in part my old friend Harold Koh, former Dean of Yale Law School, who wrote a book called The National Security Constitution that basically argued that Youngstown overturned Curtiss-Wright, one of the most absurd -- I like Harold. He's very bright and very able. We've debated several times, but this is absolutely absurd. First of all, Youngstown was not a foreign affairs case. It was a case in which the President had attempted to use his Commander in Chief Power to seize private property in clear violation of the Fifth Amendment's prohibition against depriving people of life, liberty, or property without due process of law.

 

Both Justice Black for the majority and Justice Jackson in his concurring opinion emphasize the President's broad powers in facing the outside world, but those powers did not transfer to a power to interfere with domestic labor disputes. Let me quote from Justice Black's majority opinion. "Even though theater of war be an expanding concept, we should not with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not its military authorities."

 

The idea that Justice Jackson thought he was somehow overturning Curtiss-Wright is absurd. Just two years earlier in Eisentrager, Jackson said, and I quote, "The issue here involves a challenge to conduct of diplomacy in foreign affairs for which the President is exclusively responsible." And he cited Curtiss­-Wright. Like Justice Black, Jackson repeatedly drew a distinction between the President's powers over foreign versus domestic affairs. Thus he wrote, and I quote, "No doctrine that the Court could promulgate would seem to me more sinister and alarming than a President whose conduct of foreign affairs is so largely uncontrolled, and often is even unknown, can vastly enlarge his mastery over internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture."

 

We should not use this occasion to circumscribe, much less to contract the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. Indeed, in Footnote 2 to his concurring opinion, and everyone relies on, Justice Jackson notes -- he distinguishes Youngstown from Curtiss-Wright, noting that Curtiss-Wright does not solve the present controversy. It recognized internal and external affairs as being in separate categories.

 

In his 1972 classic, Foreign Affairs and the Constitution, my late friend Professor Lewis Henkin of Columbia Law School noted, quote, "Youngstown has not been considered a foreign affairs case." And certainly in the 1979 Taiwan treaty case, Goldwater v. Carter, four members of the majority dismissed Goldwater's attempt to find support in Youngstown. In the concurring opinion, they noted in Youngstown, private litigants brought a suit contesting the President's authority under his war powers to seize the nation's steel industry, an action of profound and demonstrable domestic impact. Moreover, as in Curtiss-Wright, the effect of this action, that is, President Carter's decision to terminate our treaty with the Republic of China, with Taiwan, as far as we can tell is entirely external to the United States and falls within the category of foreign affairs.

 

Now, safeguarding national security information is a core part of the President's exclusive power over diplomacy military operations, what John Jay called the business of intelligence. The strained arguments that assert that Congress may usurp these powers is both wrong and it's dangerous, as Congress might condition appropriations for the judiciary on the courts deciding decisions in a certain way.

 

Time will not give me -- I don't have enough time to talk about the problem of leaks, but I would make the case, and would be happy to do so in Q&A if you would like, that this congressional usurpation of President's foreign affairs powers since Vietnam led directly to our not being able to stop the 9/11 attacks. We begged the British for information tying Moussaoui to a foreign terrorist organization. They ignored us for more than two weeks. Finally, the day after the 9/11 attacks, they gave us information showing he had trained at an Al-Qaeda camp in Afghanistan. Why did they not give us this information? Because, as I've learned from many foreign intelligence people I've known over the years, if America can't keep secrets, they cannot entrust us with their most sensitive secrets.

 

Let me stop there and go back to Dakota.

 

Hartmann Young:  Thank you. Dakota?

 

Prof. Dakota Rudesill:  As always, Bob offers a very effective rebuttal. Let me offer a reply. So a number of things -- so first of all, I mean, going back to the Founding and looking at Egan as well, saying that power over classified information, clearances, flows from Article II. Without any question, Article II of the Constitution provides the President considerable authority, inherent authority with regard to national security, foreign relations, classified information. No question to that, and the Founding generation was acting on that assumption. That's a different thing than saying what is the extent of Congress's ability pursuant to its authorities to place some limitations, to write some, using the language of Article I, Section 8, Clause 14, to write some rules.

 

So Bob and I have debated other times war powers and the coordinate powers of the Executive and Congress about this. And as we've talked about there, you can imagine kind of three different positions, if you will. One is that the President may direct the national security apparatus, and there's no congressional ability to limit that at all. A second is the President -- only the President can direct, but the Congress can write rules that limit and condition. A third position is the President may direct, but Congress can also direct. I think that that third position -- you're certainly going to find, basically, what I call congressional supremacists. I think you're going to find some who are going to make that argument, but that's not a majority view.

 

And the majority view today is also not that Congress can't intrude in this area. That's just not where the law and the doctrine are today. And I think that's good policy, frankly, because I think that we need -- I think it enhances democracy, frankly, and our republican system for the people to be able, through Congress, to exercise some control over the apparatus. I would not say that the Congress has the power to do any direction as in directing forces in the field, directing foreign policy, direction to clearances to one individual and not to another. But I think that there is considerable power for Congress to write some rules, and that is essentially what Youngstown stands for.

 

Congress's ability to write some rules, understanding that once you're in Youngstown Category 3 and the President is going in a direction contrary to statute, we really need to start to drill down and figure out what is the extent of the presidential power that Congress can't limit. And the broad trajectory of the doctrine and of the heavy gloss of practice has been that statutes matter a lot. I think that there's also grounds here for just reasonable rules such as Senators Warner and Collins, a bipartisan team in their bill, saying for example, decisions on granting, denying, or revoking clearances should be based on published and objective criteria, can't revoke a clearance based on First Amendment protected speech. You have a codified right of appeal of a security clearance denial or revocation that goes to an independent body which is not composed of politicians. I think these things are just completely reasonable steps, and I don't think would intrude in any sort of meaningful way on national security.

 

So I will stop there. I would just say I would love to reengage more on the originalist debate because I love that. As I mentioned, I recently wrote an article about Article I, Section 8, Clause 14 and its role in this whole conversation. But we also want to get to the questions from our listeners, so I'm going to impose some conditions and limitations on myself at this point.

 

Hartmann Young:  Thank you, Dakota. Wesley, if we could, could we check to see if we have some questions from our audience?

 

Wesley Hodges:  Well, Hartmann, I don't see any immediate questions from the audience, but I'll be sure to let you know if anyone chimes in.

 

Prof. Robert Turner:  While we're waiting, one point that I did not make that might be of relevance -- we talk about the importance of law and whether the President has to obey the law. In Marbury v. Madison, Chief Justice John Marshall noted, "An act of the legislature repugnant to the Constitution is void." And that's tremendously important when we've got an area where the Framers understood that the general control of foreign affairs was vested in the President by Article II, Section 1 that when Congress does decide to act in that area, the Supreme Court has said the action is void.

 

Hartmann Young:  This is Hartmann. I have a question based on one of the concerns you expressed, Professor Turner, about leaks. It's an evergreen problem, most recently with some congressional leaks of what one would think would be classified information, but I understand that the Executive can't reach so far as to revoke security clearances of congressional members or congressional staff. But are we really left in this position where Congress only pleases itself and can't really do much in terms of preventing leaks from members of Congress or their staff?

 

Prof. Robert Turner:  Yeah, I would say the President can. Indeed, there is precedent in World War II. A House member who had a drinking problem was denied access to classified information because he was notorious for getting drunk and leaking it. Generally, as a matter of comity, the Executive Branch allows members of Congress to have access to classified information. That's a relatively new practice in the sense that throughout most of our history, certainly during World War II, for example, Congress didn't know enough about what was going on in military operations or the intelligence community to know what to ask for. They were not briefed on these things. No one on the Hill knew about the D-Day landing, and if they had, somebody probably would have shown his -- talked to a journalist and said, "Oh, I'm really in the know. You ought to really support me. We're just getting ready to take Europe back, " and gotten a lot of our kids killed.

 

So this is a relatively new thing, and congressional staff members -- I know when I was a congressional staff member back in the '70s, I went through a formal process with the government, and I think it was the CIA, I'm not sure, doing a background check and then giving me a variety of clearances. So that may have changed now. A lot of people -- first of all, most people in the Executive Branch have no idea that Article II, Section 1 even exists, much less what it meant to the Framers. So there's a lot -- what's been taught in our law schools since the end of the Vietnam War is that Congress is the sovereign authority and the Executive's job is to carry out the will of Congress, to see the laws faithfully executed, forgetting the fact that the supreme law under our system is the Constitution itself. But I think the Executive Branch has the power, if it has the courage to enforce it, to deny clearances to members of Congress and their staffs. And yet, it's the kind of thing that you don't abuse, you only do if there's very clear evidence.

 

But I was the Acting Assistant Secretary of State for Legislative Affairs in '84 and '85, and I can tell you all sorts of stories where members of Congress, some of them friends of the President or supporters, through just stupidity, leaked information that was horribly damaging. One example, a conservative Republican from either Iowa or Idaho, a one-termer, went on a junket, and he came back and in a trip report put in the congressional record, he thanked the ambassador so-and-so, and he gave the name of our station chief, our CI Station Chief, and described him as intelligence.

 

Now, the guy's title was officially First Secretary for Political Affairs or something like that. We had to pull the guy out of the country. It was a central American country that was involved in a war, and it did horrible damage. And George Schultz asked me to go over and talk to him, the Secretary of State, and I did, and the guy was clueless. He said, "No, I support the President. I was just being polite." And this being polite does horrible damage. I've seen other cases -- Joe Biden when he was with the Foreign Relations Committee was notorious. Congress is not trained to deal with classified information, and most of them aren't good at it.

 

Hartmann Young:  Yeah. I wanted to get an observation, perhaps, from Dakota to see if he agrees with that fundamental point that the President can, in effect, reach down Pennsylvania Avenue to within the dome of Congress, so to speak, and revoke the security clearances of congressional staff. I don't know, Dakota, if you have any perspective on that.

 

Prof. Dakota Rudesill:  Yeah, thanks. I mean, obviously, I've got a number of things in response to Bob I would say. I mean, so first of all, on that issue, this is a really, really interesting area of constitutional law, and it's just indeterminate. Where the doctrine is is the President has authority to classify information, authority over clearances and whatnot because of Article II, and a statute that, frankly, Congress has provided. But at the same time, the Constitution's text is the only secrecy reference in relation to Congress's ability to keep its journals secret.

 

And Congress has this extensive, enumerated list of national security authorities, and as a practical matter, for decades now, has been, in the words of the Intelligence Oversight Statue 50 U.S.C. § 3091, Congress must be kept fully and currently informed on intelligence activities by the Executive Branch. So there's a lot of classified info over there, but what's indeterminate is exactly where Congress's security clearances authority kind of comes from. And that just needs a lot more attention by scholars and, frankly, I think that some statutes might help clear up some of those questions.

 

I would say on this point of leaks, I mean, again, as we so often do when Bob and I have these debates, I will admit all of Bob's facts, but I will add some others and note some gaps. So yes, Congress has had a problem with leaks. The number of leaks and the severity of leaks that have come out of the Executive Branch just dwarf those of the United States Congress. And part of that is kind of a max favor point. It's just mass and scale. The Executive Branch is just so much larger that Congress, so many more people, so many more secrets, all of that stuff. And it leaks constantly.

 

I think some of the leaks we've seen during this administration from the intelligence community I think should concern a lot of folks, but this stuff has been going on for a very, very long time with low level people being reckless and high level people in administrations of both parties leaking classified information to journalists or whoever else to serve their own political, or personal, or bureaucratic interests. So it's just a massive problem, and we need some systemic focus on that.

 

I will stop for right now, but I just have to say one thing. On the originalist evidence, it's such an interesting and fun area to study and obviously, the President has had a really important role. Congress, however, there's a lot of originalist evidence about Congress doing very, very detailed management of all aspects of the national security operations with the exception -- they didn't write a Classified Information Act during those first congresses, but Congress did do things such as impose restrictions on the ability of the Executive Branch on the latitude of the President to wage the undeclared Naval war with France. The Little v. Barreme case came out of that which basically sided with statute.

 

And not a lot of people are aware of this, but I came to understand this as I wrote my article that I mentioned. Congress managed the United States Armed Forces in such detailed fashion that it literally legislated the menu aboard ship, about when there was fish, when there was meat, what day, the armaments, exquisitely regulated and detailed the number horses in this unit and that. So the originalist evidence, I think, is ultimately indeterminate, but it does come around, I think, to the proposition of shared power over national security. And I would certainly extend that in our current moment to the security clearance issue.

 

Hartmann Young:  Great. Thank you, professor. I see we're at about an hour. Before we go, I do want to thank Paul Khoury for his kind words about our friend, Bill Colwell. Certainly want to thank Wesley Hodges for setting this up, and certainly thank Professor Dakota Rudesill and Robert Turner for presenting their views on security clearances. I'll turn it over to you, Wesley, to see if we have other questions. Otherwise, I guess we will break.

 

Wesley Hodges:  We have a very attentive audience, but no questions from the audience. So Hartmann, I think that might be a wrap. Do you have anything additional that you'd like to say?

 

Hartmann Young:  I just wanted to thank everybody for their participation and their work in putting this teleforum together in honor of our friend, Bill Colwell. Thank you.

 

Wesley Hodges:  Thank you, Hartmann, for all your work, and for all the panelists. Everyone, on behalf of The Federalist Society, I would like to thank our experts for the benefit of their very valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining today. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.