Let the Sunshine In!

There are reasons for the fact that every state in the United States has made statutory provisions to keep the people’s business from taking place behind closed doors. The term transparency, even before it became a favorite campaign buzzword for then Senator now President Barack Obama, is an important one if governance is to be kept ethical and aboveboard. The concept of executive privilege, on the other hand, acts in exact opposition to such laws.


Bad things happen in the dark.


If you’ve ever served the public from an elected office or an appointed board, you already know that it is difficult to accomplish much with John Public peering over one’s shoulder. Transparency is a pain in the kneecap and it can make the process of getting the people’s work done all the more challenging.


Persuasion of the opposing side can sometimes take on a quid-pro-quo aspect which John Public might not understand. John Public may not always comprehend the subtleties of decision-making and the deal-making it almost always involves. Executive privilege, a tool sometimes used to circumvent sunshine laws, is all too often used to keep John P and his friends from being under foot in the board room. What Public doesn’t know won’t hurt him, or so the thinking goes, and as long as elected officials are acting in what they consider to be “the interest of the people” there is no real need to burden old John with the little details. After all, the people trusted the politicians enough to elect them in the first place, now they ought to blindly trust them to do what’s best without complicating matters with their own ignorance.


Nonsense? Yep.


And so, we have ‘sunshine laws’ which require elected bodies to carry out their business in full view of the people. Of course, there are situations which require, in the case of school boards, congressional committees, and town councils, that the doors be closed using executive privilege in order to protect the constitutional rights of certain individuals and/or information from disclosure. These exceptions to the sunshine rules are very limited in scope and ought to be used sparingly. (In Mississippi, for example, there are only eleven reasons a board – or the legislature – may conduct business in “executive session.” If, for example, a city employee is under criminal investigation it ought to be public knowledge. If the board is discussing the salary level or job performance of that same employee, it should not and is covered by executive privilege..


Which, of course, brings us to the President’s recent invocation of executive privilege in order to protect certain documents from disclosure in the matter of the House Oversight and Government Reform Committee’s investigation into Fast and Furious – a government gun-running scheme gone bad – which may have resulted in the death of Border Patrol Agent Brian Terry two years ago.


The President’s right to declare certain information to be covered under executive privilege is much the same as other sunshine laws. Executive privilege should only be invoked under extremely limited circumstances. If this special privilege is to apply, the information in question must pertain to;


  1. National Security – ironically like the information leaked recently by members of this administration to the media around which a firestorm of blame still swirls
  2. Diplomatic Process – in other words, sensitive negotiations which might compromise the safety of Mr. and Mrs. Public, or,
  3. Military Planning – it’s not a good idea to telegraph your battle plans to the enemy


None of these three reasons pertain, as far as we can see, to the thousands of documents subpoenaed by the House Committee in their investigation into the government program which resulted in Brian Terry’s murder.


Nevertheless, Attorney General Eric Holder and President Barack Obama last week proclaimed that those documents requested by the committee would be withheld from Congress, citing executive privilege as the reason.


Whenever a president (of any party) invokes executive privilege, there is and ought to be a chorus of complaints. To claim executive privilege instantly raises suspicion of the President’s complicity and/or culpability, which, of course it should, particularly when there is no obvious reason to withhold such information. In this case, the invocation of executive privilege stinks to high heaven.


The righteous indignation touched off by this Presidential fiat will, most likely, result in intervention by the Supreme Court which will strike down the claim to executive privilege and order that documents shall be made available to the committee as the law demands. However, the documents will come too late to be useful by those who would expose this administration’s reckless and lawless behavior before the November election.


If this use of executive privilege is merely currency with which this administration hopes to buy time for Holder and Obama while the latter accomplishes a win in November, it is certain to work. The wheels of justice grind slowly and the courts will not get to any action on this matter before November.
Claiming executive privilege in this case, demonstrates yet another reason for the people to be outraged by the abuses perpetrated by this seedy administration.