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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

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Location: San Juan, Metro Manila, Philippines

Saturday, September 24, 2005

Executive Privilege

In an Inquirer article, Executive Secretary Eduardo Ermita was quoted to have said: "Executive privilege particularly applies to national security matters. This kind of information cannot be pried open by a co-equal branch of government".

His first statement that executive privilege applies to national security matters is correct. His second statement is not entirely. The judicial branch of government has had occasion to pry open claims of executive privilege.

The case of United States v. Nixon was a contentious case that dealt with refusal by President Nixon to obey a subpoena duces tecum to release certain White House tapes on the grounds of executive privilege and a violation of the constitutional principle of separation of powers.

The US Supreme Court concluded, among others, that while the president is entitled to the protection of communications between him and his advisers, the privilege is neither absolute nor unqualified. Absent a showing that the privilege is meant to protect national security secrets, the claim cannot be sustained on a generalized allegation of confidentiality.

Thus, the Executive Secretary may have been misinformed as to the nature and extent of executive privilege vis-à-vis the intrusion of the other branches of government, notably, the judiciary, on that claim.

However, with respect to executive privilege vis-à-vis a legislative inquiry, the parameters have not been judicially defined. But, we can safely hazard the proposition, as did Secretary Ermita, that executive privilege can be successfully claimed if and when it is a matter of national security.

That general principle, however, is not obtaining in the testimony of the National Security Adviser Norberto Gonzales.

For one, there is no distinct national security matter that can be found within the four corners of the Venable lobby contract. The President herself said in a televised interview at ANC Channel that lobbying is an accepted practice in the United States and there is nothing inherently wrong with entering into a contract with a foreign lobbyist. If the president freewheelingly justifies the necessity of a lobby contract, what national security matter is the Executive Secretary invoking?

Secondly, all lobby contracts are required to be registered under the Foreign Agents Registration Act, the Lobby Disclosure Act of 1995 and its 1998 Technical Corrections. The Venable contract is no exception and in fact, stipulated that it would have to be registered in compliance with federal laws.

If the lobby contract is required under federal laws to be disclosed, and its copy readily downloadable in the internet and available under the Freedom of Information Act, what national security matter is the Executive Secretary invoking?

National security has been the bogeyman invoked by the Executive Branch when it refuses to disclose certain information. While respect must be accorded to the executive department when the privilege is claimed, comity dictates that the claim must not be invoked in so facile a manner as to show disrespect or demean the intelligence of a co-equal branch of government.

In contrast to the argument hurled by the Executive Secretary, the late Justice Byron White's appreciation of national security in Mitchell v. Forsyth is far more skeptical when he wrote that “the label of `national security’ may cover a multitude of sins”.

With Mr. Gonzales at the helm of National Security, we cannot even begin to count them.

3 Comments:

Blogger Punzi said...

Yes that's true. But notice how the Senate is being portrayed as the arrogant, capricious and arbitrary jailor and Secretary Gonzales as the meek and humble lamb brought to the slaughter...

9:00 PM  
Anonymous Arbet said...

I will not be surprised if, in the end, the people will be deceived to consider Norbert as a martyr for freedom. Tsk tsk. With a propaganda machine like GMA's, that is not a remote possibility - it is a most possible outcome.

I suggest that the Senate release him Monday as to preempt the SC. Rationalize that the truth can be gathered from other, more sensible sources.

8:31 AM  
Anonymous dawin said...

The other reason why I think the Senate, specifically, Joker Arroyo refused to grant him executive session is that Bert Gonzales was dealing with Joker Arroyo, a former Executive Secretary who knew what national security was all about. It was during his stewardship of that office when the military launched a series of coups to topple Cory.

I think Mr. Gonzales knew that and for that reason, he could not have invoked national security before Joker Arroyo.

Moreover, there was really no intent to invoke national security because had there been a claim for national security, the President, under the Constitution, could have written a letter to the Senate requesting for an executive session. The President did not do so and therefore, there was no compulsion or interdepartmental courtesy to convoke in executive session.

That was the fault of the Executive Department and Sec. Ermita's statement is really a mere afterthought.

9:02 PM  

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