A Further Case Against Executive Privilege

The Senate’s refusal to grant Mr. Gonzales an executive session is largely a result of the Executive Branch’s series of missteps.

First of all, the Executive branch seemed to have forgotten that Senator Joker Arroyo was a former Executive Secretary during the Aquino administration, probably the most tumultuous of all presidencies since WWII in the light of the series of coups launched against it by the RAM boys.

Thus, if there was anyone amongst the senators who truly understood the length and breadth of what national security is, Joker Arroyo would be it. Hence, the mere notion that the Venable contract is shrouded in national security only evokes in Senator Arroyo his oft-quoted statement when faced with a ludicrous answer: “Tell it to the Marines”.

Second of all, the Venable contract was never clothed with the raiment of national security and the Palace knew that. If testifying on Venable contract would disclose state secrets, then all the Palace or the President had to do was invoke Section 22 of Article VI (Legislative Department) where “When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session…

To the best of our knowledge, there was no written request from the President to the Senate to convoke in executive session or informing them that national security would be at risk if Mr. Gonzales testified in an open session.

Constitutional necessity and not merely inter-departmental courtesy could have been invoked by the Executive Department but when it failed to do so, the lapse was not due to its ignorance of the provision, far from it, but rather to a forthright evaluation from the Palace that the Venable contract had no state secrets to disclose when a hearing is done in open.

Third, the Venable contract was never discussed in any meetings by the National Security Council. Under the Revised Administrative Code of 1987, the National Security Council is tasked with the formulation, integration and rationalization of policies vital to the security of the state.

For its members, the Council is comprised of the President, Vice-President, Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, the Secretary of Labor, the Secretary of Interior and Local Government, the Chief of Staff of the Armed Forces of the Philippines, the National Security Adviser, and such other government officers or private individuals that the President may appoint.

Question: If it was a matter concerning national security, why then did Executive Secretary Eduardo Ermita, Foreign Affairs Secretary Alberto Romulo, Justice Secretary Raul Gonzales, all members of the National Security Council, claimed ignorance about the Venable Contract?

Can we assume that Mr. Gonzales and the President did this contract on their own without consulting his fellow members of the National Security Council or is it safe to assume that Mr. Gonzales never deemed it a matter of national security to be raised before the Council because there was no state secret to be disclosed?

By all appearances, this talk of national security is a post-disaster quick fix to justify the release of Secretary Gonzales. But even then, its justification is inherently weak, more so, when the President justified the need for lobbying in the US Congress.

If we had the chance to replay this whole thing, would there be anything that could have been done to avoid the embarrassment on Secretary Gonzales.

On the part of Secretary Gonzales, he should have sought the assistance of counsel when he testified as commented by John Nery. Second, he should have immediately invoked executive session, with the President requesting in writing the Senate for an executive session.

On the part of the Senate, as a gesture of inter-departmental courtesy even in the absence of the president’s request for an executive session, the Senate Blue Ribbon Committee should have considered Mr. Gonzales’ testimony as presumptively privileged and then, hold the hearing in executive session.

And if in spite of the courtesy granted to Mr. Gonzales for an executive session and he continues to be as contumacious as Jean Arnault, then by all means, have him incarcerated until he discloses the names.