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Checks & Balances

*Cross-posted from The Huffington Post

Last week's New York Times story about two secret Justice Department legal opinions on CIA interrogation techniques leaves no room for doubt. We are in the midst of a full-fledged scandal involving illegality and deceit at the highest levels of the United States government. Call it Torturegate.

For the past six years, the, the administration has deliberately circumvented longstanding prohibitions against torture and other abuse. It has facilitated and sanctioned the use of highly coercive interrogation tactics, not only in secret CIA prisons (or "black sites") but also at Guantánamo Bay and even in the United States. Perhaps worst of all, the administration has sought, in secret, to justify the techniques as legal.

Torturegate's origins lie in the decisions and writings of a cabal of high-ranking officials from the White House and the Office of Legal Counsel ("OLC"), the once prestigious branch of the Justice Department that function as the president's chief legal advisor. The participants included Vice President Dick Cheney, his chief of staff David Addington, former White House Counsel and Attorney General Alberto Gonzales, and OLC attorney John Yoo. None had any real life experience waging war or fighting terrorism. Yet, they all believed fervently that America had to "work ... the dark side" to defend itself.

This group helped initiate and defend a "war on terrorism" that eliminated all constraints on the treatment and interrogation of detainees. Not even the most minimal protections of the Geneva Conventions applied, opening the door to the creation of a global network of prisons beyond the law. Under the misguided assumption that harsh measures produce good intelligence, the United States began to engage in a series of so-called "enhanced interrogation techniques," including ones that simulate drowning and induce hypothermia. That these techniques did not leave physical marks did not make them any less cruel than the rack and the screw.

OLC then provided legal cover to assuage concerns that officials who engaged in these tactics might be liable under a federal statute criminalizing torture. A now notorious August 2002 legal memo (drafted principally by John Yoo) sought to define torture so narrowly as to render it meaningless, limiting it to the extreme physical pain accompanying organ failure or death. For good measure, the memo said torture could never be illegal as long as the president had approved it.

The public outcry after Yoo's memo was leaked to the press, coupled with internal opposition within OLC, prompted reconsideration. A subsequent memo from December 2004 called torture "abhorrent" and suggested a retreat from the prior assertion of sweeping presidential authority to engage in the practice. But the December 2004 memo did not question the legality of any of the torture tactics. Nor did it address the problem of other cruel, inhuman, or degrading treatment ("CID") that did not meet the legal definition of torture.

In 1988, the United States signed a treaty outlawing CID (or "torture lite" as it is sometimes called, a treaty that now more than 140 countries have ratified. But the administration dodged this binding legal obligation by arguing that the treaty does not restrain the United States when it acts abroad.

So, in December 2005, Senator John McCain and other members of Congress addressed this perceived loophole by categorically banning CID by any U.S. official, including the CIA, anywhere in the world.

But OLC, now under Gonzales' leadership, had already acted to keep the loophole open. As The New York Times reported last week, two secret OLC memos from earlier that year found that the harshest interrogation tactics did not constitute CID, even when used in combination. Notably, the administration did not share these opinions with Congress, which unknowingly voted to outlaw techniques that the executive branch secretly determined were legal. The two opinions still remain in effect, sanctioning the use of harsh interrogation techniques against the untold number individuals who disappear into America's network of secret prisons.

Although Torturegate's full repercussions will not be known for years to come, its effects have already proven devastating. Torturegate has eroded confidence in the Justice Department and shattered the reputation of OLC, once widely respected for providing independent legal advice to presidents.

Torturegate has also undermined America's credibility. Gone is America's moral authority to advocate on the world stage for justice and human rights. Yes, other regimes may be more lawless and repressive but these differences are increasingly ones of degree. Virtually all governments seek to justify their actions in the name of the public good. The question is whether a nation's leaders exercise the self-restraint necessary to make their nation one of laws not of men.

If America is to regain what it has lost, it must act to repair the damage. Congress must make good on its demand that the administration produce the two secret 2005 OLC opinions, along with other prior legal opinions about interrogation techniques. It must also ensure the end of secret prisons, take additional steps to prohibit the CIA's use of torture techniques (such as by mandating the CIA follow the Army's interrogation manual), and restore habeas corpus. And steps must be taken to rebuild OLC's integrity.

Torturegate may have been the result of a small group of individuals bent on avoiding the rule of law. But, now that their work has been exposed, it is our collective responsibility to take corrective action.

*Cross-posted from The Huffington Post

Yesterday, the Senate Judiciary Committee voted 13-3 to authorize subpoenas focused on the Bush Administration's warrantless wiretapping program. Here is what the authorization read:

Be it resolved that, pursuant to its authority under Rules 25 and 26 of the Standing Rules of the Senate, the Senate Committee on the Judiciary hereby authorizes its Chairman, in consultation with the Ranking Member, to issue subpoenas to: 1) the Honorable Alberto Gonzales, Attorney General of the United States, and 2) the Custodian of Records at the Executive Office of the President, to provide the Committee with all documents related to the Committee's investigation into the Administration's operation of a warrantless domestic surveillance program outside of the provisions of the Foreign Intelligence Surveillance Act, and its legal analysis for this program.

That the vote did not break out along party lines -- Senators Specter, Hatch, and Grassley voted for the subpoenas -- is an indication of how troubling the emerging picture of shoddy lawyering and reckless uses of power that has gradually emerged through testimony from James Comey and others. But why are these documents so important? And what are the chances now that the subpoena will be honored? Will this indeed turn out to be a further step in building accountability over the secret, lawless electronic surveillance of Americans conducted since 9/11?

The background by now is familiar: In September 2001, the President authorized a program of warrantless domestic spying by the National Security Agency, or NSA. Only in December 2005 -- after a year of sitting on the story -- did the Times break that news. Now, two separate congressional investigations, conducted by the Judiciary and Intelligence Committees, are circling in on the facts not only about the NSA program itself--but also about the way it was adopted.

Yesterday's subpoena's focus on the latter issue -- "How did it happen?" -- and less on the "What happened?" question. At first glance, for example, it does not seem that the subpoena cover the issue of how the NSA is now conducting warrantless surveillance. The Administration has said, for example, that the program is now "under" the jurisdiction of the FISA court. But even experts are baffled by precisely what this means. The closed and secretive FISA court is supposed to hear only applications for individual warrants. The nub of the Administration's arguments, however, has always been individualized applications are too cumbersome. The best hypothesis I have seen is that the Administration has persuaded the FISA court to issue an open-ended anticipatory warrant -- which allows the Agency to act first and ask questions later. But we won't know whether the NSA is acting in ways that cast Americans' rights under a shadow even if these subpoenas succeed.

But the "what?" question is not the only one on the table: There is also the "how?" question. How did the NSA get legal authorization within the executive branch to conduct surveillance operations that are in flagrant violation of the 1978 Foreign Intelligence Surveillance Act? Why did the Justice Department in 2004 decide not to continue its endorsement of the program -- the decision that nearly precipitated a mass resignation of executive branch lawyers not seen since Watergate days and that led to the dramatic showdown between Justice Department lawyers and White House consigliores at John Ashcroft's hospital bedside? How exactly had the program been authorized before?

It is these questions -- which go to the integrity of the Government's decision-making process, and the question whether executive branch officials have acted in accordance with their constitutional obligation to "Take Care" that the laws will be enforced that, is now at issue.

Unfortunately, there are solid reasons to believe that the answer is "no." Perhaps the most telling resistance that the Administration has shown is disclosure of the legal opinions that have at various times animated the program. There are two sets of key documents -- and yesterday's subpoena clearly sweeps in both sets.

First, there are the legal opinions and documents on the basis of which the NSA's program was first authorized in 2001. There is a great deal of ambiguity about how precisely this initial authorization happened. But we do know that there must be some paper trail. In 2004, Justice Department lawyers led by Jack Goldsmith looked at some document or other, a document which provoked them into contacting then Acting Attorney General James Comey and persuading him to deny authorization for the program. Given that these were hardly liberal lawyers, the documents they reviewed must have been troubling -- so troubling that they were willing to risk terminating a program the President claimed was key to national security.

What exactly did these original authorizing documents say? We simply don't know. After the Times ran its revelatory story, the Justice Department issued a defense of the wiretapping program that relied in large part on a 2004 Supreme Court case -- so we know that wasn't the justification offered in 2001.

It is also important for us to see the documents prepared in 1004 (listed here in a handy chart prepared by the ever-marvelous Center Democracy and Technology). These documents will equally explain why the initial authority was so improbable that even conservative lawyers were prepared to shut down the program.

Will all of this come out?

Congress's power to issue subpoenas is now without question. Whether those subpoenas are obeyed is quite a different story.

As is the traditional practice, the committee will not issue subpoenas until it has entered negotiations with the White House, and Committee Chair Senator Patrick Leahy has rightly insisted that the committee is seeking "the legal justification and analysis," rather than "intimate operational details." Even when the subpoenas are issued, it is not wholly clear that the Committee will win access to every document. Generally, some compromise is reached. The danger now is that the compromise will leave out vital documents (especially those pertaining to the initial authorization) and also cut out the public.

The precedent is not good. In 1989, the Bush I Justice Department declined to release a legal opinion concerning the power of the FBI to seize suspects overseas without the permission of the country in question, and to bring the suspect back for trial in the United States. Then Attorney General William Barr insisted that the opinion "must remain confidential" even though an earlier memo -- which had concluded the practice was illegal -- had been released. At the end of the day, the compromise reached after subpoenas were issued was that some members of the committee would be allowed to review the memo on behalf of the whole committee -- but there would be no more public disclosure.

This will not do today. The rights of Americans are at stake. The question whether the President's lawyers trampled the Constitution for the sake of an idiosyncratic vision of executive power is at stake. There is simply no reason for legal opinions -- which do not contain "intimate operational details" -- should remain classified. This truly is a case where the public needs to know what has been done in their name, done to them, and done in spite of the laws they have enacted.

Aziz Huq: "Subpoenas and the NSA" (pdf) 

*Cross-posted from The Huffington Post

The United States this week released the transcript of the military hearing for self-proclaimed 9/11 mastermind Khalid Shaikh Mohammed. Initial accounts in the New York Times and Washington Post described the "confession of a top leader" and detailed Mr. Mohammed's participation in a laundry list of terrorist plots. Yet, the confession of Mr. Mohammed (or "KSM" as he is better known) comes as no surprise. He has long claimed a leadership role in al Qaeda and in the 9/11 attacks, as the 9/11 Commission documented. The real story is not what KSM said but how much the administration is fighting to keep secret.

Although he has been in U.S. custody for four years, KSM is one of Guantánamo's newest detainees. In September 2006, he and thirteen, other "high-value" terrorist suspects were transferred from secret CIA prisons or "black sites" to Guantánamo. These CIA prisons were established to implement various "enhanced interrogation techniques," the post-9/11 euphemism for torture, and to preclude any possibility that a court would review the actions of Executive branch officials. As Ron Suskind recounts in The One Percent Doctrine, interrogators subjected to KSM to water-boarding, a technique that simulates drowning, and threatened to rape and kill his family. Other "enhanced interrogation techniques" included "cold cell," where prisoners are left to stand naked in a cell kept near 50 degrees while they are doused with cold water, and "long time standing," where prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours.

The transfer of the 14 "high level" suspects to Guantánamo was prompted by the Supreme Court's June 2006 decision in Hamdan v. Rumsfeld. Until Hamdan, the administration maintained that detainees were all "unlawful combatants" in a global "war on terror," and thus fell outside any legal protections. In Hamdan, the Supreme Court rejected that position, ruling that al Qaeda members and other that suspected terrorists are protected at least by Common Article 3 of the 1949 Geneva Conventions. This provision establishes a baseline of protections for all detainees, prohibiting torture, cruel treatment and other abuse. And, the federal War Crimes Act made officials criminally liable for breaches of Common Article 3. Faced with a rejection of the legal building-block of its CIA "black sites," as well as the potential liability of government interrogators, the President announced in a televised speech to the Nation that he was transferring the remaining secret prisoners to Guantánamo. He then engineered passage of the Military Commissions Act of 2006, which amended the War Crimes Act to help shield CIA and other officials from prosecution for past abuses while stripping the federal courts of habeas review over the cases of detainees held as "enemy combatants" at Guantánamo and elsewhere.

Since then, secrecy has dominated the treatment of KSM and the other ex-ghost detainees, just as it has pervaded the detention of the more than 700 hundred other individuals held at Guantánamo since January 2002.

To begin with, the Combatant Status Review Tribunal hearings (or "CSRTs") of these detainees are closed to the press. Ironically, the military permitted the press to attend the CSRT hearings for Guantánamo detainees in the past. One would have expected the military to want the hearings of the "biggest fish" at Guantánamo to be open to the public to demonstrate the strength of its evidence. And, it is precisely in such cases, that the public's interest to know is strongest. But, apparently, that calculus is different when evidence has been gained through torture.

In any event, opening KSM's CSRT to the press would not have solved the problems of excessive secrecy nor of the kangaroo-court nature of the CSRTs themselves where detainees have no lawyer or right to see the evidence against them. KSM's transcript is heavily redacted because his descriptions of torture and mistreatment were all deemed classified. The publicly available record thus contains no discussion of water-boarding, death threats, or other coercion.

This type of excessive secrecy is hardly unique. In another case, the government has sought to bar the detainee (Majid Khan) from discussing his interrogation at a CIA prisons with his own lawyer. Merely talking about torture, the government's argument goes, jeopardizes national security (even though the government's use of coercive interrogation tactics is no longer a secret). Avoiding embarrassment by suppressing discussion and debate about past illegality contradicts the essential principles of openness and accountability upon which a democracy depends.

Yet, there is another, more pernicious consequence to suppressing the truth. KSM explained at his CSRT hearing that he falsely implicated other detainees as a result of his abuse. These statements are corroborated by those of CIA officials who, according to Suskind, say that KSM later recanted prior statements made under duress. Notably, Mohammad al Qahtani, a Guantánamo detainee subjected to prolonged sleep deprivation, sexual and religious abuse, the use of painful stress positions, and other abuses reportedly implicated 30 other detainees during his interrogations. How many detainees are being held based upon statements made by KSM, al Qahtani, and others that were obtained by torture? If the administration has its way, we will never know because CSRT procedures deny detainees the right to see the evidence, call witnesses, or otherwise demonstrate they are being wrongly held based upon information gained by the rack and the screw.

Reliance upon evidence gained by torture violates our most basic principles. As the Supreme Court put it, imprisoning people based upon coerced statements is "offensive to a civilized system of justice." It is also inherently unreliable because we know from centuries of experience stretching back to the middle ages that prisoners make false statements to avoid extreme physical or mental pain. Indeed, that is precisely why U.S. army guidelines - ignored by this administration - prohibit coercive interrogation techniques, explaining that such techniques "induce the source to say whatever he thinks the interrogator wants to hear."

Clearly, the American public cannot expect the administration to come clean about who it is detaining and why. That is precisely the reason federal courts must retain their historic power to inquire into the facts through the Great Writ of habeas corpus. Later this month, the U.S. Supreme Court will decide whether to review a recent decision by a federal appeals court [pdf] in Washington, D.C. upholding the recent elimination of habeas corpus for Guantánamo detainees. Unless these court-stripping provisions are invalidated, and habeas corpus is preserved, America will for the first time have sanctioned imprisonment based upon torture. No nation committed to human rights and the rule of law can accept that result.

*Cross-posted from The Huffington Post

After the summary defenestration of Donald Rumsfeld and the slow martyrdom of Scooter Libby, the New York Times' call yesterday for the President to fire his Attorney General, Alberto Gonzales, no longer seems unrealistic. Yet the firing of one person, no matter now misguided or sub par their performance as the leader of a critical federal institution might have been, will not solve the deep institutional problems that are becoming increasingly evident in our national security policy.

Calls for Gonzales' exit stem from two seemingly separate scandals, the politicization of U.S. Attorneys, tasked with making independent prosecutorial decisions for federal law violations, and from the FBI's misuse of national security letters, or NSLs. The latter, as Geoffrey Stone explains here are a sort of subpoena that allows the FBI to secure documents from businesses without judicial warrants. Not only has the number of NSLs skyrocketed, their misuse has also gone underreported.

These two stories are, in fact, symptoms of a common problem. Eighty years ago, President Franklin Delano Roosevelt marshaled a group of progressive reformers to establish new federal agencies to confront the Great Depression. FDR's reformers understood the importance of professionalized, empirically-based solutions to the nation's pressing problems. Thus, in addition to tackling the nation's financial woes, they tried, with some success, to create new institutions that would provide expert, non-ideological solutions to real problems.

Now, the FBI was not always the model of disinterested professionalism. It was, after all, J. Edgar Hoover, who led the bugging of Dr. Martin Luther King, Jr., and the efforts to destroy his name and precipitate his suicide. This was just the tip of a larger iceberg of abuses. But the Bureau, and other security agencies, was eventually reined in by Congress at the end of the 1970s, as Fritz Schwarz and I have explained. Many success controls and oversight mechanisms were set in place.

More so than at any other time, we have seen during this Administration a concreted effort to demolish these mechanisms for the FBI and its larger institutional home, the Department of Justice.

For starters, the machinery of justice has been politicized. The civil rights division of the department of justice, for example, has been shanghaied into endorsement of dubious redistricting in Texas and a voter id law in Georgia. Anecdotally, one hears that hiring in the Justice Department is no longer done by career lawyers, as it was from the Ford to the Clinton years. Now it is the responsibility of political appointees.

At the same time that professional standards are under assault, oversight has been evaded or gutted. It is not only the use of NSLs that has not gone reported. Both Congress and the public are still in the dark about a gamut of national security measures that directly impinge on our civil liberties.

Take, for example, the NSA's warrantless surveillance program. Earlier this year, the Government announced that it had got that approved by the FISA Court, a body of judges that is supposed to screen all intelligence search warrants. That sounds comforting, until you realize that the surveillance protocols endorsed by the generally conservative FISA panels may be just as sweeping and open-ended as the past secret programs. Or until you learn that the Administration has insisted that only a handful of members of Congress will be briefed in a limited form that effectively disables legislative oversight.

Another example of worrying non-disclosure concerns a 2002 law, introduced by Senator Patrick Leahy, that requires the Attorney General to disclose any times when the President decides a law is unconstitutional, and thus should be ignored. From the President's own signing statements, and from internal Justice Department memos, we know that the President invokes this power with dangerous regularity, claiming prerogatives far beyond those the Constitution gives him. And yet the Attorney General has never filed a report with Congress on the number of times the executive has declined to comply with federal law.

Combine the assault on professionalism with the refusal of oversight, and you get a dangerous vacuum: decisions about investigation and prosecution are no longer made on the basis of objective criteria. They are used to leverage partisan gain (as decisions about the Texas redistricting and the Georgia id law certainly seemed to be). Or they will be made for even narrower, selfish purposes.

The result is a set of policies that leaves us less safe as well as less free. Concrete proof of this came a couple of weeks ago in another report by the Justice Department's Inspector General (who was also responsible for the revelations about the NSLs). This report concerns the Justice Department's prosecution and reporting of terrorism cases within the United States, and makes disturbing reading. It turns out that various components of the Justice Department have "decentralized and haphazard" ways of reporting terrorism cases. In presenting their records to Congress and the American public, investigators and prosecutors have been systemically overreporting both the number of terrorism cases in the United States, and their successes in these cases.

They do this by treating any prosecution that comes from an investigation vaguely linked with "terrorism" as being a "success" in the War on Terror. For example, there has been a sequence of airport sweeps for undocumented workers, most famously one called "Operation Tarmac." Of course, these operations pulled in dozens of undocumented workers (mostly Hispanic), who were duly prosecuted: All of these prosecutions were counted as "terrorism" cases even though there was never any connection between the individuals concerned and any hint of terrorism. Yet this large investment of federal resources hasn't necessarily made the nation any safer - even as it strokes nativist sentiments.

Of course, the kind of policy makes individual prosecutors look good. And it bulks up the numbers that Justice reports to Congress at the end of each year, justifying greater appropriations. But it also gives a misleading impression of the scope of the terrorist threat in the United States, which in turn is used to underwrite new, and harsher, policies.

Until we have a return to real oversight, and a fresh commitment to professionalism with the Justice Department, we won't be able to get our counter-terrorism policies straight. We will continue to misallocate resources and misjudge the threat. This means holding hearings on how internal oversight within the Justice Department is done. It means examining the functioning of critical institutions like the Office of Legal Counsel, which has an important influence on legal policy. And it means strengthening disclosure laws - and the sanctions for non-disclosure - to ensure a meaningful conversation between the ranches of government.

Getting rid of Gonzales, in short, may be satisfying for some in Congress who have been frustrated by his stonewalling - but it will not solve these systemic problems, which demands wholesale legislative reform as answers.

Aziz Huq: "Removing Gonzales Will Not Remove Systematic Problems" (pdf) 

*Cross-posted from The Huffington Post

It's hardly the fall of the Berlin wall, more a knocking away of a block or two away: Yesterday, the Justice Department announced that it would allow a handful of legislators to look at a key document related to National Security Agency's newly amended domestic spying program. Like other concessions, today's development is far less than first appears. Worse, it risks obscuring the truly troubling questions about accountability and oversight, questions that are becoming all the more pressing now Congress is making tentative moves to play its proper constitutional role.

Some background: In December 2005, James Risen and Eric Lichtblau of the New York Times broke news that the NSA was spying without warrants on Americans in the homeland. Past Administration denials morphed overnight into vigorous defense: How dare the Times, or anyone else, even discuss, let alone question, the illegal and secret tactics that the President chose to use in derogation of Americans' privacy rights? To do so was, the Administration implied, to give aid and comfort to the enemy.

Law suits followed, with the ACLU and CCR leading the charge in suits in Detroit and New York. (Full disclosure: I am counsel on an amicus brief filed by the NAACP and other civil rights in opposition to the NSA's spying). In August 2005, Judge Anna Diggs Taylor of the federal district court in Detroit issued an opinion finding the executive in violation of the First and Fourth Amendments. What followed was an avalanche of calumny on Judge Taylor's head, especially from conservative commentators.

The government appealed Judge Taylor's decision to a federal appeals court, the Sixth Circuit. Just as that case was about to be heard, it tried to the cut the legs out from under it: A little more than a week before the hearing, which took place yesterday, Attorney General Alberto Gonzales announced that the Administration would henceforth secure judicial warrants from the Foreign Intelligence Surveillance Court, rather than operating without warrants under a new arrangement worked out with that court. And even though that court's chief judge openly said there would be no problem in releasing details of the new arrangement, Gonzales resisted any disclosure of the "arrangement," leaving grave doubts about whether the new policy falls within the law.

Hence the relevance of yesterday's announcement: Even as the Sixth Circuit was pressing Deputy Solicitor General Greg Garre on his argument that the case should be dismissed as moot, the Administration was backing off from its "no disclosure" position, and saying that members of the intelligence committees and certain House and Senate leaders would be able to see the details of the new arrangements.

Yet what seems to be a comprehensive climb-down both in the courts and in Congress is far less than meets the eye.

Take first the government's apparent retreat from warrantless spying on Americans: In the Sixth Circuit hearing yesterday, it became quickly apparent that the government has not backed down from the claim that it has the power to override privacy laws, not to mention the First and Fourth Amendments, in the name of national security. By backing off just as the Court was poised to decide, Garre explained, the Government wanted to pre-empt a potentially unfavorable ruling while also preserving its ability to re-start warrantless spying. It gets, in other words, to have its cake and eat it.

Then consider the decision to disclose to Congress. A year ago, when news of the NSA's warrantless spying broke, the Bush Administration said that it had provided "more than a dozen briefings" to Congress. As I explain at length in a forthcoming book, the Administration limited its briefing to a small group of legislators and barred their staff. For busy legislators, this arrangement meant that they might gain some limited insight into what was happening - but then they had no way of developing either the facts or the legal bases of what was being done. That is, the Administration was able to claim it had disclosed to Congress but at the same time it had deprived legislators of the opportunity for oversight.

The kind of openness being promised now is exactly the same kind that was used before to create disclosure-without-accountability. Hence, unless the legislators concerned push, and make sure their staff and their colleagues can examine the new "arrangement," there cannot be the kind of robust debate and interrogation of the Administration's newfound respect for the law.

Worse, the Administration is insisting that this disclosure does not create any precedent: It intends to remain as tight-lipped as always, keeping from Congress the documents and facts that legislators need to do their job.

Indeed, the document that was disclosed yesterday is one that implicates the most minimal of secrecy concerns, and raises the largest red flags when left undisclosed: It is a document not about the facts, but about the legal regime that governs counter-terrorism operations. But should the law ever be secret? The argument that terrorists can learn anything from the abstract categories used to establish the metes and bounds of a program is absurd, particularly in the wiretapping context: Laws or legal rules, which are framed in terms of generalities, have never been thought to "tip off" terrorists - but they are vital to oversight. How can citizens hold their elected leaders to account if they don't even know what policies they adopt?

In fact, there is ample historical precedent for forcing the executive to yield up information even in the national security context. One of the earliest invocations of executive privilege, was by President George Washington. It concerned a congressional inquiry into a failed November 1791 military expedition. Washington eventually gave the information up (although he insisted on his right to withhold information). Since then Congress has been vigorous in seeking disclosure from the executive, especially when there is evidence of wrong-doing or law-breaking).

Disclosure should not be at the executive's pleasure, as the Justice Department yesterday suggested: It is a constitutional compulsion, necessary for Congress to do its job. Rather than accepting piecemeal revelations at the whim of Mr. Gonzalez, Congress needs not only to start issuing subpoenas but to start holding hearings and legislating on new disclosure rules and new structures to ensure meaningful accountability not just today, but for the future.

Aziz Huq: "Winning Back the Checks and Balances of American Government?" (pdf)