Two weeks ago, Rep. Jackie Walorski (R-Ind.) introduced a bill that would define the National Security Council (NSC) as an “agency” for purposes of the Freedom of Information Act (FOIA).  The bill, H.R. 4922 – Transparency in National Security Act, aims to reverse the effect of two federal appellate court rulings that rendered the NSC, as an entity, beyond the scope of FOIA notwithstanding 20 years of NSC processing of FOIA requests.  The bill would enhance transparency, but only as a marginal matter given the broad applicability of existing exemptions for classified information, deliberations, and other sensitive materials.  Further, the recent FOIA-litigation discovery orders in the State Department email controversy loom large from an NSC perspective.

Rep. Walorski argues the NSC’s role has expanded beyond advice and policy formulation to operational and managerial roles.  She cites complaints by the past three Secretaries of Defense that NSC staff have engaged operational micromanagement and direct communication with military commanders in the field.  In addition, she argues that centralizing power in the NSC at the expense of Cabinet Departments frustrates congressional oversight.  She also notes the significant increase in size of the NSC staff since the Clinton administration, a time period that, of course, includes 9/11 and its aftermath.  The Washington Post published an illustrative graphic comparing the Carter and Obama NSC organizational charts.  As you can see, President Carter had a FOIA component.  The bill findings note that the “NSC maintained an active [FOIA] program and responded to requests under Presidents Ford, Carter, Reagan and George H.W. Bush.”

That all changed in 1996 when the DC Circuit handed down its opinion in Armstrong v. Executive Office of the President.  There, the NSC argued that it does not exercise substantial authority, independent of the President, and therefore it was not an “agency” within the meaning of FOIA.  The panel, in a 2-1 decision, ruled in favor of the NSC.  The Supreme Court denied certiorari, so there was still technically room for litigation in other circuits.  Last year, in Main Street Legal Services v. National Security Council, the Second Circuit followed the DC Circuit’s reasoning in Armstrong.

The operational language of the bill would amend Section 552(f)(1) of title 5 by adding the bracketed language to amend FOIA’s definition of “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President [and the National Security Council]).”  Section 4 of the bill would give retroactive effect to NSC records created “before, on, or after the date of the enactment of this Act.”  No action has been taken as yet on the bill following its referral to the House Oversight and Government Reform Committee, which has legislative jurisdiction over FOIA matters. 

At first blush, the language looks redundant as a matter of the executive branch organizational chart.  The National Security Council is a component of the Executive Office of the President (EOP).  In that sense, it is already covered by FOIA’s existing statutory definition of “agency.” Some of the NSC’s sister EOP components are agencies subject to FOIA (e.g., the Office of Management and Budget and Office of the U.S. Trade Representative) and others are not (e.g., the White House Office and Office of the Vice President).  That is because the statutory inclusion of the EOP components within the term “Executive Office of the President” has not been dispositive.  Rather, the executive branch and the courts have analyzed what qualifies as an agency for the purposes of FOIA by means of functional analysis.

However, this language – along with the accompanying legislative findings – would create an expression of legislative intent to include the NSC within the definition as a specific matter.  In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), the Supreme Court held that “‘the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’ are not included within the term ‘agency’ under the FOIA.”  Id. at 156.  The Court relied on legislative history to come to that conclusion.  By construing the legislative intent in this manner, the Court was able to avoid thornier separation-of-powers issues about congressional regulation of core executive advice.

On one hand, this language seeks to remove a critical premise upon which subsequent appellate rulings excluding the NSC from FOIA are based.  On the other hand, it may force the courts to more directly address Congress’s power to bring FOIA into the White House inner sanctum even if the EOP component’s sole function is to advise the President.  Moreover, the National Security Act explicitly states that “the function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security.”

Of course, Rep. Walorski and other transparency community advocates would reject the factual premise that the NSC is merely acting in the capacity as a collection of presidential advisors.  Rather, they see evidence of an operationalized NSC.

This concern is nothing new.  A 2000 Brookings Institution publication suggested that “as it has grown in size, the NSC has become more like an agency than a presidential staff.”

One of the main critiques following the Iran-Contra affair was the idea that NSC staff was running operations out of the White House.  One congressional overseer wrote:  “The defects of centering power in the NSC staff became even more apparent, and the consequences more acute, as the staff assumed operational control over both assistance to the Contras and supply of arms to Iran.”  He and his coauthor noted that an operational role was inconsistent with the specific grants of authority to the NSC under the National Security Act: “The language establishing the NSC thus demonstrates that its creators envisioned it as a source of advice, rather than operational activity.”  To be fair, however, Section 101(b) of the National Security Act also states the NSC may “perform[] such other functions as the President may direct.”

However, the NSC role is undoubtedly growing.  As noted above, it has grown from around 100 staff to nearly 400 now.  So what might be contributing to those changes?  Below are three back-of-the envelope thoughts on the NSC’s increased prominence.

Integrated Power Theory.  One of the big critiques coming out of 9/11 after action analysis was the failure of interagency coordination.  The Project on National Security Reform argued “as demonstrated by the challenges following the wars in Iraq and Afghanistan as well as Hurricane Katrina, a cooperative interagency system is often impeded under the current national security system, the groundwork for which was laid out 60 years ago in National Security Act of 1947.”  Moreover, counterinsurgency and counterterrorism operations put a premium on integrated use of the elements of national power: military power, intelligence capability, development, financial controls, and diplomacy.  Interagency policy coordination, now ascendant, is the NSC’s core competency.

Technological Revolution.  We now are able to engage in remote command and control of many different types of kinetic operations.  Many years ago, President Johnson’s aide William F. McSweeney told me about how the White House used to use vacuum tubes (like a bank drive through) to communicate secret messages with the Pentagon during the Cuban Missile Crisis.  A pressure change would indicate the message had been compromised.  He said staffers would wait while the messages sucked back and forth across the Potomac.  Contrast that with the iconic image of the Bin Laden operation: the President sitting with NSC members and staff around a conference table in the Situation Room with a live feed.  Technology allows much greater capacity for operational control from a place like the White House complex.  Add proximity to the President, which always gives the White House staff a bit of a logistical upper hand vis-à-vis remote department heads.

Presidential Incentives.  Several Presidents have had episodes in which they felt boxed in on presidential policy decisions by national security agencies.  President Kennedy’s experience with the Cuban Missile Crisis and President Obama’s experience with Afghanistan troop requests are instructive.  The President can place loyalists on the NSC staff without going through a cumbersome confirmation process that is designed, in part, to reinforce congressional policy and oversight prerogatives.  In that sense, Rep. Walorski is correct that congressional oversight avoidance is one of the many incentives that would grow the NSC at the expense of national security departments and agencies.  In fact, the Armstrong decision magnified the oversight frustration effect because it then created an additional forum shopping incentive for the President as between the NSC and FOIA-able entities.

Were this legislation to be enacted to its intended effect, the struggle for documents would be fought at the document-, rather than institutional-, level.  The NSC’s primary function is policy formulation and its subject matter is almost always highly classified.  Therefore, existing FOIA exemptions, most notably for classified material (Exemption 1), agency deliberations (Exemption 5), and law enforcement (Exemption 7), will continue to shield the vast majority of materials.  Moreover, congressional requests for NSC records are permissible whether or not the NSC is an agency for purposes of FOIA.  They will often be denied due to executive branch confidentiality interests, however those disputes will most often be resolved by a process of accommodation and compromise (see my law review article on that process, Constitutional Conflict and Congressional Oversight, here).

Transparency would be enhanced by FOIA applicability to the NSC.  It would come at the cost of a chill on some NSC functionality.  Of course, FOIA processing would create a significant administrative burden, especially if it is retroactively applied to all historical NSC records.  FOIA processing at the NSC will, ironically, create an incentive to increase its staff.  To my mind, the biggest threat posed to NSC interests by FOIA compliance is the prospect of judicial intervention.  FOIA litigation discovery orders in the State Department email controversy would send chills up my spine as NSC legal counsel in a post H.B. 4922 world.  In these important senses, this legislation would have complicated consequences.