Last week, the Senate Intelligence Committee voted 13-2 to approve the 2014 Intelligence Authorization Act.  Included in this appropriations bill is a new measure that would require the President to issue an annual report on the number of combatants and civilians killed by the U.S. targeted killing programs.  On Thursday, Sarah Knuckey had an excellent post here on Just Security that analyzed key issues surrounding the proposed reporting requirement and exactly what was included—and excluded—in the bill.  As Sarah noted, there are substantive limitations to the reporting requirements in the authorization bill (e.g., requiring reporting to include only basic statistical information, to be forward-looking rather include past years, and to include only use of lethal force by drones instead of targeted killing by other means).  Beyond these substantive limitations—which alone are sufficient to dampen enthusiasm that the reporting requirements may bring greater transparency to U.S. targeted killing programs—an important question to consider is whether Congress can compel public disclosure of classified information on the U.S. drone program.

Competition between the two political branches of the government over access to information regarding national security and foreign affairs is certainly not a new phenomenon.  In fact, it is as old as the nation itself (see e.g., President Washington’s refusal to provide the House of Representatives with the “instructions, correspondence and documents” related to the negotiation of the Jay Treaty in 1794).  And over two hundred years later, there continues to be ample disagreement, to put it mildly, among constitutional law scholars and between the political branches themselves as to whether and to what extent Congress has a role in the regulating the classification and disclosure of national security information.

On one hand, Congress can, and has, created statutory frameworks for compelling disclosure within specific situations, for example CIPA or FOIA (although the latter is riddled with certain statutory exemptions of national security information).  Congress likewise has subpoena power and may seek to compel executive officials to testify.

On the other hand, the Executive Branch may invoke “executive privilege” in the face of a subpoena if it believes there is a constitutional problem with the information request.  Practically speaking then, Congress’ ability to compel the information is limited to either a negotiated compromise between the political branches or through resorting to intervention by the courts—which is controversial in its own right (see e.g., Committee on the Judiciary v. Miers and Andy Wright’s earlier post here on Just Security discussing the recent case of Oversight Committee v. Holder). Furthermore, where reporting requirements are tied to appropriations bills, the President’s signature may be accompanied by a signing statement, limiting the Executive Branch’s interpretation of the disclosure requirement (more on this below).

Thankfully, I need not—nor do I intend to attempt to—define the appropriate bounds of Congress’ power to compel disclosure of national security information.  Instead, I only flag the discord as an important, if not a paramount, consideration when evaluating the effectiveness of proposed legislation that aims to compel the Executive to disclose certain information that it may argue, in the interest of national security, must be kept secret.

Turning to Section 312 of the Intelligence Appropriations Act, the bill would require the President to “prepare and make public an [unclassified] report” on the use of targeted lethal force outside the United States.  Production of such a public report would undoubtedly require the President to disclose classified information, information the President could determine—rightly or wrongly—to be sensitive information, the disclosure of which could harm national security interests.  If Section 312 were to be included in the final bill, which is far from certain at this point, it’s not farfetched to conceive that the OLC would recommend at least some retained control of the classified information and that the President issue a signing statement limiting his interpretation of the legislation.  Past examples of such statements abound.  For example, in his signing statement to the 1991 Intelligence Authorization Act, President George H.W. Bush stated:

“Several provisions in the Act requiring the disclosure of certain information to the Congress raise constitutional concerns. These provisions cannot be construed to detract from the President’s constitutional authority to withhold information the disclosure of which could significantly impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.”

President George W. Bush used almost identical language in signing statements to several appropriations bills.  President Clinton, for his part, included milder disclaimer language, but in a signing statement to the 2000 Department of Defense Authorization Act stated that he would interpret certain reporting requirements “consistent with [his] constitutional authority to conduct the foreign relations of the United States and [his] responsibilities as Commander in Chief.”

President Obama, who has used signing statements less frequently than his recent predecessors, has not been immune to expressing his restrictive interpretation of reporting requirements, albeit arguably his interpretation is more modest than that of the two Bush administrations:

“While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.”

An added wrinkle is that the legislation would require public disclosure.  Many reporting requirements tied to appropriation measures require that the President report certain information to Congress or “the appropriate congressional committees.”  Indeed, fulsome congressional reporting requirements are found in Subtitle C of the bill.  Section 312, though, requires that the President “make public” an annual report.  Congress’ ability to legislate congressional reporting requirements is based in its power to inform itself about policy matters incident to its legislative power.  However, public reporting requirements are more attenuated. This is not to say Congress cannot compel public disclosure of information sensitive to national security interests, at least in certain instances.  Indeed, under the Atomic Energy Act of 1954, Congress created a framework for the disclosure of “Restricted Data,” classified technical information about nuclear energy production and the production of fissile materials to private companies. However, given the policy choice here of public disclosure requirements rather than congressional reporting requirements, the Executive Branch is more likely (i) to resist public disclosure of the information regarding the U.S. drone program and (ii) to prevail in a claim of Executive Privilege over public dissemination of such information. As a result, a public release requirement here is more likely to be frustrated by executive resistance—a prospect that would undermine greater transparency, before even getting to any of the substantive concerns raised in Sarah’s post last week.

With this said, it is certainly not a forgone conclusion that objections would be raised by the Obama Administration.  As mentioned earlier, President Obama has been more judicious in his use of signing statements than his recent predecessors, and it very well could be the case that this provision of the legislation was a result of negotiations between Congress and the President (we don’t know for certain, as neither side has addressed the question).  If not, however, the public reporting requirement here very well could meet resistance from President Obama, with arguments on his side to support a claim of executive privilege. And as a result, the legislation could mean frustration, rather than greater transparency, for those calling for more information on the U.S. drone programs.