Former Secretary Bob Gates ignited a brushfire of criticism for the timing, disclosures, and motivations of his new book, Duty: Memoirs of a Secretary at War.  Much of the reporting has focused on Secretary Gates’s criticisms of President Obama and Vice President Biden about national security policy.  However, the propriety of the book itself is an issue.  On that score, Secretary Gates has received a torrent of criticism (see, e.g., here , here, here & here), including critiques by some prominent Republicans.  There are also some apologists as well as defenders (e.g., here).  Here on Just Security, Ryan does a great job displaying Secretary Gates’s apparent debate with himself about the ethics and consequences of disclosures.

In a Bloomberg column, Cass Sunstein outlines a number of Secretary Gates’s disclosures, which include confidential communications with two Presidents and countless senior officials, as well as communications related to numerous policy deliberations.  Professor Sunstein rightly felt the publication of this book by an otherwise honorable public servant fell short of duties of loyalty, trust, and honor.

Professor Sunstein also echoes consequentialist criticisms leveled against classified information leakers like Bradley Manning and Edward Snowden; namely, that in matters of national security, certain disclosures could “be affirmatively harmful to the United States.”

I certainly make no claim to Secretary Gates’s august career.  However, having served as a lawyer in two White Houses and two Congresses, I understand the confidentiality obligations he undertook as well as the sense of betrayal felt by colleagues at present.  For my part, I would like to add a more legalistic point: much of the information disclosed by Secretary Gates in Duty could be the subject of a valid assertion of executive privilege by President Obama.

One of the first principles of the Executive Branch legal practitioner is that executive privilege belongs to the President, and the President alone.  Whether one is a Department of Defense lawyer reviewing a Freedom of Information Act request, a legislative affairs staffer negotiating with congressional committee over a subpoena, or an Assistant U.S. Attorney responding to criminal discovery request, only the President may assert executive privilege.  And, the same holds true for the Attorney General, the White House Counsel, and Cabinet Secretaries like Bob Gates.  Mindful of the President’s exclusive province, subordinate officials communicate to third parties in the language of “Executive Branch confidentiality interests” rather than “executive privilege.”  For a Clinton-era example that holds force today, see here.

There are at least two reasons for reserving this exclusive power for the President.  First, it provides a hedge against overuse of a doctrine that is controversial and contrary to interests in transparency.  Second, it honors popular sovereignty and democracy by locating the power in the elected President.  The webbing between those two interests – conservation and democracy – is that the President must internalize the political costs of a decision to assert privilege.

Secretary of Defense is a job with a number of roles, including chief administrator of the Department, member of the Cabinet, and member of the National Security Council (the “NSC”).  The Cabinet and NSC roles are, in essence, an obligation to provide sound advice to the President.  Conversations with the President about matters of substance fall squarely within the presidential communications component of executive privilege doctrine.  Participation in a principals’ meeting at the NSC, even in the absence of the President, would similarly fall within that doctrine.  Any policy formulation discussions would fall within the deliberative process component of executive privilege doctrine.  (As discussed in my previous post on the Fast & Furious litigation, the deliberative process component of the doctrine is unsettled and controversial but remains an article of faith within the Executive Branch.)  If the subject matter of such discussions contains sensitive national security information, even separate and apart from classification analysis, the information could be covered by the national security component of executive privilege.

Many of Secretary Gates’s disclosures relate to internal Executive Branch debates over strategy of the war in Afghanistan.  On Twitter, Jonathan Alter speculates that Secretary Gates was motivated to green light his book now, in part, due to the statements by White House staff that they believed that the Pentagon had “gamed” the President on Afghanistan policy in 2009.  There have been a number of accounts, but Gareth Porter offers a great summary, here.  This episode provides a perfect example of the failure in an Executive Branch official’s obligation to preserve, much less augment, legitimate presidential power.

On the substance, if true, the Department’s jamming of President Obama on Afghanistan options displayed exactly the same lack of respect for the Presidency as the publication of a memoir disclosing confidential communications.  Rather than augmenting the power, widening choices, or providing space for the person with the imprimatur of democracy to make informed choices, it narrows them.

At the time of that policy debate, I worked on a House subcommittee with national security oversight jurisdiction that had U.S. efforts in Afghanistan and Pakistan as its primary focus.  We had an insatiable appetite for information into the ongoing policy deliberations in the Executive Branch.  However, repeated formal and informal requests by our Chairman and his colleagues on other committees of jurisdiction for windows into internal Executive Branch policy formulation met unsurprising resistance by the Administration.  (Secretary Gates actually highlights what he perceived as unfair and at times outrageous treatment of executive officials at the hands of congressional overseers.)  Had we escalated such oversight tension into a full blown dispute—formal request, subpoena threat, subpoena issuance, and then contempt threat—I have no doubt the Department of Justice front office, Office of Legal Counsel, and White House Counsel would all have advised the President that he was well within his rights to assert executive privilege as a basis to withhold the requested information from Congress.

Congress has a more pressing, legitimate need for that information than generic democratic interests in transparency or even more temporally remote interests in definitive historical accounts.  The chilling effect of such disclosures abates over time, but it is still present during the same administration.  As President Bush and President Obama recognize in successive Executive Orders, former Presidents—that, as a derivative matter, cover qualifying staff conduct—have residual executive privilege interests in documents requested during subsequent administrations.  In fact, President Bush and Vice President Cheney do not escape Duty unscathed, and which chronicles some of their internal deliberations related to Iran and Syria.

By publishing Duty, Secretary Gates unilaterally deprived two Presidents of the opportunity to assess the damage of such disclosures to U.S. interests and the Presidency.

Secretary Gates is certainly not the first, nor will he be the last, executive official to strike while the iron is hot with a memoir to generate buzz and sales.  I recall my first recognition of the phenomenon when I was a young Gore staffer and George Stephanopoulos published All Too Human.  We can all recall the Bush staff’s allergic reaction to former Treasury Secretary Paul O’Neill’s book, The Price of Loyalty, as well as former White House Press Secretary Scott McClellan’s book, What Happened.  Leaks to Bob Woodward are ubiquitous.  There is a deep sense of betrayal when a former colleague settles old scores in public or trades on their public service in a way that compromises current internal deliberations.  If the motivation is to preserve one’s role in U.S. history, there is certainly no need to publish during the same Presidency.

In one sense, our professional experiences are always part of our own story.  Sometimes, by accident or design, they become significant to the American story.  However, this book will give Congress and third-party litigants greater legal ammunition to inquire into matters that the President would likely refuse to divulge for legitimate institutional reasons.  By pushing forward with release of his memoir now, Secretary Gates has hampered the President’s ability to shield himself from the very congressional “inquisitions” he laments.