If it's executive privilege, then say so

The White House and Congress may be heading toward a constitutional collision over another secrecy battle. The latest flare-up between the branches concerns the White House withholding for five years a large number of documents that are germane to a Senate investigation of the CIA's controversial former detention and harsh interrogation program.

The White House maintains that there are good reasons for withholding the documents from disclosure, whereas senators insist that they cannot properly fulfill their oversight and investigative duties without being able to review the full record of the controversial CIA program. Serious questions remain regarding the CIA's use of waterboarding and other highly controversial interrogation methods and, reasonably, the Senate committee is trying to get to the bottom of the matter.

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Such interbranch conflicts over access to information are hardly new, as presidents going back to George Washington have clashed with legislators over the right of the executive branch to withhold documents and testimony from congressional investigations. Usually such conflicts are resolved over time through a process of negotiations and compromise between the branches.

But what is unusual in this dispute is the reality that for five years the White House simply refused to cooperate with legislators. Recent reports note that the White House has ignored or rejected multiple requests from the Senate Select Committee on Intelligence to review the documents or even discuss an accommodation process to allow for some form of access.

All of which demonstrates that it is time for the president either to move toward cooperation with Congress or take a stand of opposition to disclosure with a formal claim of executive privilege. That is not to suggest that such a claim would be a defensible one – perhaps it would be, but right now there is no way to tell. But ultimately, the refusal to acknowledge or accept Congress's duty to investigate allegations of wrongdoing in government requires a presidential stand in defense of the need to withhold the disputed documents.

What we have in effect right now is a presidential exercise of executive privilege without a formal claim of that power. The unwillingness of the president to utter the words "executive privilege" escalates the whole controversy, as the White House demonstrates a kind of contempt for the legislative power by merely ignoring Senate investigators or refusing to work toward some sort of accommodation with them without explanation. Adding to the sting are various public utterances from the White House of its support for the Senate Committee's oversight work, giving the appearance of cooperating without really cooperating.

Stiff-arming the committee for years serves no public interest and it fuels suspicions that the White House is hiding something. To be clear, all governments have some secrecy needs and at times there are good reasons for withholding information from disclosure. Few argue that military operations and strategies or ongoing investigations in the executive branch should be made public. But in cases where there is not a clear justification for withholding information, in a democratic system the presumption generally is in favor of openness.

For now, we don't know if there is any legitimate basis for the White House refusal to turn over the documents. What we do know is that there are many unresolved questions regarding the CIA's very controversial past detention and interrogation program. Uncovering the facts and possibly holding past officials accountable are the rightful duty of the legislative branch given its constitutionally based authority to oversee and investigate the executive branch.

It is thus incumbent upon President Obama to take a stand rather than let this controversy continue without interbranch cooperation of any sort. If he believes that releasing the documents would cause some undue harm to the national interest, he needs to say so and claim executive privilege.    

Rozell is acting dean of the School of Public Policy at George Mason University and author of the book Executive Privilege. Sollenberger is associate provost at the University of Michigan-Dearborn and the author of the book The President Shall Nominate.