The full access doctrine is a theory, elaborated by Divoll, that argues that Congress is entitled to gain access to any information it needs to perform its oversight function, unless the requested information is reasonably deemed by the executive to be privileged, and thus may be withheld173. When policies are molded and actions are taken for the safety of the country – or at least it is stated that they are – Congress’s need to be apprised of the executive branch conduct proves even more compelling. Divoll refers in particular to “the aggressive intelligence programs” conducted under the Bush administration174. In more general terms, Divoll argues that in the national security domain, Congress’s right to know must be broad, albeit not so broad to entail “a complete cascade of information” flowing from the executive to the legislative branch175. Absolute transparency, without even recognizing to the Executive the prerogative to put off the release of information when it is proper to do so176, would be – the Author argues – “disruptive and unwieldy,” for it could undermine the outcomes of intelligence activities and thus jeopardize human lives177. In this field, however,
173 See V
ICKI DIVOLL, The “Full Access Doctrine:” Congress’s Constitutional Entitlement to
National Security Information from the Executive, 34 Harv. J.L. & Pub. Pol’y 493, 541 (2011).
174 Id., at 502. The Bush administration took on such programs as warrantless surveillance and
extraordinary renditions of suspected terrorists in the aftermath of the 9/11 attacks.
175 Id., at 503. 176 See M
ARK J. ROZELL, Executive Privilege. The Dilemma of Secrecy and Democratic
Accountability [hereinafter – Executive Privilege. The Dilemma], 5 (The Johns Hopkins University
Press, Baltimore, 1994) (pointing out that the rift between critics and advocates of the withholding of information by the executive branch often extends to the timing of disclosure, since the former tend to demand immediate release of the requested information, while the latter strive to justify the postponement of the release).
177 D
IVOLL, The “Full Access Doctrine,” supra note 173, at 503. Even though Congress is entitled by the Constitution to gain access “to every type and piece of intelligence information” in possession of federal agencies operating in the field of national security – the Author contends – “[a] wise Congress will draw the proper line, and will not behave irrationally in its demands for information.” Ibid.
54
the withholding of information from Congress as it carries out investigations over the executive branch must be an exception to the rule.
In the domains of national security and foreign affairs, at least two main reasons – the Author observes – lead to advocate broad access to information by Congress. Firstly, the activities carried out by the agencies of the Intelligence Community are governed by a rule of secrecy, which finds its practical application in the system of classified information. By exercising its oversight function, Congress stands as a bulwark against misconduct and abuses the agencies operating in this field may be tempted to commit by turning the neutral concept of secrecy into that of concealment, usually meant with a negative acceptation. According to the Author, therefore, Congress and – namely – the committees on intelligence end up being the only overseers of the executive branch that American citizens may depend on to know how intelligence agencies operate on U.S. soil and abroad178. Secondly, broad access to national security information is necessary for Congress to make cognizant decisions on appropriations, and thus to pick programs and activities in this field that are worth funding. Such an argument is based on Article I, Section 9(7) Const., which vests Congress with the power of the purse, i.e., the power to establish in budget legislation the appropriations that provide all executive branch activities with funds179. Divoll, in particular, puts stress on Congress’s need to gain access not only to records and documents on the content of activities and programs, but also to “detailed budget numbers” pertaining to federal agencies conducting business in the national security field, even though such numbers are usually “highly classified […].”180 Congress, indeed, is unable to approve the funding of ongoing or new intelligence operations by formally inserting specific appropriation provisions in the annual budget legislation if it is not properly acquainted with “detailed information about the nature of the programs [performed or proposed by intelligence agencies] and their estimated cost.”181
178 Id., at 502 (“[O]ur representatives in Congress are the only external (non-executive) means by
which the intelligence policies and activities of the executive can be policed routinely. Congress performs a critical proxy function, unlike in any other area, requiring it to find out what the executive is doing (in the name of the American people) in its clandestine activities at home and overseas.”)
179 Article I, Section 9(7) Const. provides as follows: “No Money shall be drawn from the Treasury,
but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
180 D
IVOLL, The “Full Access Doctrine,” supra note 173, at 506.
55
Accordingly, the full access doctrine – Divoll maintains – leads to recognize the ability of Congress to obtain a great majority of the information held by agencies operating in the national security domain, even when such information are concerned with the gathering of foreign intelligence or the carrying out of covert action182. It is the committees on intelligence of the two Houses of Congress, not the executive branch, that must determine what information they need to perform their oversight function properly183. In general terms, federal agencies may not refuse to disclose information to Congress, since Congress’s broad right to know is consistent with such flow of information from the executive to the legislative branch as the Constitution requires. The committees of Congress have a potentially unlimited right of access, because no information held by the whole apparatus of the executive branch – Divoll contends – “is beyond their legitimate grasp, and the Framers did not give the President any authority to resist [requests for information advanced by Congress].”184 However, as already noted, Divoll observes that it would be inappropriate for Congress to gain access to any piece of information concerning intelligence activities. The full access doctrine advocates the existence of a right of access that turns out to be tendentially absolute. Yet, it does not require that Congress exercise this right to obtain the release of information that do not prove necessary for it to perform its constitutional functions, such as the details of a certain intelligence operation185.
It has been observed that making the agencies of the Intelligence Community more transparent increases the risks of a distorted usage of disclosure in this field. The Executive, indeed, may prompt such agencies to alter reality and manipulate data when drafting reports or forming records. The publication of those reports and records are capable of steering the public opinion towards a given orientation. Rovner maintains that “greater transparency increases the likelihood of politicization and that published [intelligence] estimates will be
182 Ibid. (pointing out that the very information concerning sources and methods of the gathering of
intelligence abroad and the conduct of covert operations “often forms the basis of disputes between the [legislative and executive] branches over access.”)
183 Ibid.
184 Id., at 506-507.
185 Id., at 507 (“Although the Full Access Doctrine provides that Congress is entitled to it, only very
rarely would Congress need to know, for example, the operational details of a Central Intelligence Agency (CIA) plan to capture a named al Qaeda leader next Tuesday at 1300 on a particular street corner in Khost, Afghanistan. Such information would not enhance the ability of Congress to perform its constitutional role […].”)
56
biased.”186 He reaches the conclusion that such estimates should be governed by a rule of secrecy and thus kept as classified material, because “[t]he expectation that intelligence will be declassified creates incentives for policymakers to manipulate future assessments.”187 The full access doctrine mentioned above lacks an innovative value, as it does not add anything new to the debate over the extent of Congress’s right of access to executive branch information. The limits such a doctrine pinpoints to congressional access to information stem from the application of a mere principle of common sense. It is rather evident, indeed, that such access must be weighted up with the supreme interests of the country, such as the protection of human lives and the safeguard of the integrity of the country itself, and may succumb to them on some occasions. The full access doctrine, however, deserves credit for the emphasis it puts on Congress’s need to gain broad access to information in any field of executive branch activity, including intelligence and related business in the national security domain. Constant access to information pertaining to such domain by Congress is most likely to manage to prevent misuse of intelligence information, as with the case mentioned above of alteration of intelligence estimates for political purposes.
186 J
OSHUA ROVNER, Fixing the Facts: National Security and the Politics of Intelligence, 204 (Ithaca, NY: Cornell University Press, 2011). The Author mentions cases in which different U.S. administrations deployed intelligence documents misrepresenting facts and data to justify certain policies and gather the people’s approval over them. Among those cases is the misuse of intelligence reports by President George W. Bush – as well as by U.K. Prime Minister Tony Blair – to provide some sort of legitimacy to the 2003 military campaign aimed at overthrowing Saddam Hussein’s regime in Iraq. The distortion of reality in foreign intelligence gathering came as a response to the growing demand for information showing evidence of the weapons of mass destruction Saddam Hussein allegedly possessed. Fact-finding activities and relevant reports bent to the American and British governments’ will. Rovner contends that “[t]he same democratic pressures that led to the publication of intelligence also led policymakers to manipulate estimates, ensuring that the results were biased and inaccurate.” Ibid. The case got back into the spotlight in late 2015, when Blair avowed that “the use of misleading intelligence” led to the invasion of Iraq. NICHOLAS WATT, Tony
Blair makes qualified apology for Iraq war ahead of Chilcot report, The Guardian (October 26,
2015).
187 R
57 III. Concepts That Imply a Claim of Secrecy