SAN JOSE, June 30, 2012 - The recent decision by President Obama to invoke executive privilege conjures up images of Nixon withholding the tape recordings of White House meetings which revealed Nixon’s complicity in the Watergate controversy. The action by Obama invoking executive privilege in the Fast and Furious case has raised sincere questions of whether the president who promised transparency has something to cover up.
The very concept of executive privilege has been upheld by the Supreme Court, which has recognized that the notion of the constitutional separation of the three branches permits the legitimate use of executive privilege. Since the landmark decision against President Richard Nixon in 1974, which played a major part in Nixon resigning his position not long after, executive privilege has been used in every administration. It has long been considered an authority of the Executive Branch, although that privilege is not set forth in the Constitution.
Since President Obama’s decision to use executive privilege to withhold documents from Congress in the Fast and Furious scandal, many pundits have referred back to George Washington’s introduction of the concept during his presidency. Many inaccurately identify his first use of executive privilege in 1796 during the challenge from Congress regarding the controversial Jay Treaty with Great Britain. In reality, Washington invoked executive privilege much earlier, over a very disastrous military campaign of his planning.
In his first term, although one of Washington’s primary goals was to pursue treaties of friendship with the various American Indian tribes, a crisis arose on the frontier and it had to be dealt with because American citizens were being killed by the Indians. This proved to be a complex issue, and despite what individuals may be taught in school these days, the Indians were not American citizens.
After the Revolutionary War, the majority of tribes were treated as defeated nations since they had allied themselves with the British due to their previous relations with the British during the French and Indian War and their belief that it was unwise to cast their lot with the rag tag band of rebels. The Indian nations were just that – separate nations of people – and they had not attained, nor did they want, any part of citizenship in this new country. Nor did they want to recognize any treaty in which they had not participated.
Washington realized this very clearly, and as president, he favored negotiating new treaties of friendship with the various nations. Unfortunately, some of the Indians could see the handwriting on the wall and they did not want to cooperate with the descendants of the Europeans who were moving farther and farther into the western regions (closer to the Mississippi River area). The settlers were gobbling up the land for their own benefit with minimal understanding of sharing. The concept of private ownership of land did not translate well into Indian culture. Once the indigenous people figured out that some of the settlers were fairly ruthless and greedy for land, they resisted and fought back fiercely.
Continual violence on the frontier between the Indians and the encroaching settlers was more and more problematic to the new government and Washington, with the Secretary of War, Henry Knox, came to the conclusion that the situation warranted a military force which could pacify the region.
One such series of conflicts occurred in the Northwest Territory in late 1790 and early 1791. A serious defeat of a small advance force of approximately 400 men near present-day Fort Wayne, Indiana caused the U.S. Army’s First American Regiment to retreat to Ft. Washington along the Ohio River. The general in charge handled the situation poorly and Washington was not happy with the outcome. He then ordered General Arthur St. Clair, the governor of the Northwest Territory and a major general in the U.S. Army, to mount a more substantial campaign during the summer of 1791.
Although Congress went along with the plan and agreed to raise more troops, it didn’t work out well, and St. Clair had to start with half of a regiment and Kentucky militia, as well as a large number of six month conscripts. The expedition to take it to the Indians was haphazard and could not get off the ground until October of that year. To put it mildly, it ended in disaster and St. Clair’s troops were severely defeated.
It is estimated that over 830 Americans were killed in the intense battle with the warriors under the leadership of Little Turtle, Blue Jacket, and Buckongahelas. The natives suffered relatively few casualties. This battle made the defeat of Custer at Little Big Horn, look insignificant as the number of U.S. soldiers killed in this engagement was more than three times the number killed with Custer. The casualty rate was over 97%, the highest the Army has ever suffered in history.
Soon afterward, the House of Representatives initiated an investigation into the fiasco. It was in fact, the very first investigation into the actions of the executive branch and the members of Congress demanded certain documents from the War Department to make sense of what had happened. Knox informed Washington of the request and the matter escalated to a full cabinet meeting, perhaps one of the first such meetings in which all of Washington’s department leaders met as one body.
Washington and Knox were joined by Thomas Jefferson, the Secretary of State; Alexander Hamilton, the Secretary of the Treasury; and Attorney General, Edmund Randolph. The issue on the agenda was the sensitive nature of the embarrassing foray into the details of war with the Indians of the Ohio River Valley. The subsequent meetings between Washington and his closest advisors generated the underlying theory of executive privilege, which in practice, allowed the executive branch to refuse to share any paperwork or materials that could cause damage to the “public good” or that would be better kept from the other branches of government because of the fundamental and constitutional principle of the independent nature of the three branches of government.
The odd irony of utilizing such authority by President Obama is that he made strong claims during the 2008 campaign that his administration would place transparency as a high priority if he won the election. The other ironic perspective in this whole array of developments under President Obama is that he seems to have so little respect for the separation of powers as envisioned by the founders. He has no trouble blaming Congress for failures of leadership in passing legislation he demands and has challenged the Supreme Court to help out Congress by sanctifying the Obamacare legislation.
If one steps back a few paces and looks at the bigger picture objectively, it becomes a bit clearer. As the leader of the Constitutional Convention, President Washington was much closer to the men who wrote the Constitution, and much more familiar with their intent in incorporating the concept of the separation of powers as a fundamental aspect of the framework for the government of the people. However, as strongly as he believed in the concept of executive privilege, he turned the requested documents over to Congress even though he knew public knowledge of the horrendous loss of life of our soldiers and a considerable number of civilians would be a major embarrassment to his administration.
Fast and Furious is an embarrassment to the Obama administration, especially to the Justice Department and Attorney General Eric Holder. But such documents would not be as damaging as those that Washington had to produce. Or, would they be? Knowing how hands on Obama had been with the operation to take out Osama bin Laden (remember the video of him watching the operation via satellite feed as it unfolded), how would he not have been involved in such a high profile operation as Fast and Furious? Maybe he does have something to cover up.
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