The circle is complete: on executive privilege


The decision and the dissenting opinions made an exposition on executive privilege, which sounds like a lecture on the topic.

US v. Nixon is the most celebrated case regarding executive privilege. Justice de Castro outlined what she called as presidential communications privilege. In US v. Nixon, it serves public interest if “the confidentiality of conversations that take place in the President’s performance of his official duties.” is maintained. The US Court deemed this privilege necessary as to provide “the President and those who assist him… with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”

In another case, In re: Sealed Case, executive privilege is further refined. According to the US Court of Appeals, there are two kinds:

(1) The presidential communications privilege, which pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” This privilege, says de Castro, applies to the President’s decision making, rooted in the principle of separation of powers. It covers “documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.” Justice de Castro asserts that “congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege.”

There are three elements that apply:

a. The protected communication must relate to a “quintessential and non-delegable presidential power.”

b. The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

c. The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.

(2) Deliberative process privilege, which encompasses “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” This applies to deliberations and decisions made by executive officials, based on common law privilege.

Also, in the same case (In Re Sealed Case), the decision defines who are covered by this privilege:

In Re Sealed Case confines the privilege only to White House Staff that has “operational proximity” to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as “quintessential and non-delegable Presidential power,” such as commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties etc.

To be specific, executive privilege applies to documents and/or communications that might reveal military or state secrets, identity of government informers, and information relating to pending investigations; it is also applied in the field of foreign relations. The applicable Philippine judicial decisions are Chavez v. PCGG [360 Phil. 133 (1998)], Chavez v. PEA [ 314 Phil. 150 (1995)], and Senate v. Ermita.

In the case at hand, Ermita claims executive privilege on the grounds of presidential communications privilege and foreign relations. Justice de Castro is convinced that the three questions are covered by executive privilege. She based her conclusion on the following:

* The communication refers to the President’s power to enter into an executive country with other states, which is a “quintessential and non-delegable” power of the President. This power does not require concurrence of the Congress.
* The communications are directed to a close advisor of the President, which is within the operational proximity of the President.
* There is no compelling need to limit the privilege, and that information is available elsewhere.

Justice de Castro expounded on her third assertion. In US v. Nixon, the Court said that a claim of executive privilege must be balanced against other interests; it is not absolute. It can only be overcome “by mere showing of public need by the branch seeking access to conversations.” She claims that the Senate committees have not categorically shown “a compelling or citical need for the answers to the three (3) questions in the enactment of a law.”

On the argument that executive privilege does not apply on cases where a possible crime or wrongdoing can be disclosed, she agrees and does not dispute the fact. However, she says that in US v. Nixon, the information was requested for a pending criminal investigation and not for a legislative inquiry. Here, her reasons get a bit iffy:

Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets.

On the argument that the right of the people to information on matters of public concern outweighing executive privilege, she disagrees because Neri did appear, and that he expressed his willingness to answer more questions other than the three. Besides, she says, the right to information is subject to limitation, as stated in Article III, Section 7 of the Constitution. She then stated these limitations as stated in several laws. She also said:

These are in addition to what our body of jurisprudence classifies as confidential and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind.

She also contends that the right of Congress to information in aid of legislation cannot be equated with the people’s right to know. She quotes Senate v. Ermita:

Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.

On whether the claim of executive privilege was properly invoked, de Castro says Ermita’s letter satisfies the requirements:

a.) There must be a formal claim of privilege, lodged by the head of the department which has control over the matter. Justice de Castro says the letter by Ermita is enough: “There he expressly states that ‘this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.’ Obviously, he is referring to the Office of the President. That is more than enough compliance.”

b.) A formal and proper claim of executive privilege requires a “precise and certain reason” for preserving their confidentiality. She finds the grounds given by Ermita enough for the Senate to understand why the information is privileged. This requirement is specified in Senate v. Ermita: an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” She quoted Ermita’s letter, which she asserts satisfies the requirement:

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.

She then concluded:

At any rate, as held further in Senate v. Ermita, the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal department.

That ends the discussion on executive privilege as elucidated by the majority of the justices through Justice de Castro’s decision. To sum up:

The answer to the three questions are covered by executive privilege on the following grounds:

1. The answers to the three questions refer to a conversation between the President and a close advisor. This satisfies the presidential communication privilege and the operational proximity test.
2. The answers refer to an exercise by the President of powers that is “quintessential and non-delegable,” and does not require concurrence of the Senate.
3. There is no compelling need to limit the privilege and disclose the information.

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