The Post's readers, particularly those who read Mary McGrory's commentary on Feb. 11 ("Bread and Water for Watt in Confrontation With Congress?"), have not received all of the facts, or an accurate legal and historical analysis, of the executive privilege dispute between the administration and Rep. John Dingell's House subcommittee.
The subcommittee subpoenaed documents relative to Secretary James Watt's then on-going deliberations concerning whether sanctions should be imposed on Canada under the Mineral Lands Leasing Act of 1920. That review was just recently completed, the secretary having come to a conclusion identical to the position that administrations have reached for over 40 years.
The subcommittee has been furnished over 95 percent of the documents and has twice heard lengthy testimony from Secretary Watt concerning this matter. The eight documents that have not been produced consist of classified diplomatic exchanges relative to this nation's relationship with an important foreign ally and certain internal Cabinet-level deliberative materials.
Every effort has been made to cooperate with the subcommittee and its staff. We are not aware of any factual information that the subcommittee seeks that has not been furnished to it.
This administration's modest effort to protect the confidentiality of diplomatic exchanges and the integrity of a small handful of sensitive deliberative documents hardly warrants being labeled a "contumacious failure," the term used by a subcommittee member in a fit of hyperbole and embraced by columnist McGrory. This administration has produced literally thousands of documents to Congress during the last 12 months; executive privilege has been asserted only once, with respect to a small fraction of the documents sought.
McGrory refers, unimpeded by any effort to ascertain the facts, to a "curious letter to the subcommittee" by Attorney General William French Smith "claiming that executive privilege shrouds any piece of paper that might have been seen by the president." The document to which she apparently refers, but obviously did not read, was a formal opinion to the president, not a letter to the subcommittee. Contrary to her innuendo, the opinion stressed at some length the need to "make every reasonable accommodation to the legitimate needs" of Congress and counsels withholding only those documents necessary to protect candor in the deliberative process and the integrity of the conduct of foreign policy.
The power of the president to protect the confidentiality of the decision-making process, diplomatic and military secrets and national security information has been recognized by virtually every president since Washington. The Supreme Court has explicitly recognized this presidential privilege in a unanimous opinion, noting that the "importance of this confidentiality is too plain to require further discussion" and that it "is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution." The U.S. Court of Appeals for the District of Columbia ruled 7-0 in favor of this assertion of the privilege against a congressional subpoena. (The attorney whom McGrory mentions as an expert in her column represented the losing party in that case.)
The Supreme Court has declared that the public interest is best served if government officials and their advisers can discuss with complete candor the difficult problems that confront them; "human experience," the court notes, "teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interest to the detriment of the decision-making process."
Similar considerations prompted the Framers of our Constitution to order that the sessions of the Constitutional Convention be kept secret until the danger of public dissemination had passed.
Justices of the Supreme Court have a similar interest in refusing to disclose details of case conferences or legal discussions with their law clerks. Congress asserts and insists upon a similar privilege for many of its deliberations and for communications between members of Congress and their aides.
In this case, Secretary Watt has produced all Interior Department internal documents. The few documents not produced are State Department diplomatic cables or Cabinet council documents. In claiming a privilege for these documents, the secretary is acting on the instructions of the president who, in turn, is relying on the formal advice of the attorney general. The effort by Mary McGrory and some congressmen to paint Secretary Watt as a villain is a rather obvious effort to distract the public from seeing both the reasonableness and the legitimacy of the administration's position.