Executive Privilege Covers Information--Not Executives

UPDATE: (Apr. 22, 2006) Lawyer ALAN PAGUIA sends SMS TEXT as follows:

"Don't be fooled by the 64 page Supreme Court Ruling on EO 464. It is actually favorable to GMA. The only change is those subpoenaed must appear but they can refuse to answer by (1)claiming executive privilege; (2) stating the reason therefore; and (3) stating why it must be respected. Sections 1 and 2a were declared valid. Only Sections 2b & 3, w/c are dispensable provisions anyway, were declared unconstitutional. In other words the Supreme Court simply taught GMA's legal advisers how to continue frustrating congressional investigations by technical knockout. Talo pa rin ang taong-bayan. Walang dapat ipagsaya." --Atty. Alan Paguia

(PDF) (HTML) The Decision handed down yesterday by the Supreme Court on Executive Order 464 is the major headline today in Manila newspapers. Reacting to the announcement that the Supreme Court has partly voided E.O. 464, Presidential Chief of Staff Mike Defensor said that E.O. 464 had already served its purpose. How right he is. National Security Adviser Norberto Gonzales was on television spinning Oakwood coup d'etat fairy tales today. Fortunately for him, he is apparently in the pink of health despite claiming to be on the brink of death last September at the Senate hearing into the controversial Venable contract.

But I have just read the Decision written by Justice Carpio-Morales and pickout the following salient points:

(1) Executive Privilege is "the power of the government to withold information from the public, the Courts and the Congress." It is over such information that the Executive (the President) has the privilege of witholding information that falls under three very specific varieties: (a) state secrets; (b) informer's privilege; (c) generic privilege for internal deliberations of the President and her government officials.

(2) Both US and Philippine jurisprudence uphold the power of the President to claim executive privilege against the citizen's demands for information, which the Decision stresses covers the information itself and does not reside in the persons of the executive department just because they are in those positions. Thus the President can only cover a given official by asserting that such official is in possession of information that falls into one of the traditional categories of privilege enumerated above. But it must be done in specific cases and not in the blanket manner of EO 464.

(3) The Decision distinguished between two types of legislative power of inquiry: (a) the power of inquiry in aid of legislation; and (b) the power of inquiry in fulfillment of Congress' oversight function, found respectively in Sections 21 and 22 of Artivle VI in the 1987 Constitution.

The Decision held that when Congress is exercising oversight functions, the attendance of Executive Dept. Officials is actually discretionary, (this was the Question Hour provision); whereas, for inquiries in aid of legislation, it is mandatory unless a valid claim of privilege is made:

"When Congress exercises it power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads."

Siginificantly, the Court held that only the President, and the Supreme Court Justices themselves, as heads of co-equal branches of government, are exempt from this power of inquiry of Congress, which can only touch them through the separate power of impeachment.

(4) The Decision criticized EO 464 as "a misuse of the doctrine" of executive privilege because Section (2b) "virtually states that executive privilege actually covers persons", pointing out that "Executive Privilege, as discussed above is properly invoked in relation to specific categories of information and not to categories of persons."

(5) The Decision struck down Section 2(b) because of the above consideration, and because no specific claim of privileged information were made or established for the various persons referred to in EO 464. But it upheld Section 2(a) which contain the guidelines for the exercise of executive privilege in the future.

So the Decision leaves open the Door for what the Court considers a valid exercise of Executive Privilege, in which the President can first claim that a certain official in in possession of privileged information (with proofs or indications thereof), and thus prevent their appearance in inquiries in aid of legislation or in aid of Congressional oversight.

It is not clear now whether indeed all those military officers, like the Garci Generals can now be called by the Senate, since it is already being asserted (I think by Mike Defensor) that their non-appearance in the Senate was not under EO464, but in obedience to orders from the Commander in chief.

For me the Decision is a valuable lesson in the principles involved in the exercise of Executive Privilege.

It's about time too! The Supreme Court has a long, long way to go from the pits of its own past record of decrepitude and pusillanimity in the face of executive hubris. We await eagerly what further it has to say on the Calibrated Pre-emptive response policy, on Proclamation 1017, and on Garci's Second Petition to bury the Garci tapes.

CONCLUSION: The Decision merely instructs the President on how to properly exercise Executive Privilege, even construing Constitutionality in the order where it plainly, and improperly, tried to cover entire categories of persons. It was a "softball" decision, though it helps us all to understand the important points of principles in the debate going forward.

I was very glad to see Chief of Staff Mike Defensor sprouting pimples these days and showing his sweat, with his defiant remark to reporters that indeed, EO 464 "has served its purpose" -- after six months that the Supreme Court, in effect, let it do its dirty work, and now instructs the President on the proper approach the next time.

[To the Comment Thread: It is worthwhile reading the Decision by J. Carpio Morales. Very instructive and pretty easy going. Just tell yourself this: The Law is nothing but precision English Grammar and Composition. Ordinary, intelligent citizens should be able to read a Supreme Court decision and comprehend its basic meaning. And even blog about it]

PROTECTING INFORMATION ON THE WORLD WIDE WEB:It is perhaps appropriately coincidental that today's last session of the Southeast Asian Press Alliance (which incidentally includes participants from all over Asia including China,Nepal, Burma, Thailand, Indonesia, Malaysia, Hong Kong, Singapore, Pakistan, Vietnam, Philippines, and the United States) is on technological issues related to the safeguarding of information on the World Wide Web. Ethan Zuckerman, quite famous geek responsible for the famous "geocities" website, and now associated with Rebecca MacKinnon and Global Voices Online at the Berkman Center, Harvard University, is the feature speaker, along with some very interesting techies attending the conference, including Andrew Lih, a top honcho at the famous Wikipedia. A full report on the conference tomorrow!