381. "The Presidency Needs Privacy." The Christian Science Monitor (February 14, 2002) p 9.
Based on my experience as a White House staff member, I hope Congress will respect the government's position that conversations Vice President Cheney had about energy policy are "privileged." The ability of the president and his senior staff to hold consultations without fearing that every thought aired could become public is so important for the well- being of the republic that I favor respecting "executive privilege" - even if it sets back the Enron investigation.
After Kenneth Starr succeeded in getting his hands on countless internal White House memos and copies of e-mails - and after their content found their way from his office to the press - Clinton staffers were warned not to write anything down that in any way could adversely reflect on the administration. Sensitive messages were to be handwritten and delivered rather than sent by e-mail. "Sensitive" was defined as "anything you do not wish to read in tomorrow's headlines." It included any considerations of negative consequences of a policy the president might end up embracing or objections to its introduction. Staffers were even urged not to keep diaries.
It is hard to describe the chill such a constant concern with keeping things in-house imposes on the White House staff. I served in the Carter White House. All kinds of ideas were bandied about. Someone, very briefly, mentioned that maybe we should ask Israel for help in getting our hostages out of Iran. As far as I can tell, this was never seriously considered. But if this had found its way into the media at the time, most people would have had a very hard time telling if it had been just an idle thought or truly entertained. Surely the Arab press would not have been bothered by such subtleties.
The main damage would have extended beyond some bad press - future staff members would not have felt free to brainstorm and put forward outlying options. The same holds for someone who argued, half seriously, for a return to the gold standard to fight inflation. If this had been reported, the markets, already unstable, would have been further rattled. And these are only some of the less far-out notions that were mentioned during my White House days.
If you run anything - a business, a foundation, a college - imagine what it would be like if instead of e-mailing and faxing, memos on sensitive matters had to be handwritten and carried, if notes of meetings had to be constantly sanitized, and everybody learned to talk in circumlocutions. Can you see why I hold that the country would be damaged if the presidency became hobbled by the fear of unlimited disclosure?
I hasten to add that I am not a card- carrying Republican, never had an Enron share, never received a penny from the largesse it was spreading around. Before all this happened, I argued that both parties should get together to agree on new "rules of the game." I strongly suspected that the Democrats, smarting from the extreme partisanship Republicans displayed in the Clinton impeachment hearings, would be lying in the wait to get their gloves on the next Republican administration.
Instead, I suggested that both sides commit to limiting their partisanship for the sake of the country. Tighter definitions should be found for "high crimes and misdemeanors," agreement should be reached on not suing a president for offenses committed before he or she was elected - for the period that the person is in office - and the president should be granted a limited measure of executive privilege.
A good place to start would be with the text of a federal court of appeals ruling in favor of keeping secret the deliberations of a health task force headed by the then first lady, Hillary Clinton. It stated, "if a president cannot deliberate in confidence, it is hard to imagine how he can decide and act quickly."
Despite the obvious need for the president and his senior staff to be able to huddle without everybody and their brother listening in, such a privilege needs to be limited. If there is specific evidence that a serious crime has been committed in or by the White House, all bets are off. We do not want a king who is above the law. But going fishing in White House documents, on the basis of some vague allegations and suspicions, should not be allowed.
What about the Enron investigation? There are numerous ways the questions on whether the company overly influenced the Bush energy policy can be investigated without forcing the president to disclose internal deliberations. Most obvious is the policy itself. It is no secret what Enron favored and, of course, the policy is quite public. And Congress is free to subpoena Enron documents, e-mails, and staff. But given that life is full of trade-offs, even if respecting the White House's executive privilege sets back the investigation some, it is a price worth paying to secure the ability of this and future presidents to do their work without being unduly encumbered.
Amitai Etzioni is author of Next: The Road to the Good Society (Basic Books, 2001) and teaches at George Washington University.