   Assertion of Executive Privilege for Documents Concerning
        Conduct of Foreign Affairs with Respect to Haiti

Executive privilege may properly be asserted with respect to certain documents subpoenaed by the
   Committee on International Relations o f the House o f Representatives that concern the Administra­
   tion’s conduct of foreign affairs with respect to Haiti.

                                                                               September 20, 1996

THE PRESIDENT
     THE WHITE HOUSE

   My Dear M r. President: You have requested my legal advice as to whether
executive privilege may properly be asserted with respect to documents that are
the subject of a subpoena issued to the Executive Secretary of the National Secu­
rity Council (“ NSC” ) by the Committee on International Relations of the House
of Representatives. The documents concern the Administration’s conduct of for­
eign affairs with respect to Haiti.
   The Counsel to the President and the National Security Adviser recommend
that you assert executive privilege with respect to all but four of the subpoenaed
documents. Several of the documents record diplomatic meetings or other commu­
nications between the President, the Vice President, the National Security Adviser,
or the Deputy National Security Adviser and the President or Prime Minister of
Haiti. Other documents constitute confidential communications from NSC or State
Department officials to the President or the Vice President. The remaining docu­
ments reflect and constitute the deliberations of the NSC and its staff in connection
with their advice and assistance to the President regarding his policy and activities
in Haiti. I understand that efforts have been made to accommodate the Commit­
tee’s information needs with respect to these documents, but they have proven
unavailing. The Counsel to the President and the National Security Adviser are
appropriately concerned that the Committee’s demand raises significant separation
of powers concerns and that compliance with it would compromise your ability
to conduct the foreign affairs of the United States, as well as the ability of the
NSC to advise and assist you in discharging that constitutional responsibility.
   The Office of Legal Counsel of the Department of Justice has reviewed the
documents for which assertion of executive privilege has been recommended and
is satisfied that they fall within the scope of executive privilege. I concur in that
assessment. The Supreme Court has confirmed that the Constitution gives the
President the authority to assert executive privilege to protect the confidentiality
of diplomatic communications, Presidential communications, and White House de­
liberative communications. See generally United States v. Nixon, 418 U.S. 683,
705-13 (1974); Nixon v. Administrator o f General Servs., 433 U.S. 425, 446-
55 (1977). “ The privilege is fundamental to the operation of Government and

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                       Opinions o f the A ttorney General in Volume 20


inextricably rooted in the separation of powers under the Constitution.” United
States v. Nixon, 418 U.S. at 708.
   More specifically, the Supreme Court has acknowledged the settled application
of executive privilege with respect to “ diplomatic secrets,” such as the diplomatic
communications with the leaders of Haiti that are subject to the Committee’s sub­
poena, stating that “ [a]s to th[is] area[] of Art. II duties the courts have tradition­
ally shown the utmost deference to Presidential responsibilities.” Id. at 710; see
also id. at 706. “ [I]t is elementary that the successful conduct of international
diplomacy . . . require[s] both confidentiality and secrecy. . . . [I]t is the con­
stitutional duty of the Executive . . . to protect the confidentiality necessary to
carry out its responsibilities in the field[] of international relations . . . .” New
York Times Co. v. U nited States, 403 U.S. 713, 728-30 (1971) (Stewart, J., concur­
ring).
  As Assistant Attorney General William H. Rehnquist concluded almost thirty
years ago, “ the President has the power to withhold from [Congress] information
in the field of foreign relations or national security if in his judgment disclosure
would be incompatible with the public interest.” Memorandum from John R. Ste­
venson, Legal Adviser, Department of State, and William H. Rehnquist, Assistant
Attorney General, Office of Legal Counsel, Re: The President’s Executive P rivi­
lege to W ithhold Foreign Policy a n d N ational Security Information at 7 (Dec.
8, 1969). History is replete with examples of the Executive’s refusal to produce
to Congress diplomatic communications and related documents because of the
prejudicial impact such disclosure could have on the President’s ability to conduct
foreign relations. See Memorandum from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel, 6 Op. O.L.C. 751 (1982) (compiling historical
examples).
  It is equally well established that executive privilege applies to confidential
communications to and from the President or Vice President and to White House
and NSC deliberative communications. The Supreme Court has recognized “ the
necessity for protection of the public interest in candid, objective, and even blunt
or harsh opinions in Presidential decisionmaking. A President and those who assist
him must be free 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.” U nited States v. Nixon, 418 U.S. at 708.
   Under controlling case law, in order to justify a demand for material protected
by executive privilege, a congressional committee is required to demonstrate that
the information sought is “ demonstrably critical to the responsible fulfillment of
the Committee’s functions.” Senate Select Committee on Presidential Campaign
A ctivities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). And those
functions must be in furtherance of legitimate legislative responsibilities of Con­
gress. See M cG rain v. Daugherty, 273 U.S. 135, 160 (1927) (Congress has over-

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 A ssertion o f E xecutive P rivilege fo r D ocum ents C oncerning C onduct o f F oreign A ffairs w ith R espect
                                                     to H aiti

sight authority ‘‘to enable it efficiently to exercise a legislative function belonging
to it under the Constitution” ).
   “ Since Congress may only investigate into those areas in which it may poten­
tially legislate or appropriate, it cannot inquire into matters which are within the
exclusive province of one of the other branches of the Government.” Barenblatt
v. United States, 360 U.S. 109, 111-12 (1959). The Committee has sought to
justify its demand based on its need for information on “ Administration policy
toward human rights abuses in Haiti” and “ the Administration’s knowledge of
death squad activities in Haiti over the last two years.” Letter for Jack Quinn,
Counsel to the President, from Benjamin A. Gilman, Chairman, Committee on
International Relations at 2 (Sept. 19, 1996). However, the conduct of foreign
affairs is an exclusive prerogative of the executive branch. See, e.g.. United States
v. Curtiss-W right Export Corp., 299 U.S. 304, 320 (1936) (the President is “ the
sole organ of the federal government in the field of international relations” ); Chi­
cago and Southern A ir Lines, Inc. v. Waterman 5.5. Corp., 333 U.S. 103, 111
(1948) (the President is “ the Nation’s organ for foreign affairs” ); 5 Paul L. Ford,
The Writings o f Thomas Jefferson 161 (New York, The Knickerbocker Press 1895)
(“ [t]he transaction of business with foreign nations is executive altogether” ).
Thus, there is a substantial question of the executive branch’s conduct of foreign
affairs or its deliberations relating thereto.
   Although the question of Congress’s oversight authority in this context must
be viewed as unresolved as a matter of law, it is clear that congressional needs
for information in this context will weigh substantially less in the constitutional
balancing than a specific need in connection with the considerations of legislation.
Based on the Office of Legal Counsel’s review of the documents for which asser­
tion of executive privilege has been requested, and conducting the balancing re­
quired by the case law, see Senate Select Committee, 498 F.2d at 729-30; U nited
States v. Nixon, 418 U.S. at 706-07, I do not believe that access to these docu­
ments would be held by the courts to be “ demonstrably critical to the responsible
fulfillment of the Committee’s functions.” Senate Select Committee, 498 F.2d at
731.
   In conclusion, it is my legal judgment that executive privilege may properly
be asserted in response to the Committee’s subpoena.

                                                                               Sincerely,

                                                                            JANET RENO
                                                                          Attorney General




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