Secrecy & Leaks

Philip Bobbitt on Leaks and Legal Rationales

By Benjamin Wittes
Sunday, October 9, 2011, 10:23 AM

Columbia law professor Philip Bobbitt, author of Terror and Consent: The Wars for the Twenty-First Century, writes in with the following comments in response to my comments on the Charlie Savage story:

I don't know if this is a "middle way" but I would have preferred that the Administration take the position that an internal legal memo is privileged, and that maintaining that privilege is pretty important to the Executive Branch; that for that reason it was irresponsible of whoever leaked it to Savage.  At the same time, there is an important constitutional point at issue here, and the president has a responsibility to tell us how he resolved this matter and what his constitutional reasons were.  These might or might not track the memo, and ought in any case to be given in a different form, and released to the public.

This is related to what used to so irritate me about the Bush signing statements.  I didn't have a problem with the substance---that a president can refuse to enforce statutory language he deems unconstitutional---but rather with the fact that the statements were little more than boiler-plate repetitions of that general point.  The president's not explaining his position is rather like an appellate court saying to the parties to a dispute, "You win.  You lose.  Let's have lunch."

This point about presidential "doctrinal" argument is a crucial one, as we enter into that sphere of constitutional matters that are largely non-justiciable.