Tension between the executive and legislative branches is evident in the conflict between executive privilege and congressional oversight. The executive branch has battled Congress to preserve its private deliberations. At the same time, issues such as the intelligence failure surrounding the September 11 terrorist attacks have spurred Congress to demand more information from the current administration. All of this has occurred in a partisan environment created by the closely divided Congress. This topic was addressed at a July 2 event at AEI.

Thomas Mann of the Brookings Institution noted that the Bush White House has brought a new outlook to this issue. As Hamiltonians, President Bush and Vice President Cheney "believe in energy in the executive. They believe in the importance of . . . preserving executive prerogatives," as evidenced in their opposition to allowing Homeland Security director Tom Ridge to testify before Congress.

Michael Davidson, former Senate legal counsel, argued that in a time of political transition in which the Bush administration feels that executive power has not been protected, "there is a very natural inclination to seek to articulate executive privileges or power afresh." However, this articulation is not vastly different from the position of previous administrations, and although significant issues are at stake, "there is nothing on our present plate that compares with Watergate or Iran-Contra in the depths of disagreement between the branches." In addition to the institutional dimension, the struggle also has a partisan one. Norman J. Ornstein of AEI suggested that, with each party asserting itself in different ways on this issue now that a Republican occupies the White House, "we may be in an era where the partisan tensions are at least as large as the tensions between the branches."

Lee Hamilton

Former congressman Lee Hamilton believed the strength of congressional oversight has declined during the past decade. Yet he did not see it in partisan terms; rather, he remarked, "it looks to me like it's more a kind of institutional struggle."

Robert Walker, also a former congressman, agreed with Hamilton "about the oversight function having deteriorated over a period of years," but noted the negative impact partisan conflict had on this issue. Congress has tried "to essentially politicize the internal deliberative process not so they can exercise oversight over the workings of government, but so that they can politically extract statements that can be used for largely partisan purposes."

The contest between the branches is more than a constitutional issue, as partisan concerns demonstrate. Another outside influence has been the media and public opinion. C. Boyden Gray, who served as counsel to President George H.W. Bush, argued that in the White House "you get into compromising situations when the press and the media go against you. . . . It's hard to maintain these claims to secrecy in a hot political climate." John Podesta, chief of staff for President Clinton, admitted: "Sometimes based on the politics of the circumstance, based on the press heat, we were too willing and ready to accommodate congressional requests that went too far that got too much into the very clear internal deliberations of the White House."

Ornstein summarized the panelists' agreement "that generally there has been a reluctance by the executive and legislative branches to push these issues to the mat, because you can lose and lose in a bigger way."

Both Walker and Hamilton argued that the ability to hold confidential meetings can be conducive to a successful decision-making process. "It's very hard to do your deliberations with even a small group of people . . . in the public eye," Walker said. "It is a problem in terms of getting real things done." Podesta disagreed, however: "I don't think you can make the claim that secret decision-making is better decision-making. I think we have at least seventy or seventy-plus years of the Soviet Union to prove that that's probably not true. I think there needs to be openness."

When asked if Congress has a role in addressing the intelligence failures surrounding the September 11 terrorist attacks, Hamilton said, "Of course it does. This is a tough one. It's especially tough for the administration because they see a partisan witch hunt of some kind that could easily take place."

The appropriate balance between congressional power and executive privilege is an enduring debate with no likely resolution. Power ebbs and flows between the branches, and the level of partisanship will rise and fall depending on the political environment. Gray said: "I would hope these problems never go away because that's what our founding fathers wanted-this sort of tension."