"Many presidents have overreached by claiming executive privilege to hide documents and witnesses from public oversight, and each time Congress has slapped their hands," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "Today’s Congress must do the same if it wishes to operate as a meaningful and equal branch of government."
The courts have long held that executive privilege is not absolute, and even where it applies it can be overcome if the other branches of government can show they need the information. Congress has significant legislative and oversight interests in the NSA warrantless wiretapping program because it is currently considering legislation to replace the Protect America Act.
Most importantly, the courts have held that the privilege cannot be invoked to hide government wrongdoing. Even where issues concerning national security are at stake Congress has a right to the information it needs to fulfill its constitutional obligations. Facing a possible constitutional crisis capable of destroying our crucial checks and balances, the ACLU also reminded Congress just how vital its oversight and legislative role is.
"The federal courts have long held that Congress has the authority not only to pass laws, but investigate their implementation," added Fredrickson. "Congress is facing an historic moment where it can either fight for its rightful place in our constitutional system of government or accept the president’s continued and sweeping claims of supremacy. It’s do or die time for the separation of powers."
To read the ACLU’s memo on executive privilege, go to: