After bombshell reports by The New York Times and Washington Post revealed President Trump spent weeks ignoring the National Security Council’s warnings of COVID-19’s impending spread to the U.S., Jules Zacher and I proposed in The Rule of Law Post that Congress amend the Freedom of Information Act (FOIA) and designate the National Security Council (NSC) a federal agency subject to that law. We argued that a minimal amount of public access to the NSC could have compelled President Trump to acknowledge his office’s warnings and recommendations, which epidemiologists now say would have saved thousands of American lives.
If the administration’s inadequate response to COVID-19 was not a compelling enough reason to fix FOIA, we now know the Trump administration has neglected to confront Russia for apparently paying Taliban militants to kill U.S. forces in Afghanistan. Once again, rather than confront an urgent national security challenge, President Trump prefers to assail his own intelligence agencies and deny a crisis even exists.
As Zacher and I pointed out in May, President Trump can delay or altogether ignore responding to urgent national security crises is because the NSC is effectively a black hole inside the executive branch. No one outside the administration can see what goes in or what comes out. This allows Trump to claim he was never informed about the Russian bounties, as he did with the Coronavirus pandemic. He can also dispute or discredit his own intelligence agencies’ assessments of the crisis like he did with the pandemic and is doing now with Russia. The President’s tactics seem to work for a while, at least until media investigations discredit his claims.
But relying solely on the media for these investigations is not a viable method for disclosure. By the time these investigations are published, the damage to our national security has already been done. Upon the publication of the reports of the President’s failure to respond to the issue of Russian bounties, for example, multiple U.S. soldiers had already been assassinated by the Taliban. These latest revelations beg the question: what other urgent national security concerns might the Trump administration be ignoring? Are they being investigated? What if those investigations come too late or never come at all? The American people cannot depend on the President or his senior advisors to prioritize and respond promptly to national security crises, nor can we afford to rely solely on news reports months after a crisis is in full swing.
This is why Congress must fix FOIA by designating the NSC a federal agency subject to that law. The public’s ability to request NSC records would greatly facilitate investigations into the President’s handling of national security crises and we would no longer have to rely solely on intelligence leaks to guide them. Moreover, fixing FOIA would not only undercut the President’s ability to dismiss media investigations as “fake news,” but allow the American people to actively investigate whether the President had failed to discharge his duties.
Beyond ex post facto accountability, however, subjecting the NSC to FOIA may also compel the President to respond appropriately to national security crises. Zacher and I argued in May that greater transparency during the outbreak of COVID-19 may have enticed President Trump to heed the NSC’s warnings and recommendations instead of ignoring them for weeks. The same is true with the new Russian revelations; had the Trump administration known NSC records could become public, perhaps his advisors would have urged him to safeguard the lives of U.S. soldiers. At the very least, the threat of transparency may have dissuaded Trump from inviting Vladimir Putin to a G8 summit.
It is true that fixing FOIA is no silver bullet. FOIA requests can take a long time to process, and even if the NSC were subject to FOIA, the executive branch would likely claim these records are legally exempt from disclosure because they are classified material or internal agency deliberations. And to be clear, this change would not allow the public to access highly classified documents like the President’s Daily Brief. But a legislative fix is a step in the right direction. It would allow federal judges to obtain temporary security clearances and examine certain information “in camera,” to decide whether it should remain secret or be released to the public. Even heavily redacted documents or more basic documents like meeting agendas could provide clues for the public to surmise a deadly virus is spreading to the U.S., or that there is something untoward between Russia and the Taliban. It could greatly expedite investigative efforts, and most importantly, compel the President to pay closer attention to his own intelligence.
Theo Wilson is an assistant editor at JURIST. He recently graduated with a Master in Public Affairs (MPA) from Princeton University and plans to begin law school this fall. He is a national security consultant for Speaking Truth to Power, a former graduate intern at the Center for Ethics and the Rule of Law at Penn Law, and former senior program officer at Freedom House. He is on Twitter at @twilson008.
Suggested Citation: Theo Wilson, President Trump’s Failure to Confront Russia on U.S. Soldier Bounties is the Latest Reason why Congress Must Fix FOIA, JURIST – Student Commentary, July 14, 2020, https://www.jurist.org/commentary/2020/07/theo-wilson-fix-foia/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
