House Moves to Subject National Security Council to Public Records Law

Amendment author cites Ben Rhodes’ New York Times profile

President Obama Meets With National Security Council - Washington
President Barack Obama makes a statement after meeting with his National Security Council at the State Department / AP
May 18, 2016

Congress unanimously advanced a measure on Wednesday to subject the White House’s team of national security advisers to laws giving the public access to internal administration documents.

An amendment to a key Defense Department funding bill brought forward by Rep. Jackie Walorski (R., Ind.) would require the White House National Security Council to produce internal records in response to requests under the Freedom of Information Act.

The amendment comes in the midst of controversy over admissions by Deputy National Security Adviser Ben Rhodes in a recent New York Times interview that he and media allies created an "echo chamber" to promote the administration’s nuclear deal with Iran.

Walorski called out Rhodes on the House floor on Wednesday.

"Moving decision-making away from the departments moves authority away from secretaries and general officers who have been confirmed by the Senate and concentrates power with unelected, unconfirmed, and unaccountable bureaucrats who care more about optics and narratives," Walorski said, referring to Rhodes in particular.

Her amendment, which was approved by a voice vote, builds on one offered by Rep. Mac Thornberry (R., Texas), the chair of the House Armed Services Committee. Thornberry's measure would require the national security adviser to be confirmed by the Senate like the heads of federal agencies as long as NSC staff exceeded 100 individuals.

The size of the NSC has grown from roughly 100 staffers under President Bill Clinton to more than 400 under President Obama, Walorski noted in her remarks.

Her amendment incorporates language from a stand-alone bill introduced in April that would have immediately subjected the council to FOIA. Under the updated measures by Thornberry and Walorski, the NSC would not be subject to the law if its size were reduced to fewer than 100 staffers.

As it currently exists, the NSC "has moved far beyond its original advisory role to one where NSC staffers make critical operational decisions," Walorski said on the floor. "My amendment simply restores accountability to this operational organization."

The White House has threatened to veto the military funding bill that now carries Walorski’s amendment.

The measure would address concerns from some members of the legal community, who have objected to NSC’s ability to shield consequential military and foreign policy decisions from public view.

A federal judge rejected a lawsuit in January that sought to subject the council to FOIA requests, ruling that the office was purely an advisory body as defined in relevant statutes.

The decision upheld a 1996 court ruling that put the council out of bounds for FOIA requests. "Because the NSC does not exercise substantial independent authority, we conclude that the NSC is not an agency within the meaning of the FOIA," the court ruled in that case.

However, a number of high-ranking Pentagon officials have alleged recently that members of Obama’s NSC have been deeply involved in day-to-day military decision making.

The president "has centralized power and operational activities of the government in the White House to a degree that I think is unparalleled," Robert Gates, Obama’s former defense secretary, said in January.

Chuck Hagel, another of Obama’s former Pentagon chiefs, has accused the White House of "politically motivated micromanagement" of military affairs, in the words of a Foreign Policy interviewer.

Walorski’s amendment came just days after the Center for Strategic and International Studies released a survey showing that military and foreign policy stakeholders believe the NSC has become too large and powerful.

"Respondents found [the NSC] to be unequivocally ‘too strong,’" CSIS reported.