2002 FOI update: Bush administration and access
By Tom Blanton
National FOI Day resources page
The Bush Administration is mounting the most sustained assault on open government since the early Reagan administration, or perhaps even since President Gerald Ford vetoed the Freedom of Information Act amendments in 1974. While the first three years of the Reagan administration did push Cold War tensions and Cold War secrets to record heights, Congress prevented much of Reagan’s secrecy agenda, just as it overrode Ford’s veto with the Nixon scandals still fresh on Capitol Hill. But what’s fresh at the Bush White House these days is the sting of that override and similar limits on presidential power in the wake of Vietnam and Watergate.
President Ford’s deputy chief of staff at the time of the 1974 veto was Richard Cheney, who argued (along with his then-boss, Donald Rumsfeld) that it was unconstitutional for the law or the courts to force release of any information the president wanted to withhold.
Now, as vice president, Cheney says his refusal to give the General Accounting Office any details on his energy task force meetings is not a cover-up but a principled attempt to restore presidential powers that have been eroded “because of the unwise compromises that have been made over the last 30 or 35 years.” But in 1974, there was no compromise; the Nixon-Ford White House even told the FBI (according to documents later released under the FOIA) to stop negotiating with congressional staff, so the FOIA bill would be “as bad as possible” for a veto.
That attitude open government laws are “as bad as possible” permeates the Bush administration, up to and including the president himself. On his last day as Texas governor (Dec. 19, 2000), George W. Bush shipped 1,800 boxes of official papers off to his father’s presidential library at Texas A&M, where the Texas public-information law as yet does not apply. When speaking last April at the American Society of Newspaper Editors convention, Bush refused to make a clarion call for openness, and instead complained that he couldn’t use “e-mail anymore, out of concern for freedom-of-information laws but also concern for my privacy.”
The Bush administration genuinely believes that the American people have made the White House far too open over the past three decades, so officials are taking a hard line on open-government laws and policies.
Among the more egregious actions, Attorney General John Ashcroft told government agencies in an Oct. 12, 2001, memo to stop any discretionary releases under the Freedom of Information Act and to take advantage of any legal technicality for withholding records. The White House Counsel’s office held up release for a year of 68,000 pages of old Reagan-era documents, and issued a November 2001 executive order that turns on its head the Presidential Records Act giving to former presidents and even their heirs the indefinite ability to stall release of records. Curiously, the first former vice president to receive executive privilege on his own is the current president’s father.
With 90% approval ratings for conduct of the war against terrorism, the Bush administration would seem highly likely to win the secrecy battle, especially if it involves national security. But even there, the White House’s knee-jerk devotion to secrecy has proved counterproductive. For example, after career prosecutors and even the military’s judge advocate general criticized Bush’s November executive order on secret military tribunals for terrorists, the administration backed off. Instead, the Justice Department indicted in open federal court the flight school trainee who may have been the intended 20th hijacker on Sept. 11, and the Pentagon is preparing regulations that would bring any future tribunals in line with due-process protections rather than the unilateral Bush order.
One reason the career prosecutors won this argument is that the American law enforcement system works most efficiently with public indictments and public trials (not to mention that our Constitution requires open courts). Still echoing is the chorus of complaints from mayors and governors, led by Rudy Guiliani, that the secretive feds were undermining local police after Sept. 11 by refusing to share information.
After all, it was a border guard, informed by publicity about Timothy McVeigh and the blind sheik of the 1993 World Trade Center bombing, who nabbed Ahmad Ressam on his way to blow up the Los Angeles Airport for the millennium. It was the passengers, alerted by the details of Sept. 11, who seized the tennis-shoe terrorist while he fumbled with matches and kept him from blowing up their airplane. It was a Baltimore Sun reporter, using toxic inventory information that the Bush administration wants to remove from public view, who exposed the hazards of chlorine storage and forced the companies to change their mix and location of dangerous chemicals.
These examples make the point that openness is actually our strongest weapon against terrorists. Openness empowers citizens, weeds out stupid policy proposals, ensures efficient information flow to all levels of law enforcement, makes the despots who are our temporary allies against terrorism a little more honest, and keeps our means consistent with our ends.
For these and many other reasons, the Bush administration will not succeed in its assault on open government. Even if the courts don’t overrule the executive order on presidential records, the White House counsel’s office will soon think better of its so-called “efficient” procedures, when hundreds of thousands of pages continue to thud every month onto desks of overworked lawyers there. These are self-inflicted wounds, of course, and the silver lining is if knee-jerk securocrats are spending their time reviewing 20-year-old advice memos and covering up Enron meetings, they won’t have time to start any more half-baked rollbacks of open government.
Tom Blanton is director of the George Polk Award-winning National Security Archive at George Washington University, and the editor of White House E-Mail: The Top Secret Computer Messages the Reagan-Bush White House Tried to Destroy.