September
14, 2004
Secrecy in the Bush Administration
Rep.
Henry A. Waxman has released a comprehensive examination of secrecy in
the Bush Administration. The report analyzes how the Administration has
implemented each of our nation’s major open government laws. It
finds that there has been a consistent pattern in the Administration’s
actions: laws that are designed to promote public access to information
have been undermined, while laws that authorize the government to withhold
information or to operate in secret have repeatedly been expanded. The
cumulative result is an unprecedented assault on the principle of open
government. «
Table of Contents
The Administration
has supported amendments to open government laws to create new categories
of protected information that can be withheld from the public. President
Bush has issued an executive order sharply restricting the public release
of the papers of past presidents. The Administration has expanded the
authority to classify documents and dramatically increased the number
of documents classified. It has used the USA Patriot Act and novel legal
theories to justify secret investigations, detentions, and trials. And
the Administration has engaged in litigation to contest Congress’
right to information.
The records
at issue have covered a vast array of topics, ranging from simple census
data and routine agency correspondence to presidential and vice presidential
records. Among the documents that the Administration has refused to release
to the public and members of Congress are (1) the contacts between energy
companies and the Vice President’s energy task force, (2) the communications
between the Defense Department and the Vice President’s office regarding
contracts awarded to Halliburton, (3) documents describing the prison
abuses at Abu Ghraib, (4) memoranda revealing what the White House knew
about Iraq’s weapons of mass destruction, and (5) the cost estimates
of the Medicare prescription drug legislation withheld from Congress.
There
are three main categories of federal open government laws: (1) laws that
provide public access to federal records; (2) laws that allow the government
to restrict public access to federal information; and (3) laws that provide
for congressional access to federal records. In each area, the Bush Administration
has acted to restrict the amount of government information that is available.
Laws That Provide Public Access to Federal Records
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Beginning in the 1960s, Congress enacted a series of landmark laws that
promote “government in the sunshine.” These include the Freedom
of Information Act, the Presidential Records Act, and the Federal Advisory
Committee Act. Each of these laws enables the public to view the internal
workings of the executive branch. And each has been narrowed in scope
and application under the Bush Administration.
Freedom
of Information Act
The Freedom of Information Act is the primary law providing access to
information held by the executive branch. Adopted in 1966, FOIA established
the principle that the public should have broad access to government records.
Under the Bush Administration, however, the statute’s reach has
been narrowed and agencies have resisted FOIA requests through procedural
tactics and delay. The Administration has:
-
Issued guidance reversing the presumption in favor of disclosure and
instructing agencies to withhold a broad and undefined category of
“sensitive” information;
- Supported
statutory and regulatory changes that preclude disclosure of a wide
range of information, including information relating to the economic,
health, and security infrastructure of the nation; and
- Placed
administrative obstacles in the way of organizations seeking to use
FOIA to obtain federal records, such as denials of fee waivers and
delays in agency responses.
Independent
academic experts consulted for this report decried these trends. They
stated that the Administration has “radically reduced the public
right to know,” that its policies “are not only sucking the
spirit out of the FOIA, but shriveling its very heart,” and that
no Administration in modern times has “done more to conceal the
workings of government from the people.”
The
Presidential Records Act
The Presidential Records Act, which was enacted in 1978 in the wake of
Watergate, establishes the important principle that the records of a president
relating to his official duties belong to the American people. Early in
his term, President Bush issued an executive order that undermined the
Presidential Records Act by giving former presidents and vice presidents
new authority to block the release of their records. As one prominent
historian wrote, the order “severely crippled our ability to study
the inner workings of a presidency.”
The
Federal Advisory Committee Act
The Federal Advisory Committee Act prevents secret advisory groups from
exercising hidden influence on government policy, requiring openness and
a balance of viewpoints for all government advisory bodies. The Bush Administration,
however, has supported legislation that creates new statutory exemptions
from FACA. It has also sought to avoid the application of FACA through
various mechanisms, such as manipulating appointments to advisory bodies,
conducting key advisory functions through “subcommittees,”
and invoking unusual statutory exemptions. As a result, such key bodies
as the Vice President’s energy task force and the presidential commission
investigating the failure of intelligence in Iraq have operated without
complying with FACA.
Laws that Restrict Public Access to Federal Records
In the 1990s, the Clinton Administration increased public access to government
information by restricting the ability of officials to classify information
and establishing an improved system for the declassification of information.
These steps have been reversed under the Bush Administration, which has
expanded the capacity of the government to classify documents and to operate
in secret.
The
Classification and Declassification of Records
The classification and declassification of national security information
is largely governed by executive order. President Bush has used this authority
to:
- Reverse
the presumption against classification, allowing classification even
in cases of significant doubt;
- Expand
authority to classify information for longer periods of time;
- Delay
the automatic declassification of records;
- Expand
the authority of the executive branch to reclassify information that
has been declassified; and
- Increase
the number of federal agencies that can classify information to include
the Secretary of Health and Human Services, the Secretary of Agriculture,
and the Administrator of the Environmental Protection Agency.
Statistics
on classification and declassification of records under the Bush Administration
demonstrate the impact of these new policies. Original decisions to classify
information — those in which an authorized classifier first determines
that disclosure could harm national security — have soared during
the Bush Administration. In fiscal years 2001 to 2003, the average number
of original decisions to classify information increased 50% over the average
for the previous five fiscal years. Derivative classification decisions,
which involve classifying documents that incorporate, restate, or paraphrase
information that has previously been classified, have increased even more
dramatically. Between FY 1996 and FY 2000, the number of derivative classifications
averaged 9.96 million per year. Between FY 2001 and FY 2003, the average
increased to 19.37 million per year, a 95% increase. In the last year
alone, the total number of classification decisions increased 25%.
Sensitive
Security Information
The Bush Administration has sought and obtained a significant expansion
of authority to make designations of Sensitive Security Information (SSI),
a category of sensitive but unclassified information originally established
to protect the security of civil aviation. Under legislation signed by
President Bush, the Department of Homeland Security now has authority
to apply this designation to information related to any type of transportation.
The
Patriot Act
The passage of the Patriot Act after the September 11, 2001, attacks gave
the Bush Administration new authority to conduct government investigations
in secret. One provision of the Act expanded the authority of the Justice
Department to conduct secret electronic wiretaps. Another provision authorized
the Justice Department to obtain secret orders requiring the production
of “books, records, papers, documents, and other items,” and
it prohibited the recipient of these orders (such as a telephone company
or library) from disclosing their existence. And a third provision expanded
the use of “sneak and peak” search warrants, which allow the
Justice Department to search homes and other premises secretly without
giving notice to the occupants.
Secret
Detentions, Trials, and Deportations
In addition to expanding secrecy in government by executive order and
statute, the Bush Administration has used novel legal interpretations
to expand its authority to detain, try, and deport individuals in secret.
The Administration asserted the authority to:
- Hold
persons designated as “enemy combatants” in secret without
a hearing, access to a lawyer, or judicial review;
- Conduct
secret military trials of persons held as enemy combatants when deemed
necessary by the government; and
- Conduct
secret deportation proceedings of aliens deemed “special interest
cases” without any notice to the public, the press, or even family
members.
Congressional Access to Federal Records
Our system of checks and balances depends on Congress being able to obtain
information about the activities of the executive branch. When government
operates behind closed doors without adequate congressional oversight,
mismanagement and corruption can flourish. Yet despite Congress’
constitutional oversight role, the Bush Administration has sharply limited
congressional access to federal records.
GAO
Access to Federal Records
A federal statute passed in 1921 gives the congressional Government Accountability
Office the authority to review federal records in the course of audits
and investigations of federal programs. Notwithstanding this statutory
language and a long history of accommodation between GAO and the executive
branch, the Bush Administration challenged the authority of GAO on constitutional
grounds, arguing that the Comptroller General, who is the head of GAO,
had no “standing” to enforce GAO’s right to federal
records. The Bush Administration prevailed at the district court level
and GAO decided not to appeal, significantly weakening the authority of
GAO.
The
Seven Member Rule
The Bush Administration also challenged the authority of members of the
House Government Reform Committee to obtain records under the “Seven
Member Rule,” a federal statute that requires an executive agency
to provide information on matters within the jurisdiction of the Committee
upon the request of any seven of its members. Although a district court
ruled in favor of the members in a case involving access to adjusted census
records, the Bush Administration has continued to resist requests for
information under the Seven Member Rule, forcing the members to initiate
new litigation.
Withholding
Information Requested by Congress
On numerous occasions, the Bush Administration has withheld information
requested by members of Congress. During consideration of the Medicare
legislation in 2003, the Administration withheld estimates showing that
the bill would cost over $100 billion more than the Administration claimed.
In this instance, Administration officials threatened to fire the HHS
Actuary, Richard Foster, if he provided the information to Congress. In
another case, the Administration’s refusal to provide information
relating to air pollution led Senator Jeffords, the ranking member of
the Senate Committee on Environment and Public Works, to place holds on
the nominations of several federal officials.
On over
100 separate occasions, the Administration has refused to answer the inquiries
of, or provide the information requested by, Rep. Waxman, the ranking
member of the House Committee on Government Reform. The information that
the Administration has refused to provide includes:
- Documents
requested by the ranking members of eight House Committees relating
to the prison abuses at Abu Ghraib and elsewhere;
- Information
on contacts between Vice President Cheney’s office and the Department
of Defense regarding the award to Halliburton of a sole-source contract
worth up to $7 billion for work in Iraq; and
- Information
about presidential advisor Karl Rove’s meetings and phone conversations
with executives of companies in which he owned stock.
The
9-11 Commission
On November 27, 2002, Congress passed legislation creating the National
Commission on Terrorist Attacks upon the United States (commonly known
as the 9-11 Commission) as a congressional commission to investigate the
September 11 attacks. Throughout its investigation, however, the Bush
Administration resisted or delayed providing the Commission with important
information. For example, the Administration’s refusal to turn over
documents forced the Commission to issue subpoenas to the Defense Department
and the Federal Aviation Administration. The Administration also refused
for months to allow Commissioners to review key presidential intelligence
briefing documents.
The Collective Impact
Taken together, the actions of the Bush Administration have resulted in
an extraordinary expansion of government secrecy. External watchdogs,
including Congress, the media, and nongovernmental organizations, have
consistently been hindered in their ability to monitor government activities.
These actions have serious implications for the nature of our government.
When government operates in secret, the ability of the public to hold
the government accountable is imperiled.
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