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.
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
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.
Fair
Use Notice: This site contains copyrighted material
the use of which has not always been specifically authorized by the copyright
owner. We are making such material available in our efforts to advance understanding
of environmental, political, economic, democratic, domestic and international
issues, etc. We believe this constitutes a 'fair use' of any such copyrighted
material as provided for in section 107 of the US Copyright Law. In accordance
with Title 17 U.S.C. Section 107, the material on this site is distributed without
profit to those who have expressed a prior interest in receiving the included
information for research and educational purposes. For more information go to:
http://www.law.cornell.edu/uscode/17/107.shtml.
If you wish to use copyrighted material from this site for purposes of your own
that go beyond 'fair use', you must obtain permission from the copyright owner.
|
