Charles Lewis, February 2004
The Bush Administration: Secrecy as Policy
Charles Lewis
Center for Public Integrity
February 12, 2004
George W. Bush’s presidency has been characterized by a zeal for secrecy, an unrelenting push to stem the free flow of information.
One particularly notable example has been the Administration’s effort to undermine the Freedom of Information Act, the 1966 law that grants citizens access—although with some exceptions—to federal agency records. By statute, government FOIA officers may withhold records dealing with classified national security information, trade secrets, personnel or medical issues, and a handful of other matters—decisions that in each case are left to an official’s own discretion (although those denied the requested information may appeal). In October 1993, to better standardize the process and create more openness in government, Attorney General Janet Reno dispatched a memorandum revamping the way the Act would be administered; from now on, the memo directed, FOIA officers should “apply a presumption of disclosure.” To drive home the point, Reno decreed that, in the event of FOIA-related litigation, the Justice Department would no longer defend an agency’s withholding of information merely because there was a “substantial legal basis” for doing so. “Where an item of information might technically or arguably fall within an exemption,” she added, “it ought not to be withheld from a FOIA requester unless it need be.”
But eight years later, in the aftermath of the September 11th terrorist attacks, Reno’s successor renounced that presumption of disclosure. In a memo to the heads of federal departments and agencies, Attorney General John Ashcroft decreed that a well-informed citizenry may be vital to government oversight, but not at the expense of undermining national security. “Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information,” he wrote. And unlike Reno, whose policies engendered more government in the sunshine, Ashcroft promised legal cover for agencies coming down on the side of non-disclosure. “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records,” his memo added. In other words, Justice would bow out of litigation only if its participation might subsequently imperil the government’s ability to withhold other information.
While 9/11 was the presumed catalyst for the revamped FOIA guidelines, the policy change was actually in keeping with Bush’s historical aversion to the release of government papers. In 1997, for example, Bush successfully championed legislation that allowed the governor of Texas to designate an in-state university or alternate institution, in lieu of the Texas State Library and Archives, as the repository for his or her papers. And he later exploited the law by ordering that his own gubernatorial papers be deposited in the George Bush Presidential Library and Museum, at Texas A & M University, which is home to his father’s executive records.
At the time, the shipment of Bush’s documents received scant attention. But the relocation effort later generated consternation among reporters, historians, researchers, and others seeking access to the eighteen hundred boxes of not-yet-cataloged papers. The reason: because records at the presidential library are under the jurisdiction of the National Archives and Records Administration, which is a federal agency, there was confusion whether release of the younger Bush’s papers was bound by the federal Freedom of Information Act or the Texas Public Information Act, which mandates a much speedier response time for requested records.
Bush’s attorney denied that the move reflected a desire to restrict public access to the papers. And in an interview with the Center, Chris LaPlante, the state archivist, also dismissed the conspiratorial claims of open-government activists: he and his colleagues, he said, knew that the governor’s papers were destined for an alternate repository, and they assumed that the Bush library staff were equipped to deal with the documents. But Bush’s action nonetheless imposed weeks-long, even months-long delays on the release of documents. And it left consumer advocacy organizations such as Public Citizen grumbling that the departed Texas governor lacked the legal authority to give away state records or place them beyond the reach of the state’s open-records law. In May 2002, following protracted legal wrangling, Texas Attorney General John Cornyn agreed. He ruled that the disputed papers were indeed state property, and therefore subject to the Texas open-records law.
Meantime, the public at large was being saddled with a variety of new impediments to an open federal government. To wit: On November 1, 2001, President Bush signed Executive Order 13233, not-so-aptly titled “Further Implementation of the Presidential Records Act.” In truth, the executive order actually overrides the 1978 Presidential Records Act, the Watergate-inspired edict which stipulated that the papers of presidents and vice-presidents would be made available to the public twelve years after their leaving office. Under Bush’s plan, however, former presidents or their heirs may veto the release of their presidential papers, as may the sitting president—a decision that vested George W. Bush with the authority to block release of his father’s papers, for example, or even those of Bill Clinton. Bush’s order drew fervent bipartisan condemnation on Capitol Hill (although not enough to force reinstatement of the ’78 Act), and it particularly rankled librarians and historians. The comments of Steven Hensen, president of the Society of American Archivists, were typical. Writing in the Washington Post, he asked: “How can a democratic people have confidence in elected officials who hide the records of their actions from public view?”
Following the September 11th terrorist attacks, the Bush Administration encouraged federal agencies to purge a wide array of potentially sensitive data from their Web sites—a decree that, for a time, removed the entire online presence of the Nuclear Regulatory Commission, and which ultimately resulted in hundreds of thousands of pages being deleted from sites maintained by the Department of Energy, the Environmental Protection Agency, the National Archives and Records Administration, and other federal entities. “It is no longer possible for families and communities to get data critical to protecting themselves—information such as pipeline maps (that show where they are and whether they have been inspected), airport safety data, environmental data, and even documents that are widely available on private sites today were removed from government sites and have not reappeared,” OMB Watch, which for two decades has been chronicling the activities of the Office of Management and Budget, noted in a paper released in October 2002.
On March 25, 2003, President Bush signed an order that postponed, by three years, the release of millions of twenty-five-year-old documents slated for automatic declassification the following month. What’s more, Executive Order 13292, which amended a Clinton Administration order, granted FOIA officers wider latitude to reclassify information that had already been declassified, and further eliminated a provision that instructed them not to classify information if there was “significant doubt” about the need to do so. While President Bush maintained that the order balanced national security with open government, some were not convinced. For example, the Washington Post quoted Thomas Blanton, executive director of the nonprofit National Security Archive, as saying that the order sends “one more signal from on high to the bureaucracy to slow down, stall, withhold, stonewall.”
When the Reporters Committee for Freedom of the Press surveyed the post-September 11th landscape, the First Amendment watchdog concluded that the government had embarked on “an unprecedented path of secrecy” that stifled the press’ and the public’s right to know. Among the reporters ensnared by the government’s flight from the traditional culture of openness is John Solomon, deputy bureau chief of the Associated Press. Solomon, who works out of the Washington, D.C. bureau, was twice victimized. In one incident, a package sent by Federal Express to Solomon from another AP bureau was intercepted by the U.S. Customs Service and forwarded to the FBI, where its contents—an eight-year-old, unclassified Bureau lab report previously made public in a court case—were seized and withheld for seven months.
In a previous incident, the Justice Department subpoenaed Solomon’s home phone records in an attempt to unearth his confidential source for a wire service story. Solomon, who only learned about the subpoena months later, told the Center it’s his understanding that the traditional practice of subpoenaing reporters as an absolute last resort in a “leaks” investigation is no longer the department’s modus operandi. “I’m not quite sure it’s gotten the public attention it deserves,” Solomon told the Center. “I don’t think the profession has realized the importance of the change of standards that has occurred as a result of my case.”
