1. Bush Administration Moves to Eliminate Open Government

Source: Common Dreams, September 14, 2004. Press release, Title: "New Report Details Bush Administration Secrecy," Author: Karen Lightfoot; <http://www.commondreams.org/news2004/0914-05.htm>, <http://www.democrats.reform.house.gov/story.asp?ID=692&Issue=Open+Government>

Faculty Evaluator: Yvonne Clarke, MA
Student Researcher: Jessica Froiland

Throughout the 1980s, Project Censored highlighted a number of alarming reductions to government access and accountability (see Censored 1982 #6, 1984 #8, 1985 #3 and 1986 #2). It tracked the small but systematic changes made to existing laws and the executive orders introduced. It now appears that these actions may have been little more than a prelude to the virtual lock box against access that is being constructed around the current administration.

"The Bush Administration has an obsession with secrecy," says Representative Henry Waxman, the Democrat from California who, in September 2004, commissioned a congressional report on secrecy in the Bush Administration. "It has repeatedly rewritten laws and changed practices to reduce public and congressional scrutiny of its activities. The cumulative effect is an unprecedented assault on the laws that make our government open and accountable."

Changes to Laws that Provide Public Access to Federal Records

The Freedom of Information Act (FOIA) gives citizens the ability to file a request for specific information from a government agency and provides recourse in federal court if that agency fails to comply with FOIA requirements. Over the last two decades, beginning with Reagan, this law has become increasingly diluted and circumvented by each succeeding administration.

Under the Bush Administration, agencies make extensive and arbitrary use of FOIA exemptions (such as those for classified information, privileged attorney-client documents and certain information compiled for law enforcement purposes) often inappropriately or with inadequate justification. Recent evidence shows agencies making frivolous (and sometimes ludicrous) exemption claims, abusing the deliberative process privilege, abusing the law enforcement exemption, and withholding data on telephone service outages.

Quite commonly, the Bush Administration simply fails to respond to FOIA requests at all. Whether this is simply an inordinate delay or an unstated final refusal to respond to the request, the requesting party is never told. But the effect is the same: the public is denied access to the information.

The Bush Administration also engages in an aggressive policy of questioning, challenging and denying FOIA requesters' eligibility for fee waivers, using a variety of tactics. Measures include narrowing the definition of "representative of news media," claiming information would not contribute to public understanding.

Ten years ago, federal agencies were required to release documents through FOIA--even if technical grounds for refusal existed--unless "foreseeable harm" would result from doing so. But, according to the Waxman report, an October 2001 memo by Attorney General John Ashcroft instructs and encourages agencies to withhold information if there are any technical grounds for withholding it under FOIA.

In 2003, the Bush Administration won a new legislative exemption from FOIA for all National Security Agency "operational files." The Administration's main rationale for this new exemption is that conducting FOIA searches diverts resources from the agency's mission. Of course, this rationale could apply to every agency. As NSA has operated subject to FOIA for decades, it is not clear why the agency now needs this exemption.

The Presidential Records Act ensures that after a president leaves office, the public will have full access to White House documents used to develop public policy. Under the law and an executive order by Ronald Reagan, the presumption has been that most documents would be released. However, President Bush issued an executive order that establishes a process that generally blocks the release of presidential papers.

Changes to Laws that Restrict Public Access to Federal Records

The Bush Administration has dramatically increased the volume of government information concealed from public view. In a March 2003 executive order, President Bush expanded the use of the national security classification. The order eliminated the presumption of disclosure, postponed or avoided automatic declassification, protected foreign government information, reclassified some information, weakened the panel that decides to exempt documents from declassification and adjudicates classification challenges, and exempted vice presidential records from mandatory declassification review.

The Bush Administration has also obtained unprecedented authority to conduct government operations in secret, with little or no judicial oversight. Under expanded law enforcement authority in the Patriot Act, the Justice Department can more easily use secret orders to obtain library and other private records, obtain "sneak-and-peek" warrants to conduct secret searches, and conduct secret wiretaps. In addition, the Bush Administration has used novel legal interpretations to expand its authority to detain, try, and deport individuals in secret. Since the September 11, 2001 attacks, the Bush Administration has asserted unprecedented authority to detain anyone whom the executive branch labels an "enemy combatant" indefinitely and secretly. It has authorized military trials that can be closed not only to the public but also to the defendants and their own attorneys. And the Administration has authorized procedures for the secret detention and deportation of aliens residing in the United States.

Congressional Access to Information

Compared to previous administrations, the Bush Administration has operated with remarkably little congressional oversight. This is partially attributable to the alignment of the parties. The Republican majorities in the House and the Senate have refrained from investigating allegations of misconduct by the White House. Another major factor has been the Administration's resistance to oversight. The Bush Administration has consistently refused to provide to members of Congress, the Government Accountability Office, and congressional commissions the information necessary for meaningful investigation and review of the Administration's activities.

For example, the Administration has contested in court the power of the Government Accountability Office to conduct independent investigations and has refused to comply with the rule that allows members of the House Government Reform Committee to obtain information from the executive branch, forcing the members to go to court to enforce their rights under the law. It has also ignored and rebuffed numerous requests for information made by members of Congress attempting to exercise their oversight responsibilities with respect to executive branch activities, and repeatedly withheld information from the investigative commission established by Congress to investigate the September 11 attacks.

Update Rep. Waxman's companion bill, HR 5073 IH, the Restore Open Government Act of 2004, was not heard by Congress before the Winter Recess in December, and the bill was not reintroduced in the Opening Session in January 2005. However, on February 16, after the commencement of the 109th Congress, John Cornyn (R-Tex.) and Patrick Leahy (D-Vt.) introduced a bill entitled the Openness Promotes Effectiveness in our National Government Act of 2005, S. 394 (the Cornyn-Leahy bill), which according to their joint statement "is designed to strengthen laws governing access to government information, particularly the Freedom of Information Act." On the same day, an identical bill, H.R. 867, was introduced in the House of Representatives by Rep. Lamar Smith (R-Tex.).1

For more information on Rep. Waxman's legislation and work on open government, site, please visit www.democrats.reform.house.gov.

NOTE

1. St. Petersburg Times (Florida), February 18, 2005, "Improving access to information."