by Timothy W.
Maier, April 8, 2002
Four weeks after terrorists attacked New York City and Washington, U.S. Attorney General John Ashcroft fired off a memo to federal agencies that set the tone for how the Bush administration now would honor the Freedom of Information Act (FOIA). The memorandum created a level of secrecy unsurpassed since FOIA became law in 1966.
The Oct. 12, 2001, directive instructed federal agencies to stall on releasing documents until a "full and deliberate consideration" of the implications of the disclosure of any such information was conducted. It superseded former attorney general Janet Reno's 1993 FOIA policy that put the burden on the federal agencies to justify any withholding of "FOIAed" documents.
"It's an indication to agencies to be more aggressive in denying FOIA requests and not be concerned about going to court," says American University Washington College of Law Professor Robert Vaughn. "It's not a very cost-effective policy," he says, although often requesters drop the issue if they are forced to fight in court.
The Ashcroft memo was only the beginning. In November, President George W. Bush signed Executive Order 13233 (EO13233), "Further Implementation of the Presidential Records Act," to restrict access to historical presidential papers. He even considered secret tribunals for terrorists but backed away under sharp criticism. "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 FOIA amendments in 1974," argues Tom Blanton, director of the nonpartisan National Security Archives at George Washington University.
The FBI even has begun making visits to reporters. It subpoenaed Associated Press reporter John Sullivan's notes concerning a criminal case and recently visited Insight, warning that if certain FOIAed records were released to this magazine someone might break into a reporter's home and steal the documents.
Intimidation? Perhaps. But more likely the Bush administration simply is testing the waters, something most administrations have done in their first months, says Jim Wilson, chief counsel for the House Government Reform Committee. "There is a desire for fewer documents out of the door because they are withholding on principle" to protect the executive decision-making process, says Wilson. "This is not well-founded in law. It's hard to roll back the clock to before the 1920 Teapot Dome scandal."
With Bush enjoying a 75 percent approval rating, and a weary public nursing an intense suspicion of the media, few objected when the president ordered government libraries to destroy records concerning dams and water reservoirs or instructed federal agencies to scrub Websites of sensitive data < including those of 10 nuclear facilities with weapons-grade plutonium and highly enriched uranium. Never mind that many of those records easily could have been downloaded by terrorists at any time during the last decade < and, in some cases, still can be found through Google and other Internet search engines.
Eight months later, media complaints are at last being heard. "It's like the burning of books," says Michael Ravnitzky, a reporter with American Lawyer Media who has requested thousands of records. "It leaves a bad taste in people's mouths."
White House spokesman Ari Fleischer has responded to press complaints about the growing secrecy by saying that the media are not on the same page as the public. "The press is asking a lot of questions that I suspect the American people would prefer not to be asked or answered," he said.
While that may be true, the Bush team is taking a hard hit in this fight as it finds itself embroiled in lawsuits from the left and the right. Larry Klayman, chairman of the conservative watchdog group Judicial Watch, has filed three lawsuits to obtain energy records. The liberal Natural Resources Defense Council sued the Energy Department to expose details of Vice President Dick Cheney's Energy Task Force. And Public Citizen, a Naderite group, has filed a lawsuit to overturn EO13233 concerning presidential papers.
The Senate Judiciary Committee has asked the General Accounting Office (GAO) to evaluate how Ashcroft's memorandum has affected FOIA implementation. And the GAO filed a lawsuit to obtain energy records, while the House Government Reform Committee is holding hearings later this month on FOIA problems.
But, as often before, it is Klayman who has taken the lead (see "The Watchdog of Washington," April 22). After seeing him dog Bill Clinton for eight years, few on the left expected Klayman would do the same with Bush. But he has. Asked how Bush compared with Clinton, Klayman responded, "Bush is more 'in your face' and 'we will see you in the courts,' whereas Clinton had this technique where they said they gave you everything, but later we would find they destroyed records."
Klayman won round one, as Cheney was forced to release thousands of records from the White House Energy Task Force. However, the Judicial Watch chairman says, "The records are heavily redacted." More disturbing, there appear to be at least 25,000 pages missing. That means more litigation, says Klayman.
Then there is Rep. Dan Burton (R-Ind.), chairman of the House Government Reform Committee, who is irate that even his oversight panel is being denied records. Angered by the president's reluctance to stand and deliver, Burton threatened to hold Bush in contempt if he didn't produce a series of subpoenaed documents, including the FBI files on a Boston murder case in which the FBI knowingly let an innocent man sit in jail for 30 years. The committee also wanted campaign-finance records and documents from the Drug Enforcement Administration concerning allegations that political pressure may have been applied to shut down a Houston drug probe.
The Bush administration compromised and released the FBI file in the Boston case, although those records have not been made available to the public. As for the campaign-finance records, a high-level government source tells Insight, Bush never will authorize their release.
Burton's frustration also extended to the administration's reluctance to produce records concerning last-minute Clinton pardons < materials that even Clinton had authorized for release. When the Bush team finally provided the documents, it asked Burton to return them, claiming they were released by mistake. Burton refused. The committee was so furious it issued a report called Justice Undone: Clemency Decision in the Clinton White House. "It is disappointing that the Bush administration would attempt to withhold key documents from the committee in an investigation like this, where the committee is looking into allegations of malfeasance at the highest levels of government," the report stated.
Blanton says Bush's reluctance to release records may reflect Cheney's ideas and experience as chief of staff at the White House under President Ford. It was Ford who vetoed H.R. 12471, a bill to strengthen the FOIA, calling it "unconstitutional and unworkable." Congress overrode Ford's veto. And it was Cheney who sought to punish gadfly journalist Seymour Hersh for his investigative reporting on the U.S. intelligence community, pushing for an FBI probe of Hersh and the New York Times.
Indeed Cheney has defended his recent efforts to keep secret his energy records by saying it is time to restore presidential powers eroded by "unwise compromises that have been made over the last 30 or 35 years."
Bush sides with the Cheney argument. "First, I am not going to let Congress erode the power of the executive branch," the president said during the fight for energy records. "I have a duty to protect the executive branch from legislative encroachment. I mean, for example, when the [congressional] GAO demands documents from us, we're not going to give them to them. These were privileged conversations. These were conversations when people come into our offices and brief us. Can you imagine having to give up every single transcript of what is advised me or the vice president? Our advice [from others] wouldn't be good and honest and open."
Meanwhile, reporters are finding that even résumés of senior government officials are being censored in some agencies. Educational profiles and awards provided to senior officials from the Environmental Protection Agency (EPA), for instance, are off-limits. When reporter Todd Carter obtained resumes of EPA political appointees to post on the Natural Resources News Service Website (www.publicedcenter.org), the EPA directed him not to post them because of privacy concerns. The EPA then sent another batch of résumés that blacked out education levels, awards, affiliations and even job experience. When asked for the return of the unredacted résumés, Carter refused and posted résumés on the news-service Website showing that EPA had brought in former Enron employees.
Reporter Ravnitzky also has had a series of run-ins with FOIA officers. The Justice Department refused to release records from its Office of Legislative Affairs because he had "failed to address how American Lawyer Media intends to use the records subject to the request," according to the Justice Department.
For a 2001 story, Ravnitzky asked for a series of Security Summary Synopses concerning airports. In the aftermath of 9/11, he urged the Federal Aviation Administration (FAA) to expedite the request in order to inform the public which airports were not secure. The FAA has responded twice, arguing that "there is no identifiable urgency to inform the public." However, the FAA claimed, the records will be made available when someone there gets to it.