What Are They Hiding?
The Bush Administration, in full Orwellian swing, has dubbed its executive order "Further Implementation of the Presidential Records Act," as if it were designed to enhance public access. According to White House spokesperson Anne Womack, "This really didn't change anything." The order, she says, is "just about procedure. It doesn't talk about when, how or why." At the time the order was signed, press secretary Ari Fleischer said it would mandate a "more orderly process.... As a result of the new law that is now going into effect, and thanks to the executive order that the President will soon issue, more information will be forthcoming."
That remains to be seen. Whereas in the past the White House had to prove that it had a compelling reason to withhold information, Bush's executive order places the burden on researchers and others to prove that they have a compelling need for the information. This effectively eviscerates the Presidential Records Act.
The pièce de résistance, which scholars and legal experts find especially alarming, is a section that allows a former President to appoint a representative to manage the release of papers after his death (or, as in the case of Reagan, incapacitation). "The question we have to ask ourselves is, Do we want the children, grandchildren and fellow workers [of a former President] to make these decisions?" says Anna Nelson. "These are public records."
In response, a consortium of public interest groups, including Public Citizen and the National Security Archive, filed suit in late November. The suit asks that the National Archivist be forced to adhere to the terms of the Presidential Records Act, with no regard for the recent executive order, and to release the additional Reagan papers that have been withheld. Scott Nelson, the attorney litigating the case against the White House, puts it like this: "They have the general view that executive branch deliberations are not the business of the public or Congress."
Meanwhile, as of early January, a year after the scheduled release date, a mere 6,000 documents had been cleared for release. At this rate, it will take more than eleven years for all 68,000 pages to reach the public.
Battle Between Congress and the DOJ
On December 14, Bush invoked executive privilege in refusing to comply with two subpoenas from Burton's panel, the House Committee on Government Reform, seeking information from the Justice Department. One, a continuation of Burton's late-1990s anti-Clinton crusade, requested internal prosecutorial memos outlining Janet Reno's decision not to appoint an independent counsel to investigate impropriety in Clinton/Gore fundraising. The second concerned an FBI investigation in Boston more than twenty-five years ago. When Burton's committee requested internal prosecutorial memos from the case, the Administration balked, saying that such a release would have a chilling effect on confidential advice offered within the executive branch.
"This is a test of Congress to see how much the Administration can get away with," says Steve Aftergood, director of the Federation of American Scientists' Project on Government Secrecy. "It is not at all surprising the executive branch would want to operate in secret. The question is, How much will Congress accept?"
In fact, Congress has no legal mechanism to force the executive branch to honor subpoenas for such information. Thus, it will be up to public organizations and the media to decide what levels of openness are supportable, and to exert pressure to prevent iron gates from slamming down all over Washington. "You know when this changes?" asks Charles Tiefer, professor of law at the University of Baltimore and an expert on executive privilege. "It is when the TV coverage makes the President look bad that the phone call goes from the White House to the DOJ that says give up on the cover-up and make the deal."
Why is Bush trying to stake a claim of executive privilege in two closed investigations in which there is no longer any threat to law enforcement or prosecution? Indeed, the political fallout from any revelations about Janet Reno's decision not to pursue an independent investigation of Clinton/Gore campaign finances could only hurt Democrats. Tiefer and others worry that this may be part of a far-reaching strategy. "President Bush will want to stake out his secrecy powers in cases like these where he can't be accused of covering up a matter of political or corrupt self-interest," says Tiefer. "Next year, if the investigating accountants put together a criminal case against Enron, but for inexplicable reasons the Justice Department refuses to charge anyone except low-level or insignificant Enron officials, the same type of President-ordered cover-up would be used to prevent Congress and the public from finding out why no serious indictments occurred."