What Are They Hiding?
No one ever accused conservative House Republican Dan Burton of mincing his words. This is, after all, the man who once famously called President Clinton a "scumbag." But it's one thing to throw rhetorical bombs at a President from the opposition party, and quite another to denounce your own party's man as "dictatorial," as Burton did to President Bush in December.
What outrages Burton is the Bush Administration's overarching obsession with secrecy, with keeping information on a broad range of fronts out of the public view. That Burton has latched on to a key element of Bush's MO has grown clearer with the unfolding of the Enron scandal. As more and more connections between members of the Bush Administration and Enron come to light, the press and the public may be forgiven for wondering, "What else are they hiding?"
The answer is "a lot"--the Bush team has already established a record on secrecy that makes Richard Nixon, just to take a random example from our presidential past, look like a boy scout.
Presidential Records Act
For starters, Bush is blocking the scheduled release of documents under the Presidential Records Act of 1978, which mandates that all but the most highly sensitive documents are to be made public twelve years after a President leaves office. Under the PRA, Ronald Reagan's papers were supposed to be released last year.
On January 20, 2001, the first batch (68,000 pages) of Reagan's papers, mostly notes from meetings with advisers and internal White House memos, came up for routine release. It should have come off without a hitch--after all, presidential libraries have for years been releasing documents informally. But the new Bush Administration, fresh from its own Florida election controversy, took advantage of a PRA clause allowing a thirty-day presidential consultation, and thus began what turned into a grand stall. By last August, half a year had passed and still nothing had been released.
This raised suspicions. Since the law already exempted the most sensitive documents from disclosure, why did the Bush Administration have to review the rest for what it said were national security purposes? "It's pretty fishy," says Anna Nelson, an American University history professor who works with a number of scholarly and historical organizations on presidential papers access. "The precautions on 'national security' are extreme. These are not Iran/contra papers."
Nelson surmises that many officials in the current Administration (including Dick Cheney and Donald Rumsfeld) were authors of the twelve-year-old memos that are now being blocked: "They probably don't remember what they said, and they are feeling iffy about it." Meanwhile, George W. Bush is now deciding which papers of his father's, former President George H.W. Bush, will be released, beginning on January 20, 2005.
After September 11 the Administration had virtual carte blanche to stall any and all document releases, and it did so boldly [see Bruce Shapiro, "Information Lockdown," November 12, 2001]. In November Bush issued an executive order that declared that not only could a former President assert executive privilege over his papers against the will of the incumbent President (a measure Reagan instituted just before he left office) but that a sitting President could also block the papers of a predecessor, even if that predecessor had approved their release.
The implications of this change are breathtaking. "The bottom line is that secrecy prevails in every situation when at least one party wants it," says Mark Rozell, a political science professor at the Catholic University of America and a leading scholar on executive privilege.
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."
Which Brings Us to Enron
Long before the giant energy trading corporation became a household name, Dick Cheney was making sure that the extensive role of Enron and other companies in advising him on setting Bush Administration energy policies would be kept secret. Cheney had been holding meetings with executives and energy "experts" since February 2001, when he set up the National Energy Policy Development Group (NEPDG). In April, press reports indicated that Cheney had met with Enron CEO Kenneth Lay the day before announcing that he would not support price caps on the sale of wholesale electricity in California. Enron was at the time in the midst of a full-scale PR campaign to block such price caps. Representative Henry Waxman, the House Government Reform Committee's senior Democrat, asked the General Accounting Office to investigate the people Cheney had been meeting with all those months.
In May the GAO attempted five times to get information from Cheney; although the request was a routine one, his counsel made the Congressional watchdog agency defend its legal right to such information. In early June the GAO sent a letter outlining the legality of its request. In response, Cheney's office sent financial records that literally made no sense--incomplete lists of numbers with no context. After a series of legal meetings and unreturned phone calls, the GAO's comptroller general, David Walker, decided to play hardball and make a formal demand that Cheney release the information. Cheney still refused.
On August 17 the GAO released a report on the efforts that it had made to obtain information from Cheney's NEPDG, citing legal precedent as well as judicial decisions to argue that the Bush Administration was interpreting the GAO's powers too narrowly. According to Walker, no prior administration had ever challenged the GAO's authority in this regard. For example, as the report noted, the Clinton Administration had complied with GAO requests in many ways. "The information that we are seeking is of the type that has been commonly provided to the GAO for many years spanning several administrations," Walker wrote.
After September 11 the GAO released a statement essentially acknowledging that Cheney had other priorities for the moment. But by December 2, when Enron announced its bankruptcy, this grace period was over. Two days later, Waxman wrote to Cheney, urging that he release the requested information immediately. In his letter, Waxman enumerated many connections between the Administration and Enron, most of them since publicized, both in terms of campaign contributions, stock held by Bush Administration officials and even the fact that Enron had green-lighted both of Bush's appointees to the Federal Energy Regulatory Commission, which oversees the markets in which Enron operates.
"At the very least, the confluence of these actions creates an appearance of impropriety," Waxman wrote. "I urge you to reevaluate your refusal to provide the public with information about the Administration's dealings with Enron. Enron's collapse has shaken public confidence in energy markets. Continued secrecy from the White House will only compound public concerns."
Recently, in a letter to Waxman, Cheney admitted that he and his aides met with Enron executives six times last year to discuss energy policy. This access provided to Enron, Waxman said, far outweighed the access provided by the White House to other parties interested in energy policy. For example, environmental and consumer advocates never met with Cheney himself, and only once with the task force's executive director. They were not asked for any recommendations.
After the Vice President refused again to name the advisers, Waxman responded with another letter, which essentially accused Cheney of trying to mislead the public about the extent of the Enron-NEPDG contacts. (Waxman also pointed out an apparent inconsistency in the Administration's policy, since on at least seven occasions since taking office Bush has allowed e-mail communications to and from the Clinton/Gore White House to be released to Congressional committees.) As the standoff continued throughout January the GAO announced that it was going to file a lawsuit against the NEPDG to force compliance with its request. This will be the first time in its eighty-one-year history that the GAO has had to sue a federal official or agency to get information, and it therefore represents a truly remarkable departure from the established balance of power between the executive and legislative branches of the federal government.
Meanwhile, several public-interest groups have also entered the fray: the Sierra Club, Judicial Watch and the Natural Resources Defense Council have all filed suits against the Administration, seeking the identities of Cheney's secret energy advisers.
Tip of an Iceberg
"Secrecy in the Bush Administration is not limited to one or two individuals. It is a guiding philosophy," says Aftergood. "Whether it is the war in Afghanistan or presidential records from two decades ago, the Administration wants to control what the public is permitted to know. It is a dramatic shift from the Clinton Administration, where there were several agency heads speaking out in favor of greater disclosure, and in which an unprecedented volume of declassified information was released."
In October Attorney General John Ashcroft sent out a memo saying that the DOJ should adopt a policy of not giving out information requested under the Freedom of Information Act whenever possible, reversing a Clinton administrative policy stating that documents should be withheld only when there was foreseeable harm that would result from disclosure. In essence, Ashcroft was replacing "withhold rarely" with "withhold whenever possible."
Compared with Bush, the despised (by Burton) Clinton Administration had a virtual open-door policy with Congress. In response to requests from Burton's committee, Clinton produced more than 1.2 million pages of documents from January 1997 to January 2001. The GAO found that between October 1996 and March 1998, White House staff spent more than 55,000 hours responding to more than 300 Congressional requests. These included prosecution memos and documents containing legal advice normally protected by attorney-client privilege. Clinton also provided the GAO with the names of private individuals who worked for or consulted with the President's healthcare task force.
Of course, Clinton was hardly forthcoming with information that could get him into trouble personally. He invoked executive privilege thirteen times, usually in circumstances like Whitewater and the Lewinsky scandal. In some sense, Mark Rozell says, Clinton helped to bring the phrase "executive privilege" back from the netherworld to which it had been consigned since its arrant misuse by the Nixon Administration.
Intriguingly, one of the leading architects of the Bush Administration's "don't tell" policy is Brett Kavanaugh, a former deputy to Whitewater investigator Ken Starr. Kavanaugh, who once defended Starr's insatiable appetite for information on presidential doings as being not about politics but about the sanctity of the law, has apparently changed his tune (Kavanaugh did not respond to a request for an interview). The ironies abound. "Because of Ken Starr and Dan Burton himself, even the assertion of attorney-client privilege has been eviscerated," said Lanny Davis, who served as a special counsel to Clinton. "Any assertion by the White House is [now] challengeable."
Last August, before the terror attacks, the Bush Administration set up an interagency task force to review a Clinton executive order that provided for automatic declassification of non-national security information after a specified waiting period. In soliciting proposed changes from federal agencies, Bush's clear objective at that time was to slow down the entire declassification process.
Since September 11, Bush's secrecy initiatives have proliferated. In October, Bush sent out a memo stipulating limits on what members of Congress could be told about the "War on Terrorism." In mid-December, the Administration announced that a new interagency task force will investigate how to prevent future leaks of classified information.
In addition, for the first time ever, the Secretary of Health and Human Services has been given the power to classify material. While legitimate reasons for this exist, especially in light of biological and chemical weapons threats, it's a tricky matter. Says Aftergood: "It does signal the beginning of the integration of a domestic agency into the national security bureaucracy."
Hand in glove with the refusal to release information has been a seeming enthusiasm for putting out disinformation. For example, the Administration initially contended that Bush was missing for so long on September 11 because Air Force One was believed to be a target, as William Safire was told by a high-level White House official (per his September 13 column). Two weeks later, the White House was forced to admit that this was never the case. During the presidential campaign, in November 2000, campaign spokespeople first denied that Cheney had had the heart attack later confirmed by his doctors. Once in office, the Bush Administration put out a widely reported story about Clinton staff vandalism of White House property and operations; for a week the story almost dominated the news. Three months later, a GAO report revealed that virtually none of it happened--except that someone left a few pieces of paper with obscenities on a photocopy machine. Claims made in August to justify the President's decision restricting stem cell research involved misleading figures about the number of viable stem cell lines already available. The Administration was just beginning to take hits for its problems with candor when Al Qaeda struck on September 11.
"Every worst tendency toward secrecy has come out of the woodwork of this Administration," says Tom Blanton, executive director of the National Security Archive. "The mentality is that of the intelligence agent whose only goal is to protect sources and methods. It is a mentality that does not understand the value of openness."