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that's worth the read, and beats slogging throught the entire text...
Henry Waxman, you're the man, and I'm glad you're on my team.
September 14, 2004
Secrecy in the Bush Administration
Rep. Henry A. Waxman has released a comprehensive
examination of secrecy in the Bush Administration. The report
analyzes how the Administration has implemented each of our
nationÕs major open government laws. It finds that there has been
a consistent pattern in the AdministrationÕs actions: laws that are
designed to promote public access to information have been
undermined, while laws that authorize the government to withhold
information or to operate in secret have repeatedly been
expanded. The cumulative result is an unprecedented assault on
the principle of open government. Ç Table of Contents
The Administration has supported amendments to open government laws to create new
categories of protected information that can be withheld from the public. President Bush has
issued an executive order sharply restricting the public release of the papers of past
presidents. The Administration has expanded the authority to classify documents and
dramatically increased the number of documents classified. It has used the USA Patriot Act
and novel legal theories to justify secret investigations, detentions, and trials. And the
Administration has engaged in litigation to contest CongressÕ right to information.
The records at issue have covered a vast array of topics, ranging from simple census data
and routine agency correspondence to presidential and vice presidential records. Among the
documents that the Administration has refused to release to the public and members of
Congress are (1) the contacts between energy companies and the Vice PresidentÕs energy
task force, (2) the communications between the Defense Department and the Vice
PresidentÕs office regarding contracts awarded to Halliburton, (3) documents describing the
prison abuses at Abu Ghraib, (4) memoranda revealing what the White House knew about
IraqÕs weapons of mass destruction, and (5) the cost estimates of the Medicare prescription
drug legislation withheld from Congress.
There are three main categories of federal open government laws: (1) laws that provide
public access to federal records; (2) laws that allow the government to restrict public access
to federal information; and (3) laws that provide for congressional access to federal records.
In each area, the Bush Administration has acted to restrict the amount of government
information that is available.
Laws That Provide Public Access to Federal Records
Beginning in the 1960s, Congress enacted a series of landmark laws that promote
Ògovernment in the sunshine.Ó These include the Freedom of Information Act, the
Presidential Records Act, and the Federal Advisory Committee Act. Each of these laws
enables the public to view the internal workings of the executive branch. And each has been
narrowed in scope and application under the Bush Administration.
Freedom of Information Act
The Freedom of Information Act is the primary law providing access to information held by the
executive branch. Adopted in 1966, FOIA established the principle that the public should have
broad access to government records. Under the Bush Administration, however, the statuteÕs
reach has been narrowed and agencies have resisted FOIA requests through procedural
tactics and delay. The Administration has:
Issued guidance reversing the presumption in favor of disclosure and
instructing agencies to withhold a broad and undefined category of
ÒsensitiveÓ information;
Supported statutory and regulatory changes that preclude disclosure of
a wide range of information, including information relating to the
economic, health, and security infrastructure of the nation; and
Placed administrative obstacles in the way of organizations seeking to
use FOIA to obtain federal records, such as denials of fee waivers and
delays in agency responses.
Independent academic experts consulted for this report decried these trends. They stated
that the Administration has Òradically reduced the public right to know,Ó that its policies Òare
not only sucking the spirit out of the FOIA, but shriveling its very heart,Ó and that no
Administration in modern times has Òdone more to conceal the workings of government from
the people.Ó
The Presidential Records Act
The Presidential Records Act, which was enacted in 1978 in the wake of Watergate,
establishes the important principle that the records of a president relating to his official
duties belong to the American people. Early in his term, President Bush issued an executive
order that undermined the Presidential Records Act by giving former presidents and vice
presidents new authority to block the release of their records. As one prominent historian
wrote, the order Òseverely crippled our ability to study the inner workings of a presidency.Ó
The Federal Advisory Committee Act
The Federal Advisory Committee Act prevents secret advisory groups from exercising hidden
influence on government policy, requiring openness and a balance of viewpoints for all
government advisory bodies. The Bush Administration, however, has supported legislation
that creates new statutory exemptions from FACA. It has also sought to avoid the application
of FACA through various mechanisms, such as manipulating appointments to advisory
bodies, conducting key advisory functions through Òsubcommittees,Ó and invoking unusual
statutory exemptions. As a result, such key bodies as the Vice PresidentÕs energy task force
and the presidential commission investigating the failure of intelligence in Iraq have
operated without complying with FACA.
Laws that Restrict Public Access to Federal Records
In the 1990s, the Clinton Administration increased public access to government information
by restricting the ability of officials to classify information and establishing an improved
system for the declassification of information. These steps have been reversed under the
Bush Administration, which has expanded the capacity of the government to classify
documents and to operate in secret.
The Classification and Declassification of Records
The classification and declassification of national security information is largely governed by
executive order. President Bush has used this authority to:
Reverse the presumption against classification, allowing classification even in cases
of significant doubt;
Expand authority to classify information for longer periods of time;
Delay the automatic declassification of records;
Expand the authority of the executive branch to reclassify information that has been
declassified; and
Increase the number of federal agencies that can classify information to include the
Secretary of Health and Human Services, the Secretary of Agriculture, and the
Administrator of the Environmental Protection Agency.
Statistics on classification and declassification of records under the Bush Administration
demonstrate the impact of these new policies. Original decisions to classify information Ñ
those in which an authorized classifier first determines that disclosure could harm national
security Ñ have soared during the Bush Administration. In fiscal years 2001 to 2003, the
average number of original decisions to classify information increased 50% over the average
for the previous five fiscal years. Derivative classification decisions, which involve classifying
documents that incorporate, restate, or paraphrase information that has previously been
classified, have increased even more dramatically. Between FY 1996 and FY 2000, the
number of derivative classifications averaged 9.96 million per year. Between FY 2001 and FY
2003, the average increased to 19.37 million per year, a 95% increase. In the last year alone,
the total number of classification decisions increased 25%.
Sensitive Security Information
The Bush Administration has sought and obtained a significant expansion of authority to
make designations of Sensitive Security Information (SSI), a category of sensitive but
unclassified information originally established to protect the security of civil aviation. Under
legislation signed by President Bush, the Department of Homeland Security now has
authority to apply this designation to information related to any type of transportation.
The Patriot Act
The passage of the Patriot Act after the September 11, 2001, attacks gave the Bush
Administration new authority to conduct government investigations in secret. One provision of
the Act expanded the authority of the Justice Department to conduct secret electronic
wiretaps. Another provision authorized the Justice Department to obtain secret orders
requiring the production of Òbooks, records, papers, documents, and other items,Ó and it
prohibited the recipient of these orders (such as a telephone company or library) from
disclosing their existence. And a third provision expanded the use of Òsneak and peakÓ
search warrants, which allow the Justice Department to search homes and other premises
secretly without giving notice to the occupants.
Secret Detentions, Trials, and Deportations
In addition to expanding secrecy in government by executive order and statute, the Bush
Administration has used novel legal interpretations to expand its authority to detain, try, and
deport individuals in secret. The Administration asserted the authority to:
Hold persons designated as Òenemy combatantsÓ in secret without a hearing, access
to a lawyer, or judicial review;
Conduct secret military trials of persons held as enemy combatants when deemed
necessary by the government; and
Conduct secret deportation proceedings of aliens deemed Òspecial interest casesÓ
without any notice to the public, the press, or even family members.
Congressional Access to Federal Records
Our system of checks and balances depends on Congress being able to obtain information
about the activities of the executive branch. When government operates behind closed doors
without adequate congressional oversight, mismanagement and corruption can flourish. Yet
despite CongressÕ constitutional oversight role, the Bush Administration has sharply limited
congressional access to federal records.
GAO Access to Federal Records
A federal statute passed in 1921 gives the congressional Government Accountability Office
the authority to review federal records in the course of audits and investigations of federal
programs. Notwithstanding this statutory language and a long history of accommodation
between GAO and the executive branch, the Bush Administration challenged the authority of
GAO on constitutional grounds, arguing that the Comptroller General, who is the head of
GAO, had no ÒstandingÓ to enforce GAOÕs right to federal records. The Bush Administration
prevailed at the district court level and GAO decided not to appeal, significantly weakening the
authority of GAO.
The Seven Member Rule
The Bush Administration also challenged the authority of members of the House
Government Reform Committee to obtain records under the ÒSeven Member Rule,Ó a federal
statute that requires an executive agency to provide information on matters within the
jurisdiction of the Committee upon the request of any seven of its members. Although a
district court ruled in favor of the members in a case involving access to adjusted census
records, the Bush Administration has continued to resist requests for information under the
Seven Member Rule, forcing the members to initiate new litigation.
Withholding Information Requested by Congress
On numerous occasions, the Bush Administration has withheld information requested by
members of Congress. During consideration of the Medicare legislation in 2003, the
Administration withheld estimates showing that the bill would cost over $100 billion more
than the Administration claimed. In this instance, Administration officials threatened to fire
the HHS Actuary, Richard Foster, if he provided the information to Congress. In another case,
the AdministrationÕs refusal to provide information relating to air pollution led Senator
Jeffords, the ranking member of the Senate Committee on Environment and Public Works, to
place holds on the nominations of several federal officials.
On over 100 separate occasions, the Administration has refused to answer the inquiries of,
or provide the information requested by, Rep. Waxman, the ranking member of the House
Committee on Government Reform. The information that the Administration has refused to
provide includes:
Documents requested by the ranking members of eight House Committees relating
to the prison abuses at Abu Ghraib and elsewhere;
Information on contacts between Vice President CheneyÕs office and the Department
of Defense regarding the award to Halliburton of a sole-source contract worth up to
$7 billion for work in Iraq; and
Information about presidential advisor Karl RoveÕs meetings and phone
conversations with executives of companies in which he owned stock.
The 9-11 Commission
On November 27, 2002, Congress passed legislation creating the National Commission on
Terrorist Attacks upon the United States (commonly known as the 9-11 Commission) as a
congressional commission to investigate the September 11 attacks. Throughout its
investigation, however, the Bush Administration resisted or delayed providing the
Commission with important information. For example, the AdministrationÕs refusal to turn
over documents forced the Commission to issue subpoenas to the Defense Department
and the Federal Aviation Administration. The Administration also refused for months to allow
Commissioners to review key presidential intelligence briefing documents.
The Collective Impact
Taken together, the actions of the Bush Administration have resulted in an extraordinary
expansion of government secrecy. External watchdogs, including Congress, the media, and
nongovernmental organizations, have consistently been hindered in their ability to monitor
government activities. These actions have serious implications for the nature of our
government. When government operates in secret, the ability of the public to hold the
government accountable is imperiled.
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