Shutting Down Transparent Government, Bush-Style

By Ruth Rosen, Tomdispatch.com. Posted September 10, 2007.

Disgraceful, shameful, illegal, and yes, dangerous. These are words that come to mind every time the Bush administration makes yet another attempt to consolidate executive power, while wrapping itself in secrecy and deception.

And its officials never stop. In May, Citizens for Responsibility and Ethics in Washington, a nonprofit group, filed a lawsuit seeking information from the White House Office of Administration about an estimated five million e-mail messages that mysteriously vanished from White House computer servers between March 2003 and October 2005. Congress wants to investigate whether these messages contain evidence about the firing of nine United States attorneys who may have refused to use their positions to help Republican candidates or harm Democratic ones.

The administration's first response to yet another scandal was to scrub the Freedom of Information Act (FOIA) request section from the White House Office website. One day it was there; the next day it had disappeared. Then, Bush-appointed lawyers from the Justice Department tried to convince a federal judge that the White House Office of Administration was not subject to scrutiny by the Freedom of Information Act because it wasn't an "agency." The newly labeled non-agency, in fact, had its own FOIA officer and had responded to 65 FOIA requests during the previous 12 months. Its own website had listed it as subject to FOIA requests.

For those who may have forgotten, Congress passed the Freedom of Information Act in 1966 to hold government officials and agencies accountable to public scrutiny. It became our national sunshine law and has allowed us to know something of what our elected officials actually do, rather than what they say they do. Congress expressly excluded classified information from FOIA requests in order to protect national security.

Scorning accountability, the Bush administration quickly figured out how to circumvent the Act. On October 12, 2001, just one month after the 9/11 attacks, Attorney General John Ashcroft took advantage of a traumatized nation to ensure that responses to FOIA requests would be glacially slowed down, if the requests were not simply rejected outright.

Most Americans were unaware of what happened -- and probably still are. If so, I'd like to remind you how quickly democratic transparency vanished after 9/11 and why this most recent contorted rejection of our premier sunshine law is more than a passing matter; why it is, in fact, an essential aspect of this administration's continuing violation of our civil rights and liberties, the checks and balances of our system of government, and, yes, even our Constitution.

On Bended Knee

Lies and deception intended to expand executive power weren't hard to spot after 9/11, yet they tended to slip beneath the political and media radar screens; nor did you have to be an insider with special access to government officials or classified documents to know what was going on.

At the time, I was an editorial writer and columnist for the San Francisco Chronicle. From my little cubicle at the paper, I read a memorandum sent by Attorney General John Ashcroft to all federal agencies. Short and to the point, it basically gave them permission to resist FOIA requests and assured them that the Justice Department would back up their refusals. "When you carefully consider FOIA requests," Ashcroft wrote, "and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decision unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."

He then went on to explain, "Any discretionary decision by your agency to disclose information protected under FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information."

And what, I wondered, did such constraints and lack of accountability have to do with finding and prosecuting terrorists? Why the new restrictions? Angered, I wrote an editorial for the Chronicle about the Justice Department's across-the-board attempt to censor freedom of information. ("All of us want to protect our nation from further acts of terrorism. But we must never allow the public's right to know, enshrined in the Freedom of Information Act, to be suppressed for the sake of official convenience.")

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Ruth Rosen is a historian and journalist who teaches public policy at UC Berkeley. She is a senior fellow at the Longview Institute.

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