Government Openness at Issue as Bush Holds On to Records
By ADAM CLYMER WASHINGTON, Jan. 2 — The Bush administration has put a much tighter lid than recent presidents on government proceedings and the public release of information, exhibiting a penchant for secrecy that has been striking to historians, legal experts and lawmakers of both parties.
Some of the Bush policies, like closing previously public court proceedings, were prompted by the Sept. 11 terrorist attacks and are part of the administration's drive for greater domestic security. Others, like Vice President Dick Cheney's battle to keep records of his energy task force secret, reflect an administration that arrived in Washington determined to strengthen the authority of the executive branch, senior administration officials say.
Some of the changes have sparked a passionate public debate and excited political controversy. But other measures taken by the Bush administration to enforce greater government secrecy have received relatively little attention, masking the proportions of what dozens of experts described in recent interviews as a sea change in government openness.
A telling example came in late 2001 when Attorney General John Ashcroft announced the new policy on the Freedom of Information Act, a move that attracted relatively little public attention.
Although the new policy for dealing with the 1966 statute that has opened millions of pages of government records to scholars, reporters and the public was announced after Sept. 11, it had been planned well before the attacks.
The Ashcroft directive encouraged federal agencies to reject requests for documents if there was any legal basis to do so, promising that the Justice Department would defend them in court. It was a stark reversal of the policy set eight years earlier, when the Clinton administration told agencies to make records available whenever they could, even if the law provided a reason not to, so long as there was no "foreseeable harm" from the release.
Generally speaking, said Alan Brinkley, a Columbia University historian, while secrecy has been increasingly attractive to recent administrations, "this administration has taken it to a new level."
Its "instinct is to release nothing," Professor Brinkley said, adding that this was not necessarily because there were particular embarrassing secrets to hide, but "they are just worried about what's in there that they don't know about."
The Bush administration contends that it is not trying to make government less open. Ari Fleischer, the president's press secretary, said, "The bottom line remains the president is dedicated to an open government, a responsive government, while he fully exercises the authority of the executive branch."
Secrecy is almost impossible to quantify, but there are some revealing measures. In the year that ended on Sept. 30, 2001, most of which came during the Bush presidency, 260,978 documents were classified, up 18 percent from the previous year. And since Sept. 11, three new agencies were given the power to stamp documents as "Secret" — the Environmental Protection Agency, the Department of Agriculture and the Department of Health and Human Services.
In Congress, where objections to secrecy usually come from the party opposed to the president, the complaints are bipartisan. Senator Patrick J. Leahy, the Vermont Democrat first elected in 1974, said, "Since I've been here, I have never known an administration that is more difficult to get information from." Senator Charles E. Grassley, Republican of Iowa, said things were getting worse, and "it seems like in the last month or two I've been running into more and more stonewalls."
Mr. Cheney says the Bush policies have sought to restore the proper powers of the executive branch. Explaining the fight to control the task force records to ABC News last January, he said that over more than three decades: "I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job. We saw it in the War Powers Act, we saw it in the Anti-Impoundment Act. We've seen it in cases like this before, where it's demanded that the presidents cough up and compromise on important principles. One of the things that I feel an obligation on, and I know the president does, too, because we talked about it, is to pass on our offices in better shape than we found them to our successors."
Mr. Bush has made similar comments. But the more relevant history may have been in Texas, where Mr. Bush, as governor, was also reluctant to make government records public. Confronted with a deadline to curb air pollution, he convened a private task force to propose solutions and resisted efforts to make its deliberations public. When he left office, he sent his papers not to the Texas State Library in Austin, but to his father's presidential library at College Station. That library was unable to cope with demands for access, and the papers have since been sent to the state library.
Framing an Argument
One argument underlies many of the administration's steps: that presidents need confidential and frank advice and that they cannot get it if the advice becomes public, cited by Mr. Cheney in reference to the task force and by Alberto R. Gonzales, the White House counsel, in explaining the administration's decision to delay the release of President Ronald Reagan's papers.
Mr. Gonzales said "the pursuit of history" should not "deprive a president of candid advice while making crucial decisions."
Some administration arguments are more closely focused on security. Mr. Ashcroft has said that releasing the names of people held for immigration offenses could give Al Qaeda "a road map" showing which agents had been arrested.
Secretary of Defense Donald H. Rumsfeld, who has threatened action against Pentagon officials who discuss military operations with reporters, said before troops at the Army's Special Operation Command on Nov. 21, 2001, "I don't think the American people do want to know anything that's going to cause the death of any one of these enormously talented and dedicated and courageous people that are here today."
The critics argue more generally. Former Senator Daniel Patrick Moynihan, Democrat of New York, argues that secrecy does more harm than good. The Central Intelligence Agency's exaggerated estimates of Soviet economic strength, for example, would have stopped influencing United States policy, Mr. Moynihan said, if they had been published and any correspondent in Moscow could have laughed at them.
"Secrecy is a formula for inefficient decision-making," Mr. Moynihan said, and plays to the instincts of self-importance of the bureaucracy.
Mary Graham, a scholar at the Brookings Institution and the John F. Kennedy School of Government at Harvard, saw two major risks in this administration's level of secrecy.
"What are often being couched as temporary emergency orders are in fact what we are going to live with for 20 years, just as we lived with the cold war restrictions for years after it was over," Ms. Graham said. "We make policy by crisis, and we particularly make secrecy policy by crisis."
Moreover, she said, it ignores the value of openness, which "creates public pressure for improvement." When risk analyses of chemical plants were available on the Internet, she said, people could pressure companies to do better, or move away.
Mr. Fleischer contends that there is no secrecy problem. "I make the case that we are more accessible and open than many previous administrations — given how many times [Secretary of State Colin L.] Powell, Rumsfeld and Ashcroft have briefed," he said.
Asked if there was anyone in the administration who was a consistent advocate of openness, who argued that secrecy hurt as well as helped, Mr. Fleischer said President Bush was that person. He said that was exemplified by the fact that while "the president reserved the authority to try people under military tribunals, nobody has been tried under military tribunals."
In the cases of Zacarias Moussaoui and John Walker Lindh, he said, Mr. Bush has opted for the more open and traditional route of the criminal justice system.
The Bush administration's first major policy move to enforce greater secrecy could affect how its own history is written.
On March 23, 2001, Mr. Gonzales, the White House counsel, ordered the National Archives not to release to the public 68,000 pages of records from Ronald Reagan's presidency that scholars had requested and archivists had determined posed no threat to national security or personal privacy. Under the Presidential Records Act of 1978, the documents were to become available after Jan. 20, 2001, twelve years after Mr. Reagan left office. Mr. Reagan's administration was the first covered by the 1978 law.
The directive, which also covered the papers of Mr. Reagan's vice president and the president's father, George Bush, was to last 90 days. When Mr. Gonzales extended the sealing period for an additional 90 days, historians like Hugh Davis Graham of Vanderbilt University attacked the delays, saying they were designed to prevent embarrassment and would nullify the records law's presumption of public access to those documents.
On Nov. 1, 2001, President Bush issued an even more sweeping order under which former presidents and vice presidents like his father, or representatives designated by them or by their surviving families, could bar release of documents by claiming one of a variety of privileges: "military, diplomatic, or national security secrets, presidential communications, legal advice, legal work or the deliberative processes of the president and the president's advisers," according to the order.
Before the order, the Archivist of the United States could reject a former president's claim of privilege. Now he cannot.
The order was promptly attacked in court and on Capitol Hill. Scott L. Nelson of the Public Citizen Litigation Group sued on behalf of historians and reporters, maintaining that the new order allowed unlimited delays in releasing documents and created new privileges to bar release.
House Republicans were among the order's sharpest critics. Representative Steve Horn of California called a hearing within a few days, and Representative Doug Ose, another Californian, said the order "undercuts the public's right to be fully informed about how its government operated in the past." The order, Mr. Horn said, improperly "gives the former and incumbent presidents veto power over the release of the records."
On Dec. 20, the White House sought to silence the complaints by announcing that nearly all the 68,000 pages of the Reagan records were being released. Legislation introduced to undo the order never made it to the House floor, where leaders had no interest in embarrassing the president. And a lawsuit challenging the order languishes in Federal District Court before Judge Colleen Kollar-Kotelly.
Historians remain angry. Robert Dallek, a biographer of Lyndon B. Johnson and John F. Kennedy, said, "This order of Bush, we feel it's a disgrace — what it means is if this policy applies, they can hold presidential documents close to the vest in perpetuity, the way Lincoln's papers were held by the family until 1947."
Battling the Congress
The administration's most publicized fight over secrecy, and its biggest victory to date, has come over its efforts to keep the investigative arm of Congress from gaining access to records of the energy task force led by Vice President Cheney.
This fight is only the showiest of many battles between the Bush administration and members of Congress over information. Such skirmishes happen in every administration. But not only are they especially frequent now, but also many of the loudest Congressional complaints come from the president's own party, from Republicans like Senator Grassley and Representative Dan Burton of Indiana.
The vice president framed the fight as being less about what the papers sought by the General Accounting Office might show than over power — what Congress could demand and how it could get it or what essential prerogatives the executive branch could maintain, especially its ability to get confidential advice. And he welcomed the battle. In an interview the day before the suit was filed, he said. "It ought to be resolved in a court, unless you're willing to compromise on a basic fundamental principle, which we're not." And on Dec. 9, Judge John D. Bates of Federal District Court ruled for the vice president.
Judge Bates ruled that David M. Walker, who as comptroller general heads the General Accounting Office, had not suffered any personal injury, nor had he been injured as an agent of Congress, and therefore the suit could not be considered. An appeal is all but certain to be filed, but for the time being, the administration clearly has a victory.
"Vice President Cheney's cover-up will apparently continue for the foreseeable future," said Representative John D. Dingell, the Michigan Democrat who pressed Mr. Walker to act, hoping to find evidence of special interest favoritism for Republican donors in the Cheney documents.
There have been other bitter fights over disclosure between the White House and the Congress. While the Democrats controlled the Senate Environment and Public Works Committee, the chairman, James M. Jeffords, independent of Vermont, repeatedly threatened last year to subpoena the Environmental Protection Agency for documents explaining the scientific basis and potential impact of its proposed air pollution rule changes requiring aging power plants to install new pollution controls when their facilities are modernized. Mr. Jeffords, who never got around to issuing the subpoena, argued that the administration had broken its promises of cooperation.
Representative F. James Sensenbrenner, the Wisconsin Republican who is chairman of the House Judiciary Committee, was infuriated last August when the Justice Department said it would send answers to some of his questions about how it was using the USA Patriot Act to the more pliant Intelligence Committee, which was not interested. Mr. Sensenbrenner threatened to issue a subpoena or "blow a fuse."
Mr. Grassley, the incoming chairman of the Finance Committee, said administration obstruction required him to go and personally question government officials working on Medicare fraud cases, instead of sending his staff. But his new chairmanship and the Treasury confirmations before it may give him a lever. He said he told a White House aide of his problems and asked, "How can I get a presidential nominee through if I have to be spending my time doing things my investigators could be doing?"
Closing the Courtroom
Legal policy is where the administration's desire to maintain secrecy has excited the most controversy. Since the first few days after the Sept. 11 attacks, the federal government has insisted on a rare degree of secrecy about the individuals it has arrested and detained.
The immigration hearings held for hundreds of people caught in sweeps after the bombings have been closed to relatives, the news media and the public.
The names of those detained by the Immigration and Naturalization Service have been kept secret, along with details of their arrests, although on Dec. 12 the Justice Department told The Associated Press there had been 765 of them, of whom only 6 were still in custody.
A few dozen individuals have been held as material witnesses, after the Justice Department persuaded federal judges that they had information about terrorism and might flee if released. Neither their names nor the total number of them have been made public.
The administration has also kept a tight lid on the identities of the military detainees being held at Guantanamo, Cuba. But in considering how to deal with them, in military tribunals, the government has moved away from secrecy. When Mr. Bush directed the Defense Department in November 2001 to set up military tribunals to try noncitizens suspected of terrorism, one reason cited was the ability to hold those proceedings in secret, to protect intelligence and to reduce risks to judges and jurors. But when the rules were announced in March, they said "the accused shall be afforded a trial open to the public (except proceedings closed by the presiding officer)."
While the government's policy in the immigration cases has suffered some judicial setbacks, appeals and stays have allowed it to remain in effect.
Fundamentally, the government has argued against opening hearings by contending that they would make available to terrorists a mosaic of facts that a sophisticated enemy could use to build a road map of the investigation, to know what the government knew or did not know, and thus to escape or execute new attacks.
That argument was also made in the main case involving releasing the names of those detained, where the government also maintains that the Freedom of Information Act's right to privacy would be violated by a release of the names.
Legal scholars have objected particularly to the decision to close all the immigration hearings, rather than parts of them. Stephen A. Schulhofer, a professor at New York University Law School, said there was already a legal provision for closing a hearing when a judge was shown the necessity.
The "road map" explanation seemed implausible, Mr. Schulhofer said, because the detainees had a right to make phone calls, in which "a real terrorist could alert cohorts who would not have known he was detained."
At a recent seminar at Georgetown University Law School, Assistant Attorney General Michael Chertoff said protecting privacy was the main reason for suppressing the names. Representative Barney Frank, Democrat of Massachusetts, dismissed that rationale, asking Mr. Chertoff, "How can you even say that with a straight face?"
So far, the government has won challenges to the detention of material witnesses.
On releasing the names, it lost in a Federal District Court here, but appeared to have impressed two of the three appeals court judges who heard the case in November.
On the question of a blanket closing of "special interest" immigration hearings, an appeals court in Cincinnati ruled against the government in August and one in Philadelphia ruled in its favor in October. The Supreme Court is likely to be faced with choosing between them.
Putting Sand in the Gears
Immediately after the Sept. 11 terrorist attacks, governments at all levels feared that information they made publicly available could be useful to terrorists, and began moves to curtail access, a trend the Bush administration encouraged.
The first of the strictures on information resulting from Sept. 11 were described by Ms. Graham, the Brookings and Kennedy School scholar, in her book, "Democracy by Disclosure" (Brookings Institution Press, 2002).
"Officials quickly dismantled user-friendly disclosure systems on government Web sites," she wrote. "They censored information designed to tell community residents about risks from nearby chemical factories; maps that identified the location of pipelines carrying oil, gas and hazardous substances; and reports about risks associated with nuclear power plants."
Many of those withdrawals mirrored efforts industry had been making for quite a few years, arguing that the public did not really need the information. Some information has been removed from public gaze entirely. James Neal, the Columbia University librarian, said that officials of libraries like his around the country that serve as depositories for federal information "have some concern about the requests to withdraw materials from those collections." Perhaps even more important, Mr. Neal said, was that "we also do not know what materials are not getting distributed."
Some material that has been removed from Web sites is still available, though obviously to fewer people, in government reading rooms. The chemical factory risk management plans cited by Ms. Graham are no longer available through the Internet, said Stephanie Bell, a spokeswoman for the Environmental Protection Agency. But individuals can look at up to 10 of them and take notes (but not photocopies) in 55 government reading rooms around the country, Ms. Bell said. There is at least one reading room in every state except Maine, Nebraska, North Carolina, South Dakota, Vermont and Wyoming.
Last March the Defense Department issued a draft regulation concerning possible limits on publication of unclassified research it finances and sharp restrictions on access by foreign citizens to such data and research facilities.
This prompted some concerted resistance from scientists. Bruce Alberts, a biochemist who heads the National Research Council and the National Academy of Sciences, told the academy's annual meeting on April 29:
"I am worried about a movement to restrict publication that has been proceeding quietly but quickly in Washington. Some of the plans being proposed could severely hamper the U.S. research enterprise and decrease national security. It is being suggested that every manuscript resulting from work supported by federal funds be cleared by a federal project officer before being published, with serious penalties for violations. Another rule could prevent any foreign national from working on a broad range of projects."
Even though the department withdrew its proposal and officials say there has been no decision on whether to try again, the scientists say they are still worried.
The new Ashcroft directive on Freedom of Information requests has also begun to be felt. A veteran Justice Department official said he believed that fewer discretionary disclosures were being made throughout the government because "as a matter of policy, we are not advocating the making of discretionary disclosures."
Delays are one clear reality. The General Accounting Office reported last fall that "while the number of requests received appears to be leveling off, backlogs of pending requests governmentwide are growing, indicating that agencies are falling behind in processing requests."
To Thomas Blanton, who helps run the National Security Archive, which collects and posts documents gained through Freedom of Information Act, that is a clear effect of the Ashcroft order.
"What these signals from on high do in a bureaucracy, they don't really change the standards," Mr. Blanton said, "but they put molasses or sand in the gears."