The White House's ongoing battle against post-Nixon sunshine laws.
In November 1974, a reform-hungry Capitol Hill gave the newly sworn-in President Gerald Ford one of his first real challenges. Congress had passed a significant expansion of Ralph Nader's 1966 Freedom of Information Act (FOIA), aimed at prying open for public scrutiny the previously exempt areas of national security and law enforcement. When Ford was vice president to a commander-in-chief famous for his secrecy, paranoia, and abuse, he had supported the new sunshine amendments. But as chief executive, the interim president allowed himself to be talked into a veto by his intelligence directors and by his young chief and deputy chief of staff: Donald Rumsfeld and Dick Cheney.
"This was their first battle at Ford's White House," says Thomas Blanton, director of the National Security Archive (NSA), a nonprofit at George Washington University that has helped declassify more than 20,000 government documents. It was a battle the FOIA foes lost: Congress overrode Ford's veto.
Thirty years later, Rumsfeld and Cheney are again squaring off against the advocates of government transparency. At press time, the Bush White House had yet to release the photographs and videos of the vile prisoner abuse at Abu Ghraib; it's also defending its expansions of state secrecy in several cases before the Supreme Court. Its efforts are affecting not just Congress' and the press's ability to cross-examine the executive branch but citizens' ability to scrutinize how our tax money is being spent—and the government's ability to act without restraint.
"This administration just has a very fundamental opposition to the disclosure of records about government operation," says Tom Fitton, president of the watchdog group Judicial Watch. (Motto: "Because no one is above the law!") "I think the administration's general view is they'd like to see the end to all disclosure laws….Barring that, they're fighting within the confines of executive privilege and secrecy."
Judicial Watch, as you may recall from the 1990s, came into national prominence with a series of lawsuits to pry loose documents relating to "Filegate," "Chinagate," "E-Mailgate," and other Clinton scandals. "We're conservative—we're suspicious of big government," Fitton says. "I'm not aware of government secrecy as a conservative principle."
But as has become increasingly manifest during the course of George W. Bush's term, secrecy certainly has become a governing principle. Example: From fiscal year 2001 to fiscal year 2003, according to the federal Information Security Oversight Office, the number of documents classified by the government increased from 8 million to 14 million; the number of documents declassified has plummeted from 100 million to 43 million.
With many of the same themes and characters making headlines in 2004 as 30 years ago (down to the central muckraking role of investigative reporter Seymour Hersh, who helped expose both Abu Ghraib and the My Lai massacre, and who was targeted for possible federal prosecution in 1975 by none other than Dick Cheney), the temptation to make analogies to Richard Nixon has become irresistible—even among Supreme Court justices. (The Court weighed the Nixonian precedents when hearing arguments on whether executive privilege shielded Cheney's meetings with energy executives.) Nixon counsel turned Watergate whistleblower John Dean has a new bestseller out that cuts to the chase: It's called Worse Than Watergate: The Secret Presidency of George W. Bush.
Does the analogy hold up? It's hard to imagine, given the depths of the Nixon administration's petty vindictiveness and depravity. (As Dean himself notes, Nixon's Joint Chiefs of Staff planted a spy in his National Security Council, which would be hard to picture today.)
But perhaps a more useful way of looking at the comparison is to note that many current officials, from the president to the attorney general to the Ford administration vets, have repeatedly expressed irritation at the limitations imposed upon them by post-Watergate reforms, particularly those dealing with the tension between scrutiny and secrecy.
"In 34 years," Cheney told Cokie Roberts in January 2002 on ABC's This Week, "I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job….One of the things that I feel an obligation [to do], 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. We are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years."
The September 11 massacre gave the administration all the political legitimacy it needed to begin dismantling those shackles. In short order:
? On October 12, 2001, Attorney General John Ashcroft issued a guidance memo to all federal agencies advising them to deny FOIA requests if there was any "sound legal basis" for doing so and assuring them that the Justice Department would provide any support necessary.
? On November 1, 2001, just as his father's records were about to be released to the public, Bush signed Executive Order 13,233, reinterpreting the 1978 Presidential Records Act to give the White House and former presidents unlimited discretion to veto the declassification of presidential papers. "The main thing it has done is just put a huge amount of delay in the system," Blanton says. "In 2001, before he wrote that Executive Order, the Reagan Library, for example, took about a year and a half, between 14 and 18 months, to respond to a request for documentation. Today, it's 48 months."
? On November 25, 2002, Bush signed the Homeland Security Act, which created a FOIA exemption for even nonclassified documents pertaining to what was vaguely defined as "critical infrastructure."
? On many occasions since, the White House has sought to extend executive privilege into uncharted territory.
The problem, Judicial Watch's Fitton and the NSA's Blanton agree, is that the administration's national security justifications are frequently bogus. "I'm not talking about the blueprints to a nuclear weapon, or our national defense and secrets related to that," says Fitton. "We're talking about using those types of national security arguments to just cover up corruption and things that are politically inconvenient."
Blanton says documents that administrations fight tooth and nail to suppress—such as the Pentagon Papers, or the infamous August 6, 2001, presidential daily briefing about Osama Bin Laden, or the 56-year-old Air Force accident reports whose classification formed the legal basis for withholding information on national security grounds—typically contain little or no truly sensitive information. "The banality of the thing is what strikes you," he says.
Watergate taught millions of Americans about the dangers of government operating without sunshine. But Bush administration officials, especially those who lived through the scandal, learned an altogether different lesson—that checks and balances can be distractions and handcuffs.
"Corruption thrives in secrecy," Fitton says. "And if a bureaucrat thinks that everything he does is never going to see the light of day, and a politician or a political appointee thinks the same, then you can bet that the temptation to do incorrect things will be greater.
"If the idea is that what they can do can be exposed by an intrepid reporter or an activist group, it does keep people in line. And we're not talking about the speeding violations that often pass for ethics enforcement here in Washington. We're talking about, for instance, lying to Congress about the costs of a huge entitlement program. We're talking about bribery for pardons by the president of the United States….These aren't technical violations of ethics rules; this is hammer-in-the-head stuff, and anyone who doesn't understand that this is wrong, and the secrecy surrounding it is wrong, frankly shouldn't be trusted with the public's trust."