Friday, November 05, 2004


By William Fisher

“It's always a fight, to find out what the government doesn't want us to know. It's a fight we're once again losing…(President Bush) has clamped a lid on public access... It's not just historians and journalists he wants locked out; it's Congress... and it's you, the public and your representatives.”

These are the words of Bill Moyers, one of America’s most respected broadcast journalists. Moyers was press secretary to President Lyndon B. Johnson when Johnson signed the Freedom of Information Act (FOIA) in 1966. The Freedom of Information Act established the principle that the public should have broad access to government records.

In his “NOW’ program on US public television, Moyers condemns the Bush Administration’s penchant for secrecy. “We're told it's all about national security, but that's not so”, he says.

Now a comprehensive report issued by Congressman Henry Waxman, a California Democrat, supports Moyers’ view. It charges that “there has been a systematic effort by the Bush Administration to limit the application of the laws that promote open government and accountability…the Bush Administration has sought to curtail public access to information while expanding the powers of government to operate in secret.”

The Report alleges that both the American people and the US Congress are being denied access to millions of pages of documents to which they are entitled under law. It says, “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.”

The Report finds that “there has been a consistent pattern in the Administration’s 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.”

The Report claims that Administration secrecy has affected the work of the “9/11” Commission. It says that throughout its investigation the Bush Administration “resisted or delayed providing the Commission with important information. For example, the Administration’s 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 Report also alleges that the Administration has systematically withheld “a vast array“ of records from Congress. Subjects have ranged “from simple census data and routine agency correspondence to presidential and vice presidential records.” The documents that the Administration has refused to release to the public and members of Congress include ”the contacts between energy companies and the Vice President’s energy task force, communications between the Defense Department and the Vice President’s office regarding contracts awarded to Halliburton (a major defense contractor), documents describing the prison abuses at Abu Ghraib, memoranda revealing what the White House knew about Iraq’s weapons of mass destruction, and cost estimates of the Medicare prescription drug legislation withheld from Congress.”

Designating documents as ‘classified’ has frequently provided the executive branch of the US Government with a rationale for concealment. 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. The Waxman Report says, “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 Report also alleges that the Administration “has supported amendments to ‘open government‘ laws to create new categories of protected information that can be withheld from the public…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.”

The Report charges that the Bush Administration “has issued guidance instructing agencies to withhold a broad and undefined category of ‘sensitive’ information….”

Congress is among the victims, the Report says. “On over 100 separate occasions, the Administration has refused to answer the inquiries of, or provide the information requested” by Congressman Waxman in his role as the senior Democrat on the House Committee on Government Reform.

The information 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”, the Report says.

The passage of the Patriot Act after the September 11, 2001, attacks gave the Bush Administration new authority to conduct government investigations in secret, the Report notes. One provision of the Act expands the authority of the Justice Department to conduct secret electronic wiretaps. Another authorizes the Justice Department to obtain secret orders requiring the production of ‘books, records, papers, documents, and other items,’ and prohibits the recipient of these orders (such as a telephone company or library) from disclosing their existence. A third provision expands the use of ‘sneak and peak’ search warrants, which allow the Justice Department to search homes and other premises secretly without giving notice to the occupants. A Federal Court has recently overturned some of these provisions.

In addition to expanding secrecy in government by executive order and statute, the Report says 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 ‘enemy combatants’ 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 ‘special interest cases’ without any notice to the public, the press, or even family members.” The Supreme Court has ruled recently that ‘enemy combatants’ are entitled to hearings and to legal counsel.

The reporting of one of America’s leading news magazines, US News and World Report, supports the Waxman findings. The magazine wrote, “For the past three years, the Bush administration has quietly but efficiently dropped a shroud of secrecy across many critical operations of the federal government--cloaking its own affairs from scrutiny and removing from the public domain important information on health, safety, and environmental matters. The result has been a reversal of a decades-long trend of openness in government…”

Another Administration critic, Roger Pilon, vice president of legal affairs for the Cato Institute, a Washington, DC, think tank, says, "Tightly controlling information, from the White House on down, has been the hallmark of this administration."

And Jane Kirtley, Professor of Media Ethics and Law at the University of Minnesota, says: “Government does make mistakes. And I don't think the public demands infallibility from its government…Accountability is what we demand. And we should have the tools that make it possible for us to compel the government to tell us what it's up to, how it's carrying out our business and to instruct the government to take corrective steps when mistakes are made.”