By William Fisher
The Bush Administration is continuing its campaign to keep the public in the dark about the federal government’s policies and decisions and to suppress discussion of those policies, their underpinnings, and their implications.
This is the conclusion reached in the latest annual “report card” on government secrecy compiled by Open the Government.org, a coalition of consumer and good government groups, librarians, environmentalists, labor leaders, journalists, and others who seek to promote greater transparency in public institutions.
Summarizing developments during the past year, the report card says, “Government secrecy, particularly in the Executive Branch, continues to expand across a broad array of agencies and actions, including military procurement, new private inventions, and the scientific and technical advice that the government receives.”
But the authors of the report also see “glimmers of progress toward more openness and examples of continued determination on the part of the public and its representatives.” They conclude, “Even as more and more categories that exclude information from access are created by agencies, the public use of the Freedom of Information Act to obtain information from our government continues to rise.”
The report card’s principal findings for fiscal year 2007 include:
· More than 25 per cent of all federal dollars ($107.5 billion) awarded to Defense Department contractors were without competition. Only a third of contract dollars are were subject to full and open competition. On average since 2000, more than a quarter of all contract funding was not competed.
· Some 18 per cent of the DOD’s FY 2007 acquisition budget is classified. These so-called “black programs” amounted to $31.5 billion. Classified acquisition funding has more than doubled in real terms since fiscal year 1995, the report said.
· The Foreign Intelligence Surveillance Court approved 2,176 orders by the Justice Department -- rejecting only one — in 2006. The Court, established under the Foreign Intelligence Surveillance Act (FISA) following the Watergate scandals to restrict government snooping on citizens, has been at the center of a political firestorm since President Bush revealed that the Administration had been conducting electronic surveillance without seeking FISA warrants.
· The Administration continued to invoke the so-called “state secrets” privilege, which allows the president to withhold documents from the courts, Congress and the public. At the height of the Cold War, the administration used the privilege only 6 times between 1953 and 1976. Since 2001, it has been used a reported 39 times -- an average of six times a year in 6.5 years, or more than double the average (2.46) over the previous 24 years.
· Requests for information under the Freedom of Information Act (FOIA) totaled 21,412,736, an increase of 1,462,189 over the previous year. The report card says backlogs of unfilled request remain significant; the oldest FOIA request in the federal government has now been pending for more than 20 years.
· The government recovered more than $3.1 billion in settlements and judgments as a result of complaints from whistleblowers. Over the last two decades, whistleblowers helped the federal government recover more than $18 billion according to the latest figures from the U.S. Department of Justice.
· While the number of original classified documents decreased to from 258,633 in 2005 to 231,995 in 2007, classification activity still remains significantly higher than before 2001. For every dollar the government spent declassifying documents in 2006, it spent $185 maintaining the secrets already on the books, a $51 increase from last year. Although more pages were declassified this year, the total publicly reported amount spent on declassification decreased. However, the report card notes, the intelligence agencies, which account for a large segment of the declassification numbers, are excluded from the total reported figures.
· Government departments and agencies continued their practice of designating documents as “Sensitive But Unclassified” (SBU). Only some 19 per cent of 107 SBU designations were based on formally promulgated regulations, about half with comment and half without. The rest – 82 per cent – were made up by the agencies as they went along, the report card charges.
· In six years, President Bush has issued at least 151 signing statements, challenging 1149 provisions of laws. “In the 211 years of our Republic to 2000, fewer than 600 signing statements that took issue with the bills were issued,” the report card asserts. In six years, it says, President Bush has issued at least 151 signing statements, challenging 1149 provisions of laws, adding, “In the 211 years of our Republic to 2000, fewer than 600 signing statements that took issue with the bills were issued. Among recent presidents, Reagan issued 71 statements challenging provisions of laws before him; G.W.H. Bush issued 146; Clinton, 105.” The most notorious of the current president’s signing statements related to the so-called McCain Amendment to a 2005 defense authorization bill that barred the "cruel, inhuman, or degrading treatment or punishment" of detainees. The presidential statement raised serious questions about whether Bush intended to obey this new law.
· The report card cites a report by Justice Department’s Inspector General indicating that the government made 143,074 National Security Letter (NSL) requests between 2003 and 2005. The number for 2006 remains classified. NSLs can be used to obtain information about individuals without the government applying for a court-reviewed warrant. With 2,176 secret surveillance orders approved in 2006, federal surveillance activity under the jurisdiction of the secretive Foreign Intelligence Surveillance Court has more than doubled in five years.
· The federal penchant for secrecy is also spilling over to state governments, the report card claims. Since 2001, it says, “States have continued to introduce and enact new laws that limit, rather than loosen, access to government information at the state and local level. In that period, some 339 bills were introduced in the states and 266 passed the respective legislatures. The largest number of bills introduced (114) had to do with expanded executive powers, confidentiality based on federal regulations or programs, and closure of otherwise public meetings for security meetings. Fewer than half (52) passed; the lowest percentage of passage among 6 categories of bills.”
Open the Government.org concludes, “The current administration has exercised an unprecedented level not only of restriction of access to information about federal government’s policies and decisions, but also of suppression of discussion of those policies, their underpinnings, and their implications. It has also increasingly refused to be held accountable to the public through the oversight responsibilities of Congress. These practices inhibit democracy and our representative government; neither the public nor Congress can make informed decisions in these circumstances. Our open society is undermined and made insecure.”
The Open the Government coalition includes representatives of the Federation of American Scientists, the Sunlight Foundation, the American Association of Law Libraries, OMB Watch, the National Security Archive, the Project on Government Oversight, the Reporters Committee for Freedom of the Press, the National Freedom of Information Coalition, the U S Public Interest Research Group, the Center for Democracy & Technology, the Society of Professional Journalists, the Fund for Constitutional Government, the Center for American Progress, the AFL-CIO, and the Electronic Frontier Foundation.
In a related development, the White House has declared the Office of Administration (OA) exempt from the Freedom of Information Act (FOIA) to avoid complying with a request to make public its information about five million missing emails,
Citizens for Ethics in Washington (CREW) filed a FOIA request with the White House's OA for records that would document the White House's knowledge of the missing emails, its failure to restore the email or put in place an electronic record-keeping system that would prevent this problem, and the possibility that the emails were purposefully deleted.
In response, the Justice Department declared that the OA is not subject to FOIA. CREW is suing the White House Office of Administration for failing to respond to their request.
At least five million emails “disappeared” between March 2003 and October 2005, according to a report by CREW. The missing emails were discovered by the White House in 2005, according to a briefing given to House Oversight and Government Reform Committee staff by Keith Roberts, the Deputy General Counsel of the White House Office.
Rep. Henry Waxman [D-CA], Chairman of the House Oversight and Reform Committee, is demanding that the OA turn over its analysis of the email system, conducted by the Office of the Chief Information Officer. According to the letter Rep. Waxman sent to White House Counsel Fred Fielding on Aug. 30, Roberts informed the Oversight Committee that an unidentified company working for the Information Assurance Directorate of the Office of the Chief Information Officer was responsible for daily audits of the e-mail system and the e-mail archiving process.
According to Rep. Waxman's letter, Roberts was not able to explain why the daily audits conducted by this contractor did not detect the problems in the archive system when they first began. The revelation that there were daily audits suggests that e-mails were destroyed, Anne Weismann, general counsel of CREW, told Bloomberg News.
The White House recently changed its FOIA website to exclude the OA from White House entities subject to FOIA. A note in the FOIA sections of the OA website now says, "The Office of Administration, whose sole function is to advise and assist the President, and which has no substantial independent authority, is not subject to FOIA and related authorities." Under Office of Administration's FOIA Regulations, it says, "The OA's Regulations concerning FOIA are currently being updated." OA's annual FOIA reports are available on the White House website for 1996-2006. In 2006, OA processed 65 requests and spent $87,772 on FOIA processing (including appeals).
The National Security Archive, a member of the OpenTheGovernment.org coalition, filed a lawsuit against the White House last week seeking the recovery and preservation of the emails.