Saturday, September 08, 2007


Book Review by William Fisher

The past six years have seen an avalanche of books excoriating President George W. Bush, the key figures in his administration, and the ideologies, policies and practices they have embraced.

Some have been eye-opening blockbusters, like Bob Woodward’s State of Denial. Others have found themselves in the remaindered section of your bookstore. Some, like Woodward’s, have been long and dense, tough reads filled with incriminating quotes from The Decider himself. Others have been often inaccessible offerings by serious journalists in military history, like Tom Ricks of the Washington Post (Fiasco) and Michael Gordon of the New York Times (Cobra II). A few have genuinely illuminated little-known and under-reported aspects of the Bush Administration; Imperial Life in the Emerald City: Inside Iraq's Green Zone by Rajiv Chandrasekaran springs to mind. So too does David Cole’s Enemy Aliens. Too many others have forsaken solid evidence and confirmed sources to deliver over-simplistic rants, more akin to pamphleteering on rhetorical steroids.

Consider just a few of the other titles in this growing cottage industry: The Lies of George W. Bush: Mastering the Politics of Deception by David Corn. Bush Must Go by Bill Press. Worse Than Watergate: The Secret Presidency of George W. Bush by John W. Dean. Weapons of Mass Deception: The Uses of Propaganda in Bush's War on Iraq by Sheldon Rampton. The Short but Happy Political Life of George W. Bush by Molly Ivins. The Bush - Haters Handbook: A Guide to the Most Appalling Presidency of the Past 100 Years by Jack Huberman. The One Per Cent Doctrine by Ron Suskind. And the list goes on. And on. And on.

So was there a need for yet another anti-Bush book? Well, it turns out there was. Because Majorie Cohn’s modest new volume, Cowboy Republic, (Polipoint Press) achieves two goals so often missing from the growing library of tomes chronicling Dubya’s failings. First, it includes the exquisite legal detail one would expect from a distinguished lawyer. But arguably more important, it does so in straightforward everyman-language that makes it accessible to ordinary folks who don’t happen to be either lawyers or political junkies.

Majorie Cohn seems to have been around forever. A professor at the Thomas Jefferson School of Law in San Diego and president of the National Lawyers Guild, hers has been a powerful voice on both mainstream and alternative radio and television, in major newspapers and magazines, and on the web. Moreover, it is a voice that has become more thoughtful, more forceful, more consistent – and, yes, more civil, over the years.

Which is not to say Ms.. Cohn lacks passion. On the contrary, it is this very passion that helps make this little book to so eminently readable. But, happily, Ms. Cohn’s passion doesn’t turn her new book into a polemic. If anything, the language she uses in making her case against the Bush Administration is somewhat under-stated, perhaps in the best legal tradition. Michael Moore she is not.

The subtitle of Cowboy Republic is “Six Ways the Bush Gang has Defied the Law” – and this book is about the law. So, at one level, it is a love story: Marjorie Cohn has been in love with the law for many years. In the face of a largely apathetic public and an often- supine press, she persists in her belief that a renaissance in respect for the rule of law will ultimately be the nation’s way out of its current mess.

Her case against the Bush Administration’s contempt of the rule of law lays out most of the high crimes and misdemeanors with which Truthout readers – and most of everyone else – have now become so familiar. The hypocrisy of US “support” for the United Nations. The “marketing” of the Iraq invasion. The unending conflation of Iraq and 9/11. The torture memos. Guantanamo. Extraordinary renditions. National Security Letters. The “disappeared” in CIA “black sites.” The euphemisms – i.e. “enhanced interrogation” – used to sanitize repeated US violations of the Geneva Conventions. The warrantless surveillance programs. The roundup and detention of foreigners suspected of being of Middle Eastern descent. The over-hyped press conference trumpeting the arrests of “the worst of the worst” – later set free, deported, or charged with far less egregious crimes. And the complicity of the president’s lawyers in finding “legal justifications” to condone the un-condonable, to ignore the separation of powers, and to promulgate the notion of a “unitary executive.”

Ms. Cohn writes of these transgressions with economy and clarity. Moreover, she places them within the context of America’s history, starting with the Sedition Laws of the late 18th Century that imprisoned journalists for speaking out against the government, through Attorney General Mitchell Palmer’s “Red Raids” to root out Bolsheviks in the 1920s, through the internment of Japanese-Americans in eh Second World War, through the Cold War’s shameful McCarthy debacle, through the myriad falsehoods perpetrated by government during Vietnam, though the lies of Nixon’s Watergate nightmare.

Her point is that the US has been here before, and that it has always been the law, in confluence with the activism of a minority of outraged citizenry, that has eventually righted the ship of Ship of State.

But Ms. Cohn refuses to rely solely on these tools. She is saying that time does not allow us the luxury of confidence in evolution and incrementalism alone. An activist needs action, and Ms. Cohn is nothing if not an activist.

Her hope was that the 2006 mid-term elections would have resulted in a groundswell of support for the impeachment of the President and his top aides. Today, she is clearly disappointed with the leadership of the new Congress. “Both Nency Pelosi, the new Speaker of the House, and John Conyers, the incoming chairman of the House Judiciary Committee where impeachment would be initiated, have said, “Impeachment is off the table,” she writes.

Yet she is not without hope. “…if Congress fulfills its constitutional duty to investigate the Bush gang’s malfeasance, the legislators will invariably encounter stonewalling by the administration. That should anger many in Congress, who then might develop the resolve to launch impeachment hearings,” she writes, adding:

“It is now time for us to demand truth, justice and accountability from the Cowboy Republicans. That means op-eds and letters to the editor, and writing e-mailing and calling Congress, insisting that the Bush gang be held to account for its high crimes and misdemeanors. We must organize protects, marches, and demonstrations to end the Iraq war and occupation and prevent the next war. Our lives and those of our children depend on it.”

For Marjorie Cohn, it will never depend on waiting for Gen. David Petraeus.


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, 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 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 coalition, filed a lawsuit against the White House last week seeking the recovery and preservation of the emails.