BACKDOORING THE CONSTITUTION

By William Fisher

First, it was Signing Statements, where the president signs laws passed by Congress and then declares he will interpret them any way he wishes. George W. Bush has issued more of these statements than all his predecessors combined. His trashing of the Detainee Treatment Act is arguably the best known example, but the range of his statements has covered issues from the existential to the trivial.

Simultaneously, he has simply violated previous laws and done whatever he says is “in the interest of national security.” Most widely publicized is his decision to ignore the Foreign Intelligence Surveillance Act of 1978 (FISA) to recruit telephone companies to intercept phone calls and emails to U.S. citizens without court orders. This despite that law’s requirement that the government show probable cause to the FISA court so it can issue a warrant. Makes you wonder whether the telecom industry’s army of lawyers ever passed Constitutional Law 101!

All of the above – and much more -- has been perpetrated upon the people to further Mr. Bush’s ever-expanding definition of presidential powers. Never mind that the Constitution constructs a government of three co-equal branches: executive, legislative and judiciary. The president has treated the legislative branch as if it was his special assistant. And he’s tried to do the same thing with the courts. But, to their credit, our judges – including many appointed by Bush himself -- have dealt this administration some stunning reversals.

The White House mantra is “If the president says it, it’s legal.” He is, after all, The Decider, no?

Now the Bushies have discovered a new tactic: the budget. They are attempting to use a kind of “backdoor signing statement” to thwart the will of Congress.

And the particular issue involved is Congress’ attempt to help lift the veil of secrecy that has shrouded our Government for the past seven years.

In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.

President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).

The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."

The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.

According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”

Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.

The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.

In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.

Critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.

And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.

The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.

Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.

While open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance, they agree on at least one thing: it is important that the law be implemented as written. As expressed by Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, “Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”

So two questions need to be answered: Is the president listening? And, if not, does Congress have the spine to tell The Decider he’s not?