HEAR NO EVIL, SEE NO EVIL

By William Fisher

President George W. Bush’s critics are charging that he is attempting to use a “backdoor signing statement” to thwart the will of Congress to help lift the veil of secrecy that has shrouded the U.S. 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.

Throughout his administration, President Bush has used so-called “signing statements,” rather than the budget, to modify acts of Congress he finds objectionable. Perhaps the best-known of these was issued after he signed the so-called McCain Amendment to the Detainee Treatment Act of 2005. That measure was intended to prohibit inhumane treatment of prisoners, including prisoners at Guantanamo Bay; and required military interrogations to be performed according to the Code of Military Justice. After signing the law, Bush issued a signing statement saying he would interpret the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.”

Such statements have become a hallmark of the Bush Administration. From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.

But 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.

Open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance. Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, told us he doesn’t have “high expectations of the ombudsman's office, regardless of where it is located.” He asked, “Is an official from the National Archives really going to intervene on my behalf when the CIA stubbornly refuses to process one of my requests? Would it make a difference if he or she did? I tend to doubt it.”

OMB Watch’s Moulton takes a different view. He told us, “I firmly believe Congress got it right when they assigned the job to the National Archives, which has better objectivity on FOIA disputes and greater experience in managing the disclosure of documents. Justice's traditional position of defending agencies against FOIA lawsuits, means a bias to side with agencies in disputes likely exists.”

“The office's direct clout with agencies will derive from the level of support the Administration provides. This will be tied directly to how high a priority the next administration places on disclosure and transparency,” he added.

But both agree that “it is important that the law be implemented as written. 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.”

And both point out that the president’s budget action “is not a done deal.” Aftergood says, “Congress can appropriate funds for the ombudsman to be expended solely at the Archives, and can prohibit their use by Justice.”

OMB Watch’s Moulton agrees. He told us, “Congress can, and in many ways always does, deviate from the President's proposed budget. The question is whether congress will allocate money to the National Archives for the office even though the President didn't request it.”