Lipstick on the Constitution?

By William Fisher

After almost eight years of George W. Bush’s secret government, “of the people, by the people, and for the people” has become a joke.

Not a joke like lipstick on a pig. A joke like pathetic.

Because government secrecy is one of a cornucopia of serious issues our presidential candidates are busy not discussing.

Consider the following:

In its “Secrecy Report Card 2008,” the advocacy group Open The Government concludes that the Bush Administration has “exercised unprecedented levels not only of restriction of access to information about federal government's policies and decisions, but also of suppression of discussion of those policies and their underpinnings and sources.”

Today, the report finds, the Bush Administration “continues to refuse to be held accountable to the public through the oversight responsibilities of Congress.”

It concludes, “We have been made less secure as a result and the open society on which we pride ourselves has been undermined and will take hard work to repair.”

Here are some of the report’s principal findings:

Classification activity remains significantly higher than before 2001. In 2006, the number of original classification decisions increased to 233,639, after dropping for the two previous years.

The government spent $195 maintaining the secrets already on the books for every one dollar it spent declassifying documents in 2007, a five per cent increase in one year. At the same time, fewer pages were declassified than in 2006. The nation’s 16 intelligence agencies, which account for a large segment of the declassification numbers, are excluded from the total reported figures.

Classified, or “black” programs accounted for about $31.9 billion, or 18 per cent of the fiscal year (FY) 2008 Department of Defense (DOD) acquisition funding requested in 2007. Classified acquisition funding has more than doubled in real terms since FY 1995.

Almost 22 million requests were received under the Freedom of Information Act (FOIA) in 2007, an increase of almost 2% over last year. The 25 departments and agencies that handle the bulk of the third-party information requests, however, received 63,000 fewer requests than 2006 -- but processed only 2,100 more.

In 2007, the total cost of FOIA implementation across the government increased 16%. But a 2008 study revealed that, in 2007, FOIA spending at 25 key agencies fell by $7 million to $233.8 million and the agencies put 209 fewer people to work processing FOIA requests.

In 2007, the federal government closed the lid on 128 patents. Overall, that brings the total number of inventions kept under "secrecy orders" to 5,002.

While the secretive Foreign Intelligence Surveillance Court (FISC) does not reveal much about its activities, the Department of Justice reported that, in 2007, the FISC approved 2,371 orders -- rejecting only three and approving two left over from the previous year. Since 2000, federal surveillance activity under the jurisdiction of FISC has risen for the 9th year in a row -- more than doubling during the Bush Administration.

FISC was established under the Foreign Intelligence Surveillance Act (FISA) in 1978 after revelations of the widespread wiretapping by the administration of Richard M. Nixon to spy on political and activist groups. Recently, efforts to reform the act have been triggered by the Bush Administration’s admission that it had conducted secret surveillance programs in the U.S. without warrants from the FISA court.

During FY 2007, suits brought by whistleblowers accounted for $1.45 billion of the $2 billion the United States obtained in settlements and judgments concerning fraud on the United States. However, the Department of Justice (DOJ) faces an ever-growing backlog of over 900 cases.

More than 25% of all contracts awarded by the federal government are not competed. In 2007, 26.2 percent ($114.2 billion) of federal contracts' dollars were completely uncompeted; only a third of contract dollars were subject to full and open competition. On average since 2000, more than 25% of all contract funding was not competed and fully and openly competed contracts have dropped by almost 25%.

Investigations by Congress and independent government agencies of the war in Iraq have revealed billions of dollars in no-bid contracts, covering everything from delivering food and water to U.S. troops to providing armed security for U.S. officials and visiting dignitaries. There have been widespread allegations of waste, fraud and abuse by contractors. Several have been convicted and prosecutions of others are pending.

In 2007, government agencies received 7,827 new initial requests for Mandatory Declassification Review (MDR), of which 88% were processed, resulting in the declassification of information in 431,371 pages: 75% in full; 18% in part; 7% remained classified in their entirety after review. For 2007, almost 5,000 initial requests -- 42% -- were carried over into 2008.

During 2007, government-wide, 64% of meetings of The Federal Advisory Committee were closed to the public. Excluding groups advising three agencies that historically have accounted for the majority of closed meetings, 15% of the remainder were closed -- a 24% increase over the number closed in 2006. These numbers do not reflect closed meetings of subcommittees and taskforces.

The Federal Advisory Committee Act was passed in 1972 to ensure that advice by the various advisory committees formed over the years is objective and accessible to the public.

In seven years, President Bush has issued at least 156 signing statements, challenging over 1000 provisions of laws. Eight were issued in 2007 alone.

The so-called “state secrets privilege” -- invoked only six times between 1953 and 1976 -- has been used by the Bush Administration a reported 45 times -- an average of 6.4 times per year in seven years. This is more than double the average (2.46) of the previous 24 years.

As you will recall, the “state secrets privilege” is a legal doctrine that contends that admission of certain information into court proceedings would endanger U.S. national security. The Bush Administration has frequently invoked the privilege to dismiss lawsuits that would be embarrassing to the government, and the courts have generally been deferential to the government’s claims.

National Security Letter (NSL) requests continued to rise; the 2007mumbers are still classified, but the recently unclassified new number for 2006 shows a 4.7 per cent increase in requests over 2005. Since enactment of the USA Patriot Act in 2001, the number of NSLs issued has seen an astronomical increase. And an admission from FBI Director Robert Mueller that his agency has committed multiple abuses of its NSL power.

The NSL provision of the Patriot Act radically expanded the authority of the Federal Bureau of Investigation (FBI) to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval.

Through NSLs, the FBI is authorized to compile dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand.

All of which raises the question of what if anything our next president proposes to do to return our government to us, “the people.”

And whatever happened to the serious discussion of these kinds of critical issues that Messrs. Obama and McCain promised us? Both have been virtually speechless on this one.

Too busy, I guess, putting lipstick on their pigs.