Secrecy in the Bush Administration

Rep. Henry A. Waxman has released a comprehensive examination of secrecy in the Bush Administration. The report analyzes how the Administration has implemented each of our nation’s major open government laws. It finds that there has been a consistent pattern in the Administration’s actions: laws that are designed to promote public access to information have been undermined, while laws that authorize the government to withhold information or to operate in secret have repeatedly been expanded. The cumulative result is an unprecedented assault on the principle of open government. « Table of Contents

The Administration has supported amendments to open government laws to create new categories of protected information that can be withheld from the public. President Bush has issued an executive order sharply restricting the public release of the papers of past presidents. The Administration has expanded the authority to classify documents and dramatically increased the number of documents classified. It has used the USA Patriot Act and novel legal theories to justify secret investigations, detentions, and trials. And the Administration has engaged in litigation to contest Congress’ right to information.

The records at issue have covered a vast array of topics, ranging from simple census data and routine agency correspondence to presidential and vice presidential records. Among the documents that the Administration has refused to release to the public and members of Congress are (1) the contacts between energy companies and the Vice President’s energy task force, (2) the communications between the Defense Department and the Vice President’s office regarding contracts awarded to Halliburton, (3) documents describing the prison abuses at Abu Ghraib, (4) memoranda revealing what the White House knew about Iraq’s weapons of mass destruction, and (5) the cost estimates of the Medicare prescription drug legislation withheld from Congress.

There are three main categories of federal open government laws: (1) laws that provide public access to federal records; (2) laws that allow the government to restrict public access to federal information; and (3) laws that provide for congressional access to federal records. In each area, the Bush Administration has acted to restrict the amount of government information that is available.

Laws That Provide Public Access to Federal Records

Beginning in the 1960s, Congress enacted a series of landmark laws that promote “government in the sunshine.” These include the Freedom of Information Act, the Presidential Records Act, and the Federal Advisory Committee Act. Each of these laws enables the public to view the internal workings of the executive branch. And each has been narrowed in scope and application under the Bush Administration.

Freedom of Information Act

The Freedom of Information Act is the primary law providing access to information held by the executive branch. Adopted in 1966, FOIA established the principle that the public should have broad access to government records. Under the Bush Administration, however, the statute’s reach has been narrowed and agencies have resisted FOIA requests through procedural tactics and delay. The Administration has:

Issued guidance reversing the presumption in favor of disclosure and instructing agencies to withhold a broad and undefined category of “sensitive” information;

Supported statutory and regulatory changes that preclude disclosure of a wide range of information, including information relating to the economic, health, and security infrastructure of the nation; and

Placed administrative obstacles in the way of organizations seeking to use FOIA to obtain federal records, such as denials of fee waivers and delays in agency responses.
Independent academic experts consulted for this report decried these trends. They stated that the Administration has “radically reduced the public right to know,” that its policies “are not only sucking the spirit out of the FOIA, but shriveling its very heart,” and that no Administration in modern times has “done more to conceal the workings of government from the people.”

The Presidential Records Act

The Presidential Records Act, which was enacted in 1978 in the wake of Watergate, establishes the important principle that the records of a president relating to his official duties belong to the American people. Early in his term, President Bush issued an executive order that undermined the Presidential Records Act by giving former presidents and vice presidents new authority to block the release of their records. As one prominent historian wrote, the order “severely crippled our ability to study the inner workings of a presidency.”

The Federal Advisory Committee Act

The Federal Advisory Committee Act prevents secret advisory groups from exercising hidden influence on government policy, requiring openness and a balance of viewpoints for all government advisory bodies. The Bush Administration, however, has supported legislation that creates new statutory exemptions from FACA. It has also sought to avoid the application of FACA through various mechanisms, such as manipulating appointments to advisory bodies, conducting key advisory functions through “subcommittees,” and invoking unusual statutory exemptions. As a result, such key bodies as the Vice President’s energy task force and the presidential commission investigating the failure of intelligence in Iraq have operated without complying with FACA.

Laws that Restrict Public Access to Federal Records

In the 1990s, the Clinton Administration increased public access to government information by restricting the ability of officials to classify information and establishing an improved system for the declassification of information. These steps have been reversed under the Bush Administration, which has expanded the capacity of the government to classify documents and to operate in secret.

The Classification and Declassification of Records

The classification and declassification of national security information is largely governed by executive order. President Bush has used this authority to:

Reverse the presumption against classification, allowing classification even in cases of significant doubt;

Expand authority to classify information for longer periods of time;

Delay the automatic declassification of records;

Expand the authority of the executive branch to reclassify information that has been declassified; and

Increase the number of federal agencies that can classify information to include the Secretary of Health and Human Services, the Secretary of Agriculture, and the Administrator of the Environmental Protection Agency.
Statistics on classification and declassification of records under the Bush Administration demonstrate the impact of these new policies. Original decisions to classify information — those in which an authorized classifier first determines that disclosure could harm national security — have soared during the Bush Administration. In fiscal years 2001 to 2003, the average number of original decisions to classify information increased 50% over the average for the previous five fiscal years. Derivative classification decisions, which involve classifying documents that incorporate, restate, or paraphrase information that has previously been classified, have increased even more dramatically. Between FY 1996 and FY 2000, the number of derivative classifications averaged 9.96 million per year. Between FY 2001 and FY 2003, the average increased to 19.37 million per year, a 95% increase. In the last year alone, the total number of classification decisions increased 25%.

Sensitive Security Information

The Bush Administration has sought and obtained a significant expansion of authority to make designations of Sensitive Security Information (SSI), a category of sensitive but unclassified information originally established to protect the security of civil aviation. Under legislation signed by President Bush, the Department of Homeland Security now has authority to apply this designation to information related to any type of transportation.

The Patriot Act

The passage of the Patriot Act after the September 11, 2001, attacks gave the Bush Administration new authority to conduct government investigations in secret. One provision of the Act expanded the authority of the Justice Department to conduct secret electronic wiretaps. Another provision authorized the Justice Department to obtain secret orders requiring the production of “books, records, papers, documents, and other items,” and it prohibited the recipient of these orders (such as a telephone company or library) from disclosing their existence. And a third provision expanded the use of “sneak and peak” search warrants, which allow the Justice Department to search homes and other premises secretly without giving notice to the occupants.

Secret Detentions, Trials, and Deportations

In addition to expanding secrecy in government by executive order and statute, the Bush Administration has used novel legal interpretations to expand its authority to detain, try, and deport individuals in secret. The Administration asserted the authority to:

Hold persons designated as “enemy combatants” in secret without a hearing, access to a lawyer, or judicial review;

Conduct secret military trials of persons held as enemy combatants when deemed necessary by the government; and

Conduct secret deportation proceedings of aliens deemed “special interest cases” without any notice to the public, the press, or even family members.

Congressional Access to Federal Records

Our system of checks and balances depends on Congress being able to obtain information about the activities of the executive branch. When government operates behind closed doors without adequate congressional oversight, mismanagement and corruption can flourish. Yet despite Congress’ constitutional oversight role, the Bush Administration has sharply limited congressional access to federal records.

GAO Access to Federal Records

A federal statute passed in 1921 gives the congressional Government Accountability Office the authority to review federal records in the course of audits and investigations of federal programs. Notwithstanding this statutory language and a long history of accommodation between GAO and the executive branch, the Bush Administration challenged the authority of GAO on constitutional grounds, arguing that the Comptroller General, who is the head of GAO, had no “standing” to enforce GAO’s right to federal records. The Bush Administration prevailed at the district court level and GAO decided not to appeal, significantly weakening the authority of GAO.

The Seven Member Rule

The Bush Administration also challenged the authority of members of the House Government Reform Committee to obtain records under the “Seven Member Rule,” a federal statute that requires an executive agency to provide information on matters within the jurisdiction of the Committee upon the request of any seven of its members. Although a district court ruled in favor of the members in a case involving access to adjusted census records, the Bush Administration has continued to resist requests for information under the Seven Member Rule, forcing the members to initiate new litigation.

Withholding Information Requested by Congress

On numerous occasions, the Bush Administration has withheld information requested by members of Congress. During consideration of the Medicare legislation in 2003, the Administration withheld estimates showing that the bill would cost over $100 billion more than the Administration claimed. In this instance, Administration officials threatened to fire the HHS Actuary, Richard Foster, if he provided the information to Congress. In another case, the Administration’s refusal to provide information relating to air pollution led Senator Jeffords, the ranking member of the Senate Committee on Environment and Public Works, to place holds on the nominations of several federal officials.

On over 100 separate occasions, the Administration has refused to answer the inquiries of, or provide the information requested by, Rep. Waxman, the ranking member of the House Committee on Government Reform. The information that the Administration has refused to provide includes:

Documents requested by the ranking members of eight House Committees relating to the prison abuses at Abu Ghraib and elsewhere;

Information on contacts between Vice President Cheney’s office and the Department of Defense regarding the award to Halliburton of a sole-source contract worth up to $7 billion for work in Iraq; and

Information about presidential advisor Karl Rove’s meetings and phone conversations with executives of companies in which he owned stock.

The 9-11 Commission

On November 27, 2002, Congress passed legislation creating the National Commission on Terrorist Attacks upon the United States (commonly known as the 9-11 Commission) as a congressional commission to investigate the September 11 attacks. Throughout its investigation, however, the Bush Administration resisted or delayed providing the Commission with important information. For example, the Administration’s refusal to turn over documents forced the Commission to issue subpoenas to the Defense Department and the Federal Aviation Administration. The Administration also refused for months to allow Commissioners to review key presidential intelligence briefing documents.

The Collective Impact

Taken together, the actions of the Bush Administration have resulted in an extraordinary expansion of government secrecy. External watchdogs, including Congress, the media, and nongovernmental organizations, have consistently been hindered in their ability to monitor government activities. These actions have serious implications for the nature of our government. When government operates in secret, the ability of the public to hold the government accountable is imperiled.