by Ruth Rosen

 

Disgraceful, shameful, illegal, and yes, dangerous. These are words that come to mind every time the Bush administration makes yet another attempt to consolidate executive power, while wrapping itself in secrecy and deception.

And its officials never stop. In May, Citizens for Responsibility and Ethics in Washington, a nonprofit group, filed a lawsuit seeking information from the White House Office of Administration about an estimated five million e-mail messages that mysteriously vanished from White House computer servers between March 2003 and October 2005. Congress wants to investigate whether these messages contain evidence about the firing of nine United States attorneys who may have refused to use their positions to help Republican candidates or harm Democratic ones.

The administration's first response to yet another scandal was to scrub the Freedom of Information Act (FOIA) request section from the White House Office website. One day it was there; the next day it had disappeared. Then, Bush-appointed lawyers from the Justice Department tried to convince a federal judge that the White House Office of Administration was not subject to scrutiny by the Freedom of Information Act because it wasn't an "agency." The newly labeled non-agency, in fact, had its own FOIA officer and had responded to 65 FOIA requests during the previous 12 months. Its own website had listed it as subject to FOIA requests.

For those who may have forgotten, Congress passed the Freedom of Information Act in 1966 to hold government officials and agencies accountable to public scrutiny. It became our national sunshine law and has allowed us to know something of what our elected officials actually do, rather than what they say they do. Congress expressly excluded classified information from FOIA requests in order to protect national security.

Scorning accountability, the Bush administration quickly figured out how to circumvent the Act. On October 12, 2001, just one month after the 9/11 attacks, Attorney General John Ashcroft took advantage of a traumatized nation to ensure that responses to FOIA requests would be glacially slowed down, if the requests were not simply rejected outright.

Most Americans were unaware of what happened -- and probably still are. If so, I'd like to remind you how quickly democratic transparency vanished after 9/11 and why this most recent contorted rejection of our premier sunshine law is more than a passing matter; why it is, in fact, an essential aspect of this administration's continuing violation of our civil rights and liberties, the checks and balances of our system of government, and, yes, even our Constitution.


Six years after Ashcroft instituted his policy, some of our legislators have finally begun to address what he accomplished in 2001. In April, 2007, the House of Representatives passed legislation to strengthen and expedite the Freedom of Information Act. On August 3, Senators Pat Leahy, once again chairman of the Judiciary Committee, and John Cornyn (R-TX) successfully shepherded the Open Government Act into law, despite strong opposition from administration outrider Sen. Jon Kyl (R-AZ), who had earlier placed a hold on the bill. Like the House bill, the legislation attempted to make it easier to gain access to government documents.

Will it make a difference? Probably not. The Coalition of Journalists for Open Government views the legislation as too weak and compromised to be effective against such an administration. Steven Aftergood, Director of the Project on Government Secrecy for the Federation of American Scientists notes that the administration might well succeed in claiming that the White House Office of Administration is not an "agency." "It's obnoxious, and it's a gesture of defiance against the norms of open government," Aftergood told the Washington Post. "But it turns out that a White House body can be an agency one day and cease to be the next day, as absurd as it may seem."

It's not only absurd; it's dangerous. This is an administration that believes it has complete authority to ignore the law every time it mentions the supposedly inherent powers of a commander-in-chief presidency or wields the words "executive privilege." Its non-agency claim is but one more example of its arrogant defiance of laws passed by Congress.

Ashcroft's quashing of the FOIA, following on the heels of the Patriot Act, was just the beginning of a long series of efforts to expand executive power. In the name of fighting "the war on terror" and "national security," for instance, Bush issued an executive order on November 1, 2001 that sealed presidential records indefinitely, a clear violation of the 1978 Presidential Records Act in which Congress had ensured the public's right to view presidential records 12 years after a president leaves office.

And what did this have to do with preventing a potential terrorist attack? Absolutely nothing, of course. It just so happened that 12 years had passed since Ronald Reagan left the Oval Office. Many people believed, as I did, that locking down Reagan's papers was an effort to stop journalists and historians from reading documents that might have implicated Papa Bush (then Reagan's vice president) and others -- who, by then, were staffing the younger Bush's administration -- as active participants in the Iran-Contra scandal.

When the White House claimed that its administrative office was not subject to the FOIA, an August 24th editorial in the New York Times -- now more alert to Bush's disregard for the rule of law -- asked, "What exactly does the administration want to hide?" It rightly argued that the "administration's refusal to comply with open-government laws is ultimately more important than any single scandal. The Freedom of Information Act and other right-to-know laws were passed because government transparency is vital to a democracy."

How true. It's taken a long time for our paper of record to realize that "soft" crimes are actually hard assaults against our democracy. The restrictions on FOIA and an executive order to seal presidential records may seem tame when compared to the crimes committed at Abu Ghraib, Haditha, and Guantanamo, not to mention warrantless surveillance, the extraordinary rendition of kidnapped terror suspects to the prisons of regimes that torture, and the imprisonment of so-called enemy combatants.

But don't be lulled into thinking that the act of censoring information, of shielding the American people from knowledge of the most basic workings of their own government, is any less dangerous to democracy than war crimes or acts of torture. In fact, it was the soft crimes of secrecy and deception that enabled the Bush administration's successful campaign to lure our country into war in Iraq -- and so to commit war crimes and acts of torture.

You don't have to be a historian to know that "soft" crimes are what make hard crimes possible. They can also lead to an executive dictatorship and the elimination of our most cherished civil rights and liberties.

Historian and journalist Ruth Rosen, a former columnist for the Los Angeles Times and the San Francisco Chronicle, teaches history and public policy at the University of California, Berkeley, and is a senior fellow at the Longview Institute. A newly updated edition of her book, The World Split Open: How the Modern Women's Movement Changed America was published in January 2007.


Copyright 2007 Ruth Rosen