Bush Does It In The Dark

David C. Vladeck

July 18, 2006

David C. Vladeck is a professor of law and director of the Institute for Public Representation at Georgetown University Law School. Professor Vladeck is an expert in open government law and has extensive experience litigating cases under the federal open record laws, including the Freedom of Information Act.

A government of and for the people “should be at all times open to public view.” That was the wisdom nearly a century ago of populist Williams Jennings Bryan. Justice Louis D. Brandeis made the same point later, when he made his famous remark that “sunlight is said to be the best of disinfectants.”

But it wasn’t until 40 years ago, with the July 4, 1966, signing of the Freedom of Information Act (FOIA) by President Lyndon B. Johnson, that ordinary citizens finally gained the right to see their government at work.

FOIA has had an illustrious history, but it has fallen on hard times of late. When the complicated legacy of President George W. Bush is written, one thing is certain: He will be remembered as the “secrecy” president. Bush and his advisors are obsessed with secrecy, and this obsession began well before the nightmare of 9/11.

Before that date, Attorney General John Ashcroft instructed agencies to withhold records if there were any plausible grounds to do so, reversing a prior memo by his predecessor, Janet Reno. Bush also issued an Executive Order severely limiting access to the records of former presidents—a measure still being challenged in court—placing many of the records of his father off limits to the public.

Historian Stanley Kutler remarked that, if Bush’s action stands, he “will have substantially shut down historical research of recent presidents. With this order, we would have no studies of recent events such as we have for the Vietnam War, using Lyndon Johnson’s and Richard Nixon’s records to reveal their own doubts about the war.”

After 9/11, the administration’s mantra became “secrecy makes America safe,” and it embarked on an unprecedented effort to halt the flow of government information to the public. At the administration’s urging, Congress enacted the USA PATRIOT Act, carving out exemptions from FOIA for “critical infrastructure data” and information relating to energy facilities and transportation, among other things. Millions of records, more than at any other time in our nation’s history, were classified. The White House directed agencies to withhold any record that could be considered “sensitive,” even if it was not classified. And agencies were pushed to divert resources from processing FOIA requests, causing enormous delays in responding to FOIA requests. Some agencies simply stopped responding to FOIA requests at all.

The administration’s obsession with secrecy has not been limited to its assault on FOIA. The administration has tried to mute the press by threatening prosecutions and issuing an avalanche of subpoenas to reporters. The administration has refused to cooperate with Congress by providing information on hundreds of occasions—even when the requests came from Republicans. And the administration has even taken its secrecy campaign to the courts, routinely asking the courts to dismiss cases outright because they involve “state secrets”—such as cases challenging the government’s domestic spying operations.

Although we pride ourselves on being an open society, nothing in the Constitution guarantees Americans a right to know what our government is up to. Prior to FOIA, if an individual could prove a unique entitlement to government records, the records might be provided. But courts had rejected the notion that citizens had a right to government records simply because they wanted to hold government officials accountable.

All that changed when President Johnson signed FOIA into law, but it was a long time in the making. Beginning in the mid-1950s, John Moss, a California congressman, began to hold hearings to document excessive government secrecy. Newspaper editors took up the cause. Finally, when Lyndon Johnson became president, Moss was able to attract Republican co-sponsors, including, ironically, Donald Rumsfeld, then a junior congressman from Illinois. Although President Johnson was no fan of the bill, he signed it on July 4, 1966.

As initially enacted, FOIA was more a blueprint for disclosure than an enforceable mandate. Requests often went unanswered for months or even years, and the Supreme Court interpreted the Act grudgingly, requiring courts to rubber-stamp agency claims that records were exempt for law enforcement or national security reasons.

Congress overhauled FOIA in 1974. Agencies were required to respond to FOIA requests within strict time limits, to disclose discrete portions of exempt records and to pay attorneys’ fees to requesters who won in court. Congress also directed federal judges to review national security and law enforcement claims without bending over backwards for the government. An embattled President Nixon initially signaled that he supported these reforms. But his advisors strongly opposed the measure and urged a veto. The cast of characters leading the opposition are eerily familiar—Donald Rumsfeld, who was Nixon’s chief of staff, Richard Cheney, then Rumsfeld’s deputy, and Antonin Scalia, at the time a senior Justice Department official. After Nixon resigned, Rumsfeld, Cheney and Scalia urged President Ford to veto the bill, which he did—only to be soundly overridden by Congress.

The 1974 amendments to FOIA were the high water mark of openness in America. Millions of Americans sought and were given the government’s files on them. Reporters regularly used FOIA. It was also used to write, and in some cases, to rewrite, American history. FOIA gave us the details of the tax evasion charges against Vice President Spiro Agnew, which led to his resignation; the Justice Department’s report on then-Austrian president—and former U.N. Secretary General—Kurt Waldheim’s collaboration with the Nazis during World War II; the sordid facts of the FBI’s massive COINTEL program, which involved illegal surveillance and infiltration of the civil rights movement; and the raw material for Taylor Branch’s Pulitzer Prize winning book, Parting the Waters , which traced the early days of the civil rights movement.

The 40th anniversary of FOIA is a good time to take stock of whether our nation is living up to basic ideals of open government that have had such an illustrious history. Clearly we are not. The time has come for us to renew our commitment to openness and reaffirm the basic principle that secrecy is an anathema to democratic government.