The National Law Journal
The National Law Journal
By Mark S. Zaid
The late U.S. Supreme Court Justice Potter Stewart once wrote, “when everything is classified, then nothing is classified.”
His statement has been interpreted to mean that secrecy has its place, but when taken to excess, it trivializes what truly needs to remain secret. Most importantly, as the 1997 Congressional Report of the Commission on Protecting and Reducing Government Secrecy declared, “[e]xcessive secrecy has significant consequences for the national interest when, as a result, policymakers are not fully informed, government is not held accountable for its actions, and the public cannot engage in informed debate.”
President Bush has done more than simply declare a war against terror. He has launched a systematic attack against government openness. In fairness, it should be noted that historically, Republican administrations have generally been more conservative toward openness than their Democratic counterparts. Still, this administration has taken so many steps against openness in such a short period of time that, at this pace, it’s likely to break records for closed-government initiatives. The Bush administration appears inclined to reverse many of the trends initiated by the Clinton administration.
Consider just a few of its recent steps:
- The White House refused to disclose records relating to Vice President Cheney’s energy task force, including discussions involving meetings with Enron officials. Public interest organizations as well as Congress were denied access. Two federal courts have ordered records to be released, and the General Accounting Office, Congress’ investigative arm, has taken the unprecedented step of suing the White House.
- President Bush invoked executive privilege in December 2001 to protect the confidentiality of prosecution documents concerning the FBI’s handling of mob informants in Boston in the 1960s.
- President Bush issued an executive order in November 2001 limiting the disclosure of past presidential records just as information concerning President Reagan and Vice President George H.W. Bush was to be made public.
- The president awarded the Secretary of the Department of Health and Human Services classification authority for the first time in the agency’s history. Prior efforts sought to reduce the number of officials with classification authority.
- Attorney General John Ashcroft issued an agencywide memorandum on Oct. 12, 2001, essentially advising federal agencies to lean toward withholding information whenever possible, reversing Attorney General Janet Reno’s openness policy issued in 1993.
Many have questioned the extent to which the tragic events of Sept. 11 have driven the Bush administration’s disclosure policies. Actually, the genesis for these policies can be found long before Sept. 11. Last April, President Bush told the American Society of Newspaper Editors that things were going to be different during his watch.
A NEED FOR BALANCE
Of course, no thoughtful advocate for open government would challenge, for example, a president’s need to hold private, national security conversations in the Oval Office. However, the tone the president has set for himself and his cabinet officers has been one of ever-expanding concentric circles of secrecy.
Sept. 11 did have a justifiable impact on some disclosure-policy decisions. Certain potentially sensitive documents, particularly dealing with infrastructure vulnerability assessments, have been removed, at least temporarily, from government Web sites. Some steps, regrettably, appear as no more than efforts to keep the public in the dark concerning certain governmental decisions.
Moreover, further assaults on government openness are forthcoming. For example, President Bush will soon announce a proposal for a new executive order governing classification. The existing Executive Order 12,958 was issued in April 1995 by President Clinton and resulted in the declassification of more than 800 million pages of documents. Two specific provisions that are in danger of repeal are the prohibition against reclassifying previously declassified information and the automatic declassification of records 25 years or older.
It will take time to assess fully the damage the Bush administration has caused in the realm of open government. Although we live in perilous times, we must remain vigilant that national defense is not achieved at a price that sacrifices citizens’ rights to live in an open society.
Mark S. Zaid is the executive director of The James Madison Project, www.jamesmadisonproject.org, a Washington, D.C., nonprofit organization that seeks to reduce secrecy in government and promote government accountability.
This article republished with permission from law.com. Copyright © 2001 NLP IP Company. All rights reserved.