Why does the White House sometimes seem so determined to close the door on the people's right to know what their government is doing? Even some of us who admire the leadership of President Bush in the war on terrorism would like to know.
Admittedly, insisting that the public's business be done in public isn't a popular cause these days. Recent surveys show that many Americans are willing to trade significant chunks of their First Amendment rights for the promise of greater security in the war on terrorism. Such surveys must gladden the hearts of Bush administration officials who -- presumably unintentionally -- undermine measures such as the Freedom of Information Act (FOIA).
Consider just three examples from the past year: Section 204 of the White House's original proposal to establish a Department of Homeland Security, White House Chief of Staff Andrew Card's March 2002 directive that agencies restrict access to "sensitive but unclassified" information, and the administration's claim of executive privilege to keep secret information regarding President Clinton's infamous midnight pardons.
The administration's Section 204 proposal exempted from FOIA disclosure any information "provided voluntarily by non-federal entities or individuals that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism." One need not be a Harvard law graduate to see that, without clarification of what constitutes such vulnerabilities, this loophole could be manipulated by clever corporate and government operators to hide endless varieties of potentially embarrassing and/or criminal information from public view.
Subsequent negotiations in the Senate with the White House resulted in compromise language that takes care of some of the major problems, but in the rush to final passage, the Senate has accepted the House version of the legislation, which, being virtually identical to the administration's original version, remains deeply flawed in this regard.
The Card memo was issued when public anger over the Sept. 11, 2001, massacre was still intense. Despite the fact that the memo failed to define what constitutes "sensitive but unclassified" information, agencies responded by removing thousands of previously public documents from FOIA disclosure. The Pentagon, for example, estimated recently that approximately 6,000 Defense Department documents were removed from public view. Who now outside of government can verify that any of those documents contained information that could help terrorists?
Few would argue that the Section 204 proposal and the Card memo do not address legitimate national security needs in the war against terrorism. But to date, nobody has produced a single example of vital information that could not have been properly exempted from disclosure under the current FOIA, which is backed by 25 years of detailed case law. Instead, the administration offers vague language that invites abuse.
Finally, there are those pardons, which provoked a national outcry when first reported. President Clinton had pardoned 140 people, including his Whitewater partner Susan McDougal, his brother Roger (convicted on cocaine-related charges) and international fugitive Marc Rich, wanted by the Justice Department for allegedly conspiring with the Iranian government in 1980 to buy 6 million barrels of oil, contrary to a U.S. trade embargo.
It is doubtful that the full facts behind the pardons will ever be known as long as the administration refuses to disclose nearly 4,000 pages related to the former president's actions. The Bush administration has taken a similar position on documents related to former attorney general Janet Reno's controversial decision not to appoint a special counsel to investigate possible Clinton administration campaign finance illegalities.
There was a time when at least one senior Bush administration official thought the FOIA essential because "no matter what party has held the political power of government, there have been attempts to cover up mistakes and errors." That same official added that "disclosure of government information is particularly important today because government is becoming involved in more and more aspects of every citizen's personal and business life, and so access to information about how government is exercising its trust becomes increasingly important."
So spoke a young Illinois Republican congressman named Donald Rumsfeld, in a floor speech on June 20, 1966, advocating passage of the FOIA, of which he was a co-sponsor.
The writer is director of the Heritage Foundation's Center for Media and Public Policy.