Soft Crimes Against Democracy. What Ever Happened to Freedom of Information?

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.
On Bended Knee
Lies and deception intended to expand executive power
weren”t hard to spot after 9/11, yet they tended to
slip beneath the political and media radar screens;
nor did you have to be an insider with special access
to government officials or classified documents to
know what was going on. At the time, I was an
editorial writer and columnist for the San Francisco
Chronicle. From my little cubicle at the paper, I read
a memorandum sent by Attorney General John Ashcroft to
all federal agencies. Short and to the point, it
basically gave them permission to resist FOIA requests
and assured them that the Justice Department would
back up their refusals. “When you carefully consider
FOIA requests,” Ashcroft wrote, “and decide to
withhold records, in whole or in part, you can be
assured that the Department of Justice will defend
your decision unless they lack a sound legal basis or
present an unwarranted risk of adverse impact on the
ability of other agencies to protect other important
records.”
He then went on to explain, “Any discretionary
decision by your agency to disclose information
protected under FOIA should be made only after full
and deliberate consideration of the institutional,
commercial, and personal privacy interests that could
be implicated by disclosure of the information.”
And what, I wondered, did such constraints and lack of
accountability have to do with finding and prosecuting
terrorists? Why the new restrictions? Angered, I wrote
an editorial for the Chronicle about the Justice
Department”s across-the-board attempt to censor
freedom of information. (“All of us want to protect
our nation from further acts of terrorism. But we must
never allow the public”s right to know, enshrined in
the Freedom of Information Act, to be suppressed for
the sake of official convenience.”)
Naively and impatiently, I waited for other newspapers
to react to such a flagrant attempt to make the
administration unaccountable to the public. Not much
happened. A handful of media outlets noted Ashcroft”s
memorandum, but where, I wondered, were the major
national newspapers? The answer was: on bended knee,
working as stenographers, instead of asking the tough
questions. Ashcroft had correctly assessed the
historical moment. With the administration launching
its Global War on Terror, and the country still
reeling from the September 11th attacks, he was able
to order agencies to start building a wall of secrecy
around the government.
In the wake of 9/11, both pundits and the press seemed
to forget that, ever since 1966, the Freedom of
Information Act had helped expose all kinds of
official acts of skullduggery, many of which violated
our laws. They also seemed to forget that all
classified documents were already protected from FOIA
requests and unavailable to the public. In other
words, most agencies had no reason to reject public
FOIA requests.
A few people, however, were paying attention. In
February 2002, Chairman of the Judiciary Committee
Senator Patrick Leahy (D-VT) asked the General
Accounting Office (GAO) to evaluate the
“implementation of the FOIA.” Ashcroft”s new rules had
reversed former Attorney General Janet Reno”s policy,
in effect since 1993. “The prior policy,” Leahy
reminded the GAO, “favored openness in government
operation and encouraged a presumption of disclosure
of agency records in response to FOIA requests unless
the agency reasonably foresaw that disclosure would be
harmful to an interest protected by a specific
exemption.”
And what was the impact of Ashcroft”s little-noticed
memorandum? Just what you”d expect from a presidency
built on secrecy and deception — given a media then
largely ignoring both. The Attorney General”s new
policy was a success. On August 8, 2007, the Coalition
of Journalists for Open Government issued “Still
Waiting After All These Years,” a damning report that
documented the Ashcroft memorandum”s impact on FOIA
responses. Their analysis revealed that “the number of
FOIA requests processed has fallen 20%, the number of
FOIA personnel is down 10%, the backlog has tripled
and the cost of handling a request is up 79%.” During
the same years, the Bush administration embarked on a
major effort to label ever more government documents
classified. They even worked at reclassifying
documents that had long before been made public,
ensuring that ever less information would be available
through FOIA requests. And what material they did send
out was often so heavily redacted as to be
meaningless.
“Soft Crimes” Enable Violent Ones
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.
Copyright 2007 Ruth Rosen

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