Congress resists a decline in executive transparency
By Warren Loegering ‘12
Embedded in both the Constitution and history, transparent government is one of the core principles of American democracy. Yet during the last eight years, the Bush administration has consistently acted to make government more secretive; laws promoting public disclosure have contracted while laws promoting secrecy have expanded. Barton Gellman, Pulitzer Prize winning author and staff writer for The Wall Street Journal, told the HPR that it has been “the most secretive administration in the postwar period.” And though President Bush will leave office in January 2009 the laws he used to withhold information will remain, opening the door for a lasting decline in transparency. However, recent trends in Congress suggest such a shift is unlikely, and that in the future, more openness can be expected from the executive branch.
Setting the Tone
Just weeks into President Bush’s first term the administration withheld several of President Ronald Reagan’s records, foreshadowing a shift in disclosure policy. Efforts to expand government secrecy began in a more concerted way after the attacks of Sept. 11, 2001. Soon thereafter, Attorney General John Ashcroft issued a memo encouraging federal agencies to deny Freedom of Information Act requests if a sound legal basis existed. This memo superseded one issued by Clinton Attorney General Janet Reno that established a “presumption” for disclosure. The Ashcroft memo told agencies that in making FOIA decisions they should carefully consider the exemptions for disclosure and lean in the direction of secrecy whenever possible. “This move can be seen as the tone setter,” Georgetown Professor David Vladeck told the HPR. Though it had minor substantive effect, the administrations preference for secrecy was made clear.
Expanding the Scope
In executing this preference, two major initiatives stand out: executive orders 13233 and 13292. With EO 13233 President Bush amended President Clinton’s Presidential Records Act, which had established that the records of a president belong to the people. Bush rejected this presumption, allowing the president and vice president, both current and former, to unilaterally block the release of records by asserting executive privilege. As Gellman pointed out, because of this EO, “some of the legacy [of secrecy] will remain unknown for a long time.”
EO 13292 served a similar purpose for national security records. President Bush’s order contradicted President Clinton’s EO 12958 that instituted a presumption against national security classification in cases of doubt, stating, “If there is significant doubt about the need to classify information, it shall not be classified.” EO 13292 revised this policy by completely deleting that phrase. Harvard professor Peter Galison, co-producer of the film Secrecy, told the HPR that Bush’s many secrecy measures have had “the effect of drawing power toward the executive branch and away from Congress, the judiciary, the press and the public.”
Though these measures are numerous, Congress has criticized the trend toward secrecy and seems likely to reverse it. For instance, in Rep. Harry Waxman’s (D-Calif.) 2004 Secrecy in the Bush Administration Report, independent academic experts stated, “no administration in modern times has done more to conceal the workings of government from the people.” Tom Blanton, director of the National Security Archive, explained to the HPR that because “President Bush overreached so much, Congress was forced to react.” Aware of public opinion and able to act effectively against a lame duck president, Congress has already begun to offer resistance, notably in 2006 when Sen. Barack Obama (D-Ill.) and Sen. Tom Coburn (R-Okla.) passed a bill requiring that the White House budget office put government contract information online. Similarly, Congress passed a FOIA reform bill that aims to fix some of the most persistent problems in the FOIA system.
Blanton believes that in addition to these measures “Congress will take this problem head on and make laws limiting the executive’s power to increase secrecy.” So while future administrations could reverse the tide of secrecy just as easily as this one created it, it is clear Congress will push back on its own. As Vladeck explained, “the historical pendulum will swing back to openness regardless of whom our next president is.” President Bush drastically changed the scope of secrecy in his own administration and will be remembered accordingly, but it is doubtful his actions will become part of the institutional profile of the presidency.