*DRAFT* (excerpted from the Waxman report)
Introduction
In September of 2004, Rep. Henry A. Waxman released a comprehensive report on secrecy and the Bush Administration. The report systematically examines how the Administration has undermined each of the nation’s major open government laws. It reveals a consistent pattern: laws designed to promote public access to information of federal and public record have been undercut, while laws that authorize the government to withhold information or operate in secret have repeatedly been expanded.
“The Bush Administration has an obsession with secrecy,” said Rep. Waxman. “It has repeatedly rewritten laws and changed practices to reduce public and congressional scrutiny of its activities. The cumulative effect is an unprecedented assault on the laws that make our government open and accountable.”
Changes to Laws that Provide Public Access to Federal Records
The Freedom of Information Act, one of the laws that provides public access to federal records, has been controverted in several ways. FOIA gives an individual requesting information the ability to file a FOIA request for specific information and provides recourse to federal court in the event that an agency fails to comply with the FOIA requirements.
The Ashcroft memo of October 12, 2001 took the position that the Bush Administration’s policy is that agencies are not required to release, and are in fact discouraged from releasing, any document if there are technical grounds for withholding it under FOIA, a reversal of the Clinton Administration’s position that any document could be released in spite of technical grounds for withholding it under FOIA.
White House Chief of Staff Andrew Card released a memo in March, 2002, wherein the Bush Administration further reduced public access to information through FOIA by urging agencies to safeguard records regarding weapons of mass destruction and “other information that could be misused to harm the security of our Nation and the safety of our people.” The memorandum did not define these terms and left agencies under direction to withhold from disclosure under FOIA any information that could in some conceivable way be used to harm security.
A major new exemption called Critical Infrastructure Information Act of 2002 (CIIA), is part of the Homeland Security Act. The CIIA exempts from FOIA any information that is voluntarily provided to the federal government by a private party, if the information relates to the security of vital infrastructure. The definitions used in this Act cover everything from information about a potential leak at a chemical plant to a deficiency in a software program used by the Department of Defense.
In 2003, the Bush Administration sought and won a new legislative exemption from FOIA for all National Security Agency “operational files.” The Administration’s main rationale for this new exemption is that conducting FOIA searches diverts resources from the agency’s mission. Of course, this rationale could apply to every agency. As NSA has operated subject to FOIA for decades, it is not clear why the agency now needs this exemption.
Other statutory and regulatory exemptions include commercial satellite data, vehicle safety defect information and critical energy infrastructure information. The Bush Administration has also instituted an aggressive policy of questioning, challenging, and denying FOIA requesters’ eligibility for fee waivers, using a variety of tactics. Measures include narrowing the definition of “representative of news media,” claiming information would not contribute to public understanding, and the use of sequential fee waiver denials. Fee waivers are part of the FOIA laws so that agencies aren’t overly burdened by costs while complying with the Act’s mandates.
Under the Bush Administration, agencies are making extensive use of FOIA exemptions, often inappropriately or with inadequate justification. There is evidence of agencies making frivolous exemption claims, abusing the deliberative process privilege, abusing the law enforcement exemption, and withholding data on telephone service outages.
In numerous instances, the Bush Administration has simply failed to respond to FOIA requests. Whether this is just inordinate delay or an unstated final refusal to respond to the request, the effect is the same: the public is denied access to the information.
Experts in FOIA law and practitioners with extensive experience in making requests for information under FOIA see this attitude shift as driving a myriad of changes, both large and small, in the government’s FOIA policies. Furthermore, they believe that these actions, taken together, “radically” limit the public’s ability to find out what the government is doing. Journalist Bill Moyers has echoed these concerns: “It’s always a fight, to find out what the government doesn’t want us to know. It’s a fight we’re once again losing. Not only has George W. Bush eviscerated the Presidential Records Act and FOIA, he has clamped a lid on public access across the board. It’s not just historians and journalists he wants locked out; it’s Congress . . . and it’s you, the public and your representatives.
The Presidential Records Act establishes that the records of a president relating to his official duties belong to the American people. The purpose of the Presidential Records Act is to ensure that after a President leaves office, the public will have full access to White House documents used to develop public policy. On November 1, 2001, President Bush replaced the Reagan executive order with Executive Order 13233. Under the law and the Reagan order, the presumption was that most documents would be released. In contrast, the Bush executive order establishes a process that generally operates to block the release of presidential papers.
The Federal Advisory Committee Act was adopted by Congress in 1972 to govern how the Executive branch obtains advice from groups of advisors outside the federal government. The goal of FACA is to prevent secret advisory bodies from exercising a hidden influence on government policy. Generally, FACA requires that advisory committees announce their meetings, hold their meetings in public, take minutes of the meetings, and provide the opportunity for divergent viewpoints to be represented. The Bush Administration, however, has acted to carve out new exemptions to the law. In other instances, the Administration has carefully structured the way it solicits advice from private entities to avoid establishing an advisory committee subject to FACA. And sometimes the Administration simply ignores FACA requirements.
In the proposal to Congress to establish a new Department of Homeland Security, President Bush proposed to exempt all advisory committees established by DHS from FACA. As finally adopted the Act gives the Secretary of Homeland Security the authority to exempt any advisory committee from FACA on a committee-by-committee basis.
Amendments to the Medicare law, signed in December 2003, establish another new exemption from FACA. The law creates “competitive acquisition programs” to provide for the furnishing of competitively priced items and services and to award contracts for various types of medical equipment and supplies. This advisory committee is exempted from the requirements of FACA.
The Administration also supported a new FACA exemption that affects Department of Energy advisory committees with members that are federal contractors. This provision, included in the fiscal year 2004 authorization bill for the Defense Department, allows DOE contractors to be considered federal employees for purposes of FACA when they are serving on an advisory committee. Because advisory committees composed solely of federal employees are not subject to FACA, the effect of the provision is to allow these contractors to provide advice to DOE officials without triggering FACA.
Vice President Cheney’s energy task force is the most prominent instance of an advisory body established by the Bush Administration that either violated or deliberately skirted FACA requirements. As partially revealed through news accounts, some documents obtained under FOIA, and an investigation by the Government Accountability Office, the task force engaged in extensive consultations with key representatives of the energy industry, particularly with coal, oil and gas, and nuclear interests. While the full extent of these consultations is not known, the task force had minimal contact with individuals representing environmental and consumer interests related to a national energy policy.
Another example is the President’s Commission on Intelligence on Weapons of Mass Destruction, which President Bush established on February 6, 2004.
Despite the broad public interest in the work of the WMD Commission, President Bush included in the executive order a provision whose sole purpose appears to be to exempt the Commission from FACA.
The White House Office of Management and Budget (OMB) formally advised agencies that they could avoid FACA’s requirements by hiring a contractor to manage advisory committees convened to conduct peer reviews.
The President’s Commission to Strengthen Social Security conducted much of its work through two subgroups, or subcommittees, which held closed meetings and refused repeated requests for records of those proceedings, maintaining that only the full committee, not its subcommittees, was subject to FACA. When members of Congress objected to the Commission’s evasion of FACA requirements, they were rebuffed.
The White House Task Force on Energy Project Streamlining appears to function primarily as a mechanism for energy companies to enlist support from the White House on decisions that are supposed to be made by government scientists and regulators in agencies such as the Bureau of Land Management, the Forest Service, the U.S. Fish and Wildlife Service, and EPA. An investigative news report gives accounts, however, of numerous occasions on which task force officials have pressured government experts in the field, urging land managers to speed activities needed to grant permits.
Changes to Laws that Restrict Public Access to Federal Records
National Security Classification of Government Records: The Bush Administration has reversed the Clinton Administration’s trend toward openness and dramatically increased the volume of government information concealed from public view. This is particularly evident in the Bush Administration’s expanded use of national security classification.
The Bush Administration has also obtained unprecedented authority to conduct government operations in secret, with little or no judicial oversight. Under expanded law enforcement authority in the PATRIOT Act, the Justice Department can more easily use secret orders to obtain library and other private records, obtain “sneak and peek” warrants to conduct secret searches, and conduct secret wiretaps. In addition, the Bush Administration has used novel legal interpretations to expand its authority to detain, try, and deport individuals in secret.
In the first six years following Clinton’s Executive Order 12958, the executive branch increased the average number of records that it declassified by more than ten times, and it increased by more than five times the number of records declassified from 1980 to 1994. The Bush Administration, however, issued Executive Order 13292 in March, 2003, which reversed the trend toward openness and dramatically increased the volume of information restricted as classified. One marked difference from the Clinton order, which imposed a limit of extensions to ten-year periods, the Bush order allows classifiers to extend classification time periods without any apparent limitation.
President Bush’s Executive Order 13292 features: Eliminating the presumption of disclosure, undermining automatic declassification, protecting foreign government information, reclassifying information, weakening the interagency security classification appeals panel, exempting Vice Presidential records from mandatory declassification review, expansion of “Original Classification Authorities,”
Further executive measures have resulted in expanded protection of “sensitive security information,” weakened DHS disclosure under the National Environmental Policy Act, and the expansion of secret government operations under the US PATRIOT Act, such as obtaining records in secret, conducting secret wiretaps, expanding the use of “sneak and peek warrants,” and expanding the use of federal grand juries.
Since the September 11, 2001, attacks, the Bush Administration has asserted unprecedented authority to detain anyone whom the executive branch labels an “enemy combatant” indefinitely and secretly. It has authorized military trials that can be closed not only to the public but also to the defendants and their own attorneys. And the Administration has authorized procedures for the secret detention and deportation of aliens residing in the United States.
Congressional Access to Information
Compared to previous Administrations, the Bush Administration has operated with remarkably little congressional oversight. This is partially attributable to the alignment of the parties. The Republican majorities in the House and the Senate have refrained from investigating allegations of misconduct by the White House. Another major factor has been the Administration’s resistance to oversight. The Bush Administration has consistently refused to provide to members of Congress, the Government Accountability Office, and congressional commissions the information necessary for meaningful investigation and review of Administration activities.
For example, the Administration has: Contested in court the power of the Government Accountability Office to conduct independent investigations, refused to comply with the statutory Seven Member Rule, which allows members of the House Government Reform Committee to obtain information from the executive branch, forcing the members to go to court to enforce their rights under the law, Ignored and rebuffed numerous requests for information made by members of Congress attempting to exercise their oversight responsibilities with respect to executive branch activities, and has repeatedly withheld information from the investigative commission established by Congress to investigate the September 11 attacks.
Conclusion
Waxman’s companion bill HR5073 IH, Restore Open Government Act of 2004, was not heard by Congress before the Winter Recess in December, 2004. The bill was not reintroduced in the Opening Session in January 2005. A number of other open government bills will be presented to Congress in 2005.
This review of the nation’s open government laws reveals that the Bush Administration has systematically sought to limit disclosure of government records while expanding its authority to operate in secret. Through legislative changes, implementing regulations, and administrative practices, the Administration has undermined the laws that make the federal government more transparent to its citizens, including the Freedom of Information Act, the Presidential Records Act, and the Federal Advisory Committee Act. At the same time, the Administration has expanded the reach of the laws authorizing the Administration to classify documents and to act without public or congressional oversight. Individually, some of the changes implemented by the Bush Administration may have limited impact. Taken together, however, the Administration’s actions represent an unparalleled assault on the principle of open and accountable government.
Introduction
In September of 2004, Rep. Henry A. Waxman released a comprehensive report on secrecy and the Bush Administration. The report systematically examines how the Administration has undermined each of the nation’s major open government laws. It reveals a consistent pattern: laws designed to promote public access to information of federal and public record have been undercut, while laws that authorize the government to withhold information or operate in secret have repeatedly been expanded.
“The Bush Administration has an obsession with secrecy,” said Rep. Waxman. “It has repeatedly rewritten laws and changed practices to reduce public and congressional scrutiny of its activities. The cumulative effect is an unprecedented assault on the laws that make our government open and accountable.”
Changes to Laws that Provide Public Access to Federal Records
The Freedom of Information Act, one of the laws that provides public access to federal records, has been controverted in several ways. FOIA gives an individual requesting information the ability to file a FOIA request for specific information and provides recourse to federal court in the event that an agency fails to comply with the FOIA requirements.
The Ashcroft memo of October 12, 2001 took the position that the Bush Administration’s policy is that agencies are not required to release, and are in fact discouraged from releasing, any document if there are technical grounds for withholding it under FOIA, a reversal of the Clinton Administration’s position that any document could be released in spite of technical grounds for withholding it under FOIA.
White House Chief of Staff Andrew Card released a memo in March, 2002, wherein the Bush Administration further reduced public access to information through FOIA by urging agencies to safeguard records regarding weapons of mass destruction and “other information that could be misused to harm the security of our Nation and the safety of our people.” The memorandum did not define these terms and left agencies under direction to withhold from disclosure under FOIA any information that could in some conceivable way be used to harm security.
A major new exemption called Critical Infrastructure Information Act of 2002 (CIIA), is part of the Homeland Security Act. The CIIA exempts from FOIA any information that is voluntarily provided to the federal government by a private party, if the information relates to the security of vital infrastructure. The definitions used in this Act cover everything from information about a potential leak at a chemical plant to a deficiency in a software program used by the Department of Defense.
In 2003, the Bush Administration sought and won a new legislative exemption from FOIA for all National Security Agency “operational files.” The Administration’s main rationale for this new exemption is that conducting FOIA searches diverts resources from the agency’s mission. Of course, this rationale could apply to every agency. As NSA has operated subject to FOIA for decades, it is not clear why the agency now needs this exemption.
Other statutory and regulatory exemptions include commercial satellite data, vehicle safety defect information and critical energy infrastructure information. The Bush Administration has also instituted an aggressive policy of questioning, challenging, and denying FOIA requesters’ eligibility for fee waivers, using a variety of tactics. Measures include narrowing the definition of “representative of news media,” claiming information would not contribute to public understanding, and the use of sequential fee waiver denials. Fee waivers are part of the FOIA laws so that agencies aren’t overly burdened by costs while complying with the Act’s mandates.
Under the Bush Administration, agencies are making extensive use of FOIA exemptions, often inappropriately or with inadequate justification. There is evidence of agencies making frivolous exemption claims, abusing the deliberative process privilege, abusing the law enforcement exemption, and withholding data on telephone service outages.
In numerous instances, the Bush Administration has simply failed to respond to FOIA requests. Whether this is just inordinate delay or an unstated final refusal to respond to the request, the effect is the same: the public is denied access to the information.
Experts in FOIA law and practitioners with extensive experience in making requests for information under FOIA see this attitude shift as driving a myriad of changes, both large and small, in the government’s FOIA policies. Furthermore, they believe that these actions, taken together, “radically” limit the public’s ability to find out what the government is doing. Journalist Bill Moyers has echoed these concerns: “It’s always a fight, to find out what the government doesn’t want us to know. It’s a fight we’re once again losing. Not only has George W. Bush eviscerated the Presidential Records Act and FOIA, he has clamped a lid on public access across the board. It’s not just historians and journalists he wants locked out; it’s Congress . . . and it’s you, the public and your representatives.
The Presidential Records Act establishes that the records of a president relating to his official duties belong to the American people. The purpose of the Presidential Records Act is to ensure that after a President leaves office, the public will have full access to White House documents used to develop public policy. On November 1, 2001, President Bush replaced the Reagan executive order with Executive Order 13233. Under the law and the Reagan order, the presumption was that most documents would be released. In contrast, the Bush executive order establishes a process that generally operates to block the release of presidential papers.
The Federal Advisory Committee Act was adopted by Congress in 1972 to govern how the Executive branch obtains advice from groups of advisors outside the federal government. The goal of FACA is to prevent secret advisory bodies from exercising a hidden influence on government policy. Generally, FACA requires that advisory committees announce their meetings, hold their meetings in public, take minutes of the meetings, and provide the opportunity for divergent viewpoints to be represented. The Bush Administration, however, has acted to carve out new exemptions to the law. In other instances, the Administration has carefully structured the way it solicits advice from private entities to avoid establishing an advisory committee subject to FACA. And sometimes the Administration simply ignores FACA requirements.
In the proposal to Congress to establish a new Department of Homeland Security, President Bush proposed to exempt all advisory committees established by DHS from FACA. As finally adopted the Act gives the Secretary of Homeland Security the authority to exempt any advisory committee from FACA on a committee-by-committee basis.
Amendments to the Medicare law, signed in December 2003, establish another new exemption from FACA. The law creates “competitive acquisition programs” to provide for the furnishing of competitively priced items and services and to award contracts for various types of medical equipment and supplies. This advisory committee is exempted from the requirements of FACA.
The Administration also supported a new FACA exemption that affects Department of Energy advisory committees with members that are federal contractors. This provision, included in the fiscal year 2004 authorization bill for the Defense Department, allows DOE contractors to be considered federal employees for purposes of FACA when they are serving on an advisory committee. Because advisory committees composed solely of federal employees are not subject to FACA, the effect of the provision is to allow these contractors to provide advice to DOE officials without triggering FACA.
Vice President Cheney’s energy task force is the most prominent instance of an advisory body established by the Bush Administration that either violated or deliberately skirted FACA requirements. As partially revealed through news accounts, some documents obtained under FOIA, and an investigation by the Government Accountability Office, the task force engaged in extensive consultations with key representatives of the energy industry, particularly with coal, oil and gas, and nuclear interests. While the full extent of these consultations is not known, the task force had minimal contact with individuals representing environmental and consumer interests related to a national energy policy.
Another example is the President’s Commission on Intelligence on Weapons of Mass Destruction, which President Bush established on February 6, 2004.
Despite the broad public interest in the work of the WMD Commission, President Bush included in the executive order a provision whose sole purpose appears to be to exempt the Commission from FACA.
The White House Office of Management and Budget (OMB) formally advised agencies that they could avoid FACA’s requirements by hiring a contractor to manage advisory committees convened to conduct peer reviews.
The President’s Commission to Strengthen Social Security conducted much of its work through two subgroups, or subcommittees, which held closed meetings and refused repeated requests for records of those proceedings, maintaining that only the full committee, not its subcommittees, was subject to FACA. When members of Congress objected to the Commission’s evasion of FACA requirements, they were rebuffed.
The White House Task Force on Energy Project Streamlining appears to function primarily as a mechanism for energy companies to enlist support from the White House on decisions that are supposed to be made by government scientists and regulators in agencies such as the Bureau of Land Management, the Forest Service, the U.S. Fish and Wildlife Service, and EPA. An investigative news report gives accounts, however, of numerous occasions on which task force officials have pressured government experts in the field, urging land managers to speed activities needed to grant permits.
Changes to Laws that Restrict Public Access to Federal Records
National Security Classification of Government Records: The Bush Administration has reversed the Clinton Administration’s trend toward openness and dramatically increased the volume of government information concealed from public view. This is particularly evident in the Bush Administration’s expanded use of national security classification.
The Bush Administration has also obtained unprecedented authority to conduct government operations in secret, with little or no judicial oversight. Under expanded law enforcement authority in the PATRIOT Act, the Justice Department can more easily use secret orders to obtain library and other private records, obtain “sneak and peek” warrants to conduct secret searches, and conduct secret wiretaps. In addition, the Bush Administration has used novel legal interpretations to expand its authority to detain, try, and deport individuals in secret.
In the first six years following Clinton’s Executive Order 12958, the executive branch increased the average number of records that it declassified by more than ten times, and it increased by more than five times the number of records declassified from 1980 to 1994. The Bush Administration, however, issued Executive Order 13292 in March, 2003, which reversed the trend toward openness and dramatically increased the volume of information restricted as classified. One marked difference from the Clinton order, which imposed a limit of extensions to ten-year periods, the Bush order allows classifiers to extend classification time periods without any apparent limitation.
President Bush’s Executive Order 13292 features: Eliminating the presumption of disclosure, undermining automatic declassification, protecting foreign government information, reclassifying information, weakening the interagency security classification appeals panel, exempting Vice Presidential records from mandatory declassification review, expansion of “Original Classification Authorities,”
Further executive measures have resulted in expanded protection of “sensitive security information,” weakened DHS disclosure under the National Environmental Policy Act, and the expansion of secret government operations under the US PATRIOT Act, such as obtaining records in secret, conducting secret wiretaps, expanding the use of “sneak and peek warrants,” and expanding the use of federal grand juries.
Since the September 11, 2001, attacks, the Bush Administration has asserted unprecedented authority to detain anyone whom the executive branch labels an “enemy combatant” indefinitely and secretly. It has authorized military trials that can be closed not only to the public but also to the defendants and their own attorneys. And the Administration has authorized procedures for the secret detention and deportation of aliens residing in the United States.
Congressional Access to Information
Compared to previous Administrations, the Bush Administration has operated with remarkably little congressional oversight. This is partially attributable to the alignment of the parties. The Republican majorities in the House and the Senate have refrained from investigating allegations of misconduct by the White House. Another major factor has been the Administration’s resistance to oversight. The Bush Administration has consistently refused to provide to members of Congress, the Government Accountability Office, and congressional commissions the information necessary for meaningful investigation and review of Administration activities.
For example, the Administration has: Contested in court the power of the Government Accountability Office to conduct independent investigations, refused to comply with the statutory Seven Member Rule, which allows members of the House Government Reform Committee to obtain information from the executive branch, forcing the members to go to court to enforce their rights under the law, Ignored and rebuffed numerous requests for information made by members of Congress attempting to exercise their oversight responsibilities with respect to executive branch activities, and has repeatedly withheld information from the investigative commission established by Congress to investigate the September 11 attacks.
Conclusion
Waxman’s companion bill HR5073 IH, Restore Open Government Act of 2004, was not heard by Congress before the Winter Recess in December, 2004. The bill was not reintroduced in the Opening Session in January 2005. A number of other open government bills will be presented to Congress in 2005.
This review of the nation’s open government laws reveals that the Bush Administration has systematically sought to limit disclosure of government records while expanding its authority to operate in secret. Through legislative changes, implementing regulations, and administrative practices, the Administration has undermined the laws that make the federal government more transparent to its citizens, including the Freedom of Information Act, the Presidential Records Act, and the Federal Advisory Committee Act. At the same time, the Administration has expanded the reach of the laws authorizing the Administration to classify documents and to act without public or congressional oversight. Individually, some of the changes implemented by the Bush Administration may have limited impact. Taken together, however, the Administration’s actions represent an unparalleled assault on the principle of open and accountable government.
posted by:
|
New York City
|
