Watergate blowback: the White House's ongoing battle against post-Nixon sunshine laws

Reason, August-Sept, 2004 by Matt Welch

* On November 1, 2001, just as his father's records were about to be released to the public, Bush signed Executive Order 13,233, reinterpreting the 1978 Presidential Records Act to give the White House and former presidents unlimited discretion to veto the declassification of presidential papers. "The main thing it has done is just put a huge amount of delay in the system," Blanton says. "In 2001, before he wrote that Executive Order, the Reagan Library, for example, took about a year and a half, between 14 and 18 months, to respond to a request for documentation. Today, it's 48 months."

* On November 25, 2002, Bush signed the Homeland Security Act, which created a FOIA exemption for even nonclassified documents pertaining to what was vaguely defined as "critical infrastructure."

* On many occasions since, the White House has sought to extend executive privilege into uncharted territory.

The problem, Judicial Watch's Fitton and the NSA's Blanton agree, is that the administration's national security justifications are frequently bogus. "I'm not talking about the blueprints to a nuclear weapon, or our national defense and secrets related to that," says Fitton. "We're talking about using those types of national security arguments to just cover up corruption and things that are politically inconvenient."

Blanton says documents that administrations fight tooth and nail to suppress--such as the Pentagon Papers, or the infamous August 6, 2001, presidential daily briefing about Osama Bin Laden, or the 56-yeax-old Air Force accident reports whose classification formed the legal basis for withholding information on national security grounds--typically contain little or no truly sensitive information. "The banality of the thing is what strikes you," he says.

Watergate taught millions of Americans about the dangers of government operating without sunshine. But Bush administration officials, especially those who lived through the scandal, learned an altogether different lesson--that checks and balances can be distractions and handcuffs.

"Corruption thrives in secrecy," Fitton says. "And if a bureaucrat thinks that everything he does is never going to see the light of day, and a politician or a political appointee thinks the same, then you can bet that the temptation to do incorrect things will be greater.

"If the idea is that what they can do can be exposed by an intrepid reporter or an activist group, it does keep people in line. And we're not talking about the speeding violations that often pass for ethics enforcement here in Washington. We're talking about, for instance, lying to Congress about the costs of a huge entitlement program. We're talking about bribery for pardons by the president of the United States.... These aren't technical violations of ethics rules; this is hammer-in-the-head stuff, and anyone who doesn't understand that this is wrong, and the secrecy surrounding it is wrong, frankly shouldn't be trusted with the public's trust."

Contributing Editor Matt Welch (mwelch@reason.com) writes about media and politics for Canada's National Post.