Bush team must overcome reliance on secrecy

0 Comments | Insight on the News, Sept 23, 2002 | by Jamie Dettmer

At least the Bush administration is consistent in its determination to keep the ways of government secret. To the dismay of many a Bill Clinton foe, White House lawyers are refusing to make public the government papers relating to the bunch of strange pardons George W. Bush's predecessor granted just before leaving office.

In August, the administration invoked executive privilege in pleadings filed in U.S. District Court in Washington, claiming that the privilege covers not just written advice given to a president about individual pardons, but also extends to documents never seen by a president--for example, papers drafted in other federal agencies.

The pleadings were made in response to a lawsuit filed by Judicial Watch, once the nonprofit bete noire of the Clinton administration and now a serious irritant to the Bush White House. The legal watchdog sued the Justice Department under the Freedom of Information Act last year for its refusal to provide papers concerning the pardons granted, or considered, by Clinton in January 2001. Among the 177 pardons granted, Clinton extended clemency to fugitive financier and tax-evader Marc Rich, kicking up a storm in the process.

The hard-line stance taken by the Bush administration has surprised attorneys, who point out that in the past pardon recommendations sent to the president have been made public by the Justice Department. The extension of executive privilege well beyond the White House also has raised legal and political eyebrows.

According to White House spokesman Scott McClellan: "The president has always been entitled to receive confidential advice and candid assessments from attorneys in the federal government." He added: "To release such documents would have a chilling effect on the deliberative process."

Apparently, the administration worries about a "chilling effect" on other areas of government, too, if openness is tolerated. The Justice Department remains determined to keep closed immigration hearings dealing with the detainees caught up in the post-Sept. 11 dragnet--and that despite a strong judicial rebuke from a three-judge panel of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit.

That panel ruled on Aug. 26 that the media and ordinary citizens have a constitutional "right of access" to deportation proceedings. Senior Judge Damon J. Keith, who wrote the opinion, declared: "Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully and accurately in deportation proceedings."

Of the 1,200 people detained after Sept. 11, more than three-quarters were held on immigration offenses. One hundred remain in custody, with the rest having already been deported or released.

Justice Department sources say they are determined to get the panel's ruling overturned, either by appealing to the full 6th Circuit or to the Supreme Court. According to Solicitor General Theodore Olson, the issue touches "on the nation's very ability to defend itself against the continuing threat of a hostile attack from myriad and unknown sources." But critics of the administration--and some of its friends, too--fear it is in the grip of a secrecy obsession, one that ranges well beyond the White House and executive privilege and even beyond the war on terrorism.

Last May, conservative commentator David Brooks remarked on PBS that the administration is "in danger of getting addicted to secrecy in the way Clinton was to sex." He added: "There is a congealing sense that secretiveness is the flaw of the Bush administration." The comment was prompted by the stonewalling of the White House in providing details of the pre-bankruptcy contacts between Enron and the administration. That incurred the wrath of Congress, causing a Senate panel to issue a subpoena.

What was mystifying was why the administration fought so hard and so long to keep back the details when the record indicated that neither the White House nor other government agencies acted improperly or tried to aid Enron to escape bankruptcy. Of course, the Democrats had hoped that the record would do just that, allowing them to charge their opponents with crony capitalism.

According to the disclosures, all that was done as Enron slid toward bankruptcy was that the White House's top economic, policy and communications officials mobilized to try to minimize the damage to financial markets. In short, the secrecy obsession got the administration into trouble by ensuring lots of media coverage speculating on the possibility of there being something incriminating that the White House wanted to hide.

Unless the White House starts rethinking its position regarding what information to release and when, it risks getting itself into more trouble. Enron, the immigration courts and the Clinton pardons all are part of a pattern of secretive behavior. On issue after issue, White House officials and their counterparts in other agencies appear determined to provide only the minimum amount of information demanded. They should remember that U.S. government is for the people and by the people.