A FEDERAL JUDGE struck a blow for liberty this fall by ruling that a portion of the Patriot Act allowing the government to poke into people's private lives without judicial oversight has "no place in our open society." U.S. District Court judge Victor Marrero's Sept. 29 decision was straightforward enough. But the case itself is perverse and surreal, standing as a particularly apt metaphor for how George W. Bush has conducted his presidency: in secret, out of public view, with as little oversight and accountability as he can manage.
The case involves the president of an Internet service provider who was handed a so-called national-security letter ordering him to turn over company records about some of his customers. Under the Patriot Act, the executive was barred from telling anyone he had received such a letter; he ignored that and informed the American Civil Liberties Union, which agreed to challenge the letter on his behalf. But the lawsuit that the ACLU filed, rather than making headlines, was heard in secret, thanks to yet another dubious provision of the Patriot Act. Even now that Marrero's decision has been announced, we still don't know the identity of the Internet company or its chief executive, or what the government was seeking.
In a twist worthy of a Salvador Dali painting, the ACLU has revealed that when the company executive attempted to assert the principle that the citizenry should be able to keep an eye on its government, the prosecution grabbed a black Sharpie to hide those seditious words from public view.
In a heavily blacked-out affidavit, the executive said, "I find it ironic that [deleted] I freely engage in political debate on the government's use of the Patriot Act. [deleted] I know much more about the way the Patriot Act works [deleted]." After Judge Marrero partially lifted the gag order, the ACLU revealed what the executive said in the final blacked-out section: "the public should be able to monitor how the government is using these new powers so that it can police against possible abuses."
Of course, you can't be too careful. If people are allowed to see things like that, the next thing you know, they might start reading the Bill of Rights.
The case of the Internet provider and the Patriot Act is just a small example of the lengths to which the Bush administration has gone to hide its activities from the public it purports to serve. Since Bush took office in January 2001, the White House has: weakened the Freedom of Information Act, which is supposed to make it possible for citizens to obtain most government documents; removed public information from government Web sites under the guise of national security; made it much more difficult for historians (or anyone else) to gain access to the official papers of former presidents; and even refused to respond to requests for information from Democratic members of Congress.
To be sure, the trend toward secrecy has accelerated since the terrorist acts of 9/11, and at least some security-related measures were probably inevitable and necessary. But the evidence is clear that George W. Bush has wanted to reverse the long march toward greater government openness from the moment he was sworn in.
"My sense is that this is one of the most deeply worrying developments of the last four years, because you can't really have transparency, which is what democracy needs," says Nancy Murray, director of the Bill of Rights Education Project for the ACLU of Massachusetts. "You have to know what a government is up to in order to know whether you want to keep that government."
For a harrowing example of what Murray is talking about, all you have to do is look at the front page of the Oct. 25 New York Times. The paper reported that 380 tons of highly dangerous explosives were removed from an ammunition dump in Iraq not long after the American-led invasion in the spring of 2003. It's possible -- even likely -- that because Pentagon planners did not think to secure those explosives, they have been used against American troops in suicide bombings and terrorist attacks. Yet even though the White House knew about this catastrophic failure for many months, it did everything it could to avoid telling the public -- or, for that matter, the International Atomic Energy Agency, which reportedly is anxious because the explosives are well-suited for use as triggers in nuclear bombs. Administration officials were content to ride it out until after the election. Finally, despite their attempted cover-up, the truth was revealed just eight days before Americans went to the polls.
Or consider another front-page Times story, this one from Oct. 24. In the first of a two-part overview of how the Bush administration came up with the idea of secret military tribunals for foreign prisoners suspected of terrorism, the Times reported that Vice President Dick Cheney conspired to keep the plan a secret (that's right: secret plans about secret trials) from Secretary of State Colin Powell and National Security Adviser Condoleezza Rice, who, he suspected, would oppose the tribunals.
Of course, it's that kind of insular decision-making -- hush-hush, cloak-and-dagger, cut off from any opposing voices or critical thought -- that one could argue is directly responsible for the disastrous manner in which the White House has planned and prosecuted the entire struggle against terrorism and the war in Iraq.
In January 2002, Cheney gave an interview to ABC News in which he described his battle to keep another secret -- the proceedings of the energy task force that he chaired -- as virtually a mission from the Founding Fathers. "I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job," he said. "We saw it in the War Powers Act, we saw it in the Anti-Impoundment Act. We've seen it in cases like this before, where it's demanded that the presidents cough up and compromise on important principles. One of the things that I feel an obligation on -- and I know the president does, too, because we talked about it -- is to pass on our offices in better shape than we found them to our successors."
If, by "better shape," Cheney meant "more secretive and less accountable," then he and Bush have been a brilliant success.
On Sept. 14, U.S. Rep. Henry Waxman, a California Democrat who is the ranking minority member of the House Committee on Government Reform, issued a 90-page report titled Secrecy in the Bush Administration. Sadly, it received almost no attention in the mainstream media. (A notable exception: Boston Globe editorial-page editor Renée Loth, who wrote an op-ed piece condemning the "cloak of secrecy" that the Waxman report documented.) Not only did Waxman's report deserve a better fate, it should have been a centerpiece of the presidential campaign. In meticulous detail, the report documents how the Bush administration has engaged in "an unparalleled assault on the principle of open and accountable government."
In an interview, Waxman told me, "I think there are two very serious problems with this administration's penchant for secrecy, which is greater than we've ever seen before, even worse than the Nixon administration during Watergate. First of all, it undermines the ability of our governmental system to work, because the public is kept in the dark and there's no accountability. And the second problem I see is that when an administration only talks to itself, it's inevitable that there are going to be huge mistakes, which they've already done. A government is supposed to be responsive to the people, and information that is not of national-security consequence ought to be available to people."
The Waxman report defies easy summary, and deserves to be read in full (it's online at democrats.reform.house.gov/features/secrecy_report). But here are a few key lowlights.
â€¢ On Oct. 12, 2001, Attorney General John Ashcroft issued a memo directing federal agencies to make aggressive use of exemptions to the Freedom of Information Act (FOIA), a move that made it far easier to keep documents under wraps. Ashcroft's action reversed the "presumption of disclosure" that had prevailed under his Clinton-administration predecessor, Janet Reno. The result: Federal agencies are now more empowered to say "no" to FOIA requests than at any time since the law's passage, in 1966.
â€¢ In March 2002, White House chief of staff Andrew Card issued another memo, this one encouraging agencies not to release "sensitive but unclassified information." As just one example, the Department of Defense relied on the Card memo in refusing to release an unclassified report, based entirely on public documents, regarding lessons learned from the 2001 anthrax attacks.
â€¢ Bush appointees have issued regulations to federal agencies making it more difficult to obtain records about everything from consumer complaints to the location of energy-industry installations. Such regulations, the report contends, would have made it harder to learn about the Firestone tire-safety case, and will make it difficult to learn about potential hazards posed to a community by such things as gas pipelines. As former Clinton chief of staff John Podesta wrote in the September 2003 American Prospect, "The exemption provides a convenient way for businesses to conceal even routine safety hazards and environmental releases that violate permit limits from public disclosure. Shielded from public scrutiny, these hazards are much less likely to be addressed."
â€¢ In November 2001, President Bush issued an executive order that makes it much harder for members of the public to obtain presidential records, thus undermining reforms that were put in place after Richard Nixon's corrupt and secretive presidency. Previously, virtually all records eventually would become public -- a stance in favor of openness that Bush's supposed role model, Ronald Reagan, endorsed when he was president. But under the Bush executive order, the release of a previous president's records can be blocked indefinitely by either the current president or the former president -- or even by the former president's family, in the event of death or incapacity. Nor is this surprising behavior on Bush's part: Several years ago, he made an unsuccessful attempt to place his records as governor of Texas out of the public eye.
"From my point of view as an historian, it just seems to me that if you're working on the public time, the public ought to know what you're working on," says William Fowler, director of the Massachusetts Historical Society. "Aside from military and diplomatic secrets -- which prima facie you can understand why those things can't be shared -- when you go back into the archives, more often than not what you find are people insisting on secrecy to save themselves from embarrassment or to hide some scheme." Of Bush, Fowler adds, "Not in his defense, but historically governments always tend toward secrecy. Governments love secrecy, so we always, always, always as citizens have to be on the alert."
â€¢ Between 2001 and 2003, documents were classified at a rate 50 percent higher than the average for the five previous years, when Bill Clinton was president. Conversely, the pace of declassification was 60 percent slower than it was during the Clinton years. Moreover, Bush handed a TOP SECRET stamp to several officials who had previously not had that power. Among these is the secretary of agriculture, whose secret plan for defeating Al Qaeda with killer corn is now safely protected from the public's prying eyes.
â€¢ The war against terrorism has resulted in an explosion of government secrecy, of which the Patriot Act is the most potent symbol. But the Patriot Act is far from the only way the White House has sought to hide its anti-terrorist activities from public scrutiny. For instance, the Waxman report observes that some 9,000 prisoners are being held around the world in detention facilities operated by the U.S. military and the CIA. Little is known about these detainees, and the administration refuses to provide any information. Even more egregious are the "ghost detainees" -- perhaps as many as 100 suspected terrorists whose imprisonment the government has declined to confirm.
â€¢ The administration has refused to comply with numerous requests for information from Congress, something it's been allowed to get away with mainly because the Republicans control both the Senate and the House. On issues ranging from Cheney's energy task force and Halliburton to Abu Ghraib and Nigerian uranium, the administration has just said no.
The Waxman report cites a Washington Post article from November 2003 in which the White House made it clear that it simply would not respond to congressional Democrats anymore. The Post quoted an e-mail from White House official Timothy Campen that read in part: "Given the increase in the number and types of requests we are beginning to receive from the House and Senate, and in deference to the various committee chairmen and our desire to better coordinate these requests, I am asking that all requests for information and materials be coordinated through the committee chairmen and be put in writing from the committee."
What was left unsaid by Campen -- but understood by all -- is that every committee in Congress is chaired by a Republican.
U.S. Rep. John Tierney of Massachusetts recalls the struggle that he and other Democrats went through to bring to light information about the failures and shortcomings of the National Missile Defense Program -- Bush's update of Reagan's old "Star Wars" pipe dream. Tierney, who serves with Henry Waxman on the Government Reform Committee, says, "We had to fight like cats and dogs over a period of months" to get the requested information. And then, after the information had been brought to light, the White House reclassified it, forcing Congress to remove it from publicly available Web sites. Calling the White House's attitude "an absolute lack of cooperation," Tierney says, "It's as though the White House doesn't want Congress to have a role. In essence, they want to shut up the voice of the people and do what they want to do."
If anything, U.S. Rep. Stephen Lynch, a South Boston Democrat and, like Tierney, a member of the Government Reform Committee, is even blunter. Lynch supports legislation that would undo some of the Bush administration's assault on the Freedom of Information Act, but he has little hope that it will pass the Republican Congress. "It's just part of an overall pattern to prevent Congress from doing their job," Lynch told me. "We are supposed to exercise certain checks and balances upon each other, and in this case, largely because of executive privilege or executive order, they have vastly reduced the amount of information that Congress has at its disposal to do its job. We are heading toward a constitutional crisis."
But before we can have a constitutional crisis, we need some sign that the public cares about what it's not being told. I put that to Waxman, and he responded by blaming the media. "I think the public is not aware of all that they don't know about," he says. "I don't think the press has been particularly responsible in reporting these stories. I think there was a lot of attention paid to Vice President Cheney and his energy task force, which he insisted on keeping secret. And I think that the public did not like that. But other stories come, and some of these matters get pushed aside. And that's why we did the comprehensive report we did, because I don't think most people realize what a clear pattern there is." Yet how is the public supposed to know about Waxman's report if the media, for the most part, haven't reported on it?
We are dealing with an administration that uses secrecy to advance every aspect of its political agenda. If we don't act to stop it now, it may soon be too late: We won't know what we don't know, to paraphrase Secretary of Defense Donald Rumsfeld -- who, believe it or not, was an outspoken supporter of the Freedom of Information Act when he was a Republican congressman from Michigan in the 1960s.
"We as a society have taken openness for granted for almost 40 years now," says long-time First Amendment activist Jane Kirtley, the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communication. "You only miss something when it's gone. The reality is that the Bush administration has been savvy enough to know that they just can't categorically rescind the First Amendment or cancel the Freedom of Information Act. It's this slow erosion of access.
"This is a Molotov cocktail waiting to go off," adds Kirtley, for whom Bush's re-election increases suspicions "that the mandate [will] be justification for even more of this kind of thing."
Perhaps the most frightening aspect of Bush's penchant for secrecy is that he's established a precedent for how a failed president can win re-election: by placing evidence of his failure beyond public view, locked away, making it impossible for people to cast an informed vote. You can't get upset that government agents are snooping on Internet users if you don't know they're doing it. You can't worry about missing explosives in Iraq if you haven't been told they're missing.
If you think about it, Bush's entire campaign was based on a simple-minded appeal to protect you from them: terrorists, trial lawyers, gays and lesbians, whatever. It's not the sort of appeal that holds up well to a full airing of the issues. Secrecy, in other words, is Bush's best friend. The more you listen, the less you know. And the longer Bush is president, the less you'll be allowed to know.