FEATURE STORY | February 25, 2002
What Are They Hiding?
by Russ Baker
No one ever accused conservative House Republican Dan Burton of mincing
his words. This is, after all, the man who once famously called President
Clinton a "scumbag." But it's one thing to throw rhetorical bombs at a
President from the opposition party, and quite another to denounce your
own party's man as "dictatorial," as Burton did to President Bush in
What outrages Burton is the Bush Administration's overarching obsession
with secrecy, with keeping information on a broad range of fronts out of
the public view. That Burton has latched on to a key element of Bush's MO
has grown clearer with the unfolding of the Enron scandal. As more and
more connections between members of the Bush Administration and Enron come
to light, the press and the public may be forgiven for wondering, "What
else are they hiding?"
The answer is "a lot"--the Bush team has already established a record
on secrecy that makes Richard Nixon, just to take a random example from
our presidential past, look like a boy scout.
Presidential Records Act
For starters, Bush is blocking the scheduled release of documents under
the Presidential Records Act of 1978, which mandates that all but the most
highly sensitive documents are to be made public twelve years after a
President leaves office. Under the PRA, Ronald Reagan's papers were
supposed to be released last year.
On January 20, 2001, the first batch (68,000 pages) of Reagan's papers,
mostly notes from meetings with advisers and internal White House memos,
came up for routine release. It should have come off without a
hitch--after all, presidential libraries have for years been releasing
documents informally. But the new Bush Administration, fresh from its own
Florida election controversy, took advantage of a PRA clause allowing a
thirty-day presidential consultation, and thus began what turned into a
grand stall. By last August, half a year had passed and still nothing had
This raised suspicions. Since the law already exempted the most
sensitive documents from disclosure, why did the Bush Administration have
to review the rest for what it said were national security purposes? "It's
pretty fishy," says Anna Nelson, an American University history professor
who works with a number of scholarly and historical organizations on
presidential papers access. "The precautions on 'national security' are
extreme. These are not Iran/contra papers."
Nelson surmises that many officials in the current Administration
(including Dick Cheney and Donald Rumsfeld) were authors of the
twelve-year-old memos that are now being blocked: "They probably don't
remember what they said, and they are feeling iffy about it." Meanwhile,
George W. Bush is now deciding which papers of his father's, former
President George H.W. Bush, will be released, beginning on January 20,
After September 11 the Administration had virtual carte blanche to
stall any and all document releases, and it did so boldly [see Bruce
Shapiro, "Information Lockdown," November 12, 2001]. In November Bush
issued an executive order that declared that not only could a former
President assert executive privilege over his papers against the will of
the incumbent President (a measure Reagan instituted just before he left
office) but that a sitting President could also block the papers of a
predecessor, even if that predecessor had approved their release.
The implications of this change are breathtaking. "The bottom line is
that secrecy prevails in every situation when at least one party wants
it," says Mark Rozell, a political science professor at the Catholic
University of America and a leading scholar on executive privilege.
The Bush Administration, in full Orwellian swing, has dubbed its
executive order "Further Implementation of the Presidential Records Act,"
as if it were designed to enhance public access. According to White House
spokesperson Anne Womack, "This really didn't change anything." The order,
she says, is "just about procedure. It doesn't talk about when, how or
why." At the time the order was signed, press secretary Ari Fleischer said
it would mandate a "more orderly process.... As a result of the new law
that is now going into effect, and thanks to the executive order that the
President will soon issue, more information will be forthcoming."
That remains to be seen. Whereas in the past the White House had to
prove that it had a compelling reason to withhold information, Bush's
executive order places the burden on researchers and others to prove that
they have a compelling need for the information. This effectively
eviscerates the Presidential Records Act.
The pièce de résistance, which scholars and legal experts find
especially alarming, is a section that allows a former President to
appoint a representative to manage the release of papers after his death
(or, as in the case of Reagan, incapacitation). "The question we have to
ask ourselves is, Do we want the children, grandchildren and fellow
workers [of a former President] to make these decisions?" says Anna
Nelson. "These are public records."
In response, a consortium of public interest groups, including Public
Citizen and the National Security Archive, filed suit in late November.
The suit asks that the National Archivist be forced to adhere to the terms
of the Presidential Records Act, with no regard for the recent executive
order, and to release the additional Reagan papers that have been
withheld. Scott Nelson, the attorney litigating the case against the White
House, puts it like this: "They have the general view that executive
branch deliberations are not the business of the public or Congress."
Meanwhile, as of early January, a year after the scheduled release
date, a mere 6,000 documents had been cleared for release. At this rate,
it will take more than eleven years for all 68,000 pages to reach the
Battle Between Congress and the DOJ
On December 14, Bush invoked executive privilege in refusing to comply
with two subpoenas from Burton's panel, the House Committee on Government
Reform, seeking information from the Justice Department. One, a
continuation of Burton's late-1990s anti-Clinton crusade, requested
internal prosecutorial memos outlining Janet Reno's decision not to
appoint an independent counsel to investigate impropriety in Clinton/Gore
fundraising. The second concerned an FBI investigation in Boston more than
twenty-five years ago. When Burton's committee requested internal
prosecutorial memos from the case, the Administration balked, saying that
such a release would have a chilling effect on confidential advice offered
within the executive branch.
"This is a test of Congress to see how much the Administration can get
away with," says Steve Aftergood, director of the Federation of American
Scientists' Project on Government Secrecy. "It is not at all surprising
the executive branch would want to operate in secret. The question is, how
much will Congress accept?"
In fact, Congress has no legal mechanism to force the executive branch
to honor subpoenas for such information. Thus, it will be up to public
organizations and the media to decide what levels of openness are
supportable, and to exert pressure to prevent iron gates from slamming
down all over Washington. "You know when this changes?" asks Charles
Tiefer, professor of law at the University of Baltimore and an expert on
executive privilege. "It is when the TV coverage makes the President look
bad that the phone call goes from the White House to the DOJ that says
give up on the cover-up and make the deal."
Why is Bush trying to stake a claim of executive privilege in two
closed investigations in which there is no longer any threat to law
enforcement or prosecution? Indeed, the political fallout from any
revelations about Janet Reno's decision not to pursue an independent
investigation of Clinton/Gore campaign finances could only hurt Democrats.
Tiefer and others worry that this may be part of a far-reaching strategy.
"President Bush will want to stake out his secrecy powers in cases like
these where he can't be accused of covering up a matter of political or
corrupt self-interest," says Tiefer. "Next year, if the investigating
accountants put together a criminal case against Enron, but for
inexplicable reasons the Justice Department refuses to charge anyone
except low-level or insignificant Enron officials, the same type of
President-ordered cover-up would be used to prevent Congress and the
public from finding out why no serious indictments occurred."
Long before the giant energy trading corporation became a household
name, Dick Cheney was making sure that the extensive role of Enron and
other companies in advising him on setting Bush Administration energy
policies would be kept secret. Cheney had been holding meetings with
executives and energy "experts" since February 2001, when he set up the
National Energy Policy Development Group (NEPDG). In April, press reports
indicated that Cheney had met with Enron CEO Kenneth Lay the day before
announcing that he would not support price caps on the sale of wholesale
electricity in California. Enron was at the time in the midst of a
full-scale PR campaign to block such price caps. Representative Henry
Waxman, the House Government Reform Committee's senior Democrat, asked the
General Accounting Office to investigate the people Cheney had been
meeting with all those months.
In May the GAO attempted five times to get information from Cheney;
although the request was a routine one, his counsel made the Congressional
watchdog agency defend its legal right to such information. In early June
the GAO sent a letter outlining the legality of its request. In response,
Cheney's office sent financial records that literally made no
sense--incomplete lists of numbers with no context. After a series of
legal meetings and unreturned phone calls, the GAO's comptroller general,
David Walker, decided to play hardball and make a formal demand that
Cheney release the information. Cheney still refused.
On August 17 the GAO released a report on the efforts that it had made
to obtain information from Cheney's NEPDG, citing legal precedent as well
as judicial decisions to argue that the Bush Administration was
interpreting the GAO's powers too narrowly. According to Walker, no prior
administration had ever challenged the GAO's authority in this regard. For
example, as the report noted, the Clinton Administration had complied with
GAO requests in many ways. "The information that we are seeking is of the
type that has been commonly provided to the GAO for many years spanning
several administrations," Walker wrote.
After September 11 the GAO released a statement essentially
acknowledging that Cheney had other priorities for the moment. But by
December 2, when Enron announced its bankruptcy, this grace period was
over. Two days later, Waxman wrote to Cheney, urging that he release the
requested information immediately. In his letter, Waxman enumerated many
connections between the Administration and Enron, most of them since
publicized, both in terms of campaign contributions, stock held by Bush
Administration officials and even the fact that Enron had green-lighted
both of Bush's appointees to the Federal Energy Regulatory Commission,
which oversees the markets in which Enron operates.
"At the very least, the confluence of these actions creates an
appearance of impropriety," Waxman wrote. "I urge you to reevaluate your
refusal to provide the public with information about the Administration's
dealings with Enron. Enron's collapse has shaken public confidence in
energy markets. Continued secrecy from the White House will only compound
Recently, in a letter to Waxman, Cheney admitted that he and his aides
met with Enron executives six times last year to discuss energy policy.
This access provided to Enron, Waxman said, far outweighed the access
provided by the White House to other parties interested in energy policy.
For example, environmental and consumer advocates never met with Cheney
himself, and only once with the task force's executive director. They were
not asked for any recommendations.
After the Vice President refused again to name the advisers, Waxman
responded with another letter, which essentially accused Cheney of trying
to mislead the public about the extent of the Enron-NEPDG contacts.
(Waxman also pointed out an apparent inconsistency in the Administration's
policy, since on at least seven occasions since taking office Bush has
allowed e-mail communications to and from the Clinton/Gore White House to
be released to Congressional committees.) As the standoff continued
throughout January the GAO announced that it was going to file a lawsuit
against the NEPDG to force compliance with its request. This will be the
first time in its eighty-one-year history that the GAO has had to sue a
federal official or agency to get information, and it therefore represents
a truly remarkable departure from the established balance of power between
the executive and legislative branches of the federal government.
Meanwhile, several public-interest groups have also entered the fray:
the Sierra Club, Judicial Watch and the Natural Resources Defense Council
have all filed suits against the Administration, seeking the identities of
Cheney's secret energy advisers.
Tip of an Iceberg
|Additional reporting by Camille Finefrock. Research
support provided by the Investigative Fund of the Nation
"Secrecy in the Bush Administration is not limited to one or two
individuals. It is a guiding philosophy," says Aftergood. "Whether it is
the war in Afghanistan or presidential records from two decades ago, the
Administration wants to control what the public is permitted to know. It
is a dramatic shift from the Clinton Administration, where there were
several agency heads speaking out in favor of greater disclosure, and in
which an unprecedented volume of declassified information was released."
In October Attorney General John Ashcroft sent out a memo saying that
the DOJ should adopt a policy of not giving out information requested
under the Freedom of Information Act whenever possible, reversing a
Clinton administrative policy stating that documents should be withheld
only when there was foreseeable harm that would result from disclosure. In
essence, Ashcroft was replacing "withhold rarely" with "withhold whenever
Compared with Bush, the despised (by Burton) Clinton Administration had
a virtual open-door policy with Congress. In response to requests from
Burton's committee, Clinton produced more than 1.2 million pages of
documents from January 1997 to January 2001. The GAO found that between
October 1996 and March 1998, White House staff spent more than 55,000
hours responding to more than 300 Congressional requests. These included
prosecution memos and documents containing legal advice normally protected
by attorney-client privilege. Clinton also provided the GAO with the names
of private individuals who worked for or consulted with the President's
healthcare task force.
Of course, Clinton was hardly forthcoming with information that could
get him into trouble personally. He invoked executive privilege thirteen
times, usually in circumstances like Whitewater and the Lewinsky scandal.
In some sense, Mark Rozell says, Clinton helped to bring the phrase
"executive privilege" back from the netherworld to which it had been
consigned since its arrant misuse by the Nixon Administration.
Intriguingly, one of the leading architects of the Bush
Administration's "don't tell" policy is Brett Kavanaugh, a former deputy
to Whitewater investigator Ken Starr. Kavanaugh, who once defended Starr's
insatiable appetite for information on presidential doings as being not
about politics but about the sanctity of the law, has apparently changed
his tune (Kavanaugh did not respond to a request for an interview). The
ironies abound. "Because of Ken Starr and Dan Burton himself, even the
assertion of attorney-client privilege has been eviscerated," said Lanny
Davis, who served as a special counsel to Clinton. "Any assertion by the
White House is [now] challengeable."
Last August, before the terror attacks, the Bush Administration set up
an interagency task force to review a Clinton executive order that
provided for automatic declassification of non-national security
information after a specified waiting period. In soliciting proposed
changes from federal agencies, Bush's clear objective at that time was to
slow down the entire declassification process.
Since September 11, Bush's secrecy initiatives have proliferated. In
October, Bush sent out a memo stipulating limits on what members of
Congress could be told about the "War on Terrorism." In mid-December, the
Administration announced that a new interagency task force will
investigate how to prevent future leaks of classified information.
In addition, for the first time ever, the Secretary of Health and Human
Services has been given the power to classify material. While legitimate
reasons for this exist, especially in light of biological and chemical
weapons threats, it's a tricky matter. Says Aftergood: "It does signal the
beginning of the integration of a domestic agency into the national
Hand in glove with the refusal to release information has been a
seeming enthusiasm for putting out disinformation. For example, the
Administration initially contended that Bush was missing for so long on
September 11 because Air Force One was believed to be a target, as William
Safire was told by a high-level White House official (per his September 13
column). Two weeks later, the White House was forced to admit that this
was never the case. During the presidential campaign, in November 2000,
campaign spokespeople first denied that Cheney had had the heart attack
later confirmed by his doctors. Once in office, the Bush Administration
put out a widely reported story about Clinton staff vandalism of White
House property and operations; for a week the story almost dominated the
news. Three months later, a GAO report revealed that virtually none of it
happened--except that someone left a few pieces of paper with obscenities
on a photocopy machine. Claims made in August to justify the President's
decision restricting stem cell research involved misleading figures about
the number of viable stem cell lines already available. The Administration
was just beginning to take hits for its problems with candor when Al Qaeda
struck on September 11.
"Every worst tendency toward secrecy has come out of the woodwork of
this Administration," says Tom Blanton, executive director of the National
Security Archive. "The mentality is that of the intelligence agent whose
only goal is to protect sources and methods. It is a mentality that does
not understand the value of openness."