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The Bush Secrecy Legacy

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Many Americans assumed that the Bush administration’s peril to their freedom ended when George Bush exited the White House on January 20, 2009. Unfortunately, the precedents the administration established continue to threaten Americans’ rights and liberties. This is stark on government secrecy.

Shortly after the 2000 election, Vice President-elect Richard Cheney convened a task force on energy policy. After he assumed office, he refused to disclose the names of the advisors, even though the task-force report was the basis for energy legislation that would profoundly affect the nation’s economy. Critics argued that the involvement of private companies in crafting legislation made the task force a federal advisory committee.

Thanks to a 1972 law, such committees are required to disclose membership and other information. The Clinton administration ran aground on this reef after a federal judge ruled that the secrecy of Hillary Clinton’s health-care task force violated federal law. While the Clinton task force’s secrecy sparked widespread controversy, no such uproar occurred when the Bush team used the same tactic.

The General Accounting Office, the investigative arm of Congress, initially requested all the energy task-force records, including transcripts of the meetings. After the administration refused to supply any information, GAO sued to get a list of “who attended the energy task force meetings, the process that determined who would be invited, and how much it all cost.”

Bush portrayed the GAO’s action as a threat to the survival of the presidency. He declared, “I am not going to let Congress erode the power of the executive branch. I have a duty to protect the executive branch from legislative encroachment…. Can you imagine having to give up every single transcript of what is advised me or the vice president? Our advice [from others] wouldn’t be good and honest and open.” At the time of Bush’s statement, the GAO had long since dropped its request for transcripts. He was invoking openness for his advisors as a pretext for closing government for everyone else.

The GAO lawsuit was dismissed by a federal judge, John Bates Jr., whom Bush appointed in 2001. Bates ruled that because GAO had not been injured, it had no standing to sue to get the documents. In a 1980 law, Congress explicitly authorized GAO to file such lawsuits, but Bates brushed that technicality aside. The Washington Post noted that the decision “could severely weaken the GAO and leave a president largely immune from aggressive congressional oversight unless the opposition party is in the majority.”

Presumptive privilege

The Bush administration did not escape a similar lawsuit on energy task-force documents filed by the Sierra Club and by Judicial Watch, a law firm renowned for its hounding of the Clinton administration. The White House claimed executive privilege to deny all information demands, seeking to close it to almost any outside oversight. Federal Judge Emmett Sullivan slammed the Bush team: “The implications of the bright-line rule advocated by the government are stunning.” Sullivan warned that accepting this doctrine “would eviscerate the understanding of checks and balances between the three branches of government on which our constitutional order depends.”

The Bush administration informed the court in September 2002 that it would not turn over the documents because they “are all presumptively privileged because they all involve sensitive communications between and among the president and his closest advisers.” However, in an October 2002 court hearing, Justice Department attorneys confessed that they had not reviewed the documents that they claimed all contained sensitive information. Judge Sullivan commanded the Bush administration lawyer, “You have to produce the non-privileged documents and assert the [executive] privilege for those that are. You refuse to assert the privilege and won’t respond to court orders.”

Deputy Assistant Attorney General Shannen Coffin explained that “we’re not going to ask our clients to complete that review because it’s an unconstitutional burden.” This notion of “unconstitutional burden” sounded like it might apply to a princess who did not wish to be compelled to make a ceremonial appearance.

“Unwarranted intrusion”

Rather than comply with Judge Sullivan’s order, the Bush administration trotted off to federal appeals court. Federal appeals Judge Harry Edwards complained to a Justice Department lawyer, “You have no case … you have no authority to bring the case here.” The court refused to countenance the Bush administration’s demand for blanket secrecy.

The Bush team took the case to the Supreme Court. After the Court took the case, Sierra Club attorney David Bookbinder declared, “The American people have already waited far too long to find out exactly how energy industries influenced our national energy policy.” Justice Department spokesman Mark Corallo countered, “The administration’s energy plan is available to th

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    James Bovard serves as policy adviser to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.