"There is going to be so much to hide"

In celebration of the House's recent action, passing 3 open-government bills, during "Sunshine Week"; I thought it would be interesting to see how things were being reported at the start of George Bush's attack on open records laws. Mere weeks after 9/11 the president used the specter of the terrorist threat to push through an executive order sealing presidential records and radically curtailing freedom of information requests. It's amazing to read this Washington Post article and realize that it foreshadowed so many of the scandals that would plague the president in the following 5 years:

Bush Clamping Down On Presidential Papers
Incumbent Could Lock Up Predecessor's Records

Thursday, November 1, 2001

The Bush White House has drafted an executive order that would usher in a new era of secrecy for presidential records and allow an incumbent president to withhold a former president's papers even if the former president wanted to make them public.

The five-page draft would also require members of the public seeking particular documents to show "at least a 'demonstrated, specific need' " for them before they would be considered for release.

Historians and others who have seen the proposed order called it unprecedented and said it would turn the 1978 Presidential Records Act on its head by allowing such materials to be kept secret "in perpetuity."

This may be the first record of the president signing an executive order for an unprecedented restriction on our rights. FOIA is inverted, the default position was that records would be open unless the government showed a specific need to classify them. Now classification is the default position.

Other critics voiced concern about the impact of the order "in the post-September 11 world," with its wartime atmosphere.

"The executive branch is moving heavily into the nether world of dirty tricks, very likely including directed assassinations overseas and other violations of American norms and the U.N. charter," said Vanderbilt University historian Hugh Graham. "There is going to be so much to hide."

Remember this is 2001: Americans still think that torture is a barbaric act done by evil people, habeas corpus is still a central element of our legal system, people who argue in defense of internment are considered racists, and Iraq is not on the minds of anyone other than the president and his cabinet.

Bush is expected to sign the order shortly. A White House aide said the Supreme Court held in 1977 that former presidents can continue to assert various privileges for their records and the order will simply establish "a procedure by which they can protect their rights." The aide said "great deference" will be paid to their wishes.

The government now works to protect the powerful. The presumption that our leaders are accountable to us is no longer in effect.

The proposed order, dated Oct. 29, grew out of a decision by the Bush administration early this year to block the release of 68,000 pages of confidential communications between President Ronald Reagan and his advisers that officials at the National Archives, including the Reagan library, had wanted to make public.

Proving that this law had nothing to do with national security, and that even the wishes of a Republican hero were unimportant. George Bush is the sole decider.

Relying on an obscure executive order that Reagan issued just before leaving office, White House counsel Alberto R. Gonzales prescribed a series of delays so that Bush could decide whether to invoke "a constitutionally based privilege or take other appropriate action."

Obscure executive orders, Alberto Gonzales devising delaying tactics, and the idea of presidential privilege all wrapped up in a single sentence.

The papers in question, some dealing with Reagan-era officials who now have high posts in the Bush administration, were to have been disclosed last January under the 1978 law, which said that the documents could be restricted at the most for 12 years after Reagan left office.

Hmmm, a conflict of interest here. Certainly, the president wouldn't pass such an act simply to avoid a little embarrassment. The man's at over 80% in the polls!

The new executive order would replace the 1989 Reagan decree and cover not only confidential communications between a president and his advisers but, as Graham put it, "almost anything in the White House files."

How did that "almost" get in there. Better call Alberto back.

For 12-year-old documents that are not covered by "constitutionally based privileges" but are subject to requests under the Freedom of Information Act, the order states that the archivist "must withhold" them if possible.

Must withhold anything despite the fact that FOIA declares these records are open and shall be made available to the public upon request - these are unclassified documents being discussed here.

For records that might be privileged as state secrets, confidential communications, attorney-client communications, or "deliberative process" materials, a requester must establish "specific need" for them "as a threshold matter."

There are the classified documents. I wonder if we could retroactively classify documents that are already public?

A former president would then review them and tell the archivist whether they should be withheld or made public. The incumbent president or a designee would then look at them to see if he or she agrees with the ex-president's decision. Unless both agree they should be made public, the records will remain secret unless "a final court order" should require disclosure.