Nemesis: The Last Days of the American Republic

From the start the FOIA exempted from requests for disclosure the federal courts, the Congress (a big mistake), and parts of the Executive Office of the President that function solely to advise and assist the president. It also excluded all classified documents and nine types of information—including national security information, confidential business information, matters of personal privacy, deliberations and decisions of federal financial institutions, geological information (concerning mining and oil rights), and certain law enforcement records. The new law did not work very well. Many agencies simply failed to respond to FOIA requests and others dragged their bureaucratic feet interminably. In 1974, in the wake of revelations that President Nixon had illegally used the CIA, the FBI, and the military to spy on the American people, Congress strengthened the act considerably. Nixon had even ordered his secret gang of personal thugs—”the plumbers”—to break into the office of the psychiatrist of former Defense Department official Daniel Ellsberg seeking material with which the White House could blackmail him.⁶

In an attempt to force the executive branch to comply with the law, the 1974 reforms required agencies to organize their archives in a standard manner and hold them available for public scrutiny regardless of whether or not a citizen ever asked. This ended the common practice of agencies claiming that they could not provide information requested because their archives were not adequately organized to do so. Donald Rumsfeld, then President Gerald Ford’s chief of staff, and Dick Cheney, Rumsfeld’s deputy, urged him to veto the act as “unworkable and unconstitutional.” Ford did as he was told, but Congress promptly overrode the veto.⁷

These amendments led to a great deal of litigation in court, making the FOIA a far more formidable oversight instrument. In June 1995, while in Tokyo, I had a conversation about the FOIA with former vice president Walter Mondale, then ambassador to Japan. As a senator, he had been deeply involved in the new law’s passage. The law, he assured me, would never have worked without the power of an applicant to go to court and force the government to comply. For example, virtually all the information now publicly available on prisoner abuse, torture, and other criminal acts by military men and women and CIA operatives at Abu Ghraib, Guantanamo Bay, Bagram Air Base, and elsewhere came via FOIA requests, first denied by government agencies and only fulfilled as a result of a court order.⁸

The FOIA now depends almost totally on the courts for its viability, as Bush administration officials have done their best to envelop the act in a new web of secrecy and nondisclosure. The San Francisco Chronicle’s Ruth Rosen, in one of her columns, caught the crucial moment when this occurred, itself obscured by official secrecy, “The president didn’t ask the networks for television time. The attorney general didn’t hold a press conference. The media didn’t report any dramatic change in governmental policy. As a result, most Americans had no idea that one of their most precious freedoms disappeared on October 12 [2001].”⁹ On that day Attorney General John Ashcroft sent a memo to all federal agencies urging them to bring every excuse they could think of to bear in turning down Freedom of Information requests. He offered agency heads backing on this stance: “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis.” In marked contrast, his predecessor, Janet Reno, had advised all departments and agencies that they should honor FOIA requests so long as doing so caused “no foreseeable harm.”¹⁰

The Bush administration subverted the FOIA in ways large and small. For instance, charges were raised to excessive levels for fulfilling FOIA requests even though the law stipulates that service fees should be minimal. In January 2005, the Justice Department typically informed People for the American Way, a watchdog organization critical of the government’s record on civil rights and other issues, that it would be charged $372,999 for a search of the department’s files and disclosure of 1,200 cases in which court proceedings against immigrants arrested and confined after 9/11 were conducted in secret.¹¹ Needless to say, small grassroots organizations cannot afford such expenses.

Three weeks after Ashcroft tried to shut down FOIA, President Bush made a tone-setting decision when it came to closing off the people’s right to know. Back in 1974, at the height of the Watergate scandal, Congress seized President Nixon’s records and tape recordings because it feared that the former president planned to destroy them. (On May 2, 1972, following the death of the longtime director of the FBI, J. Edgar Hoover, his personal secretary and lover, Clyde A. Tolson, had indeed destroyed decades of official and unofficial FBI records to keep Hoover’s many illegal acts secret.) In light of these developments, in 1978, Congress passed the Presidential Records Act, making the papers of a former president federal property upon his leaving office. It required that such records be transferred to the Archivist of the United States, who was ordered to open them to the public after no more than twelve years. The intent of the law was to lessen abuses of power under the veil of secrecy, or at least to disclose them in history books.

On November 1, 2001, just as a small portion of the Reagan administration’s presidential papers was about to be opened to the public, President Bush issued Executive Order 13233 countermanding the Presidential Records Act.¹² It gave him (as well as former presidents) the right to veto requests to see his presidential records. Even if a former president wants his records released—as is the case with Bill Clinton—the order states that access will be granted only at the discretion of the sitting president in consultation with the former president, if still living. It has been widely speculated that Bush’s intent was to protect his father, a former director of the CIA and Reagan’s vice president, from being implicated in the crimes committed during the Iran-Contra affair by Reagan administration officials. Throughout the Iran-Contra investigation, George H. W. Bush argued that he had been “out of the loop” and therefore not involved in the complex illegal fund-raising for and support of the Nicaraguan Contras, who were trying to overthrow the Sandinista government. Reagan’s records might have revealed just how far out of the loop he actually was.

As Thomas Blanton, executive director of the National Security Archive at George Washington University, observes, “The Presidential Records Act was designed to shift power over presidential records to the government and ultimately to the citizens. This [Executive Order] shifts the power back.”¹³ Historian Richard Reeves, author of President Nixon: Alone in the White House and President Kennedy: Profile of Power, comments, “Post-Nixon, presidential papers were no longer personal property. They belonged to the American people. So, now we live in a new historical reality.”¹⁴ The American Historical Association contends that Executive Order 13233 not only violated the 1978 act but functionally canceled the law by executive fiat and so “potentially threatens to undermine one of the very foundations of our nation.” We still await a Supreme Court decision on whether the president can, through an executive order, or what is called a “signing statement,” suspend or modify a law passed by Congress. So far, Bush has gotten away with it many times, and his two 2006 appointees to the court, John Roberts and Samuel Alito, are both believers in the “theory” of “unitary executive power.”

Perhaps the most serious failure of the Supreme Court in this period was its refusal even to consider whether the Bush administration had the legal standing to round up well over a thousand foreigners in the United States in the wake of 9/11 and keep all details of their cases secret, including their names and the charges, if any, against them. We do not know whether these people were illegal aliens, visitors with tourist visas, permanent residents with Green Cards, or naturalized Americans. They were simply seized, incarcerated mostly in New York prisons, beaten by guards, and, after a lengthy time in jail, deported, usually for the most minor of offenses. Kate Martin of the Center for National Security Studies, comments, “We have a situation where the government arrested more than a thousand people in secret, and the courts let them get away with it. There is no accountability for the abuses, and secrecy allowed the abuses.”¹⁵ Not one of those arrested turned out to have the slightest connection to the 9/11 attacks.

The costs of such executive megalomania are high. As federal appellate judge Damon Keith wrote in his 2003