Hiding Behind National Security   

The Bush administration’s secrecy measures go too far.

Security" and "secrecy" aren't synonyms, but the Bush administration is acting as if they were.

Ever since September 11, "national security" has been the catchphrase to justify unprecedented secrecy in the federal executive branch, whether or not it has anything to do with conducting successful military operations or thwarting terrorist attacks.

On October 12, Attorney General John Ashcroft issued a new memorandum outlining the administration's policy on Freedom of Information. It replaces Janet Reno's 1993 directive issued during the Clinton presidency, which encouraged agencies to make "discretionary disclosures" of records whenever possible. Even if a legal case theoretically could be made that an agency had authority to withhold a document, the Reno Justice Department's practice was to refuse to defend that agency unless the information would cause harm to someone other than a government bureaucrat.

Ashcroft's memo doesn't merely supersede the Reno memo, it obliterates it.

Despite paying lip service to the ideals of an informed citizenry and government accountability, Ashcroft's approach to FOIA ensures that both will be greatly reduced in the name of "safeguarding our national security," enhancing law enforcement's effectiveness and, ironically, "preserving personal privacy."

If you keep reading, it becomes plain whose privacy Ashcroft has in mind, and it isn't Joe Six-Pack's. Ashcroft focuses on Exemption 5, which permits agencies to refuse to disclose working papers, documents used in the deliberative process that reveal a lot about how decisions are made. Ashcroft writes that disclosure of these kinds of documents should be made only after full consideration of "the institutional, commercial, and personal privacy interests" at stake. And, he promises, agencies can be confident that the Justice Department will defend decisions to withhold records "unless they lack a sound legal basis." Even the most obtuse government-records custodian couldn't mistake the message:

When in doubt, don't give it out. Instead of upholding the presumption of disclosure that is indispensable to FOIA, Ashcroft's memo guts it, ensuring that decision makers can do their work without fearing public scrutiny of the process.

Meanwhile, over at the White House, someone was busy drafting a new executive order to modify the Presidential Records Act of 1978. That's the statute passed after the scandals of Watergate, requiring that most presidential communications be released 12 years after a president leaves office.

The first papers that should have been released in January 2001 were some 68,000 documents from Ronald Reagan's presidency. But President Bush has balked at the notion of making public communications between Reagan and his then-advisers, many of whom now populate the current administration, even though both the National Archives and the Reagan Library supported the release.

Bush's executive order allows a president to order the Archives to withhold his predecessor's records. The reverse is also true--a former president may direct that his records be kept secret. Only a court can compel release, which means someone would have to undertake a lawsuit to gain access to records that were supposed to be made available automatically to the public.

Let's stipulate that a few presidential papers may contain information that, if disclosed, could cause harm to national security. But those documents, assuming they are properly classified, are already exempt from release. What the Bush order will do is allow a president to withhold records that are embarrassing or that expose misconduct.

And in yet another manifestation of the secrecy syndrome, the president's

Commission to Strengthen Social Security split itself into two working groups in August apparently as a ruse to circumvent requirements that when a quorum of the members meets, it must do so in public. Despite criticism, they met in secret again in November, a week after Bush issued his executive order.

Maybe they can justify it in the name of protecting "security" of a different kind.

It's clear that a new era of secrecy has taken hold in Washington, and that the Bush administration has moved swiftly to capitalize on concerns about national security as a pretext. In light of the unprecedented powers Congress has granted to law enforcement to conduct surveillance through the USA Patriot Act, Ashcroft's asserted goal of protecting individuals' privacy doesn't seem to be a high priority for the Bush administration. But there's no doubt that these new initiatives will ensure that the "privacy" of officials, at least, will be safe.