Four weeks after terrorists attacked New York City and Washington, U.S. Attorney General John Ashcroft fired off a memo to federal agencies that set the tone for how the Bush administration now would honor the Freedom of Information Act (FOIA). The memorandum created a level of secrecy unsurpassed since FOIA became law in 1966.
The Oct. 12, 2001, directive instructed federal agencies to stall on releasing documents until a "full and deliberate consideration" of the implications of the disclosure of any such information was conducted. It superseded former attorney general Janet Reno's 1993 FOIA policy that put the burden on the federal agencies to justify any withholding of "FOIAed" documents.
"It's an indication to agencies to be more aggressive in denying FOIA requests and not be concerned about going to court," says American University Washington College of Law Professor Robert Vaughn. "It's not a very cost-effective policy" he says, although often requesters drop the issue if they are forced to fight in court.
The Ashcroft memo was only the beginning. In November, President George W. Bush signed Executive Order 13233 (EO13233), "Further Implementation of the Presidential Records Act" to restrict access to historical presidential papers. He even considered secret tribunals for terrorists but backed away under sharp criticism. "The Bush administration is mounting the most sustained assault on open government since the early Reagan administration or perhaps even since President Gerald Ford vetoed the FOIA amendments in 1974" argues Tom Blanton, director of the nonpartisan National Security Archives at George Washington University.
The FBI even has begun making visits to reporters. It subpoenaed Associated Press reporter John Sullivan's notes concerning a criminal case and recently visited INSIGHT, warning that if certain FOIAed records were released to this magazine someone might break into a reporter's home and steal the documents.
Intimidation? Perhaps. But more likely the Bush administration simply is testing the waters, something most administrations have done in their first months, says Jim Wilson, chief counsel for the House Government Reform Committee. "There is a desire for fewer documents out of the door because they are with-holding on principle" to protect the executive decision-making process, says Wilson. "This is not well-founded in law. It's hard to roll back the clock to before the 1920 Teapot Dome scandal."
With Bush enjoying a 75 percent approval rating, and a weary public nursing an intense suspicion of the media, few objected when the president ordered government libraries to destroy records concerning dams and water reservoirs or instructed federal agencies to scrub Websites of sensitive data -- including those of 10 nuclear facilities with weapons-grade plutonium and highly enriched uranium. Never mind that many of those records easily could have been downloaded by terrorists at any time during the last decade -- and, in some cases, still can be found through Google and other Internet search engines.
Eight months later, media complaints are at last being heard. "It's like the burning of books" says Michael Ravnitzky, a reporter with American Lawyer Media who has requested thousands of records. "It leaves a bad taste in people's mouths."
White House spokesman Ari Fleischer has responded to press complaints about the growing secrecy by saying that the media are not on the same page as the public. "The press is asking a lot of questions that I suspect the American people would prefer not to be asked or answered" he said.
While that may be true, the Bush team is taking a hard hit in this fight as it finds itself embroiled in lawsuits from the left and the right. Larry Klayman, chairman of the conservative watchdog group Judicial Watch, has filed three lawsuits to obtain energy records. The liberal Natural Resources Defense Council sued the Energy Department to expose details of Vice President Dick Cheney's Energy Task Force. …