Subverting Freedom

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 the public for anyone to review, and the administration has provided 36,000 additional pages of documents relating to its development.” But it is irrelevant how many boxes of documents are dumped on plaintiffs if the key information is withheld. Not a single page of information was disclosed from the Cheney task force.

The Bush administration’s arguments in the Cheney task force case were “strikingly similar” to its arguments for the president’s power to unilaterally label people as enemy combatants and lock them up in perpetuity without a trial, the New York Times noted. In both cases, the administration was “projecting a vision of presidential power in both war and peace as far-reaching as any the court has seen and posing important questions of the constitutional separation of powers.” The administration claimed that the Federal Advisory Committee Act of 1972 is “plainly unconstitutional” in authorizing “unwarranted intrusion” and “extreme interference” with the president’s “core” constitutional duties. Solicitor General Theodore Olson informed the Court, “Congress does not have the power to inhibit, confine or control the process through which the president formulates the legislative measures he proposes or the administrative actions he orders.”

The Bush administration warned that a broad interpretation of the Federal Advisory Committee Act turns the law “into a general warrant to search executive branch groups and committees for contacts with outsiders who might be deemed de facto members.” It was ironic for the Bush administration to complain about a general warrant, since that was its preferred method of dealing with American citizens.

The Bush administration’s overreaching in this case was lampooned by comic Jay Leno, who characterized its view of “separation of powers”: “That means that people who don’t have any power shouldn’t be allowed to find out what the people who do have power are doing.”

On April 27, 2004, when the Supreme Court heard oral arguments in the case, Theodore Olson declared that “the separation of powers issue in this case goes far beyond the assertion of executive privilege. Executive privilege concerns itself with particular documents or a concern over the relationship the particular documents refer to. The objection here is to the process.”

Olson declared that the president should not even have to bother to claim executive privilege in the case, since that “would have required the president and the vice president to spend time with documents.” He also declared that even permitting a private organization to seek White House documents would create “a process that’s invasive to fundamental presidential prerogatives and responsibilities.” He derided private groups’ efforts to learn what White House officials had said or done, declaring that “the discovery itself violates the Constitution.”

Justice Ruth Bader Ginsburg asked, “All discovery?” Olson replied, “Yes.” Olson propounded a doctrine of “constitutional immunity” that made it sound as if the White House deserves the same status that the kings of old enjoyed.

Justice Scalia, in questioning a lawyer for the Sierra Club, propounded a sweeping doctrine that could satisfy even Bush absolutists: “I think executive privilege means whenever the president feels that he is threatened, he can simply refuse to comply with a court order. He has the power … to say, ‘No, this intrudes too much upon my powers. I will not do it.’”

On June 24, 2004, the Supreme Court voted 7 to 2 to remand the case to a federal appeals court for further examination of whether the Energy Task Force fell under the federal advisory law. This ruling was a victory for the Bush administration, since it was pushing Congress full-steam ahead to enact its energy bill before it had to disclose the details on the task force.

In May 2005, a federal appeals court dismissed the case. A unanimous ruling by the eight judges of the U.S. Court of Appeals for the D.C. Circuit declared that the plaintiffs “failed to establish any duty, let alone a clear and indisputable duty, owed to them by the federal government” to disclose the information about the task force.

The Obama team is mimicking some of the worst traits of its predecessor.

Last July, the White House refused to disclose the names of health-care executives who had visited the White House to discuss health-care reform. The administration is also taking an expansive view of “state secrets” which could prevent the American public from learning of federal abuses across the board.

Preserving freedom requires leashing government. The less people learn about government policies, the less control they will have over government action. By preventing people from knowing what government is doing, secrecy unleashes government.

JAMES BOVARD serves as a policy advisor for The Future of Freedom Foundation and is the author of Attention Deficit Democracy, The Bush Betrayal, Terrorism and Tyranny, and other books.


James Bovard is the author of Attention Deficit Democracy, The Bush Betrayal, and Terrorism and Tyranny. His latest book is Last Rights: the Death of American Liberty. Bovard is on the USA Today Board of Contributors. He is on Twitter at @jimbovard. His website is at