The Bush administration decided early on that governing had a lot in common with the making of sausages - the less people knew about the process the better. They knew they would take heat, but they calculated that the heat would be short term and the gains long term. And, they were right - at least about the heat.
What began with Vice President Dick Cheney's refusal 15 months ago to make his energy task force documents public expanded quickly to include policy making at virtually every level of government. And, after September 11, the blanket of secrecy - which had until then only covered the brass breasts of the DOJ's Lady Justice statue - darkened some of America's most valued
Executive privilege and wartime prerogatives have been used to justify what has become the most sweeping attack on open government and basic legal rights in modern times.
We are beginning to see the first signs of institutional push back. A federal appeals court ruled yesterday that the press and public must be allowed to witness immigration hearings for suspects detained in the September 11 investigation. The court took the opportunity of its ruling to also rebuke the Bush administration for its sweeping policy of maximum secrecy in the war on terrorism.
After the terrorist attacks the DOJ almost immediately dropped the curtain on information regarding alien deportations. Dubbed "the Creppy memo," chief immigration judge Michael J. Creppy wrote a memo on September 21, 2001, stating that the Justice Department considers allimmigration hearings involving terror suspects off-limits to the press and public, including the detainee's family.
Yesterday the court reminded the administration that the 9/11 attacks did not repeal the Bill Rights.
"The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door," Senior Judge Damon J. Keith wrote. "Democracy dies behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings."
It was the second time a federal court had stood up to the administration on secrecy. In May a special federal court that deals with intelligence cases ruled that the administration had overstepped its authority in the wake of 9/11 in seeking wiretaps and other extraordinary intrusions into citizen's private lives.
But, the administration's strategy remains unshaken. Attorney General Aschroft reacted angrily to the court's decision making it clear the administration will continue on its current path.
"The Justice Department disagrees with the Court's conclusion that the Department's guidelines for determining which proceedings should be closed are too broad," said Barbara Comstock, a spokeswoman for Attorney General John D. Ashcroft.
"The Justice Department has an obligation to exercise all available options to disrupt and prevent terrorism within the bounds of the Constitution and will review today's opinion in light of our duty to protect the American people."
The administration's strategy that any heat they may take on secrecy and closed government will fade had proven true, so far at least. While special interest groups remain up in arms over issues like the withholding of Cheney's energy task force documents and secret immigration court hearings, the press and public at large have shown only passing concern.
Buoyed by their success the Bush administration continues to expand its sphere of secrecy. This week the battleground was an unlikely, but possibly telling one - Bill Clinton's presidential pardons. Public interest groups and the press have pushed for access to files that might shed some light on some of Clinton's more controversial pardons - particularly that of fugitive financier Mark Rich. But, the Bush administration has gone to court to block access to those files.
In pleadings filed in U.S. District Court White House counsel Alberto R. Gonzales claims the materials are protected by executive privilege and that that privilege covers not only advice given to a president about individual pardons, but also government papers he has never seen and officials he has never talked to, such as the sentencing judge in a particular case. In other words...everything.
"It's a bad-faith argument," Judicial Watch President Tom Fitton said of the government's position. "The courts have already said that executive privilege does not exist outside the White House. The Bush administration is now covering up for Bill Clinton."
It is doubtful that "covering up for Bill Clinton" is high on the Bush administration's agenda. Instead their position on pardon secrecy is in line with the administration's overall strategy of shutting down as much public access as possible to the processes of executive branch governance and oversight.
Besides consistency the administration's position on pardon secrecy raises the specter of a Banana Republic pardon system that allows administration cronies and functionaries to escape punishment for crimes committed during that administration's tenure in office. With press access to pardon documents shut off, there would be no independent review possible.
"This goes beyond politics," said Michael Lux, President of American Family Voices. "Withholding the energy task force documents was indefensible but since 9/11 the administration has used the war on terrorism as a one-size-fits-all excuse for shutting the door on public scrutiny. And, anyone who pushes really hard and stands up for what we know are our established constitutional rights are painted as somehow unpatriotic. It's really eerily Orwellian."
The administration's penchant for secrecy has upset many on both the left and right. Judicial Watch, which has sued Cheney over his energy documents as well as for his tenure as CEO of Halliburton, is the same group that doggedly pursued Bill Clinton through the courts in the Paula Jones - dare we say - affair.
"The question people need to start asking themselves is - if America is at war what are we fighting for?" says Lux. "I assume we are fighting to preserve our values and way of life. At the core of that way of life is the US Constitution and the Bill of Rights. If in the process of winning the war, we lose those rights, what have we accomplished?"
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