COLUMN | December 10, 2001
ERIC ALTERMAN -- The Nation
Now that we know that Al Gore not only beat George Bush by roughly 537,000
votes nationally, but also handily defeated him among legally cast votes
in Florida, I suppose we can expect accelerated efforts on the part of
the President to try to counter his proven political illegitimacy. This
is actually a pretty frightening notion. Well before we received the much-misreported
results of the Florida recount, the Administration gave every indication
of being so addicted to secrecy that it would happily stretch the bounds
of democratic accountability beyond their breaking point.
This tendency was evident even pre-9/11--for instance, when Dick Cheney
refused repeated Congressional demands that he identify the lobbyists crafting
the Administration's multibillion-dollar giveaway to the oil and gas industry.
(Oddly, the journalistic holy warriors who demanded that Hillary Clinton
do just that during the crafting of her ill-fated healthcare plan have
remained remarkably understanding this time around.) Osama bin Laden's
terrorism has now given Bush & Co. an excuse to try to close off virtually
every possible avenue of inquiry from those who seek to question their
policies.
Among the highlights so far are: a decision to jail more than 1,000
people, without charge and without explanation; an executive order allowing
secret military tribunals for immigrants accused of involvement in the
still-undefined crime of terrorism; an attempt by John Ashcroft to emasculate
the Freedom of Information Act; and an order to clamp down on information
available from military contractors, from government websites and even
information given to Congress.
While some new security measures are obviously necessary, the Bush
people's zeal to shut down the free flow of information goes well beyond
any legitimate need. Consider November's Executive Order 13233, which eviscerates
the nation's access to its own history, effectively overturning the Presidential
Records Act (PRA) of 1978 by fiat.
Current law insists that all presidential papers be declassified within
twelve years, with an exception made for those whose publication could
demonstrably affect our national security. Bush now wants to allow Presidents
to refuse to declassify the decision-making process virtually forever.
And he wants to do this regardless of whether the ex-President in question
wants his papers released. This is a catastrophe not only for historians
but also for history. The secrecy it enshrines can only invite future Watergate-
or Iran/contra-style abuses.
The obvious target of the new law is the Reagan papers. For the past
nine months, Reagan's people have refused--with the Bush Administration's
backing--to release more than 68,000 pages they owe the nation under the
1978 law. The Bush Administration is filled with Reagan-era retreads whose
questionable actions might leave them vulnerable to criticism and/or ridicule.
Among these are Elliott Abrams, John Negroponte, Otto Reich as well as
Colin Powell, budget director Mitch Daniels Jr. and Chief of Staff Andrew
Card. And then there's the matter of Reagan's Vice President, who, like
Abrams et al., lied about his awareness of the commission of Iran/contra
crimes.
The outrageousness of Bush's action is matched only by the blithe indifference
with which he apparently expects to carry it off. He claims that his executive
order insures "a process that I think will enable historians to do their
job." Call me a cynic, but this looks like yet another situation where
the guy can't possibly be as clueless as he pretends.
As Scott Nelson of Public Citizen recently testified, the new order
gives any sitting President unregulated power to prevent the US Archivist
from releasing any materials to the public simply by making a claim of
privilege, however indefensible. It reverses the burden of proof by putting
it on the historian and demands that "a party seeking to overcome the constitutionally
based privileges that apply to Presidential records must establish at least
a 'demonstrated, specific need' for particular records, a standard that
turns on the nature of the proceeding and the importance of the information
to that proceeding."
The Bush order also demands that the Archivist alert both the former
President and the incumbent President of requests for access to presidential
records subject to the PRA and provide them with copies of the relevant
records upon their request. They can then review these documents, with
the de facto ability to hold up their release indefinitely, even if the
incumbent President disagrees. Steven Aftergood of the Federation of American
Scientists points out that the new order creates a brand-new category of
executive privilege, one belonging to a Vice President or family member
of a deceased President. It will therefore allow W to protect HW's papers
long after Poppy joins Grandpa Prescott in that Grand Old Connecticut Prep
School in the Sky.
Keep in mind that Bush is professing to issue all these restrictions
on the basis of current law. As Democrats Henry Waxman and Jan Schakowsky
note in a letter to the President, this assertion could hardly be more
disingenuous. The Bush order, they argue, "tries to rewrite the Act by
withholding records that are a part of the deliberative process." With
zero legislative basis, they complain, it wrests authority for the disposition
of the papers from the Archivist to the sitting President and misuses the
provisions of the Freedom of Information Act, deliberately undermining
its intentions.
I happened be in Independence, Missouri, when the order was issued,
doing research at the Truman Library for my dissertation and my next book,
on the consequences of presidential deception. The staff was knowledgeable
and professional, entirely disinterested in the nature of my prospective
arguments. Reading the actual telegrams and memos that document the outbreak
of the cold war added immeasurably to my understanding of the challenges
our leaders then faced. If George W. Bush has his way, such research and
the truths that emerge from it will themselves become part of history--and
with them, a small piece of our freedom.
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