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POLITICS-US
Bush’s Budget Sidelines Transparency
By William Fisher
NEW YORK, Feb 16, 2008 (IPS) - President George W. Bush’s critics are charging that he is attempting to use a
"backdoor signing statement" to thwart Congress’ desire to lift the veil of
secrecy that has shrouded the U.S. Government for the past seven years.
In August 2007, Congress passed the Open Government Act. The measure
established a new Office of Government Information within the National
Archives and Records Administration (NARA), an independent Federal agency
charged with preserving and documenting government and historical records
and increasing public access to those documents. The new office was to be
headed by an ombudsman to oversee disputes over the Freedom of
Information Act (FOIA), avoid unnecessary litigation, and monitor the way the
Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he
submitted his 3.1 trillion dollar budget proposal to Congress, no funds were
included for the new program. Instead, the funding was hidden deep within
the budget appendix under the Department of Commerce - on page 239 of
the 1,314-page document - and shifted the new office to Department of
Justice (DOJ) jurisdiction.
"Such a move is not only contrary to the express intent of the Congress, but it
is also contrary to the very purpose of this legislation - to ensure the timely
and fair resolution of Americans’ FOIA requests," said Vermont Democratic
Sen. Patrick Leahy, the Chairman of the Senate Judiciary Committee and one
of the original cosponsors of the Open Government Act.
The reason: The DOJ is the department charged with defending government
agencies accused of inappropriately withholding documents requested under
the FOIA. This gives it a bias in favour of federal agencies, making it both
judge and jury.
"The president is definitely using his budget proposal to try and relocate the
FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements
in that it is the president's attempt to alter implementation of a law as it was
laid out by Congress," according to Sean Moulton, Director of Federal
Information Policy for OMB [Office of Management and Budget] Watch, a not-
for-profit government watchdog group.
Leahy noted DOJ's "abysmal record on FOIA compliance" over the past seven
years as another reason the agency makes a poor choice for the location of
OGIS.
The FOIA was signed into law by President Lyndon B. Johnson in 1966 to allow
for the full or partial disclosure of previously unreleased information and
documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ
would defend in court any federal agency that withheld information on
justifiable grounds. Previously, the standard was that the presumption was
for disclosure. The new law was aimed at restoring that presumption.
Throughout his administration, Bush has used so-called "signing
statements," rather than the budget, to modify acts of Congress he finds
objectionable. Perhaps the best known of these was issued after he signed
the so-called McCain Amendment to the Detainee Treatment Act of 2005.
The Act was intended to prohibit inhumane treatment of prisoners, including
prisoners at Guantanamo Bay; and required military interrogations to be
performed according to the Code of Military Justice. After signing the law,
Bush issued a signing statement saying he would interpret it "in a manner
consistent with the constitutional authority of the President to supervise the
unitary executive branch."
Such statements have become a hallmark of the Bush Administration. From
the inception of the Republic until 2000, presidents produced fewer than 600
signing statements. Since 2001, Bush has objected on constitutional grounds
to sections of more than 750 laws.
Critics of the Bush Administration say they are not surprised at the
president’s use of the budget to thwart the will of Congress. They see the
tactic as part of a pattern of restricting access to information. They cite the
growth of public requests for information under the FOIA over the last six
years. The total number of FOIA requests received in 2006 was 21,412,736,
substantially more than in 2005.
Backlogs in processing requests remain significant, according to an audit
conducted in January 2007 by the National Security Archive (NSA), an
independent non-governmental research institute and library located at The
George Washington University which collects and publishes declassified
documents obtained through FOIA. One FOIA request has now been pending
for more than 20 years, according to the NSA. The statutory response time is
20 business days.
The Bush Administration has refused to release information on a wide range
of subjects, including the secret meetings of Vice President Dick Cheney’s
energy policy task force. It has ordered federal websites to remove
information that the Administration believed could be sensitive. It issued a
controversial memo limiting access to records under the Presidential Records
Act in November 2001, which allowed former Presidents and Vice-Presidents
to prevent access to records. It also refused to disclose the names of those
arrested after the attacks of Sep. 11, 2001.
Many of those denied access to information have sued the government.
Among the most widely publicized was the suit brought by a group of
advocacy organizations including the American Civil Liberties Union (ACLU),
the Centre for Constitutional Rights (CCR), and others, to force the
Department of Defence (DOD) to turn over documents relating to the harsh
interrogation methods used against detainees in Guantanamo Bay, Cuba. The
suit yielded hundreds of thousands of documents, including reports by
agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
Advocates of transparent governance express varying levels of confidence in
the proposed new Ombudsman’s importance. Steven Aftergood, head of the
Government Secrecy Project for the Federation of American Scientists, told IPS
he doesn’t have "high expectations of the ombudsman's office, regardless of
where it is located." He asked, "Is an official from the National Archives really
going to intervene on my behalf when the CIA stubbornly refuses to process
one of my requests? Would it make a difference if he or she did? I tend to
doubt it."
OMB Watch’s Moulton takes a different view. He told IPS, "I firmly believe
Congress got it right when they assigned the job to the National Archives,
which has better objectivity on FOIA disputes and greater experience in
managing the disclosure of documents. Justice's traditional position of
defending agencies against FOIA lawsuits, means a bias to side with agencies
in disputes likely exists."
"The office's direct clout with agencies will derive from the level of support
the administration provides. This will be tied directly to how high a priority
the next administration places on disclosure and transparency," he added.
But, both agree, "it is important that the law be implemented as written. Any
effort by the Administration to deviate from the terms of a statute should be
opposed, no matter how trivial it might be, because the law is the law."
Both also point out that the president’s budget action "is not a done deal."
"Congress can appropriate funds for the ombudsman to be expended solely
at the Archives, and can prohibit their use by Justice," Aftergood says.
Moulton agrees. "Congress can, and in many ways always does, deviate from
the President's proposed budget. The question is whether Congress will
allocate money to the National Archives for the office even though the
President didn't request it," he told IPS.
(END)
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