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 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 favor 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
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
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 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 Web sites 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
Sept. 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 Center for Constitutional
Rights (CCR), and others, to force the Department of Defense (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
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
"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.
(Inter Press Service)