The Demise of Disclosure

Soon after the Armstrong Williams scandal broke, Melanie Sloan of the Citizens for Responsibility and Ethics in Washington (CREW) fired off Freedom of Information Act (FOIA) requests to 22 federal agencies. Sloan is seeking official evidence of similar arrangements between the executive branch, PR firms and pundits. She faces an uphill challenge, though, as the Bush administration has thrown up a bureaucratic maze to prevent citizens from navigating this path to government transparency.

The Freedom of Information Act, signed into law by President Johnson in 1966, enshrined the public's right of access to federal government records. It has since become the victiom of a government that would rather cloak its operations behind a veil of secrecy.

In their 2004 annual report, the Reporters Committee for Freedom of the Press (RCFP) provide a rundown of actions taken by public officials to turn basic government information into state secrets. RCFP executive director Lucy Dalglish says that many Bush administration actions were designed to undermine the Act. Since September 11, 2001, rollbacks to access have included striking the release of names of terrorism-suspect detainees to library information on bodies of water. The change in attitude can be traced straight to the top, as seen in the policy statement released by Attorney General John Ashcroft in October 2001 that has come to be known as "The Ashcroft Memorandum."

Dalglish writes: "A month and a day after the events of September 11, [Ashcroft] revoked what had been a seemingly permissive Clinton-era Freedom of Information Act instruction to federal agencies. He issued his own: a hard-nosed missive that promised agencies that if there were any 'sound legal basis' for withholding information from FOIA requesters, the Justice Department would support the withholding."

"The memorandum emboldened federal agencies in using exemptions more often and to use other tactics to prevent FOIA requests from being fulfilled," Says James Benton, Legislative Representative for public advocacy group Common Cause. Now some FOIA requests can take up to ten years to be fulfilled Benton says.

Dalglish and her journalist members hoped that the government's post-September 11 move toward non-disclosure would be viewed as temporary or emergency measures: "Unfortunately, that has not been the case. Led by secrecy-loving officials in the executive branch, secrecy in the United States government is now the norm."

Document classification has nearly doubled in Bush's first term, Information Security Oversight Office Director William Leonard told the Progressive Review. "Based upon information furnished our office, the total number of classification decisions increased from 9 million in FY 2001 to 11 million in FY 2002, 14 million in FY 2003 and 16 million in FY 2004."

Recently, there have been some encouraging signs that FOIA might get back some teeth. On Feb. 16, Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.) introduced the OPEN Government Act to force agencies to pay legal costs in more cases when faced with a lawsuit over improperly withheld records. The bill would also put in place other measures to hold agencies more accountable for fulfilling public FOIA requests.

"[The Act] is one way to undo some of the damage caused by the 'Ashcroft Memorandum'" Benton says. More public support of Cornyn and Leahy's legislation could push it through.

Another public avenue to disclosure, the "special prosecutor," no longer exists. Once a potent tool to police White House abuse, the special prosecutor law appointed an independent counsel to investigate allegations of wrongdoings by the executive branch. Unfortunately in 1999, Congress let this law expire.

The special prosecutor was created in 1978, when Congress passed the "independent-counsel statute" as a response to Richard Nixon's October 1973 firing of Watergate special prosecutor Archibald Cox and the consequent fear that the executive branch would be able to stymie investigations of high-level officials. The purpose of the law was to guarantee that judges would be given authority to appoint prosecutors who would then be unencumbered in investigating serious allegations of executive-branch wrongdoing.

This process seemed judicious enough until the prosecutor's mantle landed in the hands of conservative barrister Kenneth Starr. In 1994, Starr accepted the appointment as special prosecutor in 1994 despite having publicly disparaged the law that enshrined his autonomy. Undaunted, Starr took up his prosecutorial authority with disproportionate zeal -- so much so that his controversial actions as special prosecutor did much to ensure the law's ultimate demise. He was appointed to investigate a questionable Arkansas land deal (Whitewater) involving the Bill and Hillary Clinton. He expanded his investigation to include conspiracies surrounding the death of White House lawyer Vincent Foster, the White House travel office and the FBI files affair. Starr then issued a subpoena to an as yet unknown White House intern. Upon the arrival of Monica Lewinsky, an investigation, which until then captured little public interest, went global.

Starr's grand overreach as special prosecutor helped ensure the ruin of the independent-counsel statute itself. In 1999, following Starr's excessive investigation and the Clinton impeachment, Congress decided not to renew the statute. Authority over the appointment of an independent counsel was returned to the confines of the Executive Branch. Patrick J. Fitzgerald, the independent prosecutor tasked with investigating White House leaks of Valerie Plame's CIA identity, was appointed by the Justice Department. It's newly appointed chief, Attorney General Alberto Gonzales, reports directly to President Bush. Any "independent" investigation of the White House's use of propaganda would be subject to this same chain of command.

1. Introduction: Ghosts in the Media Machine
2. A Propaganda Slush Fund Courtesy of U.S. Taxpayers
3. Jeff Gannon's White House Maneuver
4. Armstrong Williams and the White House Payola Trail
5. Propagandists on the Pentagon Payroll