Bush and Ashcroft: A Pattern of Stonewalling (or Secrecy)

By Gary D. Bass, Executive Director, OMB Watch
Op-ed distributed through Knight-Ridder/Tribune News Service's op-ed series on freedom of information
As Congress investigates U.S. abuse and torture of prisoners in Iraq, a 50-page Justice Department memo has surfaced that says torture "may be justified" and legal. Along with this shocking news is Attorney General John Ashcroft's disturbing refusal to release it to Congress. Yet this is only the latest instance in a three-year pattern of stonewalling and withholding of information -- business as usual for the Bush administration -- where the lack of public disclosure does serious harm to public safety and trust in our government. The August 2002 memo, written for the CIA and addressed to White House Counsel Alberto Gonzales and leaked to two newspapers, argues that "necessity and self-defense could provide justifications that would eliminate any criminal liability" for torturing suspected al Qaeda prisoners, and that international law against torture "may be unconstitutional." In March 2003, Pentagon lawyers used that same memo to reach a similar conclusion regarding interrogation rules at the detention center at Guantanamo Bay, Cuba.

Taken together, their impact is to define torture much more narrowly than Army field manuals do, permitting and justifying interrogation techniques previously prohibited. President Bush has not answered whether he thinks torture is ever justified. Instead he said, on June 10, "The instructions went out to our people to adhere to the law. That ought to comfort you." But it doesn't comfort us, not when Justice Department lawyers worked so hard to make torture legal.

When Ashcroft testified on June 8 before angry senators on the Judiciary Committee, Senator Richard Durbin asked him on what basis of law he is withholding the memo and others that may exist -- executive privilege or a statutory provision. Ashcroft responded, "I am refusing to disclose these memos because I believe it is essential to the operation of the executive branch that the president have the opportunity to get information from his attorney general that is confidential..."

Durbin followed up, "With all due respect, your personal belief is not a law, and you are not citing a law and you are not claiming executive privilege. And, frankly, that is what contempt of Congress is all about." In response to other questions, Ashcroft added, "Some of these memos may be classified in some ways for some purposes." Durbin countered, "That is a complete evasion," knowing that many senators have security clearance to view classified information.

Over and over this administration has disregarded openness, a hallmark of this "grand experiment we call democracy." Even after repeated court decisions to disclose information, Vice President Cheney has steadfastly refused to reveal who participated in his energy task force, which was stacked with representatives of oil, gas and coal companies, including scandal-plagued Enron, and played a major role in shaping the administration's energy policy.

This administration has stonewalled Congress and the public when it would not reveal the true cost of Medicare reform or the war in Iraq. And it again blocked information when it withheld data that a congressional proposal to reduce power plant emissions was more effective than the administration's plan. A March 2003 Justice Department memo tried to make stonewalling a policy when it asserted control over communication between employees and Congress. Senator Charles Grassley called it "an attempt to muzzle whistleblowers."

This type of stonewalling has all the telltale signs that lead to events such as the Iran-Contra and Watergate scandals. As President Nixon's White House Counsel, John Dean, recently wrote of the Bush administration, "Their secrecy is far worse than during Watergate, and it bodes even more serious consequences."

Dean's warning becomes even more ominous given that both Cheney and Defense Secretary Donald Rumsfeld were once White House staffers who advised President Ford to veto key changes to strengthen the Freedom of Information Act. Thankfully Congress overrode the Ford veto. But will Congress show such fortitude today as the Bush team resists openness in pursuit of a highly centralized, secretive executive branch?

It took significant pressure by an independent commission investigating 9/11 to force the president to release a presidential briefing memo titled "Bin Laden Determined to Strike in U.S." and to allow National Security Advisor Condoleezza Rice to testify under oath.

Now the public must exert similar pressure to force Bush and Ashcroft to release all documents pertaining to abuse, torture and interrogation of prisoners, including the 50-page Justice memo - even if only to Congress. Accountability demands it. At the same time, this administration must shift course and embrace greater openness so that public pressure does not need to be wielded each and every time. Our democracy depends on it. ###

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