More on Bush Secrecy

In dealing with Congress, the Bush administration has been worse than its predecessors in sharing information. To avoid confirmation hearings, it has resorted to a number of recess appointments. When it was clear there would be trouble confirming someone, as in the case of the nomination of John Bolton as UN ambassador, it abandoned the hearings route and made a recess appointment. Letters from Congressmen requesting information are treated in a cavalier manner, and those from Democrats are sometimes ignored. After a spate of mine disasters, the Senate Judiciary Committee held hearings on the problem. The top mine safety official, David G. Dye, testified and left, announcing that he had “pressing matters” to attend to. Those who testify are expected to remain in case matters come up that they can address. When Bush instructed the NSA to spy on private telephone conversations without warrants, the administration briefed only Congressional leaders, and the briefings were only fig-leaves. Yet Bush bragged about his openness in this matter. The Congressional Research Service noted that the law requires that whole committees be briefed and concluded that the administration may have broken the law.

Taking its cue from the administration, the Republican Congress has usually refused to investigate controversial matters; perhaps thinking party loyalty demanded this. Of course, observers with good memories know that Democratic Congresses did investigate Democratic presidents. Norman Ornstein has suggested that the subservience of Congress is part of a “battered Congress syndrome,” something akin to a battered spouse syndrome.
Despite the Freedom of Information Act, the Justice Department promulgated regulations that enabled agencies to keep secret any information they thought should not be available to the public. A very small case in point was the abuse of secrecy rules to make Bill Clinton look bad in his negotiations with Israeli Prime minister Ehud Barach. The transcripts of their telephone discussions were labeled top secret, and the Bush administration edited them to the disadvantage of its predecessor. There was also a massive increase in the number of classified documents, from 8 million in 1999 to 23 million in 2002. The administration appointed a new federal archivist who had been accused of violations of the code of the International Council of Archivists. It did not seem to be an administration committed to the public’s right to know what was transpiring.
White House Chief of Staff Andrew Card in March 2001 ordered all agencies to develop guidelines to prevent disclosure of information they considered “sensitive but unclassified.” Bush’s EPA began making scholars register before they could use its Envirofacts database After September 11, the movement toward secrecy in government was intensified under the pretext that security made this necessary. In contrast, the Clinton administration had declassified millions of records and had supported passage of the Electronic Freedom of Information Act. In 2002, Mitch Daniels, head of the Office of Management and Budget proposed that departments and agencies print their own materials, perhaps using private printers. This would end the practice of sending materials to the Government Printing Office, which was then required to send copies of what it printed to library depositories throughout the country. Daniels insisted that his plan was designed only to save money, but its effect would be to greatly limit the flow of information to the public.
The Bush administration refused to release Reagan administration documents that federal law mandated be made public in January 2001. The Bush administration delayed the release of 60,000 pages for more than a year, despite the requirements of law. On March 15, 2002, all but 155 pages were released. Most of that material seems to relate to the process of nominating judges. Bruce Craig, director of the National Coordinating Committee for the Promotion of History, believes the administration does not want scholars to know how the Reagan administration stacked the judiciary with conservative judges. “What they did was brilliant, no question about it.” Some of the papers still withheld were those of then Vice President George H. W. Bush.

There are still millions of Reagan era papers to be processed before release can even be considered. The Presidential Records Act of 1978 required that the National Archives have ultimate control of presidential papers. In obedience to the law, the National Archives screened the Reagan papers for materials that related to national security and prepared about 68,000 that could be safely released in 2001 as the first installment of the Reagan papers. Alberto Gonzalez, White House Counsel, persuaded the Archives to accept three delays to give the White House time to deal with legal questions. After September 11, President Bush issued Executive Order 13233, asserting the right to decide what was released and when. The fact that the country was on a war footing was used to justify the order as well as executive privilege. The order, for the first time, extended executive privilege to cover vice-presidential papers.

Presumably, the reason for the concealment of these documents was that many former Reagan administration officials were serving in the second Bush administration. Concealment of these records and the refusal to obey the law was scarcely mentioned in most of the press. Bush attempted to resolve the matter with the executive order giving presidents, beginning with Reagan, the same power as sitting presidents to keep their papers private. The executive order reversed the Presidential Records Act. Bush press secretary Ari Fleischer said the action was justified because of the September 11 attack on America. Molly Ivins, one of the few to comment upon this usurpation of power thought it was because the papers could “contain information damaging to the reputation of Poppy Bush, who was then vice president, and/or the reputations of old Reaganites like Dick Cheney or Donald Rumsfeld.” The Executive Order is being challenged in the courts by Public Interest, but the political outlooks of the judges who hear the case could determine the outcome.

Bush had also moved to keep control of his gubernatorial papers by placing them in his father’s presidential library. Using the terrorist threat as an excuse, Attorney General John Ashcroft advised government agencies that he would support their efforts to withhold records requested under the Freedom of Information Act. A few newspapers noted that the Bush administration made haste to release the correspondence of Enron chairman Ken Lay with Clinton’s two Secretaries of the Treasury, Robert Rubin and Larry Summers. Lay offered Rubin a seat on the Enron board, which was declined. Summers was asked to resist a call to regulate derivatives. There was no evidence that the letters produced the desired results. On the other hand, Kenneth Lay had spent more than $600,000 to advance the political career of George W. Bush. During the campaign of 2000, Enron also loaned Bush a corporate jet for whistle-stopping. Lay had been appointed to the senior Bush’s Energy Council, and the Energy Policy Act, passed under the first Bush, forced utilities to permit energy traders like Enron to use their pipelines. By long delaying the seizure of Enron’s papers after it was clear that there had been widespread corporate wrong-doing, the Bush administration made it possible for extensive shredding of documents to occur.

In 2006, the Bush administration refused to release papers on its badly bungled handling of the hurricane Katrina, which did massive damage to the Gulf coast. After Katrina struck, Bush said he had no idea that New Orleans would be flooded or its levees would break, yet evidence turned up in February 2006 that he had been warned about those possibilities hours before the disaster occurred. The decision to stonewall on the FEMA papers issue and the refusal to permit top White House officials to testify before Congressional committees was clearly an attempt at damage control. In 2007, a federal judge commented on the “Kafkaesque” hurdles people had to jump in order to obtain FEMA assistance. FEMA legal service people were kept under a gag order so that the complete picture of the agency’s ineptitude or disinterest could not be revealed. It was also revealed that much FEMA food has simply gone to rot and that the agency had put out false figures about how many people it put into hotel rooms. While dealing with disastrous fires that year, the agency resorted to a faked press conference to burnish its image.

The Bush administration in 2002 stopped reporting information about factory closings, and acknowledged that it was doing so only in a footnote to a document released on Christmas Eve, 2002. In the environmental arena, there was an effort to tone down and/or delete scientific data from reports written by government environmental professionals that contradicted administration policy. Pollster Frank Luntz warned that the scientific debate about global warming “is closing against us but is not yet closed. There is still an opportunity to challenge the science.” This was essentially done by censorship and editing. By early 2004, the administration found the ultimate policy for dealing with scientific findings. It created a scientific review process under the Office of Management and Budget that could delay the implementation of environmental and health regulations until the scientific information underpinning them was approved by this new review process. Joan Claybrook remarked, “this is an attempt at paralysis by analysis.”

There seemed to be a distrust of government experts as though they were somehow uninformed obstructionists determined to get in the way of progress. This characterization was applied to the Joint Chiefs of Staff, economists, environmentalists, and the CIA. The latter was particularly distrusted because it often criticized estimates and claims made by the Neo Conservatives and their Iraqi exile clients. This deep distrust of experts is partly an outgrowth of the Republicans’ critique of the so-called New Class. Even the Bush administration’s assault on the findings of hard sciences, particularly in regard to global warming, is more than pandering to industrial donors. It is a manifestation of the ideologues hostility to experts and is rooted in their critique of the so-called New Class.
In 2006, Dr. James E. Hansen, head of Goddard Institute for Space Studies, complained that NASA has attempted to stop his frequent warnings about global warming. It ordered the public relations people to monitor future lectures, papers, and postings as well as requests from journalists for interviews. A public relations official relayed to him that NASA warned there would be “dire consequences” if he continued to speak in the same manner about global warming. A NASA official went on record as being unhappy that Hansen spoke on liberal NPR and stated that his job was “to make the president look good” and that Hansen was disloyal civil servant. For a time, his superiors assigned a “minder” to Hansen, but they it was learned that the young man who was to monitor Hansen’s behavior did not possess the degree he claimed to have. In 2006, Hansen compared Bush’s censorship of science with the way Stalin’s minions distorted it. It was reported that political appointees at NASA exerted heavy pressure during the 2004 election to prevent publication of information about glaciers melting, climate change, or global warming.

When government scientists produce facts that offend the Bush administration's corporate allies, the administration has moved to suppress the information. Dr. James Zahn was ordered by the Department of Agriculture not to publicize information about superbugs in huge hog farms due to pressure from the National Pork Producers Council. At the Department of Interior, the deletion and alteration of scientific information became a standard procedure. Scientists who were likely to find information that contradicted Bush policies or threatened corporate interests have been removed from federal panels. Tony Oppegard, a federal engineer heading a geodesic study of mountain top strip mining was fired as soon as Bush took office. The White House had little reason to share information with Congress or seek its imput. Republicans in the House and Senate are held in line by Teutonic discipline, and dutifully follow the White House line. Senator Chuck Hagel of Nebraska complained that “You have an administration that does not reach out or see much value in consulting with Congress. They treat Congress as an appendage, a constitutional nuisance .

The George W. Bush administration has found another means to avoid vigorous enforcement of regulatory law by packing the top levels of the civil service with political appointees. Other administrations have done some of this, but Paul Light of the Brookings Institution considered the 12% increase of employees at this level “stunning. ” Appointments on Schedule C do not require Congressional approval. But the extent of these appointments suggests an intention to politicize the federal service and challenge the long-standing merit principle in civil service hiring. The plan for undoing much of the federal civil service system was laid out in January 2001 in the Heritage Foundation’s “Taking Charge of Federal Personnel.” The document called for appointments based on loyalty as the first criterion rather than expertise. It maintained that the professional civil service should be considered the enemy and called for the outsourcing of as much work as possible. In early, 2007 the Bush administration capped its battle against the professional civil service with an executive order that required any changes in federal regulations had to be approved by political appointees in the departments and agencies of government.
The penchant for secrecy also involves an effort to control the flow of information about foreign policy. Just as William Casey, CIA director under Ronald Reagan, purged dissidents in the agency, Porter Goss, George W. Bush’s appointee, has made it clear that information coming out of the agency must fit the administration’s policy line. He has refused to release to Congress an assessment of how much damage was done by the outing of covert agent Valerie Plame. Goss and his aides have expressed displeasure with the results of a study by former deputy director Richard Kerr that detailed intelligence failures prior to the invasion of Iraq. He has delayed publication of the issue of Studies in Intelligence that referenced the report, erected new barriers to what can be printed there, and provoked the resignation of the editor and chairman of the editorial board. Career officers have vacated 20 top positions and 90 senior officials have resigned. A purge also occurred in Condi Rice’s Department of State, but it was more gentle. Officials who disagreed verbally or in their reports with the Bush Cheney NeoCons have had their security clearances pulled and they have been reassigned to less important tasks. Some had dealt with the Middle East, Iran, international law, the environment, non-proliferation, Latin America, and Africa.

Perhaps the administration’s penchant for secrecy is simply a reflection of the mindset of corporate CEO, who are impatient with public discussion and the squabbling of politicians. Bush and Cheney were both corporate CEOs and promised to use their executive skills to solve national problems. After the disclosure of many CEO-induced scandals, they said no more about the advantages of putting CEOs in office but their governing style did not change. It was marked by impatience with discussion, contempt for compromise, ruthlessness with opponents, chumminess with business cronies, secretiveness, and hierarchal outlook. Whether several of these traits represented a disdain for some aspects of democracy remains to be seen.
The Bush energy plan was developed in secret by Vice President Cheney and passed in 2005 in proceedings often clouded in secrecy. There were efforts to open the task force records, but they were successfully blocked in the courts. The Bush administration acknowledged that Vice President met with Enron executives six times about the proceedings of his energy task force. More complete information about its proceedings has not yet become available. It is known, however, that representatives of the Union of Concerned Scientists and the Natural Resources Defense Council, and as well as Carl Pope, director of the Sierra Club, were given an audience with the vice president only after the details of the energy plan had been made public. The deliberations of the energy task force resulted in quick approval for controversial of the pebble-bed nuclear reactor of Exelon Corporation. The firm, which has made large contributions to the Republican Party, insists that the design will provide safer cheap power in abundance, but environmentalists dispute these claims.

A successful effort to cloak critical information in secrecy was accompanied by a very skillful effort to manipulate the press and manage the news. By the end of George W. Bush’s third year in the White House, Harpers’ Magazine publisher Rick MacArthur told a radio interviewer that the “White House press corps...has now turned into ...[a] full time press agency for the President of the United States.” Later in the interview he added that the public should “assume that the press is now part of the government.” On reflection, Mac Arthur would certainly back off from full meaning of these assessments, but he was correct in noting that the national press had lost its ability to critically cover this GOP administration. British journalist Greg Palast has referred to the mainstream American press as the dependent press because information is so tightly controlled that it must cater to the Bush administration in order to be rewarded with even small pieces of information. Richard L. Ehrlich, Jr., Maryland’s Republican governor, formalized this way of dealing with the press in November 2004 when he signed a written order forbidding employees to talk to two reporters for the Baltimore Sun. Two federal courts subsequently upheld the legality of that order.

It insists upon enforcing the Pentagon’s 1991 ban on taking photographs of coffins carrying the bodies of American soldiers at Dover Air Force Base. When the President held a huge rally for troops at Fort Carson, the press was ordered not to talk to any soldiers before, during, or after the rally. They obeyed, and only the Rocky Mountain News reported on the orders given to the press. The skill of the Bush administration in manipulating the press was demonstrated in 2004, when the Social Security Administration ran many advertisements clearly touting the advantages of Bush’s prescription care plan. Few noticed that the advertisements could have a political effect. Later that year, the Department of Education, paid $700,000 to an agency to advertise Bush’s No Child Left Behind program, a major Bush bragging point. The department also paid TV talk show host Armstrong Williams $240,000 to talk up the program in the black community. When the payment came to light, there was little discussion about blurring the lines between a journalist and an paid advocate.

The federal government paid Maggie Gallagher $21,500 to promote the Bush approach to marriage, and another conservative columnist was paid $10,000 to do the same. The use of taxpayer money for political purposes was nearly a non-issue in the public and political forums. In a related matter, private corporations began to provide local television stations with video news releases, which the stations presented as ordinary news. Sometimes the releases had political content and other times they were more commercial in nature.


By early, 2006, it was becoming clear to some that unilateral actions of the Bush administration were establishing a “creeping presidential autocracy.” These actions were partly inspired by Richard Cheney’s view that the presidency had lost too much power as a result of the Vietnam War and Watergate crisis, but it was the 9/11 attacks on the US that provided the justification for these steps. The administration claimed the power to hold foreign detainees indefinitely, and even American citizens could be held if they were classified as” enemy combatants.” The newly enacted Patriot Acts were interpreted in the most expansive ways. The administration lifted many restrictions on torture, on the theory that the commander-in-chief’s authority trumped international law. Eventually, it was revealed that U.S. forces in Afghanistan, Iraq, and at the Guantanimo detention facility practiced torture. It even took to spying on telephone conversations without warrants.

The Republican Congress refused to investigate some of the administration’s questionable conduct and it tended to legalize actions many considered illegal. When the Supreme Court ruled twice that the administration’s treatment of detainees violated the law, Congress legislated to legalize this conduct and then passed a law stripping the courts of the power to rule on how detainees were treated. Similarly, the Congress, without even investigating the matter, legalized the warrantless spying. By striking an empty compromise with the administration on the spying, the Republican Congress posed as heroic in standing up to the president, claiming it had “rebelled.” In fact, it had again aided and abetted the unwarranted expansion of the executive’s power.

Attorney General John Ashcroft, the darling of the GOP right, demonstrated no uneasiness with the diminution of civil liberties that battling terrorism seemed to require. Ashcroft demonstrated his hostility to organized labor when he used 9/11 as an excuse to forbid secretaries in federal prosecutors offices to join unions. Ashcroft also used his power to advance the agenda of the Christian Right. He expended valuable resources attempting to break up a ring of bordellos in 2001 and 2002 and battled a state’s legislation permitting assisted suicide in carefully defined cases. The Attorney General vigorously moved against people who grew marijuana for medicinal purposes in states that bucked federal drug policy to the extent of legalizing medicinal marijuana. An enthusiastic supporter of the death penalty, he overruled the recommendations of federal prosecutors in 28 cases where the death penalty could be applied. Ashcroft also moved to intimidate federal judges whose sentences were more generous than federal sentencing guidelines suggested. His effort to create a blacklist of liberal judges was even criticized by Chief Justice William Rehnquist.

His enforcement of the USA Patriots Act, which was enacted in late October 2001 to strengthen federal investigators and prosecutors after the September 11, 2001 attack by Islamic terrorists seemed authoritarian to some. Many talked of the Ashcroft Doctrine, which held that in security cases the accused’s rights must be subordinated to the demands of national security. However, Ashcroft labeled “un-American” any criticism of his uses of the Patriot Act, including efforts to monitor what people read. Section 215 was one of the most controversial sections because it stripped non-citizens of search and seizure rights and also made it possible to deprive citizens of these rights. Under this section a person or organization could be ordered to provide information to the FBI and would be subjected to a gag order forbidding it to reveal to anyone that it had been ordered to surrender information. Working hurriedly, the House Judiciary Committee, remodeled this section, but at 3:30 AM, the original version reappeared in the printed version, and it was subsequently passed in that form. It is doubtful if many members of Congress had a chance to read the final version.

John Turley, a George Washington University law professor, told Nightline on August 20, 2002 that Attorney General John Ashcroft had moved from constituting “a political embarrassment” to “being a constitutional menace.” The conservative Turley had become familiar face on television in the Clinton years when he appeared many times making a case for the president’s impeachment and removal. The measure even made it possible to admit hearsay evidence and permitted prosecutors to refuse to identify witnesses.

In combating terrorism, it is probably true that individual rights must sometimes be sacrificed to necessity, but the abridgments of rights should be as limited as possible. However, the administration has sought to cover its use of the Patriot Act in secrecy and misrepresentations of fact. It is also seeking the repeal of sunset provisions that apply to some extraordinary and worrisome powers. In June 2004, the Supreme Court rejected the administration’s contention that in time of war it should wield unfettered power. The court ruled that the foreign nationals held as “enemy combatants” had the right to file habeas corpus petitions and that an American citizen being held as a suspected terrorist had the right to be informed of the charges against them and to exercise the right to defend himself. The decisions freed no one, and left much room for executive power to be exercised, but it cancelled the blank check the administration thought it possessed.

After 9-11, the Justice Department rounded up between 1500 and 2000 people. A purpose of the dragnet was to find people who could provide information about terrorists or who may have helped them. The great majority of them were not citizens, and many could be held on technical immigration violations. The detainees were often held under no charges. A year later, almost all had been released or deported. Ashcroft permitted the FBI to continue to misrepresent requests for wiretaps and searches. The abuses reached the point where a secret federal tribunal felt it necessary to issue a public protest. In May 2002, the secret federal court that reviews Justice Department requests for investigative powers in terror cases took the unprecedented step of making public a decision in which it refused to grant the Department additional powers. The court complained that the FBI and the Department had provided false information in over 75 requests for wiretaps and search warrants in the two previous years. Moreover, the agencies were accused of improperly sharing intelligence information with New York law enforcement agencies.

The Department claimed that the decision wrongfully limited its authority under the Patriot Act and said it would appeal. Later, a higher secret security court reversed this ruling. A major effect of this ruling was to breach the wall that was separate investigations of terrorists and foreign agents and ordinary criminal probes. The barrier to the sharing of any information between criminal justice agencies and intelligence agencies should have been modified and the secret security court did this. Yet the administration insisted it remained in place. In persuading Congress to pass this sweeping measure, Ashcroft insisted that critics of the bill were providing “ammunition to America’s enemies and pause to America’s friends.”

With respect to the enforcement of the act, House Majority Leader Dick Armey told reporters, “I told the president I thought his Justice Department was out of control... Are we going to save ourselves from international terrorism in order to deny the fundamental liberties we protect to ourselves? It doesn't make sense to me." In a little more than two years, five thousand people were detained under its provisions, and only a handful of them were convicted. There were numerous reports that some of them were mistreated, even beaten. The measure also empowered FBI agents to quiz librarians about the books read by their patrons. The measure was so sweeping in nature that it opened the door to possible abuses. Defending the Act, John Miller, an FBI spokesman, said that the freedoms the press enjoy under the First Amendment does not constitute a basis for academic freedom in the universities.

In December 2002, one Mike Maginnis was arrested at his home for photographing the hotel where Vice President Cheney was staying in while in Denver as well as the neighborhood around it. A Special Agent demanded that he admit to being a terrorist collaborator and called him a “dirty pinko fagot” and a “ragtag collaborator.” He was subsequently released, and the Denver police denied he had ever been held. In another Keystone Cops episode, a local sheriff and three Secret Service agents, empowered by the Patriot Act, invaded the privacy of a retired chief petty officer named Michael Moore in North Carolina. The officers must have confused him with the populist by the same name who was critical of Bush and the proposed war on Iraq. The agents intercepted his e-mail and searched his home without a warrant. The agents told Moore they were working with the National Security Agency and FBI on national security issues. Moore had made the mistake of calling Bush names in his e-mail and expressed displeasure with the 2002 election. Moore was required to sign forms permitting the agents to access his medical history at two hospitals. Moore had threatened no one in his e-mail, but the agents told him not to go to Washington in the future and asked him what he thought about assassinations.

The FBI began resorting to the tactics of the Hoover era when it started gathering information on peace demonstrators and the ways they raised funds, recruited, trained and organized rallies. In Des Moines, the FBI, acting with a local sheriff, used the Patriot Act to get a federal grand jury to subpoena records from local organizations involved in the peace movement. They included Drake University, the state chapter of the Lawyers’ Guild, a Catholic Worker House, and the Catholic Peace Ministry. The FBI later withdrew the subpoenas, saying it was only looking into simple trespass charges. Moreover, the agency, in Intelligence Bulletin no. 89, urged local law enforcement to emulate its tactics. Police were warned that demonstrators tried to intimidate law enforcement by videotaping their demonstrations and even “documenting potential cases of police brutality.” Homeland Security also warned local law enforcement to watch people with nervous mannerisms or who arrogantly expressed “dislike of attitudes and decisions of the U.S. government."

By 2007, a Justice Department web site noted that the FBI terrorist watch included 509,000 names. In Pittsburgh, the ACLU obtained FBI files that showed that the bureau had been spying on the Thomas Merton Center from November 29, 2002 to at least March 2005. The documents referred to a source that must have been an infiltrator. Perhaps some of this work was carried out by the new National Security Service, a branch of the FBI placed directly under the White House by Executive Order. There is also a new National Clandestine Service, a wing of the CIA that can carry out some operations within the United States.

Efforts were also made to track down dissenters in other ways and to limit the information they accessed through alternative news outlets. The owner of the company that serves Capitol Hill.com and some other alternative news outlets received a “national security letter” that demanded information about the publisher, his disbursements, and traffic information about his web operations. This would give the FBI the names of people who read the site, and, of course, they were tracking his sources. Capitol Hill Blue claims to have inside sources, but its exposes do not go beyond rumors about possible indictments and the president’s mental state and possible drinking habits.

The Patriot Act and its extensions made it possible for the administration to create a two-track justice system. Cases involving “enemy combatants” or material witnesses in terrorism cases could be handled completely outside the ordinary justice system. In the extraordinary track, citizens and non-citizens alike can be investigated and jailed without the normal guarantees of rights and procedures. People can be held for long periods without the right to consult attorneys. Non-citizens can be tried by military tribunals and be deported after closed hearings. Solicitor General Theodore Olsen, who had played a key role in the effort to tie Bill Clinton to illegal activities, is the Bush administration’s lead lawyer in anti-terrorism matters. In a 5-3 ruling in June 2006, the Supreme Court blocked the use of these military tribunals in hearing the cases of foreign detainees. It held that the Bush Administration had overstepped its authority. The door was left open for Congress to craft a way of trying these people within the US court system in a manner satisfactory to the administration.

The amended Patriot Act also included a little-known provision that enabled the administration to appoint interim U.S. Attorneys who could serve indefinitely. In this way, controversial appointments could be made without the scrutiny and approval of the Senate. An aid of Senator Arlen Specter admitted that he inserted the provision at the last minute and only discussed the change with fellow Republicans. Armed with this provision, the administration began quietly pushing out U.S. Attorneys and replacing them with people who were extreme partisans. In Arkansas, Timothy Griffin, a man with “a thin legal record” became an interim U.S. Attorney. He had headed opposition research for the Republican National Committee and had worked closely with Karl Rove. One of the purged US Attorneys was Carol Lam of San Diego, who had put Randy Duke Cunningham in prison and was investigating Representative Jerry Lewis.

The preference for secrecy became a hallmark of the administration’s approach to terrorism. In November 2001, a presidential order stated that non-citizens found harboring terrorists or with terrorism could be tried by military tribunal. This order seemed to set the tone for the hard-line Justice Department policies that were to follow. After the Civil War, the Supreme Court ruled in Ex parte Milligan all cases in the United States were to be tried in civil courts so long as they were open. It would seem that this meant that these military tribunals had no standing in 2001. Later, several American citizens would be held as “enemy combatants” and would be deprived of their constitutional rights to legal representation. Later, Bush authorized the CIA to kill Americans if they were working with Al Qaeda in some way.
The doctrine that suspected terrorists need not be given even the rights of prisoners of war seems to suggest a denial of the generally held notion that all people share a common humanity, which brings with it some basic rights. There were so many questions about Ash croft’s enforcement of the Patriot Act that on June 13, 2002, the ranking Democrat and the Republican chairman on the House Judiciary Committee sent fifty questions to the Attorney General. The chairman was James Sensenbrenner of Wisconsin, one of the most conservative people in the House. The Justice Department responded that it would respond to some
of the questions only if the two Congressional intelligence committees asked them.
While many of Ashcroft’s policies should have concerned civil libertarians, it might also be conceded that occasionally he had to do battle with judicial rules that were probably too restrictive in counter- terrorist matters. The secret federal “spy court” ruled that FBI criminal and intelligence squads cannot freely communicate and share information. If the sharing would result in action against someone in matters not remotely involving terrorism, the ruling would make sense. However, Ashcroft probably was on the right track in challenging it insofar as it prevented full cooperation in terrorism matters. The ruling was later overturned. Progressives kept up a steady discussion of the dangers to civil liberties the act posed, and a few conservatives joined in efforts to expose the legislation’s worst features, but, as ACLU president Anthony Romero said , the political dialogue on this issue was essentially “anemic.”

Attorney General Ashcroft’s treatment of two American citizens apprehended while fighting for the Taliban or Al Qaeda raised troubling questions for civil libertarians. John Walker Lindh was permitted to enter a plea in a US court. Y. Esam Hamdi was long held incommunicado in a Navy brig in Norfolk. He did not have access to an attorney while a French citizen, Zacarias Moussaoui, had access to attorneys and is being tried in open federal court. The Justice Department said it was permissible to hold Hamdi indefinitely and without access to a lawyer because he is being charged with nothing and was clearly an enemy combatant. Another US citizen, Jose Padilla was being held in a South Carolina brig without charges or an attorney. He was apprehended as a possible dirty bomb builder, but no charges were lodged for some time. The Attorney General has talked about building camps where such US citizens could be held.

In summer, 2004, the case against Padilla was dropped and he was sent back to Saudi Arabia without his US citizenship. In addition, the military has seized 1500 detainees as a result of the Afghan War and other operations and has maintained that these prisoners have no rights under the Geneva Convention. The government’s original intention was to hold them until a worldwide terrorist network no longer existed. In 2002, the Bush administration issued a formal waiver on the Geneva Convention, stating that they did not apply to the Taliban or Al Qaeda. In June 2004, the Supreme Court rejected the administration’s contention that in time of war it should wield unfettered power. The court ruled that the foreign nationals held at “enemy combatants” had the right to file habeas corpus petitions and that an American citizen being held as a suspected terrorist had the right to be informed of the charges against him and to exercise the right to defend himself.

The decisions freed no one, left much room for executive power to be exercised, but it cancelled the blank check the administration thought it possessed. Congress subsequently defined the way these people would be tried by military courts. The detainees would not see the evidence against them and information gained through torture was admissible. There was to be very little room for appeals. Though the legislation flew in the face of basic American principles, Democrat Karl Levin was a co-sponsor. With the surrender of Levin and other Democrats, it seemed there was little further interest in exploring the matter of torture. In May 2006, Mary McCarthy, deputy inspector general of the CIA, was fired one day before she was to retire. It seems she had learned that some high CIA official had lied to congress about torturing prisoners. Unnamed sources said she had been fired because she had leaked something to the press or, even worse, Congress. There was no effort on the part of the two intelligence committees to interview her.

In 2003, the Justice Department prepared Patriot Act II, which passed the House in September , 2003. Named the Domestic Security Enhancement Act of 2003, it was designed to expand government’s domestic surveillance powers. It also made possible stripping people of citizenship if they assisted groups the Attorney General designated as terrorist organization. It greatly expanded the FBI’s powers in the use of national security letters or administrative subpoenas. The bureau was authorized to obtain telephone, internet, and financial date from financial institutions whenever it thought national security was involved without the scrutiny of a judge. Financial institutions included casinos, travel agencies, the Postal Service, pawnbrokers, insurance companies, and dealers in precious metals. Those ordered to turn over records were forbidden to disclose that this had occurred In March 2007 the Department of Justice Inspector General revealed that in many instances the FBI used national security letters illegally and improperly to gather information. It was also found that the Bureau had often understated to Congress how many of these letters it was employing.

Arrests of people who were “threats” to the economy were to be facilitated. Since September 11, 2001, hundreds had been quietly taken into custody and the government refused to give their names on grounds it was protecting their privacy. The new measure facilitated secret arrests. It was signed into law on the day Saddam Hussein was captured, December 13, 2003. The third extension of the Patriot Act came before Congress in 2005, but final passage was delayed until early 2006. The press reported that the delay was mainly due to disagreement over whether law enforcement agents should be able to get access to anyone’s medical records and library usage. Defenders of the measure argued that only the guilty had reason to worry about abuse resulting from having their records checked. The bill provided a more controversial section ( 605) which created a permanent and secret Homeland Security force known as the “United States Secret Uniformed Division.” When it thought it had good reason, it could arrest people without warrant. It would also function at special events of national significance (SENS), which it was free to designate itself.

This new provision is the more worrisome when it is recalled that on January 6, 2003, President Bush signed an executive order permitting himself to set aside habeas corpus and the Posse Comitatus Act, which prohibits using troops in domestic situations. He did not invoke this power when Hurricane Katrina hit the Gulf Coast, but it remains on the books. This provision was lifted from a 1982 plan by Lt. Colonel Oliver North to give FEMA a new mission.” The act was overwhelming extended in March 2006 after some “legislative hocus-pocus” which changed little but provided a “fig leaf” of a compromise which enabled moderates and most liberals enough cover to join the stampede.

The Bush Justice Department has also taken to intimidating defense attorneys. In 2005, Lynne Stewart was sent to prison because she represented an accused terrorist in a manner prosecutors disliked. She was charged with providing material support for terrorism. In 2006, prosecutors threatened to jail the attorney for Kenneth Ford, an NSA analyst whose views on WMDs probably resulted in his incarceration on trumped-up charges of stealing classified documents. The judge noted that there was no information on how the documents ended up in Ford’s kitchen and that the government’s confidential informant was a “curious figure,” but he still sentenced Ford to 6 years in prison. Tom Flocco, an internet muckraker, has claimed that his computer firewall system showed through internet identification numbers that the Department of Defense was surveiling him when he talked to intelligence sources or agents or when he wrote stories about intelligence or the Bush White House. In early April not long after Flocco reported his troubles, someone hacked into the E-Mail of “Good Morning America” John Green and found two unacceptable notes. In one Green called former Secretary of State Madeline Albright “NeoCon lite without NutraSweet.” In another, he criticized Bush. Each was leaked to a different conservative outlet: the Drudge Report and The New York Post. ABC suspended him and forced him to apologize to the White House Communications director. At the same time, Chris Graff, Vermont AP Bureau Chief, was fired for putting a Patrick Leahey op-ed on the wire.

John Ashcroft cooperated with the Bush administration in hacking away at many Bill of Rights protections, but he appeared to draw the line at supporting without reservation the creation of a massive database with information on potentially all American citizens. When he was desperately ill in a Washington hospital, the president’s chief of staff Andrew Card and chief legal counsel Alberto Gonzales came to demand that he authorize the FEMA database named Main Core. At issue was FEMA’s desire to greatly expand it by means of various forms of surveillance and incorporation of rad data from NSA telecommunications intercepts. Ashcroft refused, as did Acting Attorney General James Comey. More than two years later, the mainstream press claimed the argument was about reauthorizing wireless wiretaps, which Ashcroft and repeatedly supported. Finally, in late July 2007, Attorney General Gonzales admitted to a Senate panel "The disagreement that occurred was about other intelligence activities, and the reason for the visit to the hospital was about other intelligence activities . . . It was not about the terrorist surveillance program that the president announced to the American people."

In foreign affairs, the Bush administration also moved toward unilateralism denial of international law, a posture that delighted foreign policy fundamentalists. John Bolton, who eventually became ambassador to the UN, claimed that it is “a big mistake for us to grant any validity to international law” even when doing so yields some short-term advantages. Alberto Gonzales, who was to become Attorney General, believed that international conventions on the treatment of prisoners were “obsolete” and “quaint.”





Sherman has written African American Baseball: A Brief History, which can be acquired from LuLu Publishing on line.http://www.lulu.com/browse/search.php?search_forum