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Bush should put his trust in US

By Douglas Lee
Special to the First Amendment Center Online

Mortgage brokers. Investment bankers. Fannie and Freddie.

Ahmad Chalabi. Vladimir Putin. Pervez Musharraf.

The list of the people mistakenly trusted by the Bush administration goes on and on. Yet nowhere on it will we find the people most deserving of that trust — the American people.

Time and again, while accepting insiders’ unprecedented economic projections and outsiders’ incredible pledges of fidelity, the Bush administration has refused to trust regular Americans with basic information about their country and their government. News-media access to officials has been denied, reporters have been harassed and requests for information have been stonewalled. Fortunately, courts are pushing back, as was evidenced in two recent victories for freedom of information.

The most significant of the two is the decision last week by the 2nd U.S. Circuit Court of Appeals in ACLU v. Department of Defense. In the case, the court ordered the Bush administration to release photos of abusive treatment of detainees by U.S. soldiers in Afghanistan and Iraq. In doing so, the court rejected the government’s claim that photos and information can be withheld from the public if their release might provoke the nation’s enemies to violence.

Less significant but more telling of the lengths the administration will go to deprive the public of information is the Sept. 20 ruling in Citizens for Responsibility and Ethics in Washington (CREW) v. Cheney. In CREW, U.S. District Judge Colleen Kollar-Kotelly ordered Vice President Dick Cheney to preserve a wide range of documents while she weighed his argument that his office is not part of the executive branch and thus not subject to the maintenance and disclosure requirements of the Presidential Records Act.

At issue in ACLU were 44 photos contained in seven investigative files of the Army’s Criminal Investigations Command, which investigated the charges that Army personnel had abused prisoners in Afghanistan and Iraq. The ACLU and four other groups filed Freedom of Information Act requests for these photos and other documents regarding the alleged abuse. After the government failed to release the photos, the groups sued in federal court in New York.

While slow to articulate the basis for its refusal to provide the photos, the government ultimately latched onto Section 7(F) of FOIA, which allows the withholding of documents if disclosure “could reasonably be expected to endanger the life or physical safety of any individual.” Disclosure of these photos, the government argued, could endanger the life or safety of U.S. troops and others in Iraq and Afghanistan.

The federal trial court disagreed, as did the 2nd Circuit. Noting FOIA’s basic purpose — “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed” — the appellate court held Section 7(F) must be narrowly construed. It therefore rejected the government’s construction that disclosure can be denied if it threatens “any individual” in the world.

“It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan,” the court said. Otherwise, the exemption in Section 7(F) would swallow the rule. Rather, “in order to justify withholding documents under exemption 7(F), an agency must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual.”

Though the decision in ACLU ends that case, Kollar-Kotelly’s decision in CREW merely preserves the status quo while the parties wrestle with Cheney’s novel argument that his office belongs to none of the three branches of government. Instead, Cheney maintains that, because he presides over the Senate, his office is merely “attached” to Congress by the Constitution.

Cheney’s theory, of course, is not an academic exercise but a deliberate effort to exempt his office from several statutes that regulate uses of classified information and require him to deliver records to the National Archives at the end of his term. One of these is the Presidential Records Act, which specifically provides that the people, rather than the individual office holder, own all records created in the course of the official’s performance of his “constitutional, statutory, or other official or ceremonial duties.”

By placing his office outside the executive branch, Cheney claims many of his activities are beyond the reach of the Presidential Records Act. Aware of Cheney’s claim, CREW sued Cheney on Sept. 8 seeking an injunction prohibiting him from destroying any records potentially subject to the act. When Cheney refused to agree to preserve his records while awaiting a decision in the case, CREW asked Kollar-Kotelly for a preliminary injunction, which she granted on Sept. 20.

Kollar-Kotelly now moves to the “seminal legal question” in the case, which she described as “a complex issue of first impression” that is “serious, substantial, difficult and doubtful.” That she even has to consider the question, however, is troubling, as Cheney asserts the issue in the case only to deny the people access to his official records.

In other circumstances, one might assume Cheney is attempting to prevent the public from seeing something specific. In the Bush administration, however, the fear is more general than specific, and Cheney’s position is just another example of the administration’s belief that the American people cannot be trusted to understand or evaluate the workings of their government.

In light of where we are today — facing wars of indefinite length and an economic bailout of hundreds of billions — it’s difficult to see how that lack of trust could be more undeserved.

Or more wrong.


Cheney ordered to save vice-presidential records

Bush administration's legal position 'heightens the court's concern' that some documents may not be preserved, says federal judge. 09.22.08

2nd Circuit: U.S. can't conceal photos of detainee abuse
Unanimous three-judge panel rejects government argument that release of photos could incite violence against U.S. troops in Iraq. 09.23.08

Cheney claims power to decide on his records
Vice president's lawyers assert that he alone has authority to decide which records, if any, will be given to National Archives. 12.19.08

Congress to judge: Force Bush to leave records at White House
Justice Department lawyers argue that White House is required to give documents — which include material on firings of federal prosecutors — to National Archives. 01.09.09

Federal judge rules against White House on visitor logs
Court says likelihood of harm to president's ability to perform constitutional duties isn't great enough to justify curtailing public-disclosure goals of FOIA. 01.12.09

Federal judge: Cheney has broad discretion over records
However, court rejects Bush administration's expansive view that vice president alone has right to decide what Presidential Records Act means for his office. 01.20.09

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