Advocates for open and transparent government are quick to note that no American presidential administration has, in practice, been enthusiastic about reducing secrecy in the executive branch—for some obvious and sometimes quite legitimate reasons. There are secrets that almost everyone agrees should remain secret. But secrecy must be balanced with the citizens’ right to examine the operations of their government—to learn, to improve, to enforce, and sometimes to shame. That’s especially true when there are political or bureaucratic incentives for secrecy that deserve far less respect than true matters of national security. And despite the bipartisan resistance from those in power, the arc of history has trended, if unevenly, toward openness. Claims of excessive secrecy have become a tried and true political battering ram, easily wielded by the party in opposition. Technological evolution has not only made the dissemination of information easier and faster, but also has heightened our appetite for disclosure. The trend isn’t confined to the political sphere. Betty Ford’s frank discussion of her struggles with cancer and alcoholism in the 1970s marked a new era of openness in our personal medical lives, and the invention of the personal video camera spawned a cottage industry around moments—gaffes, goofs, tragedies—that were once private.
Against that backdrop, there is wide agreement among journalists and openness advocates that the administration of George W. Bush was an aberration, at least in the modern era. Bush and his advisers came into office with a broad vision for a more powerful, less accountable executive branch—a vision that has long been popular in conservative legal circles. Presidential power ebbed after Watergate, when some of the strongest laws promoting transparency were adopted by Congress, reducing the executive branch’s ability to do its work in secret. Even before the terrorist attacks of September 11, 2001, the Bush administration—and especially Dick Cheney, who assumed unprecedented power as vice president—enacted policies and waged court battles to roll back what they saw as unjustified infringements on presidential power, and to reduce the oversight and transparency that had been forced upon the presidency.
Then, just eight months into Bush’s first term, September 11 gave the administration what became its defining rationale for a draconian clampdown on the free flow of government information to the public. Presidents traditionally act with the freest hand in matters of national security and, following the attacks, secrecy became both a means to an end and a goal in itself. Information on transportation and energy infrastructure, once easily accessible on government Web sites, was removed. The Justice Department invoked a state-secrets privilege in an extraordinarily wide range of cases. The administration and its conservative allies waged a rhetorical war on journalists who worked to learn and disclose the government’s secrets. Legal justifications for the administration’s detainee and warrantless wiretapping polices remain shrouded in secrecy today.
Legally, some of the administration’s greatest incursions against transparency were made with remarkable ease, only requiring executive orders or directional memos from senior White House staff—a fact that should hearten open-government advocates who are optimistic about the potential of Barack Obama’s administration to redress these grievances. To take but one example, though it is one especially dear to journalists, much of the damage done to the Freedom of Information Act under Bush could be undone with the stroke of a pen, and Obama, in the campaign and the transition, has suggested he’ll do just that. Other changes abetting excessive secrecy that resulted from court rulings or emerged from bureaucratic traditions are far more entrenched, and will not afford easy or quick fixes. Indeed, the struggle between openness and secrecy will continue in the coming years.
One ruling that will be hard to reverse has roots reaching back before 9/11. In February 2001, shortly after Bush’s inauguration, Vice President Cheney formed a task force to help develop a new energy policy. Even before the policy was announced that May, environmental groups worried that the policy proposals would tilt heavily toward industry concerns. At the request of two Democratic members of Congress, what was then known as the General Accounting Office (now the Government Accountability Office), a nonpartisan investigative arm of Congress, asked Cheney for basic information on the task force—who it met with, where and when, and for minutes and other records of its work. Cheney, through his counsel David Addington, denied the request, claiming that the GAO did not have the authority to request the documents, despite a history of previous administrations responding to similar requests.