That year, Judicial Watch, the Natural Resources Defense Council, and the Sierra Club filed two suits seeking the same records, one under the Freedom of Information Act and another under the Federal Advisory Committee Act (FACA), a 1972 law requiring that materials generated by public-private advisory committees be available for general inspection. After a nearly four-year-long court battle that included a stop at the U.S. Supreme Court, federal courts upheld Cheney’s right to withhold the records and also denied the groups’ challenge under the Advisory Committee law.
The environmental groups ultimately secured most of the documents by a circuitous route—from the Energy Department through Freedom of Information Act requests. But the case was considered a major blow to the Advisory Committee Act, which had already had its reach trimmed by a series of rulings that culminated in the Cheney decision. “It’s just been shredded,” says David Vladeck, a veteran public-interest lawyer who teaches at Georgetown. “Read the statute and you’d think one thing; and you read the way the courts have interpreted it, and it’s no longer an effective safeguard.”
In hindsight, it’s easy to see how the task-force battle was a deliberate attempt to expand the executive branch’s ability to operate in secret, rather than a simple political tussle over energy policy in the wake of Enron’s collapse. As Bruce Montgomery, an archivist at the University of Colorado at Boulder who has written widely on presidential materials, wrote, “The case marks one of the Bush administration’s most significant victories not only in reasserting the prerogatives of the presidency, but also in cloaking the executive in greater secrecy.”
President Obama, in the course of his election campaign, promised that as many meetings “as possible” between federal agencies and lobbyists would be available as Web videos. But he’s had little specific to say on FACA, or how his administration might treat advisory commissions with private members who don’t happen to be federally registered lobbyists.
Another major setback for the interests of openness, and again one with roots that clearly reach to a time before 9/11, was Bush’s executive order concerning the Presidential Records Act, passed in 1978 to ensure public control over the records presidents create while in office. (So enshrined was the principle of private ownership before the Records Act was adopted, that past presidents sometimes destroyed their papers or willed them to their heirs, who were free to sell them for a profit.) Presidents from both parties have been, to varying degrees, unenthusiastic about the law, and it has suffered from a string of court challenges and executive orders restricting its authority. The Clinton administration, for example, continued a legal effort initiated by George H. W. Bush to limit the disclosure of Bush’s records. It lost that battle in 1995, in a decision that seemed to clearly state that ex-presidents surrendered control of their administration’s records twelve years after they left office.
When George W. Bush took office twelve years after the end of Reagan’s presidency, however, White House Counsel Alberto Gonzales sent the national archivist a note instructing him that the new president wished to delay the release of any Reagan files. The closing line? “This directive applies as well to the Vice Presidential records of former Vice President George H. W. Bush.” Then, in November 2001, the administration issued a new executive order that declared that records from prior administrations would not be released unless the sitting president expressly approved it. But that order went even further: endowing past presidents with the power to keep their documents from being released even after the twelve-year threshold. Vice presidents, too—a category that included Bush’s father at the date of the order and now includes Dick Cheney—were given the authority to hold their records. As if that weren’t hubristic enough, Bush’s order allowed past presidents and vice presidents—or their heirs—to pass on their withholding privileges to representatives in perpetuity. “It was essentially overturning the Presidential Records Act,” says Thomas S. Blanton, the director of the National Security Archive, an independent research institute at George Washington University. Obama has promised to nullify the Bush order, which he could do with a simple executive order.