THE BUSH ADMINISTRATION AND SECRECY:
Limiting What We Can Know About The Government, While Expanding What It Can Know About Us

By EDWARD LAZARUS

Tuesday, Nov. 27, 2001

Recently, various Bush Administration initiatives have combined to dramatically reduce the power of individuals to keep their affairs secret from the government.  Yet at the same time, the Administration has repeatedly denied the public basic information about how the government conducts its affairs. 

This potent policy combination -- in which individuals are stripped of privacy even as the government is further swathed in it -- is seriously jeopardizing our claim to be a free society.  And it is only worsened by the Administration's overall strategy of changing federal law not by legislation, but rather by regulation and executive order -- and thus without public hearings and debate -- and of keeping the press at arms length from information about the war effort.

Destroying Individual Privacy; Detaining Witnesses as Well As Suspects

First, the Department of Justice decided to arrest, interview, and detain, in the course of the September 11 investigation, more than 1000 Middle Eastern men -- some of whom are being held not as suspects but simply as supposed "material witnesses."  Then DOJ refused to reveal their identities, the charges against them, or even the reason why such information is being withheld. Meanwhile, new DOJ regulations were crafted to allow the government to listen in on the previously sacrosanct communications between detainees suspected of terrorist acts and their lawyers.

Now DOJ is ordering federal agents and local police to conduct "voluntary" interview with 5000 young Middle Eastern men who have entered the United States in the last two years from countries with links to terrorism.  But these men must know what is likely to happen if they do not show up "voluntarily": They will be added to the ranks of the detainees and if they even so much as seek to consult a lawyer, the government will listen in. 

Any illusion that these men might have had that their lives were private has now been shattered.  Nor should the rest of us retain any such illusion.  New laws have expanded the government's power to eavesdrop on phone conversations and to intercept electronic transmissions, such as e-mails and instant messages.

Not Just Military Tribunals, But Secret Ones

The government's "privacy," however, is well protected -- even though in a democracy, the idea of a private government should be unthinkable, an oxymoron.  Over the last week, for instance, attention has turned to several Administration initiatives designed to protect the government's secrets from public scrutiny. 

John Ashcroft has declared, for example, that the Administration not only intends to try suspected militants before military tribunals, it intends to do so wrapped in the darkest shroud of secrecy.  According to one military officer, the government may limit public disclosure of a tribunal's proceedings to such bare bones facts as the defendant's name and the sentence meted out (including, one must suppose, the death penalty).

Keeping Presidential Decisions Secret, Too

Moreover, the Administration believes that government secrets should be kept for as long as possible.  For example, last week President Bush dealt a considerable blow to historians seeking to enlighten the public about presidential decision-making in the future. 

Except where national security is potentially jeopardized, federal law provides that presidential papers ordinarily will be opened for scholarly inspection 12 years after a president leaves office.  Bush has now extended the 12-year delay in disclosure -- thus keeping secret hundreds of thousands of documents from Ronald Reagan's tenure that were about to be made public. 

The measure may, however, be geared towards protecting not just President Reagan, but President Bush -- the current President Bush.  If the change is retained by future President to protect this President's own papers, then Bush will have guaranteed that what we do not know now, we may never know -- keeping our history not only out of today's newspapers, but also out of tomorrow's history books.

How the Different Sets of Restrictions Work in Tandem

All of the initiatives discussed above have triggered comment and controversy.  But few have observed the insidious way they all work in tandem: The government initiatives shielding its own actions from public view significantly compound the dangers in the government's new restrictions on personal privacy.

Certainly, a case can be made for several of the Administration's anti-terrorism initiatives.  Our wiretapping laws needed revision even before September 11.  And in the aftermath of the attack, it made perfect sense to combine a policy of tough enforcement of immigration laws with some measure of preventive detention, in order to disrupt any potential follow-up plans the terrorists may have hatched.  Finally, in some situations (albeit very limited ones), military tribunals may indeed be preferable to civilian courts.

But such measures, especially ones that inevitably will cause individual hardships and injustices, are much more difficult to justify or accept when the government simultaneously decrees that the public has essentially no right to know about the operation of its expanded powers of law enforcement. 

The Inability to Know If Government Restrictions Are Justified

The government's arrogation of far greater power than it had prior to September 11 is particularly dangerous when coupled with its insistence on much less accountability.  Indeed, in the absence of a serious explanation from the Administration (and there has been none), one is left with the sinking feeling that Bush's team is gripped with either a consuming fear of failure or, more darkly, a genuine Star Chamber mentality.  Either way, the Administration's strategy is formula for governmental error, abuse, and cover-up. 

Earning Our Trust

At bottom, the Administration's program, buoyed by exuberant polling data, amounts to a giant "trust us."  But that raises the troubling question of whether the Administration has earned our trust.

Prior to September 11, the great achievement of the Bush Administration was the passage of a giant individual tax cut, which was sold to the American people on the basis of a equally large lie.  The lie concerned the effect the tax package would actually have on the (now illusory) budget surplus and as many economists vouched, Bush's numbers are off by a trillion. 

Since September 11, the Administration's major policy initiative is a giant corporate tax cut which, again, is being sold to the American people on the big lie strategy for marketing bad ideas.  Although countless economists agree that a corporate tax cut, especially a retroactive one (as this largely is), will have little or no short-term effect on the economy, Bush and his cronies in Congress are selling it shamelessly as a short-term "stimulus" package for the ailing economy.

In between these great bookends of fiscal policy, lie a host of other political shenanigans.  Recall, for example, the cooked-up energy crisis that the Bush-Cheney team tried to exploit as a bailout for their energy mogul friends, such as the folks at Enron.

In light of this history, if the Administration wants to curtail civil liberties in the name of security, then let them do so as openly as possible.  A basically forgiving and trusting public should be able to assess over time whether the trade-offs their leaders have mandated are justified and wise.  In short, to borrow a timeworn phrase, let us trust, but verify.


Edward Lazarus writes about, practices, and teaches law in Los Angeles.  A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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