. 11
( 53 .)


Mitchell Daniels, included the analogy in the administration™s 2003
budget. (“It makes me wonder if the administration may not be requir-
ing the members of the cabinet to read Jonathan Swift™s masterpiece
of satire,” said Senator Robert Byrd.45 ) “At a time of national emer-
gency,” the 2003 budget said, it was critical that federal managers
should have broad discretion “to get the job done.” Yet many depart-
ments were “tied-up in a morass of Lilliputian do™s and don™ts.” The
complaint was accompanied by an illustration that looked distinctly
out of place in an American budget report produced in the twenty-
¬rst century: a lithograph of the Lilliputians ensnaring Gulliver in
spooled cotton, ¬rst printed as an advertisement for a British thread
manufacturer almost 200 years earlier.46

The zone of autonomy
The controversy over the National Energy Policy Development Group
provided a good illustration of the forces that now attempted to
constrain executive authority “ and the Bush administration™s deter-
mination to rebuff them. Chaired by Vice President Cheney, the
NEPDG met throughout 2001 to draft the administration™s pro-
posed energy policy. The NEPDG purported to be a task force com-
prised of fourteen senior government of¬cials, but critics argued
that executives of private energy companies (including the now-
disgraced Enron Corporation) had been closely consulted about the
proposed policy while environmental groups were shut out entirely.
Following a request by two senior Democratic congressmen, in May
2001 the General Accounting Of¬ce launched an investigation of
the NEPDG™s work. Two advocacy groups, the Sierra Club and Judi-
cial Watch “ joined later by nine other groups “ sued the govern-
ment for disclosure of NEPDG records under the Federal Advisory
Committee Act.
The chairman of Judicial Watch, Larry Klayman, later called the
Bush administration “the most secretive of our lifetime, even more
secretive than the Nixon administration.”47 It was not clear that the
NEPDG case did much to substantiate the claim. Thirty years earlier,
the Federal Advisory Committee Act had not yet been adopted by
Congress. The particular interpretation of FACA that allowed Judicial
Watch to pursue the NEPDG case “ known as the “de facto member

Regime Change

doctrine” “ was not af¬rmed by the District of Columbia Court of
Appeals until 1993.48 Judicial Watch itself was not established until
1994, and several of its supporters in the NEPDG litigation were
post-Nixon creations as well. (These included the People for the
American Way Foundation [established in 1980], OMB Watch [1983],
the National Security Archive [1985], and the Center for American
Progress [2003].) For its part, the General Accounting Of¬ce relied
on investigatory powers given to it by Congress only twenty years
For senior members of the Bush administration, the NEPDG case
probably exempli¬ed how the Lilliputians went about their work. The
Vice President responded aggressively, refusing to cede any ground
on either the GAO investigation or the FACA litigation. “In 34 years,”
Cheney told ABC™s This Week in January 2002,

I have repeatedly seen an erosion of the powers and the ability
of the President of the United States to do his job. . . . We™ve seen
it in cases like this before, where it™s demanded that the Presi-
dent cough up and compromise on important principles. . . . We
are weaker today as an institution because of the unwise compro-
mises that have been made over the last 30 or 35 years.50

Cheney ¬‚atly refused to cooperate with the GAO™s inquiry, arguing
that it constituted an “unconstitutional interference” with the func-
tioning of the Executive Branch.51 The administration took the same
position in the FACA case, asserting that the de facto member doctrine
permitted an unconstitutional intrusion into the President™s “zone of
autonomy.”52 “I™m not going to let Congress erode the powers of the
Executive Branch,” President Bush told reporters. “I have an obliga-
tion to make sure that the Presidency remains robust.”53
From its earliest weeks, protecting the “zone of autonomy”
became one of the main aims of the Bush administration. According
to John F. Stacks, a senior editor at Time magazine who had super-
vised its coverage of Watergate, the Bush administration became the
most “closemouthed, closed-doored” in memory:

President Bush has held fewer press conferences at this point in
his presidency than any president since Richard Nixon during his
truncated second term. He has had almost no private interviews
with a major news organization other than the conservative Fox

Blacked Out

Network and has made himself available only to a select group of
conservative columnists. His cabinet of¬cers are similarly inacces-
sible, and when they or their deputies do grant interviews, minders
from the press of¬ce sit in to make sure there are no deviations
from the of¬cial line.54

The administration also attempted to curtail many of the statutory
incursions on presidential authority. In March 2001, White House
counsel Alberto Gonzales issued the ¬rst of three orders delaying
the release of records from the Reagan administration that had
been scheduled for disclosure under the Presidential Records Act.
In November 2001, the White House ¬nally issued a new executive
order that provided a more restrictive interpretation of its obliga-
tions under the law.55 The order broadened the grounds on which
an incumbent President could block the disclosure of documents
and asserted that former Presidents had an independent authority
to block disclosure, which could be exercised by a surrogate even
after a former President™s death. An incumbent President could also
deny access to records even if a former President did not object to
The administration also sought to restrict access to documents
through the Freedom of Information Act. In October 2001, Attorney
General John Ashcroft issued a statement for federal agencies sum-
marizing the administration™s approach to the application of FOIA.
Eight years earlier, the Clinton administration had promised that it
would apply a “principle of openness” and ¬ght FOIA cases only when
agencies could show that disclosure of information was likely to cause
harm. By contrast, Ashcroft encouraged agencies to “carefully con-
sider” whether information could be withheld, and promised that the
Justice Department would support agencies in litigation if their case
had “a sound legal basis.”57
The terrorist attacks of September 11 gave further impetus to
efforts to narrow FOIA™s impact. In March 2002, White House Chief
of Staff Andrew Card, Jr., sent a second directive to federal agencies,
urging them to give “full and careful consideration” to the restric-
tions contained in the FOIA when processing requests for information
relating to homeland security or public safety.58 The memo also gave
license to the widespread “scrubbing” of information from agency
websites, and in some cases the retrieval of documents that had
already been distributed to libraries outside of government.59 The

Regime Change

law was also amended to include new restrictions on access. The
Homeland Security Act adopted in November 2002 imposed a ban
on access to information relating to “critical infrastructure” oper-
ated by the private sector,60 while the 2003 defense authorization bill
added a ban on access to the “operational ¬les” of the National Secu-
rity Agency, a federal agency responsible for surveillance of electronic
The Bush administration toughened policy on the handling of
classi¬ed information as well. It overhauled the executive order on
classi¬cation of federal documents, broadening the categories of
information that could be classi¬ed on national security grounds
and creating a presumption in favor of classi¬cation of information
received from foreign governments.62 The set of agencies with author-
ity to impose national security classi¬cations was expanded,63 and
the volume of information being classi¬ed increased substantially
throughout the Bush administration. (Noting the trend, the of¬cial
responsible for oversight of classi¬cation protested in 2004 that war
was being used “as an excuse to disregard the basics of the security
classi¬cation system.”64 )
The administration also invoked its authority to classify informa-
tion already in the public domain. This authority had been eliminated
by the Clinton administration but was restored by Bush in 2003, at
which time federal of¬cials predicted that the change “should have
little impact.”65 Within months, however, the Department of Defense
classi¬ed an already-public report that was critical of the testing
program for its national missile defense system.66 In 2004 the Justice
Department classi¬ed already-public documents relating to allega-
tions by a former FBI translator that the bureau had missed critical
terrorist warnings before the 2001 attacks.67
Meanwhile the administration made clear that it would adopt a
more severe attitude toward the unauthorized disclosure of classi-
¬ed information. Secretary Rumsfeld repeatedly warned defense staff
about the dangers caused by leaking information and the penalties
for leakers.68 In October 2001, President Bush ordered Cabinet mem-
bers to restrict the circulation of classi¬ed information to a small
number of senior Congressional leaders, complaining that members
of Congress had acted irresponsibly by distributing sensitive docu-
ments. (The directive was rescinded after congressional protests, but
the message remained clear.) In December 2001, Attorney General

Blacked Out

Ashcroft established an interagency task force to review methods of
preventing leaks of classi¬ed information. The task force™s report con-
cluded that federal agencies should “take aggressive steps” to identify
and punish leakers.69
These changes in broad policy were accompanied by a series
of decisions that con¬rmed the administration™s determination to
tighten its hold over information. Perhaps most provocative was the
administration™s refusal to release information about its handling
of detainees taken into custody after the September 2001 attacks.
In the weeks following the attacks, federal agencies took into cus-
tody hundreds of foreign citizens within the United States who were
alleged to have links to the government™s counterterrorism investiga-
tion. The exact number of detainees was unknown, because the Jus-
tice Department stopped providing a cumulative tally after Novem-
ber 2001.70 The department subsequently refused FOIA requests for
the detainees™ names, the date of their arrest, and the place of their
detention.71 Many individuals detained for immigration violations
were deported after hearings that were closed to the public and
excluded from the public docket of forthcoming immigration cases.72
Abroad, the federal government established an “archipelago” of
prisons for suspected jihadists that includes facilities in Afghanistan,
the British dependency of Diego Garcia, Jordan, and Cuba, to which
access was tightly controlled.73 The total number and identity of indi-
viduals held at these facilities is not known.74 The Department of
Defense refused to identify the 600 foreign nationals known to be
held at the Guantanamo Bay detention facility in Cuba, or to allow
the detainees an opportunity to meet with legal counsel, or to con-
cede that detainees had a right to challenge the legality of their deten-
tion in American courts.75 This latter position was repudiated by the
Supreme Court in June 2004.76 Even after this ruling, however, news-
paper reports suggested that federal agencies intended to deny habeas
corpus rights to some detainees, who were to be “kept off the books”
for intelligence reasons.77
At home, the Bush administration resisted congressional efforts to
oversee its antiterror efforts. The joint congressional inquiry into the
performance of the intelligence community before the 2001 terror
attacks complained in its December 2002 report that its investiga-
tions had been compromised by the unwillingness of the intelligence
community to provide documents.78 Public disclosure of the report

Regime Change

itself was held up for seven months as an administration working
group scrubbed it by removing classi¬ed information.79 The pub-
lished version of the report excluded critical passages relating to pre-
9/11 warnings of terror attacks and connections between “a foreign
government” “ widely believed to be Saudi Arabia “ and the 9/11
attackers. Even after the Saudi government itself requested the pub-
lication of the excised portions of the report, the Bush administration
For a year, the administration also resisted congressional pres-
sure to establish an independent commission with a broader man-
date to investigate the government™s response to terror threats and
the 9/11 attacks.81 President Bush™s ¬rst choice to chair the com-
mission, Henry Kissinger, was a Nixon administration veteran who
shortly resigned from the position following controversy over his
alleged con¬‚icts of interest. He was replaced by Thomas Kean, for-
mer Republican governor of New Jersey, who later expressed frustra-
tion at the administration™s refusal, on the grounds of executive priv-
ilege, to release documents that showed what the President had been
told about terrorist threats before the attacks.82 Bush also refused to
allow his national security advisor, Condoleeza Rice, to give public
testimony to the commission, again citing executive privilege.83 In
January 2004, the President resisted the commission™s request for an
extension of time to complete its ¬nal report.84 The administration
later refused to declassify and release a critical background report
prepared for the commission, which showed that federal aviation
of¬cials had collected substantial evidence on the threat posed by
suicide hijackers before the 9/11 attacks.85
As the Bush administration™s attention shifted to war against Iraq,
its concern for secrecy continued. Bob Woodward alleged that in 2002
the administration covertly diverted $700 million dollars that had
been appropriated for counterterror efforts to ¬nance its preparations
for war in Iraq, an action that avoided congressional scrutiny of its
pre-war planning.86 At the same time, senior defense of¬cials refused
to provide Congress with estimates of the resources likely to be needed
during post-war occupation, and punished military staff who offered
their own views on the subject.87 In April 2004, the Republican chair
of the Senate Foreign Relations Committee, Senator Richard Lugar,
complained about the defense department™s unwillingness to allow
of¬cials to testify before the committee and its more general failure

Blacked Out

to communicate with Congress about “Iraq plans and cost estimates”
since 2002.88


. 11
( 53 .)