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There were even stronger complaints about the administration™s
unwillingness to make a public showing of its case for war in Iraq.89
It produced a National Intelligence Estimate on the threat posed by
Iraq in September 2002 only after a request for an analysis was made
by the Senate Intelligence Committee.90 The estimate itself was clas-
si¬ed. A CIA discussion paper that was publicly released in October
2002 was later criticized for omitting caveats contained in the classi-
¬ed Estimate that signi¬cantly weakened key claims about the threat
posed by Iraq.91 A July 2004 report by the Senate Intelligence Com-
mittee concluded that the discussion paper™s omissions resulted in the
misrepresentation of the more cautious assessments in the classi¬ed
document. However, the administration blocked the committee from
publishing its reasons for reaching that conclusion.92 In all, the CIA
insisted that about one-¬fth of the Senate Committee report should
be withheld for national security reasons. Some senators “ including
former majority leader Trent Lott “ were so outraged by the agency™s
decision that they called for a new independent commission to make
decisions on classi¬cation.93
The secretiveness that typi¬ed the handling of post-9/11 detainees
also continued in post-war Iraq. At Abu Ghraib prison near Baghdad,
military of¬cials took steps to limit access by representatives of the
International Committee of the Red Cross, even though the ICRC™s
reports are delivered in con¬dence to the United States government.
Following a critical ICRC report in November 2003, military of¬cials
restricted the ICRC™s ability to conduct “no-notice inspections” within
parts of the prison.94 The Taguba report later documented the practice
of treating some Abu Ghraib prisoners as “ghost detainees”:

The various detention facilities operated by the 800th MP Brigade
have routinely held persons brought to them by Other Govern-
ment Agencies (OGAs) without accounting for them, knowing
their identities, or even the reason for their detention. The Joint
Interrogation and Debrie¬ng Center (JIDC) at Abu Ghraib called
these detainees “ghost detainees.” On at least one occasion, the
320th MP Battalion at Abu Ghraib held a handful of “ghost
detainees” (6“8) for OGAs that they moved around within the
facility to hide them from a visiting International Committee of
the Red Cross (ICRC) survey team.95

68
Regime Change


The practice, said Taguba, was “deceptive, contrary to Army Doc-
trine, and in violation of international law.” But in at least one
case, an Abu Ghraib detainee was hidden from ICRC of¬cials on the
direction of Secretary Rumsfeld himself.96 News reports based on
leaks from troubled military of¬cials later described a common prac-
tice of holding ghost detainees at Army facilities in Afghanistan as
well.97
Attempts to probe allegations of more widespread torture of
detainees by defense and intelligence agencies were again compro-
mised by secretiveness. Although the Army had for many years
included its interrogation rules in publicly available ¬eld manuals,98
new rules for more aggressive interrogation within the country™s over-
seas detention centers, approved by Secretary Rumsfeld, were classi-
¬ed on his authority as secret documents.99 The administration also
resisted demands for disclosure of memoranda in which senior of¬-
cials debated the extent to which its interrogation policies were con-
strained by domestic and international law. Its slowness in providing
documents and witnesses undermined congressional inquiries into
the torture controversy.100


Worse than Watergate?
The breadth of the Bush administration™s attempt to restrict openness
appalled many observers. The criticism was unsparing. The U.S. gov-
ernment, said the Reporters™ Committee for Freedom of the Press, had
“embarked on an unprecedented path of secrecy.”101 Comparisons to
the generally acknowledged nadir of presidential accountability “ the
Nixon administration “ were common. John Dean, Nixon™s former
counsel, argued in April 2004 that the Bush administration had cre-
ated “the most secretive presidency of my lifetime. Their secrecy is far
worse than during Watergate . . . Their secrecy is extreme “ not merely
unjusti¬ed but obsessive.”102 Arthur Schlesinger, Jr., endorsed Dean™s
view. The Freedom of Information Act was a “most bene¬cial law,”
Schlesinger said, “until Ashcroft got hold of it.”103
This was hyperbole, which confused ambition with accomplish-
ment. The Bush administration may have aspired to restore the
degree of secrecy that had prevailed thirty years ago, but its capac-
ity to achieve that goal was severely compromised because of the
profound changes in the structure of American politics that had

69
Blacked Out


been wrought over those three decades. The Lilliputians (to con-
tinue the metaphor) had become more numerous, bolder, and more
clever.
For example, the Bush administration did not attempt to revoke
any of the ten major disclosure statutes that had been adopted by
Congress between 1972 and 1980.104 The administration attempted
to change the interpretation of those laws, and sometimes to amend
them “ but these efforts, while serious, are different in degree than
an effort at complete revocation. It would be dif¬cult for the Bush
administration to be “worse than Watergate” “ in actual, rather
than intended, secretiveness “ while at the same time being sub-
ject to a battery of disclosure laws with which President Nixon never
contended.
Broadly, there were two reasons why a complete rollback of this
legislation was never attempted. The ¬rst was that public opinion
would not tolerate a direct assault on post-Watergate controls. Trust
in government institutions had corroded too far and openness had
become too deeply entrenched in public opinion as one of the predi-
cates of governmental legitimacy for a direct assault to succeed. The
shift in public opinion may have been illustrated by the character
of the reaction to the Bush administration™s attempt (in the Patriot
Act) to extend the role of the Federal Intelligence Surveillance Court.
In 1978, creation of the FISC had been regarded as a liberal reform,
providing a new check on the opaque process by which the federal
government undertook electronic surveillance on its citizens.105 By
2002, however, the secretiveness of the court made it the object of
suspicion as well.106 The taint of illegitimacy was now borne by the
guardians as well as the guarded.
Public hostility toward secretiveness was now manifested in a
new and immediate form: the internet poll. Should the Bush admin-
istration be forced to disclose the records of the National Energy
Policy Development Group? Yes, said 58 percent of respondents to
an Excite.com poll. Should National Security Advisor Condoleeza
Rice be compelled to testify under oath before the 9/11 Commission?
Yes, said 69 percent of respondents to an online poll by Milwaukee™s
WDJT TV. Should the President and Vice President be required to tes-
tify publicly before the commission? Yes, said 53 percent of respon-
dents to a poll by New Haven™s WTNH TV. Had Secretary Rumsfeld


70
Regime Change


provided satisfactory answers about the Abu Ghraib abuses in his tes-
timony to congressional committees? No, said a majority of respon-
dents to MSNBC™s online Question of the Day. These polls were
ephemeral and methodologically suspect. In aggregate, however, they
gave a new voice to a broad popular impatience with conventional
arguments in favor of governmental openness. Even if the administra-
tion did not always bend to the pressure “ as Cheney did not “ the polls
suggested that the administration paid a price for its secretiveness.
Popular resistance to radical reform of existing controls was stiff-
ened by the larger number of advocacy groups who sounded the alarm
when the executive branch attempted to restrict openness. CNSS
et al v. Department of Justice (the legal challenge to the Bush admin-
istration™s denial of access to information about detainees taken into
custody within the United States after the 9/11 attacks) illustrated
how the watchdogs had proliferated. Of the twenty-three advocacy
groups that joined to pursue the case, all but ¬ve were established
after Richard Nixon™s election in 1968. In fact, most were established
after Reagan™s election in 1980. By contrast, only two groups ¬led
amicus briefs in the 1971 Pentagon Papers case.107
Because they were not radically altered, many features of the post-
Watergate apparatus continued to operate as it always had. For exam-
ple, the Bush administration was stung by a series of reports from
departmental Inspectors General, using powers given to them by a
1978 law, that offered severe criticisms of the administration™s man-
agement of the war on terror. The reports documented weaknesses
in airport security screening, patterns of abuse in the treatment of
Justice Department detainees, and defects in contracting for Iraqi
reconstruction. The Defense Department™s Inspector General criti-
cized its inattention to privacy rules contained in the 1974 Privacy
Act. The Justice Department™s Inspector General concluded that the
department had not adequately investigated a whistleblower™s allega-
tion of security lapses in its translation of¬ce; details of the Inspec-
tor General™s classi¬ed report were quickly leaked to the New York
Times.108
The Freedom of Information Act also continued to cause irri-
tation to the administration. Imposing a more restrictive interpre-
tation of the law proved dif¬cult, given the highly decentralized
way in which the law is administered. A 2003 study concluded that


71
Blacked Out


many federal agencies made little or no change in their daily prac-
tice as a result of Attorney General Ashcroft™s memorandum.109 The
Pentagon found that its ban on the distribution of images of cof¬ns
returning from Iraq was undone when Air Force of¬cials accepted
a FOIA request for photos taken by its own personnel.110 While the
White House resisted efforts to release key documents relating to
the Cheney task force, the Department of Energy was ordered by a
federal court to release records sought under FOIA by the National
Resources Defense Council, which it said revealed the heavy hand of
the energy industries.111 Another nongovernmental group, the Center
for Public Integrity, used FOIA to show that contracts for post-war
reconstruction had gone to ¬rms with close political ties to the Bush
administration.112 A third group, the Electronic Privacy Information
Center, used FOIA to expose federal data-mining projects that it said
threatened privacy rights.113
Even the Foreign Intelligence Surveillance Act, although weak-
ened by Patriot Act amendments, provided a continuing check on
executive authority. The law requires the Attorney General to pro-
vide an annual public report on the number of applications made to
the Foreign Intelligence Surveillance Court that, although rudimen-
tary, regularly gave advocacy groups and editorialists an insight into
the federal government™s surveillance activities.114 In May 2002, the
Court issued an opinion that rebuked the Justice Department for a
longstanding practice of misrepresentations in its applications, giv-
ing encouragement to members of Congress who hoped to stiffen
the law.115 A few weeks later the Court refused an application based
on new and less restrictive administrative procedures proposed by
the Justice Department. Although its decision was overturned on
appeal,116 the refusal again fueled widespread editorializing against
the erosion of civil liberties.117


Maelstroms of transparency
Not only was the administration vulnerable to disclosure through the
routine working of the post-Nixon controls, but a new phenomenon
was also at play. The Bush presidency was hit by a series of brief
and intense controversies that often led to rapid and unprecedented
levels of disclosure. These “transparency maelstroms” were fueled by
at least three factors.

72
Regime Change


The ¬rst was the willingness of of¬cials at all levels within the
administration to ignore warnings against leaking and to reveal sen-
sitive internal information anyway. The increased volume of leaks
was itself the result of several considerations. One was the mounting
evidence of policy failure and the desire of of¬cials to express dissent
over goals or to shift blame for results. Another was the breakdown
of the basic norm of ¬delity to the bureaucratic hierarchy along with
stronger legal protection for dissenters. Finally “ and from a tech-
nical point of view “ leaking was also easier than ever before. When
Daniel Ellsberg decided in 1969 to leak the Pentagon Papers, he spent
six weeks covertly photocopying its 7,000 pages.118 When Bush™s ¬rst
Treasury Secretary, Paul O™Neill, was dismissed in December 2002,
he walked out of his of¬ce with a CD-ROM that contained 19,000
documents.119
The second factor was the increased ease with which internal doc-
uments could be broadcast to a mass audience. Again, a contrast
with the Pentagon Papers case helps illustrate the radical change. By
February 1971, Ellsberg had given up on efforts to have the Papers
revealed by a friendly member of Congress, and decided that it would
be “useful to make this history public “ if it could be done fast.” This
required the cooperation of a major newspaper. Ellsberg approached
the New York Times, which eventually published excerpts of the Papers
three months later. The Nixon administration™s subsequent effort to
obtain a restraining order against the Times was also predicated on
the assumption that this would be an effective method of blocking
the mass distribution of the Papers.120
By comparison, what would Ellsberg have done in the internet
age “ and what could a contemporary President have done to stop
him? Many of the most damaging of Paul O™Neill™s documents were
simply posted on a website by Ron Suskind, an author with whom
O™Neill collaborated.121 When photos of the cof¬ns returning from
Iraq were released under FOIA, they too were posted immediately on
the internet.122 The New York Times, like many other major media
outlets, found itself reproducing material that was already widely
accessible.
A third factor contributing to these transparency maelstroms was
the transformation in the structure of the media itself. Increased
competition meant that disclosures were likely to be treated more
sensationally, while a faster news cycle led to stories that could

73
Blacked Out


explode much more quickly. Administration of¬cials faced pressure
to mount broad and immediate campaigns against damaging news
stories “ often making more extensive disclosures in an effort to
defend their own interpretation of events.
Such maelstroms struck repeatedly throughout the Bush admin-
istration. Early efforts by the FBI to deny that it had evidence of
impending terror attacks in 2001 were undone following the leak of

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