CalAware Today

The Secrecy Apparat's "Neutron Bomb"

Congressional Quarterly’s national security editor notes that when employees of intelligence agencies turn to the courts for redress of their maltreatment as whistleblowers, “they encounter the judicial version of a neutron bomb, the state secrets privilege.”

For more than 50 years, it’s allowed the spy agencies to pre-empt troublesome suits by declaring a matter so sensitive that mere mention of any of its elements in court, no matter how oblique, would cause “grave damage” to U.S. national security. The judges usually go along, the record shows, sometimes without even examining the documents themselves. Big surprise: Sometimes the spy agencies don’t tell the truth.”

As Steven Aftergood of Secrecy News observes, "The state secrets privilege has been invoked with growing frequency to deflect claims of unlawful domestic surveillance, detention, and torture as well as other more mundane complaints, on grounds that adjudicating them would cause unacceptable damage to national security."

Meanwhile a journalist for Pajamas Media reports that the government’s use of the privilege to gag FBI whistleblower Sibel Edmonds didn’t stop the London Sunday Times from reporting on January 6 that

A whistleblower has made a series of extraordinary claims about how corrupt government officials allowed Pakistan and other states to steal nuclear weapons secrets.
    Sibel Edmonds, a 37-year-old former Turkish language translator for the FBI, listened into hundreds of sensitive intercepted conversations while based at the agency’s Washington field office.
    She approached The Sunday Times last month after reading about an Al-Qaeda terrorist who had revealed his role in training some of the 9/11 hijackers while he was in Turkey.
    Edmonds described how foreign intelligence agents had enlisted the support of US officials to acquire a network of moles in sensitive military and nuclear institutions.   
    Among the hours of covert tape recordings, she says she heard evidence that one well-known senior official in the US State Department was being paid by Turkish agents in Washington who were selling the information on to black market buyers, including Pakistan.

Why the mainstream U.S. media’s silence on this accusation?  The Pajamas Media reporter says:

A current employee of the Department of Homeland Security, who spoke to Pajamas Media on the condition of anonymity, had this to say: “It is mind-boggling. I’ve sent personal emails to my contacts at ABC, at CBS, at the New York Times, and the Washington Times. No one is even responding to my emails. They call me back about other things, but as far as Sibel [Edmonds] is concerned, anything touching on that subject gets overlooked, gets ignored.”
    “Why?” this reporter asked.
    “Reporters are terrified of the State Secrets Privilege and being subpoenaed to testify before a federal grand jury. No one wants to wind up like Judy Miller—in jail.”

The unnamed source here may have been referring to penalties for disclosing classified information rather than the state secrets privilege per se, but the U.S. media's inattention to the Sunday Times' explosive contention is in any event curious.

But Congress now appears poised to codify the  privilege and in doing so, limit its use. Last month Senator Ted Kenneday (D-MA), along with Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) has introduced S.2533, a bill “to enact a safe, fair and responsible state secrets privilege act.”  The measure will get its first hearing February 13 in the Senate Judiciary Committee, co-chaired by Leahy and Specter.  A full description of the need for the bill and how it would operate is found here.

Covering Candidates' Paper Trails

Hillary Clinton’s White House experience is documented in her husband’s presidential papers, which they claim are at the mercy of the National Archives to release from his Presidential Library—and then only on the archivists’ schedule, which they insist they can’t accelerate.

Whatever the Church Lady might make of those protestations—Barack Obama, as quoted in the Chicago Tribune, and Judicial Watch in two federal court lawsuits, for example, are skeptical—the fact remains that the automatic filter that the presidential papers archiving process puts on the official record of those running for office is a problem that needs correcting, and it’s mirrored in a California law that needs equal attention but may never get it.

There are actually two potential barriers to access to ex-presidents’ papers by political researchers, journalists or more impatient historians. The first is an Act of Congress—actually a succession of them—and the second is an executive order issued by President George W. Bush early in his first term.

Under the original provisions of the Presidential Libraries Act, ex-presidents would build their own libraries with privately donated funds and then voluntarily turn over those buildings—and the bulk of the White House records the ex-presidents had generated and taken with them—to the National Archives.

But, as explained in an essay marking the 1955 law’s 50th birthday, there have been some imperfectly resolved issues surrounding the fundamental question of who owns presidential papers—the former chief executive or the American people.  After the crisis in which former President Nixon declined to donate his papers to federal custody, President Jimmy Carter signed into law the Presidential Records Act of 1978.

This act declared that, starting with the next presidential administration, the official papers of the presidency would automatically become government property, would be transferred to the National Archives at the end of the administration, and would be subject to public request and disclosure five years after the end of the administration. A President would still have to utilize the Presidential Libraries Act if he wanted to build or donate a library to house the presidential records, which all Presidents have continued to do.
    The 1978 act, however, requires that the National Archives follow special procedures to allow both the former and incumbent Presidents to review the records before they are released to the public. These procedures, which were revised in 2001 under Executive Order 13233, ensure that the former President has a full opportunity, as required by the Supreme Court, to assert possible claims of executive privilege.

A federal judge has recently held invalid that portion of the order that allowed former presidents and vice presidents to review their records sought from the Archives under the Freedom of Information Act.  Meanwhile an effort in Congress to legislatively undo the order is hung up in the Senate by a hold placed by a single Senator who will not state his reasons for the obstruction.

In California, an exemption from disclosure under the California Public Records Act allows ex-governors to bar public access to their papers, transferred to the State Archives, an institution under the administration of the Secretary of State, for the rest of their lives. Government Code Section 6268 states that the records of a former governor—even a recalled one—must be transferred to the Archives, but that he or she, acting in writing, “may restrict public access to any of the transferred public records, or any other writings he or she may transfer, which have not already been made accessible to the public,” but access “shall not be restricted for a period greater than 50 years or the death of the Governor, whichever is later,” and papers concerning applications for clemency or extradition can be withheld for only (!) 25 years after the cases are closed.

Accordingly, for example, if either Gray Davis or Arnold Schwarzenegger were to again seek some public office, he could instruct the State Archives keep the official papers of his administration out of the public’s reach. Davis may have already done so, whether or not he contemplates resuming public life.

Section 6268 is bad policy, creating a post-executive privilege to plough under one’s record at the very time when it may be of the greatest significance to the greatest number of people.  As such, it is a perk ripe for reconsideration, but is unlikely to be repealed so long as a governor has enough legislative support for an override-proof veto.

Public Forum Law Week in Review: 11/2/07

(CalAware Weekly comprises this plus the previous three posts)

Free Press
    Gag denied   A judge has again denied a public employee union’s bid to stop the Daily News in Los Angeles from publishing members’ names, positions and salaries in a lookup database on its website.
    Police clashes   Law enforcement officers blocked news media coverage in several incidents in the San Diego wildfires, according to a report by the local ACLU; a San Diego Police Department spokesman responded that the police have the authority to protect evacuees from unwanted press interviews.
    Offending column   The Benicia Herald, a daily newspaper, has fired its editor for a political column he wrote that upset two heavily advertising candidates in next week’s city election.
    Shield veto threat   The White House is threatening to veto the federal shield law bill, H.R. 2102, if Congress passes it, which USA Today predicts is likely.

Free Speech
    Flame retardant   Statements posted to a website on homeowner association issues attacking an attorney’s professional integrity were merely “a private campaign of vilification” and not a matter of public concern meriting anti-SLAPP protection, ruled the Court of Appeal in an unpublished decision.

Open/Secret Government
    Paper trace   Senator Jim Bunning (R-KY) has put a hold on a bipartisan bill to reverse President Bush’s 2001 executive order giving presidents and former presidents more power to halt indefinitely the release of their White House records. The House-originating measure is authored by California’s Henry Waxman.  Meanwhile candidate Hillary Clinton, asked about releasing her husband’s papers, stayed true to message and said they’ll be available after being processed.
    Pumping irony   Contra Costa Times columnist Tom Peele’s reaction to Governor Schwarzenegger’s boast, in vetoing AB 1393, that “My administration's commitment to the public records act is unwavering"—“Really? Does the governor actually believe the things his staff writes in his name?” Meanwhile Schwarzenegger’s office has told the Daily Journal in Los Angeles (sorry for the link lack—its website is subscription only) that it will not identify those whom it consults for recommendations on the appointment of judges, although it has said it would release the names to the Assembly—by January.
    Land deal secrets   The Legislative Analyst’s Office has concluded after two years of research that the Department of Fish and Game and other California state agencies “keep too many documents secret when they buy land and do not have consistent standards to ensure the public is paying reasonable prices,” reports the San Jose Mercury News.

Public Information
    Day labor employers   The California Newspaper Publishers Association, the Los Angeles Times and the San Diego Union-Tribune have appealed a judge’s ruling barring the City of Vista from disclosing a list of those who have registered as an employer of day laborers.  The ACLU obtained a temporary restraining order in September against release of the names to protect the employers’ privacy.

Records Released Reveal . . .
A city official denied pension credit for time she never worked; an admired police chief’s retirement marred by an issue of possible pension-spiking; a legal aide to the Insurance Commissioner secretly helped regulated companies in their lawsuit against his boss; Long Beach subsidies for a summer Sea Festival run by a private association were wasted, according to an online news site.

Open Meetings
    A Fate Worse Than Indictment?  The Orange County DA won’t prosecute four members of the Capistrano Unified School Board who accepted his report that over a six-month period they discussed business unlawfully in closed session and otherwise violated the open meeting law dozens of times. But wait—OC Weekly reports that the county Republican Central Committee “did something unprecedented by unanimously voting to call for the resignations of four of its own elected officials who sit on the Capistrano Unified School District Board.”

Whistleblowers
    Dummy up!   The Bush administration isn’t the first to punish insiders who go public  with inconvenient facts.  But, James Sandler tells Salon, it’s the most ferocious in resisting Congressional efforts to protect them.

Bush Era Secrecy: Who Will Renounce It?

One of the Washington Post's Deep Throat duo is warning that a President Hillary Clinton could be as hostile to transparency as the current administration—at least on matters touching her own White House experience and performance. Jon Wiener, blogging today for The Nation, reports that Clinton biographer and All the President's Men co-author Carl Bernstein told an audience at the Nixon Library in Yorba Linda a few days ago that "Hillary's fear of humiliation, her fear of secrets being revealed, absolutely permeates her life."  Adds Wiener:

At lunch before his talk, Bernstein emphasized Hillary's continuing obsession with secrecy. He told me he did not think Hillary would repeal Bush's Executive Order on Classification, the most restrictive ever, which has outraged advocates of freedom of information in Congress and the media. Bush's order gives the president or any former president the right to withhold the former president's papers from the public. . . .  But the Bush executive order on classification would have a special appeal for Hillary as president, Bernstein said. "Do you think she wants to open the papers of Bill's presidency, which include all the material on her role?" Asked about the legislation introduced by Congressman Henry Waxman to repeal Bush's classification order, Bernstein was skeptical it would pass in the next congress: "Do you think Democrats in Congress would demand repeal in the face of Hillary's opposition?"

This speculation seems supported by Michael Isikoff's report in the October 29 Newsweek that a more recent biographer hit the wall in trying to do research at the new William J. Clinton Presidential Library, dubbed by some "Little Rock's Fort Knox."  Author Sally Bedell Smith's purpose was to document the First Lady's actual influence on policy, says Isikoff, but she discovered that was a story the library would not help her with.

An archivist explained to Smith that the release of materials was tightly controlled by the former president's longtime confidant Bruce Lindsey. Could she look at memos detailing the advice Hillary gave Bill during debates over welfare reform? Smith asked. No, the archivist said, those memos were "closed" to the public because they dealt with "policy" matters. What about any records that show what advice Bill gave his wife about her 2000 U.S. Senate campaign? Those, too, were closed, the archivist said, because they dealt with "political" matters. "He essentially told me I had no chance of getting anything," says Smith, whose book, For Love of Politics: Bill and Hillary Clinton, the White House Years, hits the bookstores this week.

The Isikoff piece notes that while Bill Clinton has testily denied responsibility for his library's barriers and instead has blamed the current White House, documents obtained by Newsweek from the National Archives under the Freedom of Information Act show Clinton's private instructions to Archives officials in 2002 to "consider" withholding a certain list of categories of records:

"confidential communications" involving foreign-policy issues, "sensitive policy, personal or political" matters and "legal issues and advice" including all matters involving investigations by Congress, the Justice Department and independent counsels (a category that would cover, among other matters, Whitewater, Monica Lewinsky and the pardons of Marc Rich and others). Another restriction: "communications directly between the President and First Lady, and their families, unless routine in nature."

Like so many anti-disclosure policies, those giving former chief executives control over biographers', historians' or anyone else's access to their official papers is nothing new to California.  A compliant legislature here amended the Public Records Act during the Deukmejian administration, giving outgoing governors full veto power over public access to their records lodged in the State Archives, for 50 years or the governor's lifetime, whichever lasts longer (Government Code Section 6268).

Meanwhile the presidential campaign has so far found candidates giving little more than minimal lip service to reversing the Bush era of secrecy—only Barack Obama has given it any kind of emphasis. We are apparently to assume that Anyone But Bush has got to be more open.  But there are signs that some are becoming nervous about how little most candidates seem to care about reassuring the public of their transparency commitment.  Having deplored the Bush/Cheney expansion of presidential powers and unaccountability, are they nonetheless content to inherit them for their own purposes?

Why not start asking them?  Here's one way.  And another.

The Vanity Veto

Governor Arnold Schwarzenegger recently vetoed Assembly Bill 1393 (Leno-San Francisco), the measure sponsored by Californians Aware (CalAware) to make access to state government information far easier for those requesting it. AB 1393, as presented to the Governor, would have required every agency, board and commission in California's executive branch that has a website to provide on its home page an HTML form allowing people to submit requests for documents that must be disclosed under the California Public Records Act (CPRA). It would also have called on Attorney General Jerry Brown to convene an expert study group to recommend which types of records should be routinely posted on state websites to spare citizens from having to ask for theim piecemeal. The bill reflected the results of a CalAware audit last year that found most state agencies failing the fundamentals of CPRA compliance—not producing clearly public records when asked (or at all) and meanwhile illegally demanding to know who was asking for them, for what purpose, etc.

When this depressing news was published the Governor issued an executive order that the appropriate agency staff be trained forthwith, but several months later a re-audit—requesting exactly the same information from the same agencies—found that the original passage rate of 37 percent had risen only to 70 percent. That was in August 2006. By the time AB 1393 reached his desk a year later you can imagine how the compliance rate would have eroded, owing to staff turnover and the normal clerical preoccupation with priorities other than providing the public with information on demand. So the Governor's veto message—that the bill was unnecessary—implied that his one-time executive order of a year and a half earlier was all the correction that was needed; he had promptly acted and effectively solved whatever problem there was.

To suggest otherwise—and this is how the Governor must have interpreted AB 1393—was an affront to his vanity. He missed the chance to provide Californians with an inexpensive 21st century means of informing themselves about his administration, because to do so might concede that his executive penstroke had been inadequate to the reality of bureaucratic inertia. This is not the reaction of a strong man, but it is consistent with a career habit of checking one's poses in the mirror.