E-Mail This Article to a Friend Under cover (continued)

There is another aspect to the Bush administration’s abuse of FOIA, and it’s not about the public’s right to know. Rather, it is about the way the White House has used FOIA in order to wage the war on terror without any oversight from other branches of the government. Central to this has been the effort to operate with little or no judicial intervention. Over and over, the White House has insisted that detainees at Guantánamo and elsewhere may be held in near-total secrecy, with no access or recourse to the federal courts so that they can challenge their detention. But the Supreme Court has grown increasingly assertive, ruling on several occasions in the past year that detainees do, indeed, have the right to be heard.

If the courts are gradually re-emerging as one of the three co-equal branches of government, the same cannot be said for Congress. With both the Senate and the House controlled by the Republican Party, and with the Democrats divided and cowed, the oversight responsibility that the legislative branch performs through hearings, subpoenas, and the like has all but disappeared. When Bush-administration officials disdain FOIA requests, they do so secure in the knowledge that they won’t be called to account by Congress; and the flip side is that if less embarrassing information is coming to light by way of FOIA, then Congress is all the less likely to act.

"Agencies are always wary of FOIA requests. There’s a natural bureaucratic impulse to hoard information. But that impulse has been heightened by the Bush administration’s preference for unchecked executive authority," says Steven Aftergood, head of the Federation of American Scientists’ Project on Government Secrecy, in Washington. "I would say also that FOIA has become a more important tool than ever because of the fact that congressional oversight is slack or sometimes dormant. The ACLU has done an exemplary job of employing FOIA to uncover records that should have been uncovered through congressional hearings. And the fact that Congress has been derelict makes FOIA more important, and makes the ACLU’s contribution all the more valuable."

Last May, members of Congress lined up to view photos and videos from Abu Ghraib that were widely described as being as bad as — or worse than — the images published in the Washington Post, the New Yorker, and other media outlets. According to an account in the Post, Democratic senator Bill Nelson, of Florida, told reporters, "Some of the videos are more disturbing than the still photos that you’ve seen." Aftergood immediately filed a FOIA request with the Defense Department — but those pictures still haven’t seen the light of day. "They’ve been playing musical chairs with this request," he says.

Aftergood believes there is a heavy price to pay for such secrecy. In the name of protecting ourselves from terrorists, we are losing the ability to govern ourselves. "The danger is an erosion of the checks and balances on which we depend," he says. "We don’t live in a monarchy. And we don’t live in a country where the executive has unchecked authority. We have a separation of powers. But that separation of powers is under assault, and the executive branch is claiming more and more authority unto itself." He adds: "Not enough people care about it. I think that one of the consequences of official secrecy is to render people stupid. What I mean by that is that we lose confidence in our ability to be political actors, and to participate meaningfully in political debate. And I’m afraid that that process is well under way. It amounts to a transformation of our political system away from the democratic ideal and towards a rule by the executive branch."

Adds David Sobel, general counsel for the Electronic Privacy Information Center (EPIC), in Washington: "In a system that’s supposed to be based on checks and balances, any unilateral approach to controversial government activity is an obvious problem." EPIC recently unearthed an affidavit from an FBI agent stating that the agency possesses detailed information about nearly 260 million people who took commercial flights in the months immediately preceding 9/11 — a massive violation of privacy rights that could conceivably be justified on public-safety grounds, except that this has never been discussed or debated in public.

Ultimately, this is what George W. Bush and his administration seem to have the hardest time understanding. There is a real terrorist threat, and during such a time, extraordinary measures must be taken. But rather than tell us what those extraordinary measures are, and subjecting them to the political process and to public discussion, the White House’s first instinct is to cover them up. And when there is secrecy, wrongdoing often follows. Thus the detentions at Guantánamo and Abu Ghraib devolved into torture, and the post-9/11 roundup of foreigners living in the United States disappeared into a bureaucratic black hole.

For the record, Sobel says EPIC and others found that between 900 and 1200 foreigners were detained after 9/11. Not one, he says, was ever charged directly in connection with terrorism. Most were deported on minor charges. It took far more effort than it should have to find that out. And People for the American Way shouldn’t have to pay nearly $400,000 to shed more light on that matter.

Last April, in a speech to a convention of newspaper editors, Secretary of Defense Rumsfeld alluded to his youthful support for the Freedom of Information Act, and claimed he remains committed to its ideals.

"Now we all recognize that that act causes government officials occasional pain, but in my view, it has been a valuable act in helping to get the facts to the American people," Rumsfeld said, adding: "Our great political system needs information to be self-correcting. While excesses and imbalances will inevitably exist for a time, fortunately they tend not to last. Ultimately truth prevails. The American people seem to have inner gyroscopes that keep them centered and balanced."

It was a fine speech, but, unfortunately, one whose sentiments are being trampled on by the administration for which Rumsfeld works, and by Rumsfeld himself. You may recall that Rumsfeld didn’t even tell the president about Abu Ghraib, never mind the American people.

In his address to Congress nine days after the terrorist attacks, President Bush declared war against terrorism, and talked about operations that would remain "secret even in success." But successes are rarely kept secret. It is the failures — the awful tales of men chained to walls, whimpering in their own excrement, splattered with fake menstrual blood — that our government most wants to keep hidden from view.

Seen in that light, the ongoing assault against the Freedom of Information Act isn’t just another case of the White House thumbing its nose at its critics. It’s a moral outrage.

Dan Kennedy can be reached at dkennedy[a]phx.com. Read his Media Log at BostonPhoenix.com.