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Sen. Kennedy's Floor Statement on Bush Administration Secrecy

Published: July 28, 2005
Last Updated: July 28, 2005

Administration secrecy doesn't stop with its interrogation policy. This administration has a systematic disregard for oversight and openness. Government is intended to be "of the people, by the people, and for the people." Democracy requires informed citizens, and to be informed, citizens need to have information about the government. Congress and the executive branch are supposed to be open and accountable, so the American people know what is being done in their name.

But under the Bush administration, openness and accountability have been replaced by secrecy and evasion of responsibility. They abuse their power, conceal their actions from the American people, and refuse to hold officials accountable.

No one disputes the necessity of classifying information critical to protecting our national security—military operations, weapon designs, intelligence sources, and similar information. But in the post- 9/11 world, the administration is making secrecy the norm and openness the exception. It has used the tragedy of 9/11 to classify unprecedented amounts of information. Material off-limits to the public has become so extensive that no other conclusion is possible.

The Bush administration has a pervasive strategy to limit access to information in order to avoid independent evaluation of its actions by Americans whose job it is to observe and critique their government. When even congressmen, journalists and public interest groups complain about limits on access to information, we know the difficulties faced by ordinary Americans seeking information from their government.

At a hearing last August in the House Subcommittee on National Security, the director of the Government's Information Security Oversight Office, J. William Leonard, testified that "it is no secret that the government classifies too much information. Too much classification unnecessarily impedes effective information sharing."

The deputy Undersecretary of Defense for Counterintelligence and Security, Carol A. Haave, said that as much as half of all classified information doesn't need to be classified.

Last year, a record 15.6 million documents were classified by the Bush administration at a cost of $7.2 billion, many under newly invented categories with fewer requirements for classification.

The administration argues that all this secrecy is necessary to win the war on terrorism. But the 9/11 Commission Report said that too much government secrecy had hurt U.S. intelligence capability even before 9/11. "Secrecy stifles oversight, accountability, and information sharing," says the report. They know from their own experience.

In July 2003, the 9/11 Commission's co-chairmen, Thomas Kean and Lee Hamilton, complained publicly that the Administration was failing to provide requested information.

In October 2003, the commission had no choice, after repeated requests, but to subpoena records from the FAA.

In November 2003, after multiple requests, the commission again had to subpoena information, this time from the Department of Defense.

For the rest of that fall and spring, the administration repeatedly tried to deny access to presidential documents important to the Commission's investigation, until public outcry grew loud enough to convince the administration otherwise.

Key members of the administration balked at testifying, until public opinion again swayed their stance.

And then, in an ironic twist, 28 pages of the 9/11 Commission Report itself was classified. So, is all this secrecy really about protecting us from the terrorists? Or is it just to avoid accountability?

This administration, once in office, wasted no time challenging those who would hold them accountable. In May 2001, Vice President Cheney's energy task force issued its report recommending more oil and gas drilling to solve our energy problems. In light of his former employment at Halliburton, the recommendation was hardly astonishing. What was astonishing was the vice president's refusal to identify the people and groups who helped write the policy.

In June 2001, the GAO [Government Accountability Office], the nonpartisan, investigative arm of Congress, requested information on the energy task force, following reports that campaign contributors had special access while the public was shut out. GAO's request was simple. It asked, "Who serves on this task force; what information is being presented to the task force and by whom is it being given; and…the costs involved in the gathering of the facts." Considering that the task force wrote the nation's energy policy, it was not an unreasonable request.

The administration refused to comply, even though GAO's request was not out of the ordinary. President Clinton's task forces on health care and on China trade relations were both investigated by GAO. The Clinton administration turned over detailed information on the participants and proceedings of the task forces.

But the Bush administration argued that GAO did not have the authority to conduct the investigation. For the first time in its 80-year history, GAO was forced to file suit against an administration to obtain requested information. But the court sided with the administration in Walker v. Cheney, and GAO's investigative oversight authority was effectively reduced. Independent oversight is critically important when one party controls both Congress and the White House, and GAO is critical to that oversight.

On Oct. 12, 2001, [Attorney General] John Ashcroft wrote a memo outlining the Justice Department's views on Freedom of Information Act requests. The memo set the tone for an administration hostile to such requests. It discouraged executive branch agencies from responding to Freedom of Information Act requests, even when the agencies had the option to respond. He basically reversed the long-standing policy of prior administrations.

The Clinton administration policy, set forth by Attorney General Janet Reno, was that if a document could be released without harm, an agency should do so, even if there were technical grounds for withholding it. They knew that government openness was essential to an informed public.

When the Bush administration came to office, Attorney General Ashcroft disagreed—he wrote that if there is any technical ground for withholding a document under the Freedom of Information Act, an agency should withhold it. The Clinton policy had been "release if at all possible." The Bush policy was "keep secret if at all possible."

Why should the public know what the administration is doing? Why release documents that might be embarrassing to the White House or its friends in business?

Some organizations claim, based on their experience, that this obsession with secrecy goes even farther, and that executive branch agencies are being told to withhold information until it is subpoenaed. Sean Moulton, a senior policy analyst at OMB Watch, argued that "if there are documents the government doesn't want to release but doesn't have any legal basis for withholding, unless you're willing to go to court, you're not getting those documents."

Since the tragedy of Sept. 11, this administration has effectively shut down inquiry after inquiry:

In November 2001, energy companies were planning a natural gas pipeline through the Blue Ridge Mountains of Virginia. Local citizens, led by former U.S. Army Ranger Joseph McCormick, asked the Federal Energy Regulatory Commission for a map of the planned pipeline. These citizens weren't being nosy—they wanted to know if a large, new pipeline for natural gas would be going through their backyards. FERC denied the citizens' request in the name of national security, even though this type of information had been public before 9/11. Clearly, national security concerns are legitimate. But without knowledge of the pipeline's location, how could these citizens defend their property? Joseph McCormick put it bluntly: "There certainly is a balance," he said. "It's about people's right to use the information of an open society to protect their rights."

In the fall of 2002, the chemical compound perchlorate was found in the water supply of Aberdeen, Md.—near the Army's famous Aberdeen Proving Ground. Perchlorate is a main ingredient of rocket fuel. It also stunts the metabolism and brain growth of newborns. A group of citizens organized, and worked with the Army to protect their drinking water from further contamination. But a few months later, the Army began censoring maps and information that would help determine which areas were contaminated, supposedly in the interest of national security—if citizens could find out where the water was contaminated, then terrorists could find it too. The head of the citizens' group was a 20-year Army veteran. His water well was only a mile and a half away from the proving ground. "It's an abuse of power," he said. "The government has to be transparent."

Even members of Congress have had to subpoena information in order to do their work. Last October, Congressmen Christopher Shays and Henry Waxman, the Chairman and Ranking Democrat on the House Government Reform Subcommittee on National Security, Emerging Threats and International Relations, asked for an audit of the Development Fund for Iraq. The copy they received had over 400 items blacked out. They had so much difficulty obtaining an unredacted report from the Defense Department that they had to prepare a subpoena. Once they finally received an unredacted copy, guess what had been blacked out? More than $218 million in charges from Halliburton. So far, no one has been held accountable.

It's now been 744 days without a White House investigation into the CIA leak case. It took 85 days for the administration even to require its staff to turn over evidence relating to the leak. Senate Republicans held 20 hearings on accusations against President Clinton and the Whitewater case, but they've held zero hearings on the leak of the covert identity of CIA agent Valerie Plame. So far, no one has been held accountable.

Last week, the Defense Department refused to cooperate with a federal judge's order to release secret photographs and videotapes of prisoner abuse at Abu Ghraib. The ACLU [American Civil Liberties Union] had sued to obtain release of 87 photographs and four videotapes, but the administration filed sealed documents resisting the order. They are so obsessed with secrecy that they even make secret arguments to keep their secrets. So far, no one has been held accountable.

Also last week, the administration submitted an initial report on progress in training Iraqi security forces. It's been more than two years since the fall of Baghdad, and a reliable assessment of our progress in training those forces was long overdue. The key questions that the American people want to know are how many Iraqi security forces are capable of fighting on their own and what our military requirements will be the months ahead. But the answers remain classified. The American people deserve to know the facts about our policy. They want to know how long it will take to fully train the Iraqis and when our military mission will be completed. They can deal with the truth, and they deserve it.

No one wants to do anything that would help the insurgents. But the administration must do a better job of responding to the legitimate concerns of the American people. The administration still isn't willing to be candid. It needs to find a way to shed some of the secrecy and answer these questions in good faith for the American people. The silence is deafening.

There's also a pattern of withholding information from members of Congress on the administration's nominations. In 2003, Miguel Estrada was nominated for a federal judgeship. We requested legal memos he wrote as assistant solicitor general, and we were repeatedly denied. In 2004, Alberto Gonzales was nominated to be attorney general. We requested various memoranda he authorized on administration torture policy, and we were repeatedly denied. Earlier this year, John Bolton was nominated to be ambassador to the United Nations. We requested documents to determine if he acted appropriately in his previous job, and we have been repeatedly denied.

Instead of coming clean and providing the information to the Congress, we've been stonewalled. Our questions have gone unanswered. And now, the president appears to be poised to abuse his power further, rub salt in the wound, and send John Bolton to the United Nations anyway with a recess appointment of dubious constitutionality.

Now John Roberts has been nominated to a lifetime seat on the Supreme Court. We hope this nomination will be different, but press accounts suggest otherwise. The administration announced it would not release many of the memos written by John Roberts while he served in the Reagan and first Bush administrations. They say they will claim attorney-client privilege, but many of the memos vital to our consideration of Judge Roberts for the Supreme Court were written while he worked in the solicitor general's office. That office works for all the American people—not just the president. They know attorney-client privilege clearly does not prevent them from providing or the Senate from receiving these vital materials.

Yes, the administration has consistently used the horror of 9/11 and its disdain of congressional oversight to get its way and avoid accountability. It consistently uses this secrecy to roll back the rights of average Americans. But even its best spin doctors can't conceal some of the administration's most flagrant abuses of power.

Last August, The New York Times reported that "health rules, environmental regulations, energy initiatives, worker-safety standards and product-safety disclosure policies have been modified in ways that often please business and industry leaders while dismaying interest groups representing consumers, workers, drivers, medical patients, the elderly and many others." Often, this has been done in silence and near secrecy.

In 2000, Congress responded to the disclosure of defects in Firestone tires, which may have been responsible for as many as 270 deaths, by passing legislation which would make information on auto safety and related defects readily available. But in July 2003, the National Highway Traffic Safety Administration decided that reports of defects would cause "substantial competitive harm" to the auto industry, and exempted warranty claims and consumer complaints from the Freedom of Information Act. Clearly, that was another abuse of power that protects big business while putting the American public at greater risk.

In 2003, the administration knowingly withheld cost estimates of its Medicare prescription drug bill—one of the most important pieces of legislation that year. The estimates showed costs over $100 billion more than the administration claimed, but the information was withheld because of fears that the actual numbers would persuade members of Congress to vote "no." Administration officials threatened to fire Chief Actuary Richard Foster "so fast his head would spin," if he informed Congress of the real cost estimate. I wrote a letter to the administration on this subject, but they never responded to my questions.

In 2003, the Food and Drug Administration kept secret a report that children on antidepressants were twice as likely to be involved in suicide-related behavior. The FDA also prevented the author of the study—their expert on the issue—from presenting his findings to an FDA advisory committee. Dr. Joseph Glenmullen, a Harvard psychiatrist, said "Evidence that they're suppressing a report like this is an outrage, given the public health and safety issues at stake… For the FDA to issue an ambiguous warning when they had unambiguous data like this is an outrage."

In November 2003, the White House told the Appropriations Committees in both houses of Congress that it would only respond to requests for information if they were signed by the committee chairman. In a time of one-party rule, this tactic made congressional oversight almost completely impossible.

In April 2004, the ranking member of the Environment and Public Works Committee, Sen. Jim Jeffords, was forced to place holds on several EPA nominees after the administration refused to respond to 12 outstanding information requests, including information on air pollution.

In August 2004, under pressure from the Department of Homeland Security, the FCC [Federal Communications Commission] decided to make telephone service outage reports confidential, and exempt them from Freedom of Information Act requests. The FCC argued it was because companies could use competitors' service outages in ad campaigns. You may not be able to make informed decisions on your phone company, but at least the company will be protected from nasty advertising.

Last month, we discovered that the administration had blocked studies criticizing the Central American Free Trade Agreement—after it had already paid for them. In 2002, the Department of Labor hired the International Labor Rights Fund to back up its argument that Central American countries had improved on labor issues. The contractor found the opposite, and posted its results on its Web site in March 2004. The Labor Department ordered its removal from the Web site, banned its release, and barred the contractor's employees from discussing the report. The Department of Labor denied a congressman's request for the report under the Freedom of Information Act. These are the American people's tax dollars. But when the administration didn't like an answer, it abused its power to avoid accountability—at their expense.

Yesterday, The Wall Street Journal disclosed yet another list of abuses in Iraq reconstruction. $10 billion of no-bid contracts were awarded. $89 million was doled out without contracts at all. $9 billion is unaccounted for, and may have been embezzled. An official fired for incompetence was still giving out millions of dollars in aid, weeks after his termination. A contractor was paid twice for the same job. A third of all U.S. vehicles that Halliburton was paid to manage are missing. It's a staggering display of incompetence and cover-up, so that no one will be held accountable.

Americans deserve better. They deserve the information necessary to become informed, effective citizens. We as lawmakers are better able to represent our constituents when we have access to the critical information held by the executive branch. We must never forget who we work for—the American people. Congress is a co-equal branch of government, and we have a duty to hold the administration accountable for its actions.