WWW.DEMOCRATS.REFORM.HOUSE.GOV

UNITED STATES HOUSE OF REPRESENTATIVES

COMMITTEE ON GOVERNMENT REFORM — MINORITY STAFF

SPECIAL INVESTIGATIONS DIVISION

SEPTEMBER 14, 2004 

 

 

SECRECY IN THE BUSH ADMINISTRATION

PREPARED FOR 

REP. HENRY A. WAXMAN
SECRECY IN THE BUSH ADMINISTRATION 

TABLE OF CONTENTS

EXECUTIVE SUMMARY......................................................................................................................iii 

INTRODUCTION ................................................................................................................................1 

PART I: LAWS THAT PROVIDE PUBLIC ACCESS TO FEDERAL RECORDS............................................2 

I. FREEDOM OF INFORMATION ACT .................................................................................................2 

A. The Ashcroft Memo.......................................................................................................4 

B. The Card Memo.............................................................................................................6 

C. Critical Infrastructure Information ................................................................................8 

D. Other Statutory and Regulatory Exemptions...............................................................11 

 1. National Security Agency Operational Files..........................................................11 

 2. Commercial Satellite Data.....................................................................................12 

 3. Vehicle Safety Defect Information.........................................................................12 

 4. Critical Energy Infrastructure Information ............................................................14 

E. Denying Fee Waivers....................................................................................................16 

 1. Narrowing the Definition of “Representative of the News Media” .......................17 

2. Claiming Information Would Not Contribute to Public Understanding...............19 

 3. Using Sequential Fee Waiver Denials....................................................................19 

F. Inappropriate Use of Exemptions..................................................................................21 

 1. Making Frivolous Exemption Claims .....................................................................22 

2. Abusing the Deliberative Process Privilege............................................................23 

 3. Abusing the Law Enforcement Exemption ............................................................24 

 4. Withholding Data on Telephone Service Outages................................................25 

G. Denial through Delay...................................................................................................26 

H. The Views of Experts ...................................................................................................28 

II. PRESIDENTIAL RECORDS ACT....................................................................................................31 

III. FEDERAL ADVISORY COMMITTEE ACT.....................................................................................35 

A. Limiting FACA through Legislation............................................................................36 

B. Avoiding and Disregarding FACA ..............................................................................37 
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ii

PART II: LAWS THAT RESTRICT PUBLIC ACCESS TO FEDERAL RECORDS .......................................42 

I. NATIONAL SECURITY CLASSIFICATION OF GOVERNMENT RECORDS ..........................................44 

A. President Bush’s Executive Order 13292.....................................................................45 

 1. Eliminating the Presumption of Disclosure............................................................45 

 2. Undermining Automatic Declassification..............................................................45 

 3. Protecting Foreign Government Information ........................................................46 

 4. Reclassifying Information.......................................................................................47 

 5. Weakening the Interagency Security Classification Appeals Panel.......................47 

6. Exempting Vice Presidential Records from Mandatory Declassification 

 Review....................................................................................................................48 

B. President Bush’s Expansion of “Original Classification Authorities” ...........................48 

C. The Impact on Classification Decisions .......................................................................49 

II. EXPANDED PROTECTION OF “SENSITIVE SECURITY INFORMATION” ..........................................53 

III. WEAKENED DHS DISCLOSURE UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT...........55 

IV. LAWS THAT EXPAND SECRET GOVERNMENT OPERATIONS .....................................................56 

A. The USA PATRIOT Act ............................................................................................57 

 1. Obtaining Records in Secret ..................................................................................57 

 2. Conducting Secret Wiretaps..................................................................................58 

 3. Expanding Use of “Sneak and Peek Warrants” .....................................................59 

 4. Expanding Use of Federal Grand Juries .................................................................60 

B. Secret Detentions, Trials, and Deportations ...............................................................61 

 1. Deportations of Enemy Combatants ......................................................................62 

 2. Trials of Enemy Combatants..................................................................................64 

 3. Detentions and Deportations of Aliens .................................................................65 

PART III: CONGRESSIONAL ACCESS TO INFORMATION..................................................................68 

I. GAO AUTHORITY TO INVESTIGATE ...........................................................................................69 

II. SEVEN MEMBER RULE ................................................................................................................72 

III. INFORMATION REQUESTS FROM RANKING MEMBERS OF CONGRESSIONAL COMMITTEES ........76 

IV. INVESTIGATIVE COMMISSIONS .................................................................................................78 

CONCLUSION ..................................................................................................................................81
SECRECY IN THE BUSH ADMINISTRATION 

EXECUTIVE SUMMARY

Open and accountable government is one of the bedrock principles of our 

democracy. Yet virtually since inauguration day, questions have been raised about 

the Bush Administration’s commitment to this principle. News articles and reports 

by independent groups over the last four years have identified a growing series of 

instances where the Administration has sought to operate without public or 

congressional scrutiny. 

At the request of Rep. Henry A. Waxman, this report is a comprehensive 

examination of secrecy in the Bush Administration. It analyzes how the 

Administration has implemented each of our nation’s major open government laws. 

The report finds that there has been a consistent pattern in the Administration’s 

actions: laws that are designed to promote public access to information have been 

undermined, while laws that authorize the government to withhold information or to 

operate in secret have repeatedly been expanded. The cumulative result is an 

unprecedented assault on the principle of open government. 

The Administration has supported amendments to open government laws to create 

new categories of protected information that can be withheld from the public. 

President Bush has issued an executive order sharply restricting the public release of 

the papers of past presidents. The Administration has expanded the authority to 

classify documents and dramatically increased the number of documents classified. It 

has used the USA Patriot Act and novel legal theories to justify secret investigations, 

detentions, and trials. And the Administration has engaged in litigation to contest 

Congress’ right to information. 

The records at issue have covered a vast array of topics, ranging from simple census 

data and routine agency correspondence to presidential and vice presidential records. 

Among the documents that the Administration has refused to release to the public 

and members of Congress are (1) the contacts between energy companies and the 

Vice President’s energy task force, (2) the communications between the Defense 

Department and the Vice President’s office regarding contracts awarded to 

Halliburton, (3) documents describing the prison abuses at Abu Ghraib, (4) 

memoranda revealing what the White House knew about Iraq’s weapons of mass 

destruction, and (5) the cost estimates of the Medicare prescription drug legislation 

withheld from Congress. 

There are three main categories of federal open government laws: (1) laws that 

provide public access to federal records; (2) laws that allow the government to 

restrict public access to federal information; and (3) laws that provide for 

congressional access to federal records. In each area, the Bush Administration has 

acted to restrict the amount of government information that is available. 
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Laws That Provide Public Access to Federal Records

Beginning in the 1960s, Congress enacted a series of landmark laws that promote 

“government in the sunshine.” These include the Freedom of Information Act, the 

Presidential Records Act, and the Federal Advisory Committee Act. Each of these 

laws enables the public to view the internal workings of the executive branch. And 

each has been narrowed in scope and application under the Bush Administration. 

Freedom of Information Act

 

The Freedom of Information Act is the primary law providing access to information 

held by the executive branch. Adopted in 1966, FOIA established the principle that 

the public should have broad access to government records. Under the Bush 

Administration, however, the statute’s reach has been narrowed and agencies have 

resisted FOIA requests through procedural tactics and delay. The Administration 

has: 

• Issued guidance reversing the presumption in favor of disclosure and instructing 

agencies to withhold a broad and undefined category of “sensitive” information; 

• Supported statutory and regulatory changes that preclude disclosure of a wide 

range of information, including information relating to the economic, health, and 

security infrastructure of the nation; and 

• Placed administrative obstacles in the way of organizations seeking to use FOIA 

to obtain federal records, such as denials of fee waivers and delays in agency 

responses. 

Independent academic experts consulted for this report decried these trends. They 

stated that the Administration has “radically reduced the public right to know,” that 

its policies “are not only sucking the spirit out of the FOIA, but shriveling its very 

heart,” and that no Administration in modern times has “done more to conceal the 

workings of government from the people.” 

The Presidential Records Act 

The Presidential Records Act, which was enacted in 1978 in the wake of Watergate, 

establishes the important principle that the records of a president relating to his 

official duties belong to the American people. Early in his term, President Bush 

issued an executive order that undermined the Presidential Records Act by giving 

former presidents and vice presidents new authority to block the release of their 
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records. As one prominent historian wrote, the order “severely crippled our ability to 

study the inner workings of a presidency.” 

The Federal Advisory Committee Act 

The Federal Advisory Committee Act prevents secret advisory groups from 

exercising hidden influence on government policy, requiring openness and a balance 

of viewpoints for all government advisory bodies. The Bush Administration, 

however, has supported legislation that creates new statutory exemptions from 

FACA. It has also sought to avoid the application of FACA through various 

mechanisms, such as manipulating appointments to advisory bodies, conducting key 

advisory functions through “subcommittees,” and invoking unusual statutory 

exemptions. As a result, such key bodies as the Vice President’s energy task force 

and the presidential commission investigating the failure of intelligence in Iraq have 

operated without complying with FACA. 

Laws that Restrict Public Access to Federal Records 

In the 1990s, the Clinton Administration increased public access to government 

information by restricting the ability of officials to classify information and 

establishing an improved system for the declassification of information. These steps 

have been reversed under the Bush Administration, which has expanded the capacity 

of the government to classify documents and to operate in secret. 

The Classification and Declassification of Records 

The classification and declassification of national security information is largely 

governed by executive order. President Bush has used this authority to: 

• Reverse the presumption against classification, allowing classification even in 

cases of significant doubt; 

• Expand authority to classify information for longer periods of time; 

• Delay the automatic declassification of records; 

• Expand the authority of the executive branch to reclassify information that has 

been declassified; and 

• Increase the number of federal agencies that can classify information to include 

the Secretary of Health and Human Services, the Secretary of Agriculture, and 

the Administrator of the Environmental Protection Agency. 
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Statistics on classification and declassification of records under the Bush 

Administration demonstrate the impact of these new policies. Original decisions to 

classify information — those in which an authorized classifier first determines that 

disclosure could harm national security — have soared during the Bush 

Administration. In fiscal years 2001 to 2003, the average number of original 

decisions to classify information increased 50% over the average for the previous five 

fiscal years. Derivative classification decisions, which involve classifying documents 

that incorporate, restate, or paraphrase information that has previously been 

classified, have increased even more dramatically. Between FY 1996 and FY 2000, 

the number of derivative classifications averaged 9.96 million per year. Between FY 

2001 and FY 2003, the average increased to 19.37 million per year, a 95% increase. 

In the last year alone, the total number of classification decisions increased 25%. 

Sensitive Security Information 

The Bush Administration has sought and obtained a significant expansion of 

authority to make designations of Sensitive Security Information (SSI), a category of 

sensitive but unclassified information originally established to protect the security of 

civil aviation. Under legislation signed by President Bush, the Department of 

Homeland Security now has authority to apply this designation to information 

related to any type of transportation. 

The Patriot Act 

The passage of the Patriot Act after the September 11, 2001, attacks gave the Bush 

Administration new authority to conduct government investigations in secret. One 

provision of the Act expanded the authority of the Justice Department to conduct 

secret electronic wiretaps. Another provision authorized the Justice Department to 

obtain secret orders requiring the production of “books, records, papers, documents, 

and other items,” and it prohibited the recipient of these orders (such as a telephone 

company or library) from disclosing their existence. And a third provision expanded 

the use of “sneak and peak” search warrants, which allow the Justice Department to 

search homes and other premises secretly without giving notice to the occupants. 

Secret Detentions, Trials, and Deportations 

In addition to expanding secrecy in government by executive order and statute, the 

Bush Administration has used novel legal interpretations to expand its authority to 

detain, try, and deport individuals in secret. The Administration asserted the 

authority to: 

• Hold persons designated as “enemy combatants” in secret without a hearing, 

access to a lawyer, or judicial review; 
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• Conduct secret military trials of persons held as enemy combatants when deemed 

necessary by the government; and 

• Conduct secret deportation proceedings of aliens deemed “special interest cases” 

without any notice to the public, the press, or even family members. 

Congressional Access to Federal Records 

Our system of checks and balances depends on Congress being able to obtain 

information about the activities of the executive branch. When government 

operates behind closed doors without adequate congressional oversight, 

mismanagement and corruption can flourish. Yet despite Congress’ constitutional 

oversight role, the Bush Administration has sharply limited congressional access to 

federal records. 

GAO Access to Federal Records 

A federal statute passed in 1921 gives the congressional Government Accountability 

Office the authority to review federal records in the course of audits and 

investigations of federal programs. Notwithstanding this statutory language and a 

long history of accommodation between GAO and the executive branch, the Bush 

Administration challenged the authority of GAO on constitutional grounds, arguing 

that the Comptroller General, who is the head of GAO, had no “standing” to enforce 

GAO’s right to federal records. The Bush Administration prevailed at the district 

court level and GAO decided not to appeal, significantly weakening the authority of 

GAO. 

The Seven Member Rule 

The Bush Administration also challenged the authority of members of the House 

Government Reform Committee to obtain records under the “Seven Member Rule,” 

a federal statute that requires an executive agency to provide information on matters 

within the jurisdiction of the Committee upon the request of any seven of its 

members. Although a district court ruled in favor of the members in a case involving 

access to adjusted census records, the Bush Administration has continued to resist 

requests for information under the Seven Member Rule, forcing the members to 

initiate new litigation. 

Withholding Information Requested by Congress 

On numerous occasions, the Bush Administration has withheld information 

requested by members of Congress. During consideration of the Medicare legislation 

in 2003, the Administration withheld estimates showing that the bill would cost over 
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$100 billion more than the Administration claimed. In this instance, Administration 

officials threatened to fire the HHS Actuary, Richard Foster, if he provided the 

information to Congress. In another case, the Administration’s refusal to provide 

information relating to air pollution led Senator Jeffords, the ranking member of the 

Senate Committee on Environment and Public Works, to place holds on the 

nominations of several federal officials. 

On over 100 separate occasions, the Administration has refused to answer the 

inquiries of, or provide the information requested by, Rep. Waxman, the ranking 

member of the House Committee on Government Reform. The information that the 

Administration has refused to provide includes: 

• Documents requested by the ranking members of eight House Committees 

relating to the prison abuses at Abu Ghraib and elsewhere; 

• Information on contacts between Vice President Cheney’s office and the 

Department of Defense regarding the award to Halliburton of a sole-source 

contract worth up to $7 billion for work in Iraq; and 

• Information about presidential advisor Karl Rove’s meetings and phone 

conversations with executives of companies in which he owned stock. 

The 9-11 Commission 

On November 27, 2002, Congress passed legislation creating the National 

Commission on Terrorist Attacks upon the United States (commonly known as the 

9-11 Commission) as a congressional commission to investigate the September 11 

attacks. Throughout its investigation, however, the Bush Administration resisted or 

delayed providing the Commission with important information. For example, the 

Administration’s refusal to turn over documents forced the Commission to issue 

subpoenas to the Defense Department and the Federal Aviation Administration. 

The Administration also refused for months to allow Commissioners to review key 

presidential intelligence briefing documents. 

The Collective Impact 

Taken together, the actions of the Bush Administration have resulted in an 

extraordinary expansion of government secrecy. External watchdogs, including 

Congress, the media, and nongovernmental organizations, have consistently been 

hindered in their ability to monitor government activities. These actions have 

serious implications for the nature of our government. When government operates 

in secret, the ability of the public to hold the government accountable is imperiled. 
SECRECY IN THE BUSH ADMINISTRATION 

INTRODUCTION

One of the core principles of our democracy is that government should be open 

and accountable. As stated by William Jennings Bryan in 1915: 

The government being the people’s business, it necessarily follows that its 

operations should be at all times open to the public view. Publicity is 

therefore as essential to honest administration as freedom of speech is to 

representative government. “Equal rights to all and special privileges to 

none” is the maxim which should control in all departments of 

government.1

 

Or as Justice Louis D. Brandeis said in 1933, “sunlight is said to be the best of 

disinfectants.”2

Contrary to these open government principles, the Bush Administration has often 

pursued polices that limit public access to information and allow more secret 

government operations. Some of these actions have been described in reports and 

news articles. In September 2003, the Reporters Committee for Freedom of the 

Press published a white paper entitled “Homefront Confidential: How the War on 

Terrorism Affects Access to Information and the Public’s Right to Know.”3 This 

paper surveys Administration actions that enhance secrecy in the name of the war 

on terrorism. In December 2003, U.S. News and World Report published an 

investigative report entitled “Keeping Secrets: The Bush Administration Is Doing 

the Public’s Business out of the Public Eye,”4

 and NOW with Bill Moyers ran an 

associated story entitled “Veil of Secrecy.”5 Major national newspapers such as 

 1

 William Jennings Bryan, Secretary of State, Bryan’s Ten Rules for the New Voter, Baltimore 

Sun (Apr. 25, 1915) (speech before the City Club, Baltimore, Maryland). 

2

 L. Brandeis, Other People’s Money, 62 (1933). 

3

 Reporters Committee for Freedom of the Press, Homefront Confidential: How the War on 

Terrorism Affects Access to Information and the Public’s Right to Know (4th ed., Sept. 2003); 

see also Christopher Gozdor et al., Where the Streets Have No Name: The Collision of 

Environmental Law and Information Policy in the Age of Terrorism, Environmental Law 

Reporter, 10978 (Dec. 2003). 

4

 Keeping Secrets, U.S. News and World Reports (Dec. 22, 2003). 

5

 Veil of Secrecy, NOW with Bill Moyers (Dec. 12, 2003). See also Stephen Pizzo, 

Misleader.org, Hiding the Truth? President Bush’s Need-to-Know Democracy (Oct. 29, 

2003) (online at http://www.misleader.com/pdf/specialreport2_secrecy.pdf). Center for 

American Progress and OMB Watch, Special Interest Takeover: The Bush Administration 

and the Dismantling of Public Safeguards, 87–99 (May 2004). 
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the New York Times, the Washington Post, and the Los Angeles Times have also run 

articles on secrecy in the Bush Administration.6 

This report looks at secrecy in the Bush Administration from a different vantage 

point. At the request of Rep. Henry A. Waxman, ranking minority member of the 

House Committee on Government Reform, it systematically examines how the 

Bush Administration has implemented the major laws that govern access to 

government records. It considers each of the principal laws, regulations, or 

executive orders that provide rights of access to government records or give the 

government the right to keep information secret. And it documents how the 

Administration has interpreted and applied — or sought to change — these 

requirements and precedents. The result is a comprehensive assessment of secrecy 

in the Bush Administration. 

The report is organized into three parts. Part I examines how the Administration 

has implemented our nation’s basic open government laws, like the Freedom of 

Information Act and the Presidential Records Act. Part II investigates how the 

Administration has implemented laws that allow the government to keep 

information from the public, by means such as executive orders on the 

classification of documents. Part III concludes the report by looking at the special 

laws and precedents that govern Congress’ access to information. 

The report reveals that there has been a systematic effort by the Bush 

Administration to limit the application of the laws that promote open government 

and accountability. In the case of each of the nation’s fundamental open 

government and secrecy laws, the Bush Administration has sought to curtail 

public access to information while expanding the powers of government to operate 

in secret. 

PART I: LAWS THAT PROVIDE PUBLIC ACCESS TO FEDERAL RECORDS

I. Freedom of Information Act 

The Freedom of Information Act (FOIA) is the key law providing public access to 

information held by the Executive branch.7

 FOIA establishes the presumption 

that the people should be able to obtain information held by their government.8

 

 6

 See, e.g., Government Openness at Issue as Bush Holds onto Records, New York Times (Jan. 

3, 2003); Under Bush, Expanding Secrecy, Washington Post (Dec. 23, 2003); Supreme 

Court to Hear Cheney Secrecy Case, Los Angeles Times (Dec. 16, 2003). 

7

 5 U.S.C. §552. 
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3

Prior to FOIA’s adoption in 1966, individuals seeking government records had to 

prove that they had a unique entitlement to the records they were requesting.9 

FOIA reversed this. It established that any individual has a right to information 

held by the government unless the government proves that there is a reason to 

withhold the information. That reason must fall under one of the specific 

exemptions that FOIA provides to the disclosure requirements.10 FOIA lays out 

the procedures for an individual to request the release of government information. 

It also provides for an appeals process, including judicial review, if the government 

denies the request. 

The Bush Administration has taken a series of actions to undermine, and in some 

instances reverse, the principle that the public has a right to government 

information under FOIA. Specifically, the Bush Administration has: 

• Issued guidance reversing the presumption that government documents should 

be disclosed whenever possible. 

• Directed agencies to withhold from release a new category of documents — 

those that could be considered “sensitive but unclassified.” 

• Pursued legislation to create new categories of information that are exempt 

from disclosure under FOIA, including any information voluntarily provided 

to the government by a private party and designated “critical infrastructure 

information.” 

• Adopted regulations that block the release of specific types of information 

under FOIA. 

• Delayed and denied fee waivers for FOIA searches, thereby imposing on the 

public a considerable practical barrier to using FOIA. 

 8

 Committee on Government Reform, U.S. House of Representatives, A Citizen’s Guide on 

Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government 

Records (2003) (H. Rept. 108-172). This Citizen’s Guide has been issued and periodically 

updated by the full Committee on Government Reform (and its predecessors), which has 

jurisdiction over FOIA, since 1977. 

9

 Id. 

10 5 U.S.C. § 552(a)(3)(A) states: 

each agency, upon any request for records which (i) reasonably describes such 

records and (ii) is made in accordance with published rules stating the time, 

place, fees (if any), and procedures to be followed, shall make the records 

promptly available to any person. 
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• Applied FOIA exemptions inappropriately to withhold documents. 

Experts on government openness and information policy from academia and 

citizens’ groups who were consulted in the preparation of this report view these 

actions as significantly constricting access to government information. Jane 

Kirtley, a professor at the University of Minnesota, stated: “the message is that 

refusals to disclose information will be defended as long as they have ‘a sound legal 

basis.’ . . . It means delay, obfuscation, and frivolous denials will be 

commonplace.”11 Philip Melanson, a professor at the University of Massachusetts, 

stated: “The Bush Administration has radically reduced the public right to know 

via executive orders, court cases and policy memos, more so than any 

administration in modern history.”12 Other independent experts decried “a 

proliferation of new restrictions on unclassified information,”13 “more secrecy,”14

and the Bush Administration’s efforts “[to] roll[] back public access to 

government records and ... to shield government from the people.”15 

A. The Ashcroft Memo 

Recognizing that not all government information can be made public, the 

Freedom of Information Act exempts certain types of matters from the FOIA 

requirements. Specifically, section 552(b) excludes matters that fall under nine 

specific exemptions. Important exempt categories include classified information, 

certain information compiled for law enforcement purposes, and internal agency 

documents that would be exempt from discovery in litigation (e.g., documents 

that reveal the government’s predecisional deliberative process and attorneyclient privileged documents). 16 Since FOIA was first adopted, a key issue in the 

 11 E-mail from Jane E. Kirtley, Silha Professor of Media Ethics and Law and Director, Silha 

Center for the Study of Media Ethics and Law, University of Minnesota, to House 

Government Reform Committee minority staff, re: Comments on FOIA Policy (July 16, 

2004). 

12 Philip H. Melanson, Professor of Policy Studies and Director, Policy Studies Program, 

University of Massachusetts at Dartmouth, The Bush Administration and FOIA (July 10, 

2004) (fax communication to House Government Reform Committee minority staff). 

13 Telephone conversation between Steven Aftergood, Project on Government Secrecy, 

Federation of American Scientists, and House Government Reform Committee minority 

staff (July 14, 2004). 

14 E-mail from Meredith Fuchs, General Counsel, National Security Archive, George 

Washington University, to House Government Reform Committee minority staff (July 21, 

2004). 

15 E-mail from David C. Vladeck, Associate Professor, Georgetown University Law Center, 

to House Government Reform Committee minority staff (June 22, 2004). 

16 The nine exemptions are: (1) classified materials; (2) matters related solely to the 

internal personnel rules and practices of an agency; (3) matters specifically exempted in 
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ongoing struggle over government secrecy has been implementation of the 

exemptions that FOIA delineates. 

The Clinton Administration formally took the position that there would be a 

“presumption of disclosure” for exempt materials. Attorney General Janet Reno 

issued a memorandum stating that the Department of Justice would defend an 

agency’s assertion of a FOIA exemption only where “the agency reasonably 

foresees that disclosure would be harmful to an interest protected by that 

exemption.”17 In other words, the Clinton Administration’s policy was that where 

there would be no foreseeable harm in releasing a document, an agency should do 

so, even if there were technical grounds for withholding it under FOIA. 

The Bush Administration reversed the Clinton Administration’s position in a 

memorandum issued by Attorney General Ashcroft on October 12, 2001. The 

Ashcroft memorandum states that the Department of Justice will defend agencies’ 

assertions of FOIA exemptions “unless they lack a sound legal basis.”18 The 

memorandum further urges the agencies to carefully consider a variety of 

countervailing interests before making any discretionary disclosure under FOIA. 

In other words, the Bush Administration’s policy is that agencies are not required 

to release, and are in fact discouraged from releasing, any document if there are 

technical grounds for withholding it under FOIA. 

For example, the Ashcroft memorandum has had a direct effect on public efforts 

to gain access to information about how the Bush Administration developed its 

energy policies. Public interest organizations filed multiple FOIA requests seeking 

information on the role played by federal agencies in developing the National 

Energy Policy. After months of stonewalling by the Administration, some records 

were finally released. But the Department of Energy alone fully or partially 

withheld over 4,500 documents that were responsive to the FOIA request.19 Of 

 

other statutes; (4) trade secrets and confidential business information; (5) internal agency 

documents that would be exempt from discovery in litigation (e.g., attorney-client 

privileged documents); (6) personnel and medical files; (7) certain information compiled 

for law enforcement purposes; (8) records regarding supervision of financial institutions; 

and (9) geological and geophysical information concerning wells. 

17 Janet Reno, Attorney General, Memorandum for Heads of Departments and Agencies, 

Subject: The Freedom of Information Act (Oct. 4, 1993). 

18 John Ashcroft, Attorney General, Memorandum for Heads of all Federal Departments and 

Agencies, Subject: The Freedom of Information Act (Oct. 12, 2001). 

19 Judicial Watch v. U.S. DOE, 319 F.Supp.2d 271, 320 (D.D.C. 2004). 
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these, DOE withheld the vast majority as exempt “deliberative and pre-decisional” 

information.20 

Under the Clinton Adminstration policy, the agency would have had to identify 

some actual harm expected from the release of these documents. Under the 

Ashcroft policy, however, all of these documents were simply automatically 

withheld from the public. 

B. The Card Memo 

In a March 2002 memorandum, the Bush Administration further reduced public 

access to information through FOIA by urging agencies to safeguard records 

regarding weapons of mass destruction and “other information that could be 

misused to harm the security of our Nation and the safety of our people.”21 The 

memorandum did not define these terms and left agencies under direction to 

withhold from disclosure under FOIA any information that could in some 

conceivable way be used to harm security. 

Specifically, the memorandum prepared by White House Chief of Staff Andrew 

Card directs all federal agencies to review their records management procedures 

within 90 days to ensure that they are acting in accordance with the directives of 

the accompanying guidance encouraging agencies to protect from release 

“sensitive but unclassified information.” This is information that does not meet 

the criteria for classification (other portions of the guidance urge additional 

classification of documents), but which is “sensitive information related to 

America’s homeland security.”22 The guidance also references “information that 

could be misused to harm the security of our nation or threaten public safety.”23 

However, it provides no further definition of “sensitive but unclassified 

information.” 

As a mechanism for such withholding, the guidance encourages agencies to apply 

exemption 2 under FOIA.24 This exempts records “related solely to the internal 

personnel rules and practices of an agency.” Exemption 2 has been interpreted to 

 20 See Department of Energy’s Vaughn Index (Apr. 25, 2002), Judicial Watch v. U.S. DOE,

319 F.Supp.2d 271 (D.D.C. 2004) (No. Civ.A.01-0981(PLF)) (consolidated with NRDC 

v. U.S. DOE (No. Civ.A.01-2542 (GK)). 

21 Andrew H. Card, Jr., Assistant to the President and Chief of Staff, Memorandum for the 

Heads of Executive Departments and Agencies; Subject: Action to Safeguard Information 

Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland 

Security (Mar. 19, 2002). 

22 Id.

23 Id. 

24 Id. 
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protect agency records where disclosure risks circumvention of agency regulations 

or statutes, or where disclosure would render them “operationally useless.” Most 

commonly, agencies have used this exemption to justify withholding information 

related to employment or law enforcement matters, although longstanding DOJ 

guidance suggests it could also be applied to shield vulnerability assessments.25 

New DOJ guidance referenced in the Card memo encourages an expansive 

application of exemption 2 to protect “a wide range of information” stating: 

“Agencies should be sure to avail themselves of the full measure of Exemption 2’s 

protection for their critical infrastructure information.”26 

The guidance also encourages agencies to use exemption 4 of FOIA, stating that 

information voluntarily submitted to the government from the private sector “may 

readily fall within the protection of Exemption 4 of the FOIA.”27 Exemption 4, 

however, does not apply to all voluntarily submitted private sector information, 

but only to trade secrets and privileged or confidential commercial or financial 

information. 

For example, the Department of Defense relied on the Card memorandum in 

refusing a FOIA request from the Federation of American Scientists for release of 

an unclassified report on lessons learned from the 2001 anthrax attacks. This 

report examined the United States’ preparedness to detect and respond to a 

bioterrorist assault, and it highlighted improvements needed in the areas of 

emergency preparations and response. 

The Department of Defense did not invoke national security as a basis for 

withholding this unclassified document, which was prepared by the Center for 

Strategic and International Studies using entirely public materials. Instead, as 

recommended in the Card memorandum, the Department applied FOIA’s 

exemption 2 regarding records related solely to the internal personnel rules and 

practices of an agency.28 The Federation of American Scientists objected, arguing 

 25 See DOJ, Freedom of Information Act Guide (May 2004); Office of Information and 

Privacy, DOJ, FOIA Update; OIP Guidance: Protecting Vulnerability Assessment through 

Application of Exemption Two (Summer 1989). 

26 Office of Information and Privacy, DOJ, FOIA Post: New Attorney General FOIA 

Memorandum Issued (Oct. 15, 2001). 

27 John Ashcroft, supra note 18.

28 See Letter from Sandy Ford, FOIA/Privacy Act Officer, Defense Threat Reduction 

Agency, to Steven Aftergood, Federation of American Scientists (Dec. 12, 2003). The 

Department of Defense also relied on the Ashcroft memorandum, claiming that it was 

restricted from “the public distribution of information related to homeland security and 

protection of critical infrastructure.” Id. However, the Ashcroft memorandum provides 

no legal basis for denying a FOIA request; in fact, it contains no discussion of restriction 

of information related to homeland security or critical infrastructure. 
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that release would enhance U.S. biopreparedness by building support for 

correcting vulnerabilities.29 The Department of Defense finally released a 

redacted version of the report in March of 2004, almost two years after the report 

was completed, and after the Federation of American Scientists appealed the 

Department’s decision to deny the request.30

C. Critical Infrastructure Information 

In 2002, President Bush included a major new exemption to FOIA in his 

legislative proposal creating the new Department of Homeland Security.31 This 

exemption was adopted into law as the “Critical Infrastructure Information Act of 

2002” (CIIA), which is part of the Homeland Security Act. 32 The CIIA exempts 

from FOIA any information that is voluntarily provided to the federal government 

by a private party, if the information relates to the security of vital infrastructure. 

The “critical infrastructure information” provisions establish a broad new 

exemption to FOIA. The definitions used in this Act cover everything from 

information about a potential leak at a chemical plant to a deficiency in a software 

program used by the Department of Defense. “Critical infrastructure” includes 

vital “systems and assets, whether physical or virtual,” whose destruction would 

have a “debilitating impact on security, national economic security, or national 

public health or safety.”33 “Critical infrastructure information” is “information 

not customarily in the public domain and related to the security of critical 

infrastructure or protected [computer] systems.”34 The definition encompasses 

information related to “threatened interference” with critical infrastructure, the 

ability of critical infrastructure to resist interference (including any vulnerability 

estimate, risk planning, or testing), and any “planned or past operational problem 

or solution” regarding “repair, recovery, reconstruction, insurance, or continuity” 

of critical infrastructure. 

The exemption from FOIA applies to information that is “voluntarily” submitted 

to DHS without DHS exercising its legal authority to obtain the information. A 

 29 See Letter from Steven Aftergood, Federation of American Scientists to Maj. Gen. Trudy 

H. Clark, Deputy Director, Defense Threat Reduction Agency (Dec. 12, 2003). 

30 Censored Study on Bioterror Doubts U.S. Preparedness, New York Times (Mar. 29, 2004). 

31 White House, A Bill To Establish a Department of Homeland Security, and for Other 

Purposes (undated legislative language provided by the Bush Administration to the 

Government Reform Committee in 2002). 

32 6 U.S.C. § 131. 

33 42 U.S.C. § 5195c(e). Critical infrastructure is not defined specifically in the CIIA but is 

defined in the Homeland Security Act as being the same as in the Patriot Act. 

34 6 U.S.C. § 131. 
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company must simply accompany the information submitted with an “express 

statement” identifying it as critical infrastructure information.35 DHS is then 

barred from releasing such information without written consent from the 

submitting entity.36 Protected critical infrastructure information cannot be 

directly used by the government or a private party in any civil action. Any 

government employee who knowingly releases protected information faces 

criminal penalties, including possible imprisonment.37 CIIA allows the 

government or a private party to use information that is “independently 

obtained,” but this phrase is ambiguous.38 

These provisions operate to shield from public scrutiny a broad range of private 

sector communications with DHS. Communications from the private sector to 

government agencies are routinely released under FOIA (apart from confidential 

business information). This is an important check against capture of government 

agencies by special interests. But under the critical infrastructure information 

exemption even routine communications by private sector lobbyists can be 

withheld from disclosure. For example, a corporate lobbyist may now meet 

secretly with DHS officials to urge changes to federal immigration or customs 

regulations if the lobbyist asserts that the changes are related to the effort to 

protect the nation’s infrastructure. 

Under a broad interpretation, CIIA could also be used preemptively to shield 

information that is potentially embarrassing or harmful to a company, such as 

information that reveals errors or misconduct. A commenter from the Heritage 

Foundation wrote: “One need not be a Harvard law graduate to see that, without 

clarification of what constitutes vulnerabilities [of infrastructure], this loophole 

could be manipulated by clever corporate and government operators to hide 

endless varieties of potentially embarrassing and/or criminal information from 

public view.” 39

In addition, the blanket nature of the protection will likely block the release of 

substantial amounts of innocuous information. Under FOIA, records to which an 

exemption applies must be redacted to allow as much of the requested record as 

possible to be disclosed. But CIIA exempts from FOIA all information marked 

 35 6 U.S.C. § 133. 

36 The CIIA’s nondisclosure requirement does not apply in the case of a criminal 

prosecution, a disclosure to either House of Congress, a congressional committee with 

jurisdiction, or the Government Accountability Office. 6 U.S.C. § 133. 

37 6 U.S.C. § 133. 

38 Id.

39 Mark Tapscott, Director, Heritage Foundation’s Center for Media and Public Policy, Too 

Many Secrets, Washington Post (Nov. 20, 2002). 
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critical infrastructure information. None of the information in a submission 

marked as critical infrastructure information is likely to be disclosed, even when 

portions of the information do not themselves constitute critical infrastructure 

information. Additionally, the harsh penalty provisions will have a further chilling 

effect on disclosures. Federal employees, faced with criminal penalties if they 

disclose critical infrastructure information, will certainly prefer to err on the side 

of nondisclosure. 

In April 2003, DHS proposed regulations to implement CIIA.40 The proposal 

included a number of provisions that would have expanded CIIA’s impact in 

limiting public access to information. For example, entities could submit 

information labeled as critical infrastructure information to another agency with a 

request to forward the information to DHS.41 All such information would have 

been protected unless DHS determined that the information did not meet the 

definition of critical infrastructure information.42 

In the face of sharply critical public comments on the proposed rule, DHS issued 

an interim final rule in February 2004 that changed some of the troubling 

provisions in the proposed rule but added others.43 The rule itself provides for 

direct submissions of critical infrastructure information only to DHS. However, 

the preamble also states that after the critical infrastructure information program 

becomes operational, DHS “anticipates the development of appropriate 

mechanisms to allow for indirect submissions in the final rule and would welcome 

comments on appropriate procedures for the implementation of indirect 

submissions.”44 New contradictory language in the final rule also makes it unclear 

whether critical infrastructure information voluntarily submitted to DHS is 

protected even if it is legally required to be submitted to another agency.45 

 40 Department of Homeland Security, Procedures for Handling Critical Infrastructure 

Information, 68 Fed. Reg. 18524-29 (Apr. 15, 2003) (proposed rule). 

41 Id. at 18525. 

42 Id. at 18527.

43 Department of Homeland Security, Procedures for Handling Critical Infrastructure 

Information, 69 Fed. Reg. 8073-8089 (Feb. 20, 2004) (interim rule). In issuing the final 

rule as an “interim rule” DHS specified that although the rule was finalized on February 

20, 2004, the agency would continue to accept additional comments on the rule through 

May 20, 2004. DHS indicated that it may make changes to the rule at some unspecified 

time in the future based on those comments. 

44 Id. at 8075. 6 C.F.R. 29.3 provides: “Information submitted to any other Federal agency 

pursuant to a Federal legal requirement is not to be marked as submitted or protected 

under the CII Act of 2002 or otherwise afforded the protection of the CII Act of 2002,” 

but then adds, “provided, however, that such information, if it is separately submitted to 

DHS pursuant to these procedures, may upon submission to DHS be marked as Protected 

CII or otherwise afforded the protections of the CII Act of 2002.” 

45 Id. at 8084. 
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In addition, the rule protects information unless DHS determines the information 

is not eligible for protection, and there is no deadline for DHS to make that 

determination. While DHS must give the entity that submits the information an 

opportunity to appeal any adverse determination, there is no procedure for a 

person requesting information to appeal a decision to protect information, even if 

circumstances related to DHS’s decision to protect the information have 

changed.46

D. Other Statutory and Regulatory Exemptions 

1. National Security Agency Operational Files 

In 2003, the Bush Administration sought and won a new legislative exemption 

from FOIA for all National Security Agency “operational files.”47 The 

Administration’s main rationale for this new exemption is that conducting FOIA 

searches diverts resources from the agency’s mission.48 Of course, this rationale 

could apply to every agency. As NSA has operated subject to FOIA for decades, 

it is not clear why the agency now needs this exemption. 

In the past, the release of thousands of declassified NSA documents has provided 

valuable information relating to the use of signals intelligence in space, the Cuban 

missile crisis, and cryptography in World War II and the Korean War.49 In urging 

Congress to adopt this provision, the Administration argued that NSA would 

continue to release information under its historical review program to declassify 

and release records considered historically significant.50 While useful, this 

program cannot fully substitute for FOIA, which gives an individual requesting 

 46 Id. at 8086. 

47 See H.R. 1588-179, § 922, National Defense Authorization Act for Fiscal Year 2004. The 

final legislation defines these as files held by the Signals Intelligence Directorate and the 

Research Associate Directorate that document the means by which foreign intelligence or 

counterintelligence is collected through scientific or technical systems. 

48 See National Security Agency, Proposal for Exemption from the Freedom of Information Act 

for Operational Files (May 13, 2003). Additionally, the Administration claimed that the 

information contained in these files is “almost invariably” withheld under FOIA as 

classified information. Id. However, in the past such files have been released in redacted 

form, protecting the classified portions and providing valuable unclassified information. 

In addition, the new statutory language explicitly provides that the exemption applies 

even when information in operational files has been declassified, which refutes the 

argument that the Administration’s purpose here is solely to avoid the waste of effort of 

searching for files that are “almost invariably” withheld as classified. See 50 U.S.C.A. § 

432a(a)(4)(C). 

49 See NSA, Id. 

50 Id.
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information the ability to file a FOIA request for specific information and provides 

recourse to federal court in the event that an agency fails to comply with the 

FOIA requirements. 

2. Commercial Satellite Data 

In 2004, the Bush Administration pushed for a new legislative FOIA exemption 

for certain data generated by commercial satellites.51 Under this provision, 

agencies are not only authorized to withhold data under FOIA, they are also 

barred from releasing it. This exemption and ban was added to the Defense 

Authorization Act for fiscal year 2005, which has been passed by both the House 

and Senate and is currently in conference. 52 The ban applies to any “land remote 

sensing” data that under the Land Remote Sensing Policy Act may only be sold to 

the government, and it includes “any imagery and other product that is derived 

from such data.”53 The provision also bars state and local governments from 

releasing such data under their own information disclosure laws. 

The provision is strongly opposed by the news media, who routinely use nonconfidential commercial satellite imagery in network and local news broadcasts.54 

Media representatives note that such imagery has recently been used to provide 

the public with compelling news coverage of, among other topics, the Iraq and 

Afghanistan conflicts; nuclear and other weapons of mass destruction sites in Iran 

and elsewhere; flooding in Bangladesh; deforestation in Brazil; wildfires and 

tornadoes in the United States, and refugee crises in the Sudan and elsewhere.55 

This provision, they state, “would result in taxpayer dollars being used to preclude 

the media from adequately informing the public about matters of critical 

importance that in no way implicate the national security.”56

3. Vehicle Safety Defect Information 

The Administration has by regulation blocked vehicle safety information from 

public access through FOIA. 

 51 Conversation between House Government Reform Committee minority staff and Senate 

Armed Services Committee minority staff (July 2004). 

52 See H.R. 4200; S. 2400 § 1034. 

53 S. 2400 § 1034. 

54 Letter from Barbara S. Cochran, President, Radio-Television News Directors Association, 

to Rep. Duncan Hunter, Chairman, House Armed Services Committee (Sept. 3, 2004). 

55 Id. 

56 Id. 
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In October 2000, Congress passed the Transportation Recall Enhancement, 

Accountability, and Documentation Act (TREAD Act). This law responded to 

the failure of Ford, Firestone, and the National Highway Transportation Safety 

Administration (NHTSA) to react promptly to indications of a safety defect in 

many Firestone tires, particularly when they were used on Ford Explorer SUVs. 

The defect was reportedly linked to 270 highway deaths. 

The TREAD Act required NHTSA to promulgate “Early Warning” reporting 

requirements to ensure that manufacturers promptly notify NHTSA of potential 

or known safety defects. The required reporting includes information about 

claims of death or injury, numbers of property damage claims, consumer 

complaints, warranty claims, field reports, and other information about equipment 

repairs or replacements. The law did not provide any exemption from FOIA for 

this information. 

In the past, NHTSA had acquired this type of information during defect 

investigations. In those cases, including the Ford/Firestone investigation, 

NHTSA routinely disclosed detailed company documents, including engineering 

tests, warranty claims, consumer complaints, and even certain production 

figures.57 NHTSA noted this in the proposed rule to implement the early warning 

reporting requirements: 

Historically, these types of information generally have not been considered 

by the agency to be entitled to confidential treatment, unless the 

disclosure of the information would reveal other proprietary business 

information, such as confidential production figures, product plans, 

designs, specifications, or costs.58

NHTSA also noted that the TREAD Act does not affect the right to withhold 

confidential business information under FOIA. NHTSA clearly indicated that it 

expected that most of the information submitted under the early warning 

requirements would be available to the public through FOIA: “accordingly, the 

agency does not expect to receive many requests for confidential treatment for 

submissions under the early warning reporting requirements of the TREAD 

Act.”59

 57 See Public Citizen, Comments of Public Citizen Regarding 49 CFR Part 512 Confidential 

Business Information 67 Federal Register (Apr. 30, 2002) (DOT Docket No. NHTSA-02-

12150). 

58 66 Fed. Reg. 66190, 66214 (Dec. 21, 2001). 

59 Id. 
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However, NHTSA subsequently reversed its position through amendments to the 

agency’s regulations governing treatment of confidential business information. 

Under FOIA case law, while a business may claim that the information that it is 

required to submit to the government is confidential business information, the 

government cannot withhold that information from release unless it finds that 

release is likely to cause actual competitive harm.60 The final regulations issued by 

NHTSA in July 2003 make a blanket finding in the regulation itself that release of 

much of the data to be submitted under the early warning requirements would 

cause competitive harm.61 Specifically, NHTSA effectively exempted from FOIA 

all information on: warranty claims, field reports, and consumer complaints, as 

well as production numbers for vehicles other than light vehicles, child restraint 

systems, and tires. 

Congress did not intend the TREAD Act to be a cloak to shield information that 

has always been available to consumers. The congressional authors of the 

provision, Reps. Billy Tauzin and Edward Markey, had a colloquy on the floor of 

the House on this precise point.62 In fact, NHTSA might never have investigated 

the Ford/Firestone case itself without pressure from an informed public. NHTSA 

had received information indicating a problem in July 1998, but did not begin to 

investigate until two years later, after a Houston TV station broadcast a report that 

sparked a flurry of consumer complaints.63 

4. Critical Energy Infrastructure Information 

The Federal Energy Regulatory Commission (FERC) has also issued regulations 

that have the effect of limiting the information released under FOIA. 

On February 21, 2003, FERC issued a final rule defining a new category of 

information termed “critical energy infrastructure information.”64 Under this rule, 

 60 See 5 U.S.C. § 552(b)(4); Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770-

71 (D.C. Cir. 1974).

61 68 Fed. Reg. 44209, 44232 (July 28, 2003). 

62 146 Cong. Rec. H9629 (daily ed. Oct. 10, 2000). Mr. Markey stated: “Would [Mr. 

Tauzin] agree that this special disclosure provision for new early stage information is not 

intended to protect from disclosure [information] that is currently disclosed under 

existing law such as information about actual defects or recalls?” Mr. Tauzin responded: 

“[T]he gentleman is correct.”

63 Public Citizen, Chronology of Firestone/Ford Knowledge of Tire Safety Defect (online at 

http://www.citizen.org/autosafety/articles.cfm?ID=5336). 

64 Federal Energy Regulatory Commission, Critical Energy Infrastructure Information, 68 Fed. 

Reg. 9857 (Mar. 3, 2003) (Order No. 630). See also Federal Energy Regulatory 

Commission, Critical Energy Infrastructure Information, 68 Fed. Reg. 46456 (July 23, 2003) 

(Order No. 630-A); Federal Energy Regulatory Commission, Critical Energy Infrastructure 

Information, 68 Fed. Reg. 48386 (Aug. 10, 2003) (Order No. 649). 
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FERC would generally protect this information from disclosure, but could release 

it to selected recipients under limited circumstances. FERC claims that the rule 

does not purport to expand the scope of exemptions under FOIA because the 

category is limited to information that is already exempt from disclosure under 

FOIA.65

However, in practical terms, FERC’s new category of protected information will 

almost certainly result in less information being released to the public. The 

preamble to FERC’s rule provides an expansive interpretation of several FOIA 

exemptions to argue that information otherwise meeting the criteria for critical 

energy infrastructure information would be exempt from FOIA under exemption 2 

(records relating to internal agency practices), exemption 4 (information that 

could cause competitive harm), or 7 (information compiled for law enforcement 

purposes). For example, FERC opines that because a terrorist attack on energy 

infrastructure would cause financial harm to the owner, this would put the owner 

at a competitive disadvantage, justifying withholding information that might 

facilitate such an attack as “privileged or confidential” “commercial or financial 

information” under exemption 4.66 

In comments on FERC’s proposed rule, the Reporters Committee for Freedom of 

the Press pointed out the need for public information on vulnerabilities in energy 

infrastructure, such as pipelines.67 Without information on vulnerabilities, the 

public will not be able to demand the safety improvements necessary to strengthen 

the infrastructure. The Reporters Committee noted that between 1985 and 1994, 

209 people were killed and 1,056 injured due to gas pipeline accidents. In one 

incident in 2000 that killed 12 people, the pipeline had not been checked for 

corrosion since 1950. Release of this information helped generate public pressure 

that led to passage of the Pipeline Safety Improvement Act of 2002, which 

attempts to address pipeline safety issues.68 

 65 The other criteria for “critical energy infrastructure information” are that it is information 

about “proposed or existing critical infrastructure” that: (i) relates to the production, 

generation, transportation, transmission, or distribution of energy; (ii) could be useful to a 

person planning an attack on critical infrastructure; and (iii) does not simply give the 

location of the critical infrastructure.” 18 CFR 388.113. “Critical infrastructure” is 

defined even more broadly than it is under the PATRIOT Act to include systems and 

assets whose incapacity “would negatively affect security, economic security, [or] public 

health or safety.” Id.

66 68 Fed. Reg. 9857, supra note 64, at 9871. 

67 Reporters Committee for Freedom of the Press and the Society of Environmental 

Journalists, Comments of the Reporters Committee for Freedom of the Press and the Society of 

Environmental Journalists to Proposed Rules; Re: Public Access to Critical Energy 

Infrastructure Information (Nov. 13, 2002) (online at http://www.rcfp.org/news/ 

documents/20021113fercceiico.html). 

68 Pub. Law 107-355 (Dec. 17, 2002). 
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E. Denying Fee Waivers 

As amended in 1986, FOIA provides that an agency may charge fees for the 

provision of records for a commercial use, limited to reasonable charges for search, 

duplication, and review of the documents.69 Because these charges can be 

prohibitively expensive for members of the media, public interest organizations, 

and the general public, the law provides that fee waivers can be granted if one of 

two conditions is met. First, when the records are not sought for commercial use 

and the request is made by “an educational or noncommercial scientific 

institution, whose purpose is scholarly or scientific research; or a representative of 

the news media,” the agency may only assess duplication fees.70 Membership in 

one of these categories is considered “preferred status” for fee purposes. As 

established through case law, the term “representative of the news media” is 

broadly defined to include entities that publish or otherwise disseminate 

information to the public.71 Second, FOIA provides that an agency must waive or 

reduce the fees if “disclosure of the information is in the public interest because it 

is likely to contribute significantly to public understanding of the operations or 

activities of the government and is not primarily in the commercial interest of the 

requester.”72 

The Bush Administration, however, has instituted an aggressive policy of 

questioning, challenging, and denying FOIA requesters’ eligibility for fee waivers 

under both provisions, using a variety of tactics.73 Among others, these tactics 

include challenging requesters’ assertion of “preferred status” for fee purposes, 

challenging requesters’ assertions that the information is likely to contribute 

significantly to public understanding of government activities, and using 

 69 5 U.S.C. § 552(a)(4)(A)(ii). 

70 Id. 

71 See Nat’l Sec. Archive v. U.S. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989). 

72 5 U.S.C. § 552(a)(4)(A)(iii). 

73 See, e.g., Keeping Secrets, supra note 4; Federal Charge of $25,280 to Fulfill Records Request 

Angers Activist, Los Angeles Times (Jan. 8, 2004); DOE Charges Watchdog for Lab Data,

Albuquerque Journal (Dec. 20, 2002); Plaintiffs’ First Amended and Supplemented 

Complaint for Declaratory and Injunctive Relief, 8–9 (June 13, 2003), Sierra Club et al. v. 

U.S. Dept. of Interior, D.D.C. (No. 1:03 CV 00652) (giving examples of recent 

unprecedented fee waiver denials). Senator Leahy has requested that GAO investigate 

this issue, and GAO is currently finalizing the design phase of the study. Telephone 

conversation between staff of Senator Leahy and House Government Reform Committee 

minority staff (July 26, 2004).
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hypertechnical objections as grounds for rejecting substantively meritorious fee 

waiver requests.74 

The abrupt shift in policy on fee waivers under the Bush Administration is 

illustrated by the experience of a professor at the University of Massachusetts at 

Dartmouth. Professor Philip Melanson states: 

Over the past 30 years, prior to this administration, I have made 

approximately 200 FOIA requests and was granted a fee waiver 

approximately 95% of the time, due to my academic and library affiliations 

and publication record. During the last six months, I have initiated 41 

requests on eleven topics relating to the war on drugs to: FBI, CIA, DEA, 

Customs, State Department, and [the] Department of Justice. I was not 

granted a single fee waiver and have lost all administrative appeals to 

date.75

1. Narrowing the Definition of “Representative of the News Media” 

Entities and individuals that have long been granted preferred status for FOIA fee 

purposes are now reporting that Bush Administration officials are frequently 

attempting to deny them such status. 

For example, Dr. Jeffrey Richelson, a Senior Fellow of the National Security 

Archive and a freelance author and journalist, has made many FOIA requests 

over the years.76 Until 2001, various agencies had for years granted Dr. Richelson 

preferred status for fee waivers as a representative of the news media.77 However, 

over the past two years, these same agencies suddenly began denying Dr. 

Richelson preferred status. Among other erroneous grounds for these denials, the 

Department of Energy took the position that publishing books and articles “is 

characteristic of an entity that does not publish or broadcast news to the public 

itself” and an individual that conducts such activities is therefore not a 

 74 In one instance, USDA stated that it was denying a fee waiver because “[w]e believe that 

your organization does not qualify for a mandatory fee waiver.” Letter from Barbara J. 

Bryant, Acting FOIA Officer, USDA, to Joseph Mendelson, III, Legal Director, Center 

for Food Safety (Aug. 7, 2002). USDA identified no reason for its “belief,” and the only 

concern identified by the agency was that the requester had asked for a voluminous 

quantity of documents. There is simply no legal basis in the FOIA statute or regulations 

for denying a fee waiver on these grounds. 

75 Philip H. Melanson, supra note 12. 

76 Letter from Meredith Fuchs, General Counsel, National Security Archive, to Tara 

Magner, Professional Staff Member, Committee on the Judiciary, U.S. Senate (Oct. 3, 

2003). 

77 Id. 
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representative of the news media.78 As well as being contrary to case law and 

precedent, this position has the absurd result of denying all freelance journalists 

preferred status for fee waivers. Ultimately, these denials were resolved through 

the appeals process. However, they had the effect of delaying the processing of 

Dr. Richelson’s FOIA requests for many months.79 

In another example, the Defense Department denied a fee waiver request from 

the Electronic Privacy Information Center (EPIC), a nonprofit public interest 

research center and educational organization that publishes newsletters, reports, 

and books on civil liberties issues including privacy, open government, and free 

speech.80 Since EPIC had been established in 1994, no agency had ever previously 

challenged its status as a news media requester for FOIA fees purposes.81 In this 

instance, however, the Defense Department denied EPIC’s request and 

subsequent appeals, explaining that “[y]ou state that EPIC is an educational 

organization that disseminates information instead of being an entity that is both 

organized and operated to disseminate information.” 

The U.S. District Court for the District of Columbia upheld the legitimacy of 

EPIC’s claim.82 The court found that the circumstances “mirror[ed]” those in the 

controlling case, National Security Archive v. Dept. of Defense, in which the DC 

Circuit had settled this issue in 1989.83 As another basis for upholding EPIC’s 

claim, the court also noted that EPIC publishes a periodical distributed to over 

15,000 readers and that the Defense Department’s own FOIA regulations list 

publishers of periodicals as an example of the news media.84 Finally, the court 

noted that four other federal agencies, including two operating under the Defense 

Department’s FOIA regulations (the National Security Agency and the Defense 

Technical Information Center) had classified EPIC as a representative of the news 

media.85 

 78 See id. 

79 Id. 

80 See the EPIC website at http://www.epic.org/epic/about.html. 

81 E-mail from David L. Sobel, General Counsel, EPIC, to House Government Reform 

Committee minority staff (Dec. 18, 2003). 

82 Electronic Privacy Information Center v. Dept. of Defense, 241 F.Supp.2d 5 (D.D.C. 2003). 

83 Id. at 9. See also id. at 12 (“Simply put, there are no material differences between the 

National Security Archive and EPIC for purposes of the news media status 

determination”). 

84 Id. at 12–13. 

85 Id. at 14. 
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2. Claiming Information Would Not Contribute to Public Understanding 

Under the Bush Administration, agencies have also attempted to deny fee waiver 

requests by asserting that the information requested would not contribute 

significantly to the public’s understanding of government operations, and 

therefore the request is not eligible for a fee waiver. Under this approach, the 

government decides what the public needs to know. 

For example, the Bureau of Alcohol, Tobacco and Firearms (ATF) denied a FOIA 

fee waiver request from the Brady Center to Prevent Gun Violence regarding a 

request for inspection reports on a specific firearms dealer. The dealer was alleged 

to have illegally sold a gun that had been used to shoot two police officers.86 Yet 

the Bureau denied the fee waiver on the grounds that the Brady Center had 

already received such information about other gun dealers, so there would be no 

benefit to releasing information on the dealer in question.87

3. Using Sequential Fee Waiver Denials 

The Bush Administration is also delaying processing FOIA requests by raising 

multiple objections sequentially to individual fee waiver requests. Under this 

approach, an agency waits for an applicant to satisfy one objection before raising 

another, which significantly stretches out the process timeline. Two examples 

demonstrate the extent of the Administration’s efforts to deny fee waivers. 

In 2001, the Natural Resources Defense Council (NRDC) requested information 

from the National Institute of Environmental Health Sciences (NIEHS) regarding 

a memorandum of understanding between NIEHS and the American Chemistry 

Council. This memorandum established a partnership to fund testing of chemicals 

for human health effects. 88 

NIEHS denied the fee waiver requested by NRDC on two grounds.89 First, 

NIEHS claimed that NRDC had not demonstrated that the information would be 

widely distributed. Second, the agency claimed that NRDC had “not presented 

evidence of a unique capability to educate the public beyond other individuals 

 86 See Store Agrees to Pay $1 Million to Officers Shot with Gun It Sold, Associated Press (June 

23, 2004). 

87 Letter from Marilyn R. LaBrie, Treasury Department, Bureau of Alcohol, Tobacco and 

Firearms, to Elizabeth S. Haile, Brady Center (May 22, 2003). 

88 Letter from Steven G. Gurney, Geologist, NRDC to Joyce Bumann, FOI/Privacy Act 

Specialist, NIEHS, Re: FOIA Request (Aug. 10, 2001). 

89 Letter from Susan R. Cornell, Esqu., FOIA Officer, NIH to Steven G. Gurney, Geologist, 

NRDC, Re: FOI Case No. 26846 (Oct. 15, 2001). 
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and/or groups that have the same concerns.”90 The FOIA officer concluded that 

“[b]ecause of these reasons, I have determined that to furnish the information to 

you at no cost does not outweigh the burden that will be placed on the NIEHS in 

supplying the records.”91 

NRDC appealed the denial and provided substantial additional detail regarding its 

demonstrated capacity to widely distribute information obtained through FOIA 

requests.92 More than ten months later, NIEHS responded to the appeal, again 

denying the fee waiver request, but this time on new grounds.93 

In this second round, the agency claimed that NRDC had not demonstrated how 

disclosure of the information was likely to contribute significantly to the public’s 

understanding of government activities, how disclosure would reveal such 

information that was not already public knowledge, and how it would advance the 

understanding of the general public, as opposed to a narrow set of interested 

persons.94 The agency also found “no evidence” to support NRDC’s statements 

regarding the organization’s capability to distribute information. 

NRDC had in fact discussed at length in its initial request how disclosure would 

contribute to the general public’s understanding of an arrangement that could 

“give regulated industry an unprecedented influence on prioritizing federal funded 

research,” the dangers of tainted public health research, and the current press 

coverage of this issue.95 The initial denial gave no indication that this discussion 

was inadequate. 

Moreover, the requester (one of the nation’s most prominent environmental 

advocacy organizations) had already stated that it had 15 people on staff 

specifically devoted to communications work, and the requester had attached a 

 90 Id. 

91 Id. As an initial matter, neither the FOIA law nor regulations requires any showing of a 

“unique capability to educate the public beyond other individuals or groups.” Thus, this 

basis for denying a fee waiver appears illegal (and the agency did not attempt to defend it 

upon appeal). The balancing test that NIEHS enunciated between the interest in 

providing free information and the burden on the agency is also not a legal criterion for 

granting a fee waiver. 

92 Letter from Jon P. Devine, Jr., Senior Attorney, NRDC, to Deputy Assistant Secretary for 

Public Affairs (Media), HHS, Re: FOIA Appeal — Case No. 26846 (Oct. 17, 2001). 

(NRDC also provided information demonstrating its unique capability to educate the 

public on these matters, although noting that this is not required.) 

93 Letter from William A. Pierce, Deputy Assistant Secretary for Public Affairs/Media to Jon 

P. Devine, Jr., Senior Attorney, NRDC (Aug. 23, 2002). 

94 Id. 

95 See Letter from Steven G. Gurney, supra note 88. 
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list of 53 citations in the news media regarding NRDC and FOIA.96 NIEHS did 

not provide any indication of what evidence would be sufficient in the agency’s 

view to prove the requester’s ability to disseminate information. 

The Brady Center experienced similar sequential denials with respect to a fee 

waiver request it submitted to ATF on July 7, 2003. In this case, its underlying 

FOIA request was for inspection reports and variances pertaining to 

manufacturers of semiautomatic assault weapons.97 The Brady Center wanted to 

know how many times ATF had granted variances to allow assault weapons 

manufacturers to replace “defective” banned assault weapons with newly 

manufactured replacement weapons.98 ATF denied the fee waiver request on 

August 26, 2003, on the grounds that the documents were “similar and 

repetitive.”99 ATF asserted that the public interest would be just as well served by 

releasing a sampling of documents, covering five or so of the 62 manufacturers.100 

In its appeal, the Brady Center pointed out that a sampling of documents would 

not produce information necessary to inform the public whether ATF’s variance 

practices were undermining the assault weapons ban. ATF responded over a 

month later, again denying the fee waiver, but on an entirely new basis.101 ATF 

acknowledged “that the Brady Center has the resources to disseminate 

information” and that ATF had previously granted the Brady Center fee waivers 

for similar types of requests. But ATF now asserted, for the first time, that the 

Brady Center had failed to inform ATF “how, where or when” it intended to 

disseminate the information to the public.102 

F. Inappropriate Use of Exemptions 

Under the Bush Administration, agencies are making extensive use of FOIA 

exemptions, often inappropriately or with inadequate justification. As discussed 

above, an agency may withhold a document from release under FOIA only if one 

of the nine specific exemptions identified in the law applies to the document. The 

 96 Letter from Jon P. Devine, Jr., supra note 92. 

97 Letter from Daniel R. Vice, Brady Center, to Bureau of Alcohol, Tobacco, Firearms and 

Explosives (July 7, 2003). 

98 Id. 

99 Letter from Marilyn R. LaBrie, Disclosure Specialist, Bureau of Alcohol, Tobacco and 

Firearms, to Daniel R. Vice, Brady Center (Aug. 26, 2003). 

100 Id. 

101 Letter from Marilyn R. LaBrie, Disclosure Specialist, Bureau of Alcohol, Tobacco and 

Firearms, to Daniel R. Vice, Brady Center (Oct. 15, 2003). 

102 See id. The Brady Center has provided additional information and appealed this 

determination, but has not yet received a response from the agency. 
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examples below include the improper use of exemptions both to withhold entire 

documents and to redact information in documents. 

1. Making Frivolous Exemption Claims

In August 2002, anti-war activists Rebecca Gordon and Jan Adams were detained 

and searched at San Francisco International Airport while boarding a flight to 

Boston. They were told that they had been stopped because their names appeared 

on a secret national “No-Fly” list.103 Hoping to learn why they were included on 

such a list, Ms. Gordon and Ms. Adams contacted the ACLU of Northern 

California (ACLU-NC), which filed FOIA requests with the Transportation 

Security Administration (TSA) and the Federal Bureau of Investigation (FBI).104 

After receiving no answer, the ACLU-NC filed suit, and subsequently received 94 

pages of heavily redacted documents that failed to answer most of its questions 

about the composition of, and criteria for inclusion on, the No-Fly list.105 The 

ACLU-NC went back to court to obtain an adequate response. 

After reviewing large portions of the information withheld, a federal district court 

ordered the TSA and FBI to reconsider their withholding of each of the 

documents. The court found that the government, had “in many instances . . . 

not come close to meeting its burden [of proving its right to claim exemptions], 

and, in some instances, [had] made frivolous claims of exemption.”106 The court 

identified several striking examples of abuse of FOIA exemptions: 

• The TSA cited exemption 3 to withhold not only the names of people on the 

No-Fly lists, but the number of people listed, without providing any 

explanation of how this information was “sensitive security information.”107

• The FBI cited exemption 7(C) to withhold an e-mail it had received 

summarizing the complaints of Ms. Adams, Ms. Gordon, and others, 

contending that it would invade Ms. Adams’s and Ms. Gordon’s privacy to 

give them information about themselves.108 

 103 American Civil Liberties Union of Northern California, Federal Judge Says Government Is 

Using “Frivolous Claims” in Refusing to Disclose No-Fly Documents (June 17, 2004) (online 

at www.aclunc.org/pressrel/040617-nofly.html). 

104 Id. The ACLU-NC also filed requests under the Privacy Act. 

105 Id.

106 Gordon v. FBI, No. C 03-01779 CRB at 7 (N.D. Cal. June 15, 2004) (order for production 

of documents). 

107 Id. at 3–4. 

108 Id. at 4–5. 
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• The TSA cited exemption 6 to redact, among other things, the names of 

prominent officials within the TSA, even though the identity of those officials 

was public knowledge, and even though the documents in question contained 

no personal information about them.109

• The FBI used exemption 7(C) to redact the names of government employees, 

including “even the name of the FBI employee who was responsible for 

responding to inquiries from the public regarding names appearing on No Fly 

lists.”110

2. Abusing the Deliberative Process Privilege

Under the Federal Land Policy and Management Act of 1976, the Bureau of Land 

Management (BLM) of the Department of the Interior (DOI) is required to 

inventory federal lands to determine which areas might be eligible for protection 

as wilderness.111 In 1996, the State of Utah sued BLM to prevent it from 

conducting such an assessment on certain lands in the state.112 The suit was 

dismissed, except for one claim, which languished in District Court until 2003.113 

Then, over a two-week period, Utah refiled its complaint and reached a 

settlement with the Department of the Interior.114 The settlement provided that 

despite prior interpretations of the law, BLM had no further authority to conduct 

inventories.115

The Wilderness Society filed FOIA requests to obtain information about the 

settlement and how it was reached, ultimately suing DOI to compel a response to 

its requests.116 DOI had withheld most of the requested information by citing 

FOIA exemption 5, which covers predecisional and deliberative documents 

prepared by agency staff, as well as documents created by agency attorneys in 

anticipation of litigation. Upon reviewing these claims, however, The Wilderness 

Society found that DOI: 

• Designated as “predecisional” documents composed after the date of the 

settlement. These included documents developed four weeks after the 

 109 Id. at 6–7. 

110 Id. 

111 See 43 U.S.C. § 1711(a), 43 U.S.C. § 1782(a). 

112 Tom Turner, Unsettling Development, Environmental Forum, 32 (Jan./Feb. 2004). 

113 Id. 

114 Id. 

115 Id. 

116 Plaintiffs’ Memorandum in Support of Its Motion for Summary Judgment, 1 (Feb. 13, 

2004), Wilderness Soc’y v. Norton, Civ. No. 03-CV-01801 (D.D.C. 2004). 
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settlement that were apparently intended to address its impact on agency 

public relations.117

• Withheld documents discussing how to communicate with the media and 

explain Department policy as “predecisional and deliberative.”118

• Withheld strictly factual material as “deliberative” in some cases, and in other 

cases failed to segregate factual material from policy discussion.119

• Claimed attorney-client privilege for documents whose authors and recipients 

were unidentified, which were not shown to be associated with an actual 

attorney, and which did not appear to have been handled confidentially.120

3. Abusing the Law Enforcement Exemption 

The United Mine Workers Association (UMWA) requested notes from a 

September 2002 meeting between officials of the federal Mine Safety and Health 

Administration (MSHA) and representatives of the Ohio Valley Coal Company 

(OVCC), including OVCC’s president and Robert Murray, a major Republican 

campaign contributor.121 Although MSHA released copies of the notes pursuant 

to the UMWA’s FOIA request, the agency redacted the bulk of the text, 

rendering the notes mostly incomprehensible. Copies of the unredacted notes 

were obtained by the Mine Safety and Health News.

122

The full notes show that much of the deleted material consisted of accusations, 

threats, and profane invective directed by Mr. Murray and his associates against 

MSHA officials. Among other things, the OVCC representatives repeatedly 

referred to one MSHA official as a “puppet,” accused MSHA officials of “acting 

maliciously, capriciously, unprofessionally,” and repeatedly threatened to have 

them fired. To buttress these threats, Mr. Murray noted that “[Kentucky 

Senator] Mitch McConnell calls me one of the five finest men in America.”123 

 117 Id. at 18. 

118 Id. at 26. 

119 Id. at 27–30. 

120 Id. at 31–33. 

121 MSHA Not Adhering to FOIA Requirements According to Committee, Mine Safety and 

Health News (Mar. 3, 2003); see Center for Responsive Politics, Ohio Valley Coal 2000 

PAC Summary Data (http://www.opensecrets.org/pacs/lookup2.asp?strID=C00255315 

&cycle=2000) (listing Ohio Valley Coal PAC as the top coal mining contributor to 

Republicans in the 2000 election cycle). 

122 MSHA Not Adhering to FOIA Requirements According to Committee, id.

123 Comparison of MSHA/Murray Meeting Notes, September 11, 2002, Mine Safety and Health 

News (Mar. 3, 2003). 
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The legal basis for MSHA’s redactions is tenuous. MSHA cited FOIA exemptions 

7(A) and 7(C), which apply to law enforcement records whose release could 

interfere with enforcement proceedings or threaten an unwarranted invasion of 

personal privacy, and exemption 5, which protects agency deliberative 

documents.124 The meeting had no apparent law enforcement purpose, and even 

if it had, it is unclear how release of the redacted material could have either 

interfered with enforcement or constituted an unwarranted invasion of personal 

privacy. Moreover, the notes were a factual record of a conversation with outside 

parties, not intra-agency deliberative material. 

4. Withholding Data on Telephone Services 

On August 4, 2004, the Federal Communications Commission (FCC) reversed its 

longstanding policy of providing public access to telephone service providers’ 

reports on service outages.125 The FCC expanded the outage reporting 

requirements to cover providers of wireless and satellite communications, but also 

added a presumption in the regulations that all such outage reports would be 

confidential and withheld from FOIA requestors.126 

In initially adopting the outage reporting requirements in 1992, the FCC 

identified four purposes of the requirements, two of which were to “serve as a 

source of information to the public,” and to “assist in dissemination of information 

to those affected.”127 Noting that “outages have been of enormous public 

concern,” the FCC at that time decisively rejected commenters’ requests that 

outage reports should routinely be treated as confidential, stating, “the public is 

entitled to full and forthcoming explanations of these events.”128

The FCC’s proposal in March 2004 to expand the outage reporting requirements 

did not include any proposal to withhold the reports from the public.129 In its 

comments on the proposal, however, the Department of Homeland Security urged 

 124 5 U.S.C. § 552(b). 

125 FCC, In the Matter of New Part 4 of the Commission’s Rules Concerning Disruptions to 

Communications, Report and Order and Further Notice of Proposed Rule Making, ET Docket 

No. 04-35 (Aug. 4, 2004) (FCC 04-188) (online at http://hraunfoss.fcc.gov/edocs_public/ 

attachmatch/FCC-04-188A1.pdf) (hereinafter “FCC Order”).

126 47 C.F.R. 4.2. 

127 FCC, In the Matter of Amendment of Part 63 of the Commission’s Rules to Provide for 

Notification by Common Carriers of Service Disruptions, 7 F.C.C.R. 2010 (Feb. 13, 1992). 

128 Id. 

129 FCC, Commission’s Rules Concerning Disruptions to Communications: Proposed Rule, 69 

Fed. Reg. 15761 (Mar. 26, 2004). 
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the FCC to reverse its policy on security grounds.130 In the final rule, the FCC 

justified the withholding under exemption 4 of FOIA, which exempts confidential 

business information, explaining that competitors could use information about the 

scope and frequency of a company’s service disruptions in marketing campaigns.131 

After the final rule was announced, consumer advocates, state regulators, and 

some businesses denounced the new policy, saying that the outage data are 

“essential to your ability to understand what is going on.”132 Critics say the 

information is necessary to evaluate the reliability of phone service and make 

business decisions such as building networks and locating data centers.133

G. Denial through Delay 

In numerous instances, the Bush Administration has simply failed to respond to 

FOIA requests. Whether this is just inordinate delay or an unstated final refusal 

to respond to the request, the effect is the same: the public is denied access to the 

information. 

FOIA recognizes that the timeliness of information is often critical to its 

usefulness, and hence the statute sets very tight timeframes for agencies to 

respond to FOIA requests. By law, within 20 business days of a request an agency 

must notify a requester whether the agency will comply with the request.134 The 

agency may extend these time limits only by giving the requester written notice 

setting forth the “unusual circumstances” that necessitate an extension and 

specifying a date by which the agency expects to provide the information.135 

Similar timelines apply in handling appeals.136 The statute also allows requesters 

to ask for expedited responses to their requests and it authorizes agencies to set up 

multi-track processing systems to allow smaller and simpler requests to move 

forward quickly, while longer requests are ongoing.137

 130 DHS, Comments of the Department of Homeland Security, In the Matter of New Part 4 of the 

Commission’s Rules Concerning Disruptions to Communications, ET Docket No. 04-35 (June 

2, 2004); DHS, Reply Comments of the Department of Homeland Security, In the Matter of 

New Part 4 of the Commission’s Rules Concerning Disruptions to Communications, ET Docket 

No. 04-35 (June 29, 2004). 

131 FCC Order at 24–26. 

132 FCC Cuts Public Line to Phone Outage Data, Washington Post (Aug. 28, 2004). 

133 Id. 

134 5 U.S.C. § 552(a)(6)(A). 

135 5 U.S.C. § 552(a)(6)(B). 

136 5 U.S.C. § 552(a)(6). 

137 5 U.S.C. § 552(a)(6)(D), (E). 
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In practice, many agencies frequently fail to meet these deadlines and many have 

substantial backlogs of FOIA requests that date back from before the Bush 

Administration.138 Nevertheless, anecdotal evidence indicates a very high level of 

frustration on the part of FOIA requesters with respect to apparently unlimited 

delays by agencies under the Bush Administration. Many requesters have not yet 

received responses to numerous FOIA requests made in the past few years, even 

where the request is relatively narrow, specific, and unlikely to involve documents 

subject to an exemption. 

For example, the National Security Archive is an independent research institute 

and library located at George Washington University, which collects and 

publishes declassified documents acquired through FOIA. As of early 2004, the 

National Security Archive had over 300 outstanding FOIA requests submitted in 

2001, for which the government had provided no substantive response.139 Among 

these, for example, was an August 2001 FOIA request to the CIA for a Scientific 

Intelligence Committee report, “Science and Technology in Communist China 

through 1970,” dating to circa 1966.140 Although the CIA acknowledged the 

request, the agency neither released nor denied the request for the record.141 No 

explanation was given for the delay in processing a request for a specifically 

identified single document relating to matters over 30 years old. Similarly, the 

Archive has received only an acknowledgment of its simple request in September 

2001 to the State Department for “the State Department’s contract with DynCorp 

for services in Colombia, contract #2071-125123E1.” 142

A second example involves the Arctic National Wildlife Refuge. In February 

2002, several environmental groups submitted a FOIA request to the Department 

of Interior for records related to the Department’s positions on oil exploration and 

 138 GAO, Information Management: Update on Freedom of Information Act Implementation 

Status, 32 (Feb. 2004) (GAO-04-257) (indicating a governmentwide FOIA backlog of 

roughly 160,000 requests in 2000); National Security Archive, Justice Delayed is Justice 

Denied: The Ten Oldest Pending FOIA Requests; Freedom of Information Act Audit, Phase 

Two (Nov. 17, 2003). 

139 E-mail from Meredith Fuchs, General Counsel, National Security Archive, to House 

Government Reform Committee minority staff (Jan. 15, 2004). 

140 Letter from William Burr, National Security Archive, to Kathryn I. Dyer, FOIA and 

Privacy Coordinator, CIA (Aug. 27, 2001). 

141 See Letter from Kathryn I. Dyer, FOIA and Privacy Coordinator, CIA to William Burr, 

National Security Archive (Sept. 17, 2001).

142 See Letter from Michael Evans, National Security Archive, to Margaret P. Grafeld, 

Director, Department of State (Sept. 13, 2001); Letter from Katrina M. Wood, 

Department of State to Michael Evans, National Security Archive (Nov. 16, 2001).
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development in the Arctic Refuge.143 In April 2002, the groups submitted a 

second FOIA request to Interior for documents relating to a revision of a report by 

U.S. Geological Survey scientists on the wildlife impacts of oil drilling in the 

Arctic Refuge.144 For both of these requests, Interior responded with various 

delaying tactics. These included invoking the statutory time extension without 

citing any “exceptional circumstances” as required, refusing to classify requesters 

as “educational” institutions for fee waiver purposes, reinterpreting and narrowing 

the scope of the request contrary to the groups’ explicit language in the request, 

and “closing” the request file when the Department did not hear back from the 

groups within 20 days.145 

The groups addressed Interior’s last set of objections on June 27, 2002, and May 

15, 2002, respectively, but received no response.146 They wrote again on 

September 19, 2002, but received no response.147 On March 11, 2003, the groups 

filed suit on both requests.148 After the suit was filed, Interior released some of the 

requested documents.149

H. The Views of Experts

In preparing this report, the staff of the Special Investigations Division 

interviewed experts in FOIA law and practitioners with extensive experience in 

making requests for information under FOIA to obtain their views on how public 

access to government information has changed under the Bush Administration. 

Across the board, these experts believe that the Bush Administration is 

significantly more secretive than previous administrations, and that it is 

fundamentally resistant to providing public access to information held by the 

government. As Harry Hammitt, the editor of Access Reports, stated: “The Bush 

Administration has shown a dislike for the concept of open government from the 

top.”150 

 143 Plaintiffs’ First Amended and Supplemented Complaint for Declaratory and Injunctive 

Relief, 14 (June 13, 2003), Sierra Club et al. v. U.S. Dept. of Interior, D.D.C. (No. 1:03 CV 

652).

144 Id. at 12. 

145 Id. at 13–17. 

146 Id. 

147 Id. 

148 Id. 

149 Id. 

150 E-mail from Harry Hammitt, Editor, Access Reports, to House Government Reform 

Committee minority staff, re: Bush and FOIA (June 25, 2004). 
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The experts see this attitude shift as driving a myriad of changes, both large and 

small, in the government’s FOIA policies. Furthermore, they believe that these 

actions, taken together, “radically” limit the public’s ability to find out what the 

government is doing. For example: 

• Jane E. Kirtley, Silha Professor of Media Ethics and Law at the University of 

Minnesota and former Executive Director of the Reporters Committee for 

Freedom of the Press, wrote: “The Bush Justice Department does not seem to 

view the FOIA as a law, like any other law, that must be enforced to promote 

the legislative goal of openness and accountability. Instead, it regards the 

exemptions as loopholes to be interpreted as broadly as possible in order to 

thwart the public’s right to know what its government is up to.”151 She further 

wrote: “It is impossible to overestimate the significance on the Ashcroft FOIA 

memo. In implementing FOIA, government agencies take their cue from the 

Justice Department. If the Justice Department makes clear that it intends to 

enforce FOIA’s provisions and spirit — the presumption of openness, the idea 

that exemptions should be narrowly construed, and discretionary disclosure 

unless there is a serious risk of actual harm — agencies will take that directive 

seriously, and therefore handle requests seriously. If, on the other hand, as 

with the Ashcroft memo, the message is that refusals to disclose information 

will be defended as long as they have a ‘sound legal basis’ (a standard easily 

met, given the many disparate FOIA decisions from a variety of federal 

courts), agencies will interpret this to mean, at the very least, ‘when in doubt, 

don’t give it out.’ It means delays, obfuscation, and frivolous denials will 

become commonplace.”152 

• Prominent open-government advocate Steven Aftergood, who heads the 

Project on Government Secrecy at the Federation of American Scientists 

wrote: “The problem of classified information is bad enough. But in the last 

couple of years there has been a proliferation of new restrictions on 

unclassified information. Whether they are called ‘sensitive but unclassified,’ 

or ‘for official use only,’ or ‘critical infrastructure information,’ barriers to 

public access are springing up right and left.”153

• Meredith Fuchs, the General Counsel for the National Security Archive at 

George Washington University wrote: “The Bush Administration started on a 

bad foot when Attorney General Ashcroft introduced a policy that 

discouraged government agencies from releasing records under FOIA even 

when they have the discretion to release. It got worse when they elevated 

 151 E-mail from Jane E. Kirtley, supra note 11. 

152 Id.

153 Telephone conversation with Steven Aftergood, supra note 13. 
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privacy, corporate and other interests above any public interest in information. 

Then journalists began to get hassled for fees that they should not have to pay. 

As the General Accounting Office and the National Security Archive found 

in separate audits of federal agency FOIA practice, all of this has meant more 

secrecy.”154 

• Professor Philip H. Melanson, Director of the Policy Studies Program at the 

University of Massachusetts at Dartmouth, wrote: “The Bush administration 

has radically reduced the public right to know via executive orders, court cases 

and policy memos, more so than any administration in modern history. The 

Freedom of Information Act of 1966 has been so narrowed by the policies and 

decisions of the White House and Attorney General Ashcroft that it has been 

weakened to a point that threatens its viability.”155

• Rebecca Daugherty, Director of the FOI Service Center, Reporters Committee 

for Freedom of the Press, wrote: “The Department of Justice under the Bush 

Administration will go to court on the flimsiest of excuses to protect 

information that is vital to the public’s understanding of what is going on in 

government. . . . It insists also that people locked up in connection with the 

War on Terrorism have a privacy interest in not having the public know that 

they are locked up — never mind the public’s interest in knowing whether 

there are systematic civil liberties abuses going on. National security and 

privacy are twin veils that smother the public’s ability to evaluate what is going 

on. Access to information has never been this difficult since passage of the 

Freedom of Information Act.”156

• Professor Barbara Croll Fought at the S.I. Newhouse School of Public 

Communications at Syracuse University wrote: “The Freedom of Information 

Law is all about openness, access and accountability. Particularly at this time 

of terrorism and war, citizens need to understand what our government is 

doing, how our tax money is being spent and why decisions are made. The 

policies and pronouncements of the Bush administration — in particular the 

Ashcroft and Card memos — are not only sucking the spirit out of the FOIA, 

but shriveling its very heart.”157

 154 E-mail from Meredith Fuchs, supra note 14. 

155 Philip H. Melanson, supra note 12. 

156 E-mail from Rebecca Daugherty, Director of the FOI Service Center, Reporters 

Committee for Freedom of the Press, to House Government Reform Committee minority 

staff (Aug. 31, 2004). 

157 E-mail from Barbara Croll Fought, Associate Professor, S.I. Newhouse School of Public 

Communications, Syracuse University, to House Government Reform Committee 

minority staff (July 16, 2004). 
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• Professor David C. Vladeck of the Georgetown University Law Center, who 

specializes in open government litigation, wrote: “George W. Bush will go 

down in the annals of history as ‘The Secrecy President.’ No president in 

modern times has done more to conceal the workings of government from the 

people. Not just with regard to asserted national security information, but on 

every front Bush has rolled back public access to government records and has 

tried to shield government from the people. For those who believe that 

democracy can flourish only with open and accountable government, the Bush 

Administration has been a nightmare.”158

Television news journalist Bill Moyers has echoed these concerns: 

It’s always a fight, to find out what the government doesn’t want us to 

know. It’s a fight we’re once again losing. Not only has George W. Bush 

eviscerated the Presidential Records Act and FOIA, he has clamped a lid 

on public access across the board. It’s not just historians and journalists he 

wants locked out; it’s Congress . . . and it’s you, the public and your 

representatives.159

II. Presidential Records Act 

The purpose of the Presidential Records Act is to ensure that after a President 

leaves office, the public will have full access to White House documents used to 

develop public policy. On November 1, 2001, however, President Bush issued an 

executive order that threatens to undermine this important law. 

Congress passed the Presidential Records Act in 1978, following the bitter 

controversy over public access to Nixon Administration records relating to the 

Watergate break-in and coverup.160 Before the enactment of the Presidential 

Records Act, a president’s papers relating to his official duties were considered to 

be his personal property. While most presidents of the modern era preserved their 

records and eventually made them public, absent the Presidential Records Act 

there is no guaranteed public access. 

The Presidential Records Act establishes that the records of a president relating to 

his official duties belong to the American people.161 The law gives the Archivist of 

 158 E-mail from David C. Vladeck, supra note 15. 

159 Bill Moyers on the Freedom of Information Act, NOW with Bill Moyers (Apr. 5, 2002) 

(online at http://www.pbs.org/now/commentary/moyers4.html). 

160 44 U.S.C. § 2201-2207. 

161 44 U.S.C. § 2202. 
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the United States custody of these records and the “duty to make such records 

available to the public as rapidly and completely as possible consistent with the 

provisions of this Act.”162 

The Act recognizes the need for some limits on public access. For the first five 

years after a president leaves office, there is generally no access to the presidential 

records except by Congress and the courts.163 The Act also permits a former 

president to restrict public access to sensitive records for up to 12 years after 

leaving office.164 The Act specifies six categories of records eligible for such a 

restriction, such as confidential communications between a president and his 

advisers.165 When the 12 years expire, the Presidential Records Act restrictions 

on release are eliminated, and access to the records is governed by the Freedom of 

Information Act. The Archivist must release records in response to FOIA 

requests, except that the exemption from FOIA for materials involving the 

government’s internal deliberative processes does not apply and such materials 

would be released.166 The Presidential Records Act does not affect any rights a 

president or former president may have to assert executive privilege, which is a 

recognized constitutional privilege to maintain confidentiality of presidential 

documents under certain circumstances.167

On January 16, 1989, President Reagan issued Executive Order 12667.168 This 

order established a process for handling potential executive privilege claims over 

records covered by the Presidential Records Act. It provided the sitting president 

and former presidents notice that records would be released and also provided an 

opportunity to assert executive privilege. If the former president asserted 

executive privilege, the claim would be reviewed by federal officials. Ultimately, 

the materials would be released unless either the current president or the 

Archivist concurred with the claim of privilege. 

On November 1, 2001, President Bush replaced the Reagan executive order with 

Executive Order 13233. 169 Under the law and the Reagan order, the presumption 

was that most documents would be released. In contrast, the Bush executive 

order establishes a process that generally operates to block the release of 

presidential papers. 

 162 44 U.S.C. § 2203(f). 

163 44 U.S.C. §§ 2204, 2205. 

164 44 U.S.C. § 2204(a). 

165 Id. 

166 44 U.S.C. § 2204(c); 5 U.S.C. § 5(b)(5). 

167 44 U.S.C. § 2204(c)(2). 

168 Exec. Order No. 12667, 54 Fed. Reg. 3403 (Jan. 18, 1989). 

169 Exec. Order No. 13233, 66 Fed. Reg. 56025 (Nov. 1, 2001). 
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33

The Bush order made several significant changes to the implementation of the 

Presidential Records Act. First, the order allows a former president unilaterally to 

block the release of records by asserting executive privilege. If, after being notified 

of the intent to release documents, the former president makes an executive 

privilege claim, the Archivist must withhold the records, even if neither the 

Archivist nor the incumbent president concur. Individuals seeking access to the 

records must initiate litigation to obtain an independent review of the legitimacy 

of the former president’s executive privilege claim. 

Second, the order facilitates the ability of a former president to defend an 

assertion of executive privilege in court. The order provides that “absent 

compelling circumstances,” the incumbent president “will concur in the privilege 

decision of the former President.” Whenever the incumbent president concurs in 

a privilege claim, the order provides that the incumbent president, who is 

represented by the Justice Department, will defend the claim of privilege in any 

litigation. This shifts the cost of defending the claim from the former president to 

the taxpayer. 

Third, the Bush order enables the president or former president to block release of 

records indefinitely, even without asserting executive privilege. The Presidential 

Records Act requires claims to withhold documents to be considered within 

specific time frames to assure expedited release. Under the Bush order, the 

incumbent and former presidents have 90 days to review documents prior to their 

release, but they can request an unlimited extension of that review time, blocking 

any release of documents in the interim. 

Fourth, the Bush order expands the scope of protected records to include vice 

presidential records. It also allows the former vice president to assert an executive 

privilege claim with respect to such records, as long as either the incumbent or 

former president authorizes the claim. 

Finally, the Bush order allows the designated representatives of the former 

president to invoke executive privilege on the president’s behalf, even after the 

death of the president. In addition, the Bush order designates the former 

president’s family as the representative in the event of the death or disability of a 

president prior to the designation of a representative. This is in direct conflict 

with the Presidential Records Act, which says: “Upon the death or disability of a 

President or former President, any discretion or authority the President or former 

President may have had under this chapter shall be exercised by the Archivist 
SECRECY IN THE BUSH ADMINISTRATION 

34

unless otherwise previously provided by the President or former President in a 

written notice to the Archivist.”170

The reaction of historians to the Bush order was sharply critical: 

• Dr. Stanley Kutler, whose efforts forced the release of the Nixon tapes and 

who was instrumental in making the case for the Presidential Records Act, 

wrote: “If his action stands, Bush will have substantially shut down historical 

research of recent presidents. With this order, we would have no studies of 

recent events such as we have for the Vietnam War, using Lyndon Johnson’s 

and Richard Nixon’s records to reveal their own doubts about the war, 

including its origins and attempts to make peace.”171 

• Prominent writer and reporter Richard Reeves wrote: “With a stroke of the 

pen on Nov. 1, President Bush stabbed history in the back and blocked 

Americans’ right to know how presidents (and vice presidents) have made 

decisions.”172 

• Historian Robert Dallek wrote: “President Bush, however, has severely 

crippled our ability to study the inner workings of a presidency. On Nov. 1, he 

issued an executive order that all but blocks access to the Reagan White 

House and potentially that of all other recent presidents.”173 

Editorial writers across the country were similarly outraged.174

The Bush Administration’s approach to the release of thousands of previously 

confidential documents in 2001 and 2002 demonstrates the potential impact of 

the Bush order on public access to historical information. 

 170 44 U.S.C. § 2204(d). 

171 Classified! George W. Uses 9/11 as a Pretext to Reverse the Will of Congress and Wall off 

Presidential Records, Chicago Tribune (Jan. 2, 2002). 

172 Writing History to Executive Order, New York Times (Nov. 16, 2001). 

173 All the Presidents’ Words Hushed, Los Angeles Times (Nov. 25, 2001). 

174 See Cheating History, New York Times (Nov. 15, 2001); A Flawed Approach on Records, 

Washington Post (Nov. 9, 2001); A Dark Oval Office, Los Angeles Times (Nov. 6, 2002) 

(“The more the public knows about how government business is conducted, the stronger 

a democracy becomes. This attempt to gut the 1978 Presidential [Records] Act is an 

attack on the principle of open government”); Self-Serving Secrecy, USA Today (Nov. 12, 

2001); People’s Papers; Executive Order Shows Contempt for Law and What’s Right, Houston 

Chronicle (Nov. 26, 2001); A Knife in History’s Back, St. Louis Post-Dispatch (Nov. 25, 

2001); Guarding History, St. Petersburg Times (Nov. 24, 2001); Abusing the Privilege; 

Bush’s Order Cloaking Records in Secrecy Must Be Rescinded Now or Overturned in Court 

Later, Plain Dealer (Nov. 20, 2001). 
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On January 20, 2001, the 12-year Presidential Records Act restrictions on 

President Reagan’s papers expired. Soon after that, the National Archives and 

Records Administration informed both former Presidents Reagan and Bush that it 

would begin to release documents. The Archives announced that it was prepared 

to release approximately 68,000 pages of documents that were responsive to FOIA 

requests filed in the previous seven years, but that had been withheld under the 

Presidential Records Act as confidential communications. The Bush 

Administration first delayed release of these documents by requesting multiple 

extensions of the 30-day deadline for asserting executive privilege that was 

imposed by the Reagan Executive Order. It then announced the new executive 

order, which changed the process for reviewing and releasing documents, further 

delaying the release. 

The Bush Administration finally began to allow the release of these papers in 

January 2002, but many were withheld until June 2002, fully 15 months after they 

were initially scheduled to be released. That same month, the Archives sent 

notice that it would open another 1,654 pages of these previously confidential 

documents. More than six months later, 1,580 of those pages were released.175 

The final 74 pages were withheld after former President Reagan and President 

George W. Bush asserted constitutionally-based privilege.176 

Over the coming years, millions more pages of Reagan presidential papers, George 

H.W. Bush vice-presidential papers, and George H.W. Bush presidential papers 

will be requested under the Freedom of Information Act and prepared for release. 

Under the Bush order, the release of each set of these papers can be delayed 

indefinitely by both the incumbent president and the former president. Any can 

be blocked with an assertion of executive privilege by the president or the former 

president or his family. This will delay analysis of these historical documents and 

will unnecessarily bar valuable historic papers from release. 

III. Federal Advisory Committee Act 

In 1972, Congress adopted the Federal Advisory Committee Act to govern how 

the Executive branch obtains advice from groups of advisors outside the federal 

government.177 FACA sets out rules for the operation of advisory bodies such as 

 175 National Archives and Records Administration, NARA’s Opening of Presidential Records 

under the Presidential Records Act (July 19, 2004) (e-mail to House Government Reform 

Committee minority staff). 

176 Letter from Alberto R. Gonzales, Counsel to the President, to Gary M. Stern, General 

Counsel, National Archives and Records Administration (Jan. 12, 2004). 

177 5 U.S.C. App. 2.
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boards, task forces, and commissions to promote the “good government” values of 

openness, accountability, and a balance of viewpoints. The goal of FACA is to 

prevent secret advisory bodies from exercising a hidden influence on government 

policy. 

FACA applies to any advisory group that is established or used by a federal agency 

and has at least one member that is not a federal employee.178 The membership of 

a group subject to FACA must be “fairly balanced in terms of the points of view 

represented and the functions to be performed.”179 

Generally, FACA requires that advisory committees announce their meetings, 

hold their meetings in public, take minutes of the meetings, and provide the 

opportunity for divergent viewpoints to be represented. 180 The public must be 

given access to the minutes as well as other records, reports, and transcripts.181 To 

protect sensitive information, FACA includes exemptions for information that 

relates to national security issues and information that is classified.182

The Bush Administration, however, has acted to weaken and avoid FACA’s 

requirements. The Administration has supported legislative changes to carve out 

new exemptions to the law. In other instances, the Administration has carefully 

structured the way it solicits advice from private entities to avoid establishing an 

advisory committee subject to FACA. And sometimes the Administration simply 

ignores FACA requirements. 

A. Limiting FACA through Legislation 

The Bush Administration has supported specific legislative carve-outs from 

FACA, just as it has done with FOIA. As these categorical exemptions 

accumulate over time, FACA will no longer be a generally applicable requirement 

supporting open government across government agencies and activities. 

In the proposal to Congress to establish a new Department of Homeland Security, 

President Bush proposed to exempt all advisory committees established by DHS 

 178 See GSA, The Federal Advisory Committee Act (FACA) Brochure (undated) (online at 

http://www.gsa.gov/Portal/gsa/ep/contentView.do?pf=y&channelId=-13171&contentId 

=11869&programId=9140&pageTypeId=8203&ooid=9755&contentType=GSA_BAS

IC&programPage=/ep/program/gsaBasic.jsp&P=MC). 

179 5 U.S.C. App. 2 § 5(b)(2). 

180 5 U.S.C. App. 2 § 10. 

181 5 U.S.C. App. 2 § 10(b), (c). 

182 5 U.S.C. App. 2 § 10(d). 
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from FACA.183 As finally adopted in the Homeland Security Act, this across-theboard exemption was dropped, but it was replaced by a mechanism likely to have a 

similar result. The Act gives the Secretary of Homeland Security the authority to 

exempt any advisory committee from FACA on a committee-by-committee basis. 

The only requirement is that the Secretary must publish notice of the committee 

in the Federal Register.

184 Amendments to the Medicare law, signed in December 

2003, establish another new exemption from FACA. The law creates 

“competitive acquisition programs” to provide for the furnishing of competitively 

priced items and services and to award contracts for various types of medical 

equipment and supplies.185 Section 302 establishes an advisory committee to give 

the Secretary of Health and Human Services advice and technical assistance in 

implementing this program. In particular, the committee is to offer advice on 

establishing data collection requirements and “the development of proposals for 

efficient interaction among manufacturers, providers of services, suppliers . . . and 

individuals.” This advisory committee is exempted from the requirements of 

FACA.186

The Administration also supported a new FACA exemption that affects 

Department of Energy advisory committees with members that are federal 

contractors.187 This provision, included in the fiscal year 2004 authorization bill 

for the Defense Department, allows DOE contractors to be considered federal 

employees for purposes of FACA when they are serving on an advisory committee. 

Because advisory committees composed solely of federal employees are not subject 

to FACA, the effect of the provision is to allow these contractors to provide 

advice to DOE officials without triggering FACA. The potential for abuse is 

significant given that federal contractors have a substantial financial stake in 

many DOE decisions, such as how best to clean up DOE sites with nuclear waste 

or which research and development activities to fund. 

B. Avoiding and Disregarding FACA 

In several instances, it appears that the Bush Administration has either violated 

FACA or structured its operations very carefully to avoid triggering FACA 

applicability. In some cases, the Bush administration has established groups of 

government employees that work extremely closely with outside entities, primarily 

 183 White House, Homeland Security Act of 2002, legislative proposal transmitted to Congress 

June 18, 2002. 

184 Homeland Security Act of 2002, Pub. L. 107-296, §871. 

185 Medicare Prescription Drug and Modernization Act of 2003, Pub. L. 108-173, § 302(b). 

186 Id. 

187 Pub. L. 108-136, section 3112; see Letter from Linton F. Brooks, National Nuclear 

Security Administration, DOE, to Rep. Edward J. Markey (Sept. 3, 2003). 
SECRECY IN THE BUSH ADMINISTRATION 

38

from industry, to gather and channel advice to government agencies or the White 

House. In others, the Administration or the advisory committee has exploited 

loopholes in the law to avoid FACA applicability. 

Vice President Cheney’s energy task force is the most prominent instance of an 

advisory body established by the Bush Administration that either violated or 

deliberately skirted FACA requirements. In this case, Vice President Cheney 

headed a task force to develop a national energy policy. The task force was 

ostensibly composed of the heads of nine federal agencies and several highranking White House officials. As partially revealed through news accounts, some 

documents obtained under FOIA, and an investigation by the Government 

Accountability Office, the task force engaged in extensive consultations with key 

representatives of the energy industry, particularly with coal, oil and gas, and 

nuclear interests.188 While the full extent of these consultations is not known, the 

task force had minimal contact with individuals representing environmental and 

consumer interests related to a national energy policy.189 

A lawsuit brought by the Sierra Club and Judicial Watch alleges that the 

consultations with industry representatives were sufficient to make the 

representatives de facto members of the task force and hence to subject the task 

force to the requirements of FACA.190 The district court, upheld by the D.C. 

Circuit Court of Appeals, issued decisions allowing the plaintiffs to conduct 

discovery of task force records that would show the role of nongovernmental 

parties in the operations of the task force.191 On appeal, however, the Supreme 

Court vacated the D.C. Circuit’s opinion and sent the case back to the D.C. 

Circuit to consider whether to block the discovery requests in light of separationof-powers considerations, among other concerns.192 

The energy task force is not the only instance where the Bush Administration has 

sought to avoid the application of FACA. Another example is the President’s 

Commission on Intelligence on Weapons of Mass Destruction, which President 

Bush established on February 6, 2004.193 The WMD Commission has been 

 188 GAO, Energy Task Force: Process Used to Develop the National Energy Policy (Aug. 2003) 

(GAO-03-894); Top G.O.P. Donors in Energy Industry Met Cheney Panel, New York Times 

(Mar. 1, 2002); Bush’s Energy Plan Bares Industry Clout, Los Angeles Times (Aug. 26, 

2001).

189 See id. 

190 Judicial Watch v. National Energy Policy Development Group, 219 F.Supp.2d 20 (D.D.C. 

2002), aff’d sub nom In re Cheney, 334 F.3d. 1096 (D.C. Cir. 2003), vacated and remanded 

sub nom Cheney v. U.S. Dist. Court for Dist. of Columbia, 124 S.Ct. 958. 

191 Id.

192 Id. 

193 Exec. Order No. 13328, 69 Fed. Reg. 6901 (Feb. 6, 2004). 
SECRECY IN THE BUSH ADMINISTRATION 

39

charged with investigating intelligence capabilities and failures with regard to 

weapons of mass destruction, including the Administration’s assessments of Iraq’s 

possession of WMD.194 Despite the broad public interest in the work of the WMD 

Commission, President Bush included in the executive order a provision whose 

sole purpose appears to be to exempt the Commission from FACA. 

The WMD Commission is established within the Executive Office of the 

President, its members are appointed by the President, the Commission reports to 

the President, its stated mission is to advise the President, and the Commission is 

directed to “solely advise and assist the President.”195 Using this structure does 

not affect the applicability of FACA, but it does make the Commission’s records 

exempt from FOIA, which applies to federal agencies but not White House 

entities that solely advise and assist the President.196 However, the executive 

order also includes a single sentence stating: “The Central Intelligence Agency 

and other components of the Intelligence Community shall utilize the 

Commission and its resulting report.”197 Since FACA includes an explicit 

exemption for any advisory committee “utilized” by the CIA, the effect of this 

sentence appears to be to make FACA inapplicable to the WMD Commission.198 

In a recent Federal Register notice, the Administration refused to apply FACA to 

the Commission.199

Other examples of commissions structured or operated to avoid the application of 

FACA include: 

• The President’s Commission to Strengthen Social Security. The 

President’s Commission to Strengthen Social Security was established by 

Executive Order 13210 as an advisory committee to provide the President 

with “bipartisan recommendations to modernize and restore the fiscal 

soundness to the Social Security System.” The Commission conducted much 

of its work through two subgroups, or subcommittees, which held closed 

 194 Id. 

195 Id. 

196 See DOJ, Freedom of Information Act Guide, Entities Subject to the FOIA (May 2004) 

(online at http://www.usdoj.gov/oip/procereq.htm#entities). 

197 Exec. Order No. 13328, supra note 193. 

198 5 U.S.C. App. 2 §4(b)(1).

199 Executive Office of the President, Office of Administration, Notice of Meeting of the 

Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass 

Destruction, 69 Fed. Reg. 39481 (June 30, 2004) (“While the Commission does not 

concede that it is subject to the requirements of the Federal Advisory Committee Act . . . 

it has been determined that the July 14–15 meeting would fall within the scope of 

exceptions (c)(1) and (c)(9)(B) of the Sunshine Act . . . and thus could be closed to the 

public if FACA did apply to the Commission”). 
SECRECY IN THE BUSH ADMINISTRATION 

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meetings and refused repeated requests for records of those proceedings. The 

Commission maintained that only the full committee, not its subcommittees, 

was subject to FACA. While regulations issued by the General Services 

Administration allow this interpretation, it is contrary to the fundamental 

principles of FACA, and the result was to severely limit public understanding 

of the commission’s work. When members of Congress objected to the 

Commission’s evasion of FACA requirements, they were rebuffed.200 

• The Energy Project Streamlining Task Force. President Bush established 

the White House Task Force on Energy Project Streamlining by executive 

order in May 2001.201 The Streamlining Task Force has no statutory 

authorization, directives, or limitations.202 The group is composed solely of 

federal employees. Yet it appears to function primarily as a mechanism for 

energy companies to enlist support from the White House on decisions that 

are supposed to be made by government scientists and regulators in agencies 

such as the Bureau of Land Management, the Forest Service, the U.S. Fish 

and Wildlife Service, and EPA.203 The Streamlining Task Force solicits 

recommendations for specific proposed energy projects for which the Task 

Force is needed to “facilitate” government permitting decisions.204 In its first 

solicitation, industry representatives requested aid from the Streamlining Task 

Force in obtaining approvals for 68 specific energy projects. While industry 

requests are posted on a web page, the White House has provided little 

 200 See Letter from Rep. Robert T. Matsui, Ranking Minority Member, Subcommittee on 

Social Security, Committee on Ways and Means, and Rep. Henry A. Waxman, Ranking 

Minority Member, Committee on Government Reform, to the Honorable Daniel Patrick 

Moynihan and Mr. Richard Parsons, Co-Chairmen, President’s Commission to 

Strengthen Social Security (Aug. 21, 2001); Letter from Rep. Robert T. Matsui, Ranking 

Minority Member, Subcommittee on Social Security, Committee on Ways and Means, 

and Rep. Henry A. Waxman, Ranking Minority Member, Committee on Government 

Reform, to the Honorable Daniel Patrick Moynihan and Mr. Richard Parsons, CoChairmen, President’s Commission to Strengthen Social Security (Nov. 8, 2001); Letter 

from Charles P. Blauhous, Executive Director, President’s Commission to Strengthen 

Social Security to Reps. Henry A. Waxman and Robert T. Matsui (Nov. 14, 2001). 

201 Exec. Order No. 13212, 66 Fed. Reg. 28357 (May 18, 2001). 

202 Section 341 of the energy bill conference report would permanently establish this body 

and rename it the Office of Federal Energy Project Coordination. While the House has 

passed the conference report, it appears unlikely that the Senate will pass it during the 

108th Congress.

203 See White House Task Force on Energy Project Streamlining, Proceedings of the First Year

(Dec. 2002) (briefly describes task force activity on eight of the 68 projects that were 

submitted to the task force in its initial solicitation). 

204 See White House Task Force on Energy Project Streamlining, online project or issue 

submission form at http://www.etf.energy.gov/htmls/comments.html. 
SECRECY IN THE BUSH ADMINISTRATION 

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information about actions taken by the Task Force on specific projects.205 An 

investigative news report gives accounts, however, of numerous occasions on 

which task force officials have pressured government experts in the field, 

urging land managers to speed activities needed to grant permits.206 

• The Rocky Mountain Energy Council. The Streamlining Task Force 

established another body, the Rocky Mountain Energy Council (RMEC). The 

RMEC is described as a state and federal partnership for the management of 

energy production and the development of energy policies on federal and state 

public lands in the Rockies.207 The first meeting of the RMEC in July 2003 

included representatives from the White House, numerous federal agencies, 

the States of Colorado, Montana, Utah, and Wyoming, and the Western 

Governors’ Association, which is not a government body.208 After a public 

outcry erupted over this closed meeting and the limited information available 

about the RMEC, 209 the Council on Environmental Quality held a public 

meeting of the RMEC in August 2003. At the August meeting, there was 

explicit discussion of how to structure the RMEC to avoid FACA.210 The 

 205 See White House Task Force on Energy Project Streamlining website at 

http://www.etf.energy.gov/htmls/comments.html; White House Task Force on Energy 

Project Streamlining, Proceedings of the First Year (Dec. 2002). 

206 White House Puts the West on Fast Track for Oil, Gas Drilling, Los Angeles Times (Aug. 25, 

2004). 

207 See Council on Environmental Quality, White House Task Force on Energy Project 

Streamlining; Public Organization Meeting of the Proposed Rocky Mountain Energy Council, 68 

Fed. Reg. 44950 (July 31, 2003). 

208 The federal agencies included: Interior, BLM, Fish and Wildlife Service, the Forest 

Service, EPA, DOE, and the Office of Surface Mining. See White House Task Force on 

Energy Project Streamlining, Participating Organizations (online at 

http://www.etf.energy.gov/pdfs/RMEC_PartOrg.pdf). 

209 See Let Public Shape Energy Policy, Denver Post (July 13, 2003) (editorial) (“The Bush 

administration is deciding the fate of our public lands in secret meetings. . . . Last week, 

the first meeting of the newly created Rocky Mountain Energy Council, held at the 

Denver Federal Center in Lakewood, was closed to the public. The secrecy is both 

indefensible and worrisome”); Gas Pains, Salt Lake Tribune (July 8, 2003) (editorial). 

210 A White House staff person told the members that FACA would not apply if the RMEC 

membership was comprised of employees of federal and state agencies and local and tribal 

governments. Rocky Mountain Energy Council, RMEC Implementation and Public 

Comment Meeting, Final Summary, 4–5 (Aug. 26, 2003) (online at 

http://www.etf.energy.gov/pdfs/rmecfinalmin-82603.pdf). This advice appears to rely on 

an exemption provided under FACA for intergovernmental communications between 

federal employees and employees of state, local, and tribal governments relating to the 

implementation of federal programs that inherently share intergovernmental 

responsibilities. See Unfunded Mandates Reform Act, 2 U.S.C. §1533. 
SECRECY IN THE BUSH ADMINISTRATION 

42

Administration disbanded the RMEC in 2004, with the explanation that there 

were other ways to achieve its objectives.211 

Recently, the White House Office of Management and Budget (OMB) formally 

advised agencies that they could avoid FACA’s requirements by hiring a 

contractor to manage advisory committees convened to conduct peer reviews. In 

September 2003, OMB proposed draft guidelines to vastly expand the application 

of peer review procedures to science used by government regulators.212 In the 

proposed guidance, OMB stated that in creating peer review panels, agencies 

should assess whether the panel would be subject to FACA.213 OMB also stated 

that agencies could retain outside firms to oversee the peer review process, 

advising that if they did so, the peer review panel would be exempt from FACA.214 

In a later reproposal of the peer review guidelines issued in April 2004, OMB did 

not reference FACA.215 However, OMB also did not disclaim its earlier position. 

This apparently leaves in place OMB’s interpretation that using outside 

contractors would exempt a peer review process from FACA, as well as OMB’s 

endorsement of that approach. 

PART II: LAWS THAT RESTRICT PUBLIC ACCESS TO FEDERAL RECORDS

The Clinton Administration significantly increased public access to government 

information by restricting the ability of officials to classify information and 

establishing an automatic system for the declassification of documents. In a 1995 

executive order that revised the classification system for the first time since the 

end of the Cold War, President Clinton established a presumption against 

classification in cases of significant doubt and required the automatic 

declassification of most historically valuable information over 25 years old.216 The 

declassification provisions covered over 1.6 billion pages of secret records created 

over the past 50 years.217 

 211 Drilling Council Called Off; Energy Task Force to Use Other Ways of Streamlining, Rocky 

Mountain News (Mar. 20, 2004). 

212 68 Fed. Reg. 54023 (Sept. 15, 2003). 

213 Id. at 54028. 

214 Id. 

215 69 Fed. Reg. 23230 (Apr. 28, 2004). 

216 Exec. Order No. 12958, 60 Fed. Reg. 19825 (Apr. 17, 1995). 

217 National Archives and Records Administration, Information Security Oversight Office, 

2001 Report to the President, 3 (Sept. 20, 2002). 
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43

The Bush Administration has reversed this trend toward openness and 

dramatically increased the volume of government information concealed from 

public view. This is particularly evident in the Bush Administration’s expanded 

use of national security classification. Original classification decisions, the most 

important measure of classification activity, have increased dramatically over the 

past three years. In fiscal years 2001 to 2003, the average number of original 

classifications per year increased 50% over the average for the previous five fiscal 

years.218 President Bush also increased the number of agencies with original 

classification authority and delayed the pace of declassification to an annual 

average rate of 60% lower than annual rates during the Clinton Administration.219 

The recent comments of J. William Leonard, the Director of the Information 

Oversight office, are informative. He told a seminar of classification officials: 

“Unfortunately, I have lately found some to use war as an excuse to disregard the 

basics of the security classification system.”220 In recent Congressional testimony, 

Carol A. Haave, the Deputy Undersecretary of Defense for Counterintelligence 

and Security, admitted that as many as half of all government secrets are 

improperly classified.221

The Bush Administration has also obtained unprecedented authority to conduct 

government operations in secret, with little or no judicial oversight. Under 

expanded law enforcement authority in the PATRIOT Act, the Justice 

Department can more easily use secret orders to obtain library and other private 

records, obtain “sneak and peek” warrants to conduct secret searches, and 

conduct secret wiretaps. In addition, the Bush Administration has used novel 

legal interpretations to expand its authority to detain, try, and deport individuals 

in secret. It has detained hundreds of “unlawful enemy combatants” secretly at 

the Guantanamo Bay Naval Station, authorized secret trials of these combatants, 

and established mechanisms for the secret detention and deportation of aliens. 

 218 National Archives and Records Administration, Information Security Oversight Office, 

Report to the President 2003, 5 (Mar. 31, 2004); National Archives and Records 

Administration, Report to the President 2002, 24 (June 30, 2003). The Information 

Security Oversight Office reported the following original classification decisions between 

FY 1996 and FY 2003: 105,163 for FY 1996; 158,788 for FY 1997; 137,005 for FY 1998; 

169,735 for FY 1999; 220,926 for FY 2000; 260,674 for FY 2001; 217,288 for FY 2002; 

234,052 in FY 2003. 

219 See infra notes 249–53 and 262 and accompanying text. 

220 J. William Leonard, Director, Information Security Oversight Office, The Importance of 

Basics (June 15, 2004) (remarks before the National Classification Management Society’s 

Annual Training Seminar). 

221 Half of all Secrets Are Improperly Classified, Official Says, Secrecy News (Aug. 25, 2004); 

Too Much Secrecy, Washington Post (Aug. 28, 2004). 
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I. National Security Classification of Government Records 

Since 1940, presidents have issued executive orders that govern the classification 

and safeguarding of national security information.222 Under these orders, 

information can be classified at three levels, depending on the degree of damage 

that would reasonably be caused by an unauthorized disclosure. Information 

classified as “confidential” is expected to cause damage to national security. 

“Secret” information is expected to cause serious damage, and “top secret” 

information is expected to cause exceptionally grave damage.223 In addition to 

this regime of classification, certain agencies — such as the Energy Department, 

Central Intelligence Agency, Defense Department, and National Security Agency 

— promulgate different classification levels and standards for information within 

their areas of responsibility.224

Prompted by changing security requirements after the end of the cold war, 

President Clinton issued Executive Order 12958, which significantly restricted the 

classification of information and established a revised system for the 

declassification of information.225 For instance, the Clinton order established a 

presumption against classification. The Clinton order made other changes to lift 

the veil of secrecy, such as limiting the duration of classification in most cases to 

ten years, requiring within five years of the order the automatic declassification of 

most historically valuable records at least 25 years old,226 authorizing classification 

challenges, and establishing the Interagency Security Classification Appeals Panel 

to adjudicate classification controversies.227 In the first six years following the 

Clinton order, the executive branch increased the average number of records that 

it declassified by more than ten times, and it increased by more than five times the 

number of records declassified from 1980 to 1994.228

The Bush Administration, however, reversed the trend toward openness and 

dramatically increased the volume of information restricted as classified. 

 222 See Congressional Research Service, Security Classification Policy and Procedure: E.O. 

12958, as Amended (May 14, 2003) (97-771 GOV). 

223 Exec. Order No. 13292, 68 Fed. Reg. 15315 (Mar. 25, 2003). 

224 J. William Leonard, Director, Information Security Oversight Office, Information Sharing 

and Protection: A Seamless Framework or Patchwork Quilt? (June 12, 2003) (remarks before 

the National Classification Management Society’s Annual Training Seminar). 

225 Exec. Order No. 13292, supra note 223, at 1, 3–6. 

226 This deadline was later extended from five to six and a half years. 

227 Exec. Order No. 12958, supra note 216. 

228 Public Citizen, Analysis of Executive Order 13292: Changes in Classification Policy Imposed 

by the Bush Administration Executive Order (2003) (citing Information Security Oversight 

Office, Report to the President, 2001, 3–4 (Nov. 2002)). 
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A. President Bush’s Executive Order 13292 

On March 25, 2003, President Bush issued Executive Order 13292 to amend the 

system for classifying, safeguarding, and declassifying national security 

information. Although it retained some elements of Clinton order, it also made 

significant changes favoring secrecy. 

1. Eliminating the Presumption of Disclosure 

Among the distinctive features of the Clinton order were two instructions to err 

on the side of openness in cases of significant doubt. The Clinton order expressly 

provided that “[i]f there is significant doubt about the need to classify 

information, it shall not be classified.”229 Similarly, when there was significant 

doubt about the appropriate level of classification, the Clinton order specified that 

the information be classified at the lower level.230 President Bush deleted both of 

these provisions from the Bush order, permitting officials to classify information 

even when the need to do so was in significant doubt. 

2. Postponing or Avoiding Automatic Declassification 

The Clinton order established a system that limited the duration of classified 

treatment and resulted in automatic declassification. Under the Clinton order, a 

classification authority was required to establish a time period — generally within 

ten years — after which the document would lose its classified status. To establish 

a classification period exceeding ten years, the original classification authority 

needed to conclude that disclosure would reasonably be expected to cause one of 

eight specified harms.231 

The Bush order removes these limitations, allowing an original classification 

authority to select periods of up to 25 years if it merely determines that such a 

period is required by the sensitivity of the information.232 In another departure 

 229 Exec. Order No. 12958, supra note 216, at § 1.2(b). 

230 Id. at § 1.3(c). 

231 Id. at § 1.6(d). These include: (1) revealing an intelligence source, method, or activity; 

(2) revealing information that would assist in the development or use of weapons of mass 

destruction; (3) revealing information that would impair technology within a U.S. 

weapon system; (4) revealing military or emergency preparedness plans; (5) revealing 

foreign government information; (6) damaging relations between the U.S. and a foreign 

government, revealing a confidential source, or undermining long term diplomatic 

activities; (7) impairing the ability to protect the President and other officials; and (8) 

violating a statute, treaty, or international agreement. 

232 Exec. Order No. 13292, supra note 223, at § 1.5(b). 
SECRECY IN THE BUSH ADMINISTRATION 

46

from the Clinton order, which imposed a limit of extensions to ten-year periods, 

the Bush order allows classifiers to extend these time periods without any apparent 

limitation.233

The Bush order also weakens the system of automatic declassification established 

under the Clinton order for records more than 25 years old and determined by the 

Archivist to have permanent historical value. Under the Clinton order, an agency 

head could exempt records from automatic declassification if release “should” be 

expected to result in one of several categories of serious harm.234 Under the Bush 

order, an agency can withhold release if it merely “could” cause one of the 

specified harms.235 Moreover, the Bush order further extended the deadline for 

automatic declassification procedures to take effect. President Clinton had 

extended his own deadline to April 2003 to accomplish this requirement with 

respect to multiple agency documents and information pertaining to intelligence 

sources and methods.236 The Bush order delays implementation of this 

requirement until December 2006.237

Spending decisions by the Bush Administration have also contributed to delays in 

declassification. For FY 2001, federal agencies reported spending approximately 

$232 million on declassification efforts.238 Since then, estimated spending on 

declassification plummeted 77%, falling to $53.8 million for FY 2003.239 The 

Information Security Oversight Office predicts that these funding decisions will 

clearly affect the ability of agencies to review their classified holdings for 

declassification, warning that “[t]he consequence will be a shift back to the ever 

increasing ‘mountain’ of classified records being stored in secure locations or 

containers across Government and contractor facilities.”240

3. Protecting Foreign Government Information 

“Foreign government information” is information provided to the U.S. 

government by foreign governments and international organizations with “an 

 233 Id. at § 1.5(c); Exec. Order No. 12958, supra note 216, at § 1.6(d). 

234 Exec. Order No. 12958, supra note 216, at § 3.4(b). 

235 Exec. Order No. 13292, supra note 223, at § 3.3(b). 

236 Exec. Order No. 13142, § 2, 64 Fed. Reg. 66089 (Nov. 19, 1999). 

237 Exec. Order No. 13292, supra note 223, at § 3.3(a). 

238 National Archives and Records Administration, Information Security Oversight Office, 

Report to the President 2001, 8 (Sept. 20, 2002). 

239 National Archives and Records Administration, Information Security Oversight Office, 

Report on Cost Estimates for Security Classification Activities for 2003, 3 (July 2004); Report 

to the President 2002, supra note 218, 14. 

240 Report to the President 2002, supra note 218, 27. 
SECRECY IN THE BUSH ADMINISTRATION 

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expectation that the information is to be held in confidence.”241 In Executive 

Order 12356, President Reagan established a presumption that unauthorized 

disclosure of this information would cause damage to U.S. national security, 

increasing the likelihood of a decision to classify the information. The Clinton 

order eliminated the presumption, but the Bush Administration restored it.242

4. Reclassifying Information 

The Bush order expands the authority to reclassify information that had 

previously been declassified. The Clinton order had provided that “information 

may not be reclassified after it has been declassified and released to the public 

under proper authority.”243 Under the Bush order, such information can be 

reclassified if the agency head or deputy provides authorization, the information 

“may be reasonably recovered,” and the action is reported to the Director of the 

Information Security Oversight Office.244

5. Weakening the Interagency Security Classification Appeals Panel 

The Bush order retained the Interagency Security Classification Appeals Panel 

(ISCAP), which reviews decisions to exempt documents from automatic 

declassification and adjudicates challenges to classification and requests for 

mandatory declassification. The Bush order, however, transfers significant 

authority from ISCAP to the Director of Central Intelligence. The Bush order 

allows the CIA Director to reject ISCAP decisions if he or she determines that 

declassification “could reasonably be expected to cause damage to the national 

security and to reveal (1) the identity of a human intelligence source, or (2) 

information about the application of an intelligence source or method.” The CIA 

Director’s decision can be overridden only by the president.245

CIA Director George Tenet reportedly used this authority for the first time in 

December 2003 to block the partial declassification of a 1968 issue of the 

President’s Daily Brief. A researcher had requested the document because it 

apparently discussed the Soviet manned lunar program. Until the CIA Director’s 

intervention, ISCAP had ruled in favor of partial declassification. The researcher 

has appealed the veto to the White House.246 

 241 Exec. Order No. 13292, supra note 223. 

242 Id. at § 1.1(c); Exec. Order No. 12958, supra note 216. 

243 Exec. Order No. 12958, supra note 216, at § 1.8(c). 

244 Exec. Order No. 13292, supra note 223, at § 1.7(c). 

245 Id. at § 5.3. 

246 CIA Vetoes Release of 1968 Presidential Brief, Secrecy News (Dec. 11, 2003). 
SECRECY IN THE BUSH ADMINISTRATION 

48

6. Exempting Vice Presidential Records from Mandatory Declassification Review

President Clinton designated the Vice President an original classification 

authority.247 The Bush order expands upon this provision by exempting any 

information classified by the Vice President from the mandatory declassification 

review.248 

B. President Bush’s Expansion of “Original Classification Authorities”

The executive orders on classification have specified that only certain individuals 

have the authority to classify information in the first instance. These have 

included the President, designated agency heads, and other officials designated by 

the President or delegated this authority.249 

President Bush has made significant additions to the number of individuals who 

can originally designate documents as classified. On December 10, 2001, 

President Bush added the Secretary of Health and Human Services to the list of 

agencies that can classify information originally as “secret.”250 On May 6, 2002, he 

added the Administrator of the Environmental Protection Agency,251 and on 

September 26, 2002, he added the Secretary of Agriculture.252 On September 17, 

2003, he upgraded the authority of the Director of the Office of Science and 

Technology Policy to classify information originally as “top secret.”253

 247 60 Fed. Reg. 53845 (Oct. 17, 1995). 

248 Exec. Order No. 13292, supra note 223, at § 3.5(b). 

249 As of the end of the Clinton Administration, 19 offices and agencies were authorized 

original classification authorities. President Clinton authorized the following to classify 

information originally at the top secret level: Executive Office of the President, Chief of 

Staff to the President, Director of the Office of Management and Budget, National 

Security Advisor, Director of the Office of National Drug Control Policy, Chairman of 

the President’s Foreign Intelligence Advisory Board, Secretary of State, Secretary of 

Treasury, Secretary of Defense, Secretary of the Army, Secretary of the Navy, Secretary of 

the Air Force, Attorney General, Secretary of Energy, Chairman of the Nuclear 

Regulatory Commission, Director of the U.S. Arms Control and Disarmament Agency, 

Director of Central Intelligence, NASA Administrator, and FEMA Director. President 

Clinton authorized the following to classify information originally at the secret level: 

Executive Office of the President, U.S. Trade Representative, Chairman of the Council of 

Economic Advisers, Director of the Office of Science and Technology Policy, Secretary of 

Commerce, Secretary of Transportation, AID Administrator, and Director of U.S. 

Information Agency. President Clinton authorized the following to classify information at 

the confidential level: President of the Export-Import Bank and President of the 

Overseas Private Investment Corporation. 60 Fed. Reg. 53845 (Oct. 13, 1995). 

250 66 Fed. Reg. 64347 (Dec. 10, 2001). 

251 67 Fed. Reg. 31109 (May 6, 2002). 

252 67 Fed. Reg. 61465 (Sept. 26, 2002). 

253 68 Fed. Reg. 55257 (Sept. 23, 2003). 
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C. The Impact on Classification Decisions 

The impact of these decisions has been dramatic. Original classification decisions 

— those in which an authorized classifier first determines that disclosure could 

harm national security — have risen significantly during the Bush Administration. 

In fiscal years 2001 to 2003, the average number of original classifications per year 

increased 50% over the average for the previous five fiscal years.254 Because 

original classification decisions precede all other aspects of the security 

classification system, the Information Security Oversight Office considers them to 

be the most important indicator of classification activity.255 

Derivative classification decisions, which involve incorporating, restating, or 

paraphrasing information that had previously been classified, have also increased 

significantly during the Bush Administration. Between FY 1996 and FY 2000, 

derivative classifications averaged 9.96 million per year. Between FY 2001 and FY 

2003, the average increased to 19.37 million per year, a 95% increase.256 In the 

last year alone, the combined total of derivative and original classification activity 

increased 25%.257

The rapid growth of secrecy is further reflected by the increasing cost of 

classification for the government and private industry. The classification system 

includes programs to conduct background checks of government and contractor 

personnel, assure the physical security of classified information and facilities, 

establish policies and procedures to protect classified information, declassify 

information, maintain secure information technology systems, and provide 

appropriate training.258 According to the National Archives’ Information Security 

Oversight Office, the total cost borne by the government and private industry to 

 254 Report to the President 2003, supra note 218, 5; Report to the President 2002, supra note 218, 

24. 

255 Report to the President 2003, supra note 218, 13. 

256 Id. at 17. Report to the President 2002, supra note 218, 24. Combined classification 

activity significantly increased between FY 1999 and FY 2000, mainly because of an 

anomaly reported by the Department of State. In that year, the Department of State 

registered a 394% increase over the previous year, which is attributable in part to changes 

in its reporting procedures. National Archives and Records Administration, Information 

Security Oversight Office, 2000 Report to the President (Sept. 17, 2001) (online at 

www.archives.gov/isoo/reports/isoo_reports.html). 

257 Federation of American Scientists Project on Government Secrecy, Secrecy News (Apr. 

27, 2004). 

258 Report to the President 2002, supra note 218, 13-14. 
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maintain the classification system was $6.5 billion in FY 2003, $1.8 billion (or 

38%) more than the cost in FY 2001.259

At the same time that classification activity increased, the pace of declassification 

decreased. In the four years following the Clinton order, from FY 1996 to FY 

1999, the executive branch declassified approximately 720 million pages, 

averaging 180 million pages per year.260 In the first three fiscal years of the Bush 

Administration, the executive branch declassified approximately 219 million 

pages, averaging 73 million per year.261 This represents a 60% decrease in the 

average number of pages declassified each year of the Bush Administration. 

During FY 2002, the Administration declassified just 44.4 million pages of 

permanently valuable historical records, the largest decline in the number of pages 

declassified in any one year since the Clinton order became effective in October 

1995.262

Because classified documents are not available to the public, it can be hard to 

assess the legitimacy of classification decisions. However, it appears that some of 

these decisions have had the effect of suppressing embarrassing information. This 

not only shields government officials from public scrutiny, it violates President 

Bush’s own executive order, which expressly prohibits the classification of 

information to “conceal violations of law, inefficiency, or administrative error” or 

to “prevent embarrassment to a person, organization, or agency.”263 

For example, the Defense Department classified the entire March 2004 

investigative report of Major General Antonio Taguba, which detailed the 

unlawful mistreatment of Iraqi prisoners of war in U.S. custody. One reporter who 

had reviewed a widely disseminated copy of the report raised the issue in a 

Defense Department briefing with General Peter Pace, the Vice Chairman of the 

Joint Chiefs of Staff, and Secretary Rumsfeld. The reporter noted that “there’s 

clearly nothing in there that’s inherently secret, such as intelligence sources and 

methods or troop movements” and asked: “Was this kept secret because it would 

be embarrassing to the world, particularly the Arab world?” General Pace 

responded that he did not know why the document was marked secret. When 

asked whether he could say why the report was classified, Secretary Rumsfeld 

answered: “No, you’d have to ask the classifier.”264 

 259 Classification Costs Skyrocket, Secrecy News (July 21, 2004). 

260 Report to the President 2002, supra note 218, 27. 

261 Id. 

262 Id. 

263 Exec. Order No. 13292, supra note 223, at § 1.7. 

264 Department of Defense, News Transcript: Defense Department Operational Update Briefing 

(May 4, 2004) (http://www.fas.org/sgp/news/2004/05/dod050404.html). 
SECRECY IN THE BUSH ADMINISTRATION 

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Because the classification decision appeared to violate the executive order’s 

prohibition against classification to conceal violations of law, the Federation of 

American Scientists requested an inquiry by the Information Security Oversight 

Office, which agreed to review the matter.265 Alluding to the Taguba report in a 

recent speech before classification professionals, the Director of the Information 

Security Oversight Office described how concealment of misconduct is 

fundamentally counterproductive: 

And what is gained by classifying such activity? Our values as a society are 

such that they will invariably serve as a self-correcting measure when 

confronted with such abuses — thus the inevitability that such 

information will eventually become widely known. At the same time, the 

initial act of classification can negatively impact the timeliness and 

completeness of notifications provided to certain Government officials, 

thus impairing their ability to deal with ensuing issues. In the final 

analysis, we only succeed in keeping the information from those who need 

to know it the most — the American people and their leaders — and even 

then, we only delay the inevitable.266

In another apparent example of improper classification, the Defense Department 

retroactively classified embarrassing weaknesses in the National Missile Defense 

program after this unclassified information had been disclosed and widely 

disseminated. Details about flaws in the National Missile Defense system emerged 

in September 2000, when Philip Coyle, the director of the Pentagon’s office of 

Operational Test and Evaluation, appeared as a hearing witness before a 

subcommittee of the Government Reform Committee. Mr. Coyle testified that his 

office had prepared a report on major deficiencies in the missile defense testing 

program, which concluded that the program was so immature that a rigorous 

assessment of the system could not even be made. He also said that the report set 

forth 50 recommendations explaining how the system should be tested for any 

future deployment.267 

 265 Letter from Steven Aftergood, Director, Project on Government Secrecy, Federation of 

American Scientists, to J. William Leonard, Director, Information Security Oversight 

Office (May 6, 2004); Letter from J. William Leonard, Director, Information Security 

Oversight Office, to Steven Aftergood, Project on Government Secrecy, Federation of 

American Scientists (May 6, 2004). 

266 J. William Leonard, supra note 220. 

267 Subcommittee on National Security, Veterans Affairs, and International Relations, 

Committee on Government Reform, Hearing on National Missile Defense: Test Failures and 

Technology Development, 106th Cong. (Sept. 8, 2000); see Letter from Rep. Henry A. 

Waxman and Rep. John F. Tierney to Defense Secretary Donald Rumsfeld (Mar. 25, 

2004). 
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52

Despite Mr. Coyle’s agreement to provide the subcommittee a complete report, 

the Defense Department refused to turn over the document for eight months, 

releasing it only after 55 members of Congress wrote to Secretary Rumsfeld and 

demanded its immediate delivery. The document was then posted on the internet 

by Rep. Christopher Shays, Chairman of the Subcommittee on Emerging Threats, 

National Security and International Relations, and was the subject of several news 

articles and editorials.268 Over two years later, the General Accountability Office, 

during its review of the testing program, was informed that the Defense 

Department had subsequently classified the 50 specific recommendations set forth 

by the office of Operational Test and Evaluation.269 Since the recommendations 

had already been released and publicized, the retroactive classification did nothing 

to protect national security and served only to limit public debate on a 

controversial weapons system. 

In another example, the Justice Department retroactively classified information 

that it had previously given to Senate staff members nearly two years earlier 

concerning allegations made by Sibel Edmonds, an FBI translator who accused the 

Bureau of gross mismanagement and whistleblower retaliation.270 According to 

Ms. Edmonds, the FBI terminated her contract after she reported to her 

supervisors (1) that a coworker had failed to translate intelligence-related 

information recorded during an FBI investigation, (2) that this coworker had ties 

with the organization under investigation, and (3) that supervisors instructed Ms. 

Edmonds to slow the pace of her work to justify additional funding.271 The FBI, 

 268 E.g. Science and Politics Ride on Missile Test, Boston Globe (July 15, 2001); ABM Tests 

Mostly Miss Real Issues, Analysts Say Tracking Capabilities Have Lagged for Decades, Boston 

Globe (Sept. 2, 2001); Missile Defense; The Media Must Demand Truth from the Testers, Los 

Angeles Times (Aug. 19, 2001). 

269 Briefing by Robert E. Levin, Director, Acquisition and Sourcing Management, General 

Accountability Office, to House Government Reform Committee minority staff (Feb. 12, 

2004). The Defense Department contends that it did not reclassify the Coyle Report but 

instead classified a draft GAO analysis of the Coyle report that added additional sensitive 

information. Letter from Michael W. Wynne, Acting Under Secretary of Defense for 

Acquisition, Technology, and Logistics to Rep. Henry A. Waxman (Aug. 19, 2004). An 

internal Missile Defense Agency memorandum, however, makes clear that the Defense 

Department specifically classified an appendix to the GAO’s draft report that contained 

nothing more than the Coyle report’s recommendations. Memorandum from Art Tysen, 

Assistant Director for Organizational Security, Missile Defense Agency, to Louis 

Villalobos, Project Integrator Directorate (May 20, 2003). 

270 Material Given to Congress in 2002 Is Now Classified, New York Times (May 20, 2004). 

271 Press Release: Statement of FBI Whistleblower Sibel Edmonds and Her Attorneys, 

WashingtonPost.com (Aug. 13, 2002) (http://www.washingtonpost.com/wpsrv/onpolitics/articles/whistleblowerpr.html); Lost In Translation, 60 Minutes (July 13, 

2003) (http://www.cbsnews.com/stories/2002/10/25/60minutes/printable526954.shtml); 2 
SECRECY IN THE BUSH ADMINISTRATION 

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after conducting its own investigation, corroborated much of Ms. Edmonds’s 

account.272 

After Ms. Edmonds alleged this misconduct, Senate staff members received two 

unclassified briefings concerning Ms. Edmonds in June and July 2002. Nearly two 

years later, in May 2004, the Justice Department retroactively classified the same 

information, including the languages Ms. Edmonds translated, the types of cases 

she handled, and which employees she worked with.273 Republican Senator 

Charles Grassley called the post hoc decision to classify this information 

“ludicrous” and “about as close to a gag order as you can get.” He said that 

classifying information already in the public domain “does harm to transparency in 

government, and it looks like an attempt to cover up the FBI’s problems in 

translating intelligence.”274

Members of both parties have recognized the deterioration of the classification 

system. Senators Ron Wyden, Trent Lott, Bob Graham, and Olympia Snow 

introduced a bill on July 15, 2004, to establish an Independent National Security 

Classification Board. The purpose of this three-member board would be to review 

current classification policies, recommend needed reforms, and reexamine 

disputed classification decisions.275

II. Expanded Protection of “Sensitive Security Information” 

As with national security classification, the Bush Administration has dramatically 

expanded existing authority to make designations of “sensitive security 

information,” a category of sensitive but unclassified information originally 

established to protect the security of civil aviation. Disclosure of this information 

is limited to covered persons in government and the private sector with a “need to 

know.” Sensitive security information is exempt from mandatory disclosure under 

FOIA, and unauthorized disclosures are punishable by civil penalties or adverse 

personnel action for government employees.276

Established in 1974 with passage of the Air Transportation Security Act, the 

category of sensitive security information applied to information created through 

 

FBI Whistle-Blowers Allege Lax Security, Possible Espionage, Washington Post (Jun. 19, 

2002). 

272 2 FBI Whistle-Blowers Allege Lax Security, Possible Espionage, id. 

273 Material Given to Congress in 2002 Is Now Classified, supra note 270. 

274 Id. 

275 Federation of American Scientists Project on Government Secrecy, Senators Introduce Bill 

To Revamp Classification Policy, Secrecy News (July 16, 2004). 

276 49 U.S.C. § 40119(b)(1). 
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Federal Aviation Administration research and development “to protect passengers 

and property against acts of criminal violence, aircraft piracy and terrorism and to 

ensure security.”277 The types of information subject to protection included 

airport and air carrier security programs and other details of aviation security 

programs the release of which would: (1) be an unwarranted invasion of personal 

privacy; (2) reveal a trade secret or privileged or confidential commercial or 

financial information; or (3) be detrimental to the safety of passengers in air 

transportation.278

After the attacks of September 11, 2001, the Bush Administration sought and 

obtained authority to expand significantly the scope of protected sensitive security 

information. As part of the Aviation and Transportation Security Act, Congress 

transferred the responsibility for aviation security to a newly created 

Transportation Security Administration (TSA). In the process, it deleted the 

word “air” in the law authorizing sensitive security information, expanding its 

scope to include all modes of transportation.279 The Homeland Security Act 

transferred TSA to a newly created Homeland Security Department and gave the 

new department similar authority to prescribe regulations prohibiting the 

disclosure of sensitive security information.280

Pilots, flight attendants, and consumer advocates have accused TSA of using 

sensitive security information to muzzle debate of security initiatives and insulate 

TSA from criticism. For instance, TSA held an open meeting with aviation and 

security representatives to discuss a report on ways to improve air cargo security. 

TSA, citing sensitive security information concerns, refused to release the report 

and barred participants from discussing the report’s details during the session.281 

Similarly, in January 2003, TSA cited sensitive security information concerns to 

limit information about a security incident at Dallas/Fort Worth Airport. A 

federal screener allowed a man to pass through security after his luggage had 

tested positive for explosives, and the airport was closed for over an hour. A 

spokesman for TSA said that the agency was not going to issue any kind of report 

into the incident because it would reveal sensitive security information.282

 277 Id. § 40119(a); see Congressional Research Service, Sensitive Security Information and 

Transportation Security: Issues and Congressional Options, 3 and 3 n.8 (June 9, 2004) 

(RL32425). 

278 Transportation Security Administration, Protection of Sensitive Security Information, 69 

Fed. Reg. 28066 (May 18, 2004) (interim final rule). 

279 Id. 

280 Id.; 49 U.S.C. § 114(s). 

281 TSA Faulted for Restricting Information; Consumer, Aviation Groups Criticize Labeling Pilot, 

Program Data “Sensitive,” Washington Post (Oct. 10, 2003). 

282 Congressional Research Service, Sensitive Security Information (SSI) and Transportation 

Security: Background and Controversies (Feb. 5, 2004) (RS21727). 
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55

Using its expanded statutory authority, TSA issued an interim final rule in May 

2004 expanding the category of sensitive security information to include 

information related to the Coast Guard and to maritime transportation.283 This 

expansion has prompted criticism from open government advocates who complain 

that the authority is ambiguous and gives the Department of Transportation and 

Homeland Security Department unlimited discretion to withhold information.284 

The Bush Administration, seeking to expand sensitive security information 

authority even further, requested additional authority to override disclosure 

requirements of state and local open government laws. A provision conferring 

this authority appears in the Senate version of the transportation appropriations 

bill and is currently an issue for the conference committee to resolve.285 

III. Weakened DHS Disclosure under the National 

Environmental Policy Act 

The Department of Homeland Security has proposed new categorical exclusions 

to disclosure requirements that have been in place for more than three decades 

under National Environmental Policy Act (NEPA).286 Enacted in 1970, NEPA 

established the Council on Environmental Quality (CEQ) within the Executive 

Office of the President and committed the federal government to take all 

practicable steps to improve specified aspects of environmental quality, including 

assuring healthful surroundings, using the environment without degrading it, and 

achieving a balance between population and resources.287 

Among its other provisions, NEPA requires that all federal agencies consider 

environmental values in decision making, assess the environmental impacts of 

major federal actions before they are taken, and disclose information related to 

these environmental impacts to the extent that they not exempted by FOIA.288 

Under current law, CEQ regulations expressly limit these exemptions to “proposed 

actions which are specifically authorized under criteria established by an Executive 

 283 Transportation Security Administration, supra note 278. 

284 A Fine Mess: TSA’s New Information Security Rule Leaves Stakeholders Confused, CQ 

Homeland Security (July 21, 2004). 

285 Highway Bill’s Secrecy Rules Spark Public-Safety Debate, Louisville Courier-Journal (June 

27, 2004). 

286 42 U.S.C. § 5321 et seq. Congressional Research Service, Environmental Laws: Summaries 

of Statutes Administered by the Environmental Protection Agency, 112–13 (Mar. 3, 2003) 

(RL30798). 

287 Congressional Research Service, id.

288 Id.; see SEJ Voices Concern over NEPA Secrecy at Homeland Security, Society of 

Environmental Journalists TipSheet (July 15, 2004). 
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Order or statute to be kept secret in the interest of national defense or foreign 

policy and are in fact classified pursuant to such Executive Order or statute.”289

In June 2004, the Homeland Security Department proposed procedures for 

implementing NEPA that would greatly expand the types and volume of 

information categorically exempt from public disclosure.290 In addition to 

classified, proprietary, or other information exempt from disclosure under the 

Freedom of Information Act, DHS also proposed to exempt critical infrastructure 

information, sensitive security information, and other information described in 

unspecified “laws, regulations, or Executive Orders prohibiting or limiting the 

release of information.”291

Environmental advocacy organizations protested the proposed DHS directive, 

pointing out that it created a major loophole in a law that has been a keystone of 

environmental protection for 34 years.292 The agencies comprising DHS include 

the Coast Guard, Border Patrol, and FEMA. These and other agencies within 

DHS routinely make major decisions that affect the environment, such as those 

relating to oil spills, border security measures, flood plain designation, and 

chemical plant security.293 The Natural Resources Defense Council explained 

that information about a gas pipeline’s potential to leak or explode — information 

that had been previously available to the public as part of the NEPA process — 

could now fall within a categorical exemption for critical infrastructure 

information. This is precisely the type of information that communities rely on in 

evaluating the potential impacts of a proposed pipeline.294

IV. Laws That Expand Secret Government Operations 

Another way the Bush Administration has limited public scrutiny of its actions 

has been by expanding the federal government’s authority to conduct law 

enforcement operations in secret, with limited or no judicial oversight. The Bush 

Administration has achieved this expansion through the enactment of new laws, 

such as the USA PATRIOT Act, and novel interpretations of existing authorities. 

 289 40 C.F.R. § 1507.3(c). 

290 Department of Homeland Security, Proposed Management Directive 5100.1, Environmental 

Planning Program, 69 Fed. Reg. 33043 (June 14, 2004). 

291 Id. at 33063. 

292 SEJ Voices Concern over NEPA Secrecy at Homeland Security, supra note 288. 

293 National Resources Defense Council, Comments to Proposed Management Directive 5100.1, 

Environmental Planning Program (July 14, 2004). 

294 Id. 
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A. The USA PATRIOT Act

In response to the terrorist attacks of September 11, 2001, Congress passed the 

USA PATRIOT Act.295 Enacted quickly on October 26, 2001, after little 

committee deliberation, the law made sweeping changes in many law enforcement 

areas, including interception of communications in criminal investigations, 

domestic investigation of foreign intelligence activities, and detention and 

removal of illegal immigrants.296 

A number of commentators have addressed the impact of the PATRIOT Act on 

civil liberties.297 Less attention, however, has been focused on provisions of the 

law that dramatically expand the ability of the executive branch to conduct secret 

law enforcement and intelligence operations without oversight by the public, 

Congress, or the courts. Among its other features, the PATRIOT Act expands 

the ability of the executive branch to use the secret Foreign Intelligence 

Surveillance Court, to use secret grand juries for intelligence collection, and to use 

other secret law enforcement tools. 

1. Obtaining Records in Secret 

Section 215 of the PATRIOT Act expands the authority of the Justice 

Department to obtain library and other private records secretly through the 

Foreign Intelligence Surveillance Court.298 Under this authority, the Justice 

Department not only obtains these orders through a secret process, it imposes a 

duty of secrecy on the persons in possession of the records sought by the 

government. Persons who receive these orders are prohibited from “disclos[ing] to 

any other person (other than those persons necessary to produce the tangible 

things under this section) that the FBI sought or obtained tangible things under 

this section.”299 

 295 Pub. L. 107-56, 115 Stat. 272 (2001). The full title of the law is the “Uniting and 

Strengthening America by Providing Appropriate Tools Required to Intercept and 

Obstruct Terrorism (USA PATRIOT Act).” 

296 See Congressional Research Service, The USA PATRIOT Act: A Legal Analysis (Apr. 15, 

2002) (RL31377). 

297 E.g., Jeffrey Toobin, The USA-PATRIOT Act and the American Response to Terror: Can 

We Protect Civil Liberties after September 11?, American Criminal Law Review, 1501 (Fall 

2002). 

298 Created in 1978 as part of the Foreign Intelligence Surveillance Act (FISA), this court is 

composed of 11 specially designated federal district court judges and housed in a 

restricted room within the Justice Department. The court and its operations are 

completely hidden from public view. See Nola K. Breglio, Leaving FISA Behind: The Need 

To Return to Warrantless Foreign Intelligence Surveillance, Yale Law Journal, 179, 187 (Oct. 

2003). 

299 50 U.S.C. § 1861(d). 
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Prior to the PATRIOT Act, federal authorities could obtain such an order only for 

access to hotel, airline, storage locker, or car rental business records.300 The 

PATRIOT Act expanded the scope of this authority to include “any relevant 

tangible item (including books, records, papers, documents, and other items).”301 

It also removed a requirement in preexisting law that an order could be issued 

only upon specification of a reason to believe that the records sought were those 

of a foreign power or one of its agents.302

Librarians and others around the country have expressed concern that this secret 

authority will be used to monitor the reading materials of library users.303 For 

instance, the American Library Association Council adopted a resolution that 

called this section “a present danger to the constitutional rights and privacy rights 

of library users.”304 

In an attempt to determine if section 215 had been used against libraries, the 

chairman of the House Judiciary Committee posed a series of questions to the 

Justice Department. The Justice Department responded, in part, that “[t]he 

number of times the Government has requested or the Court has approved 

requests under this section since passage of the PATRIOT Act, is classified, and 

will be provided in an appropriate channel.”305

2. Conducting Secret Wiretaps 

Under the Foreign Intelligence Surveillance Act (FISA), an officer authorized by 

the Attorney General can apply to the secret Foreign Intelligence Surveillance 

Court for a warrant to conduct foreign intelligence surveillance in the United 

States. Upon application, one of the FISA judges must decide whether there is 

probable cause to believe that the proposed target of surveillance is a “foreign 

power or an agent of a foreign power.”306 If the FISA requirements are met, the 

court has no discretion but to approve the application and permit the 

surveillance.307 

 300 Congressional Research Service, Libraries and the PATRIOT Act, 1 (Feb. 26, 2003) 

(RS21441). 

301 Id. at 4. 

302 Id. at 3. 

303 Id. at 2.

304 Id. 

305 Id. (quoting Letter from Assistant Attorney General Daniel J. Bryant to House Judiciary 

Committee Chairman F. James Sensenbrenner, Jr. (Aug. 26, 2002)). 

306 50 U.S.C. § 1805(a)(3)(A). 

307 50 U.S.C. § 1805(a). 
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The PATRIOT Act blurred the line between counterintelligence surveillance and 

ordinary criminal surveillance, allowing the less stringent standards of the secret 

FISA court to be used for a broader range of investigations. Prior to the 

enactment of the PATRIOT Act, one of FISA’s statutory requirements was that 

the National Security Adviser or a designated official certify, among other things, 

that “the purpose” of the proposed electronic surveillance was to obtain foreign 

intelligence information.308 The PATRIOT Act weakened this limitation. Under 

section 218 of the PATRIOT Act, the certifying official need only certify to the 

FISA court that “a significant purpose” of the electronic surveillance is to obtain 

foreign intelligence information.309 This line was further blurred by section 504 of 

the PATRIOT Act, which authorizes federal officers who conduct electronic 

FISA surveillance to coordinate investigative efforts with other federal law 

enforcement authorities.310 One observer noted that after the PATRIOT Act, 

“[a] FISA warrant has become little more than a regular Title III warrant issued 

secretly with no required showing of probable cause of criminal activity.”311 

The scant public information available about FISA court activities suggests that 

the court defers to the judgment of the executive branch and exercises little 

independent judicial oversight. The Justice Department’s Office of Intelligence 

Policy and Review reported that as of July 2001, the FISA court had never denied 

a single one of the more than 16,000 government applications it had received.312 

One former National Security Administration staff member wrote that the FISA 

court procedures were lacking in legal formalities and that “[t]here is little 

question that these judges exercise virtually no judicial review.”313 

3. Expanding Use of “Sneak and Peek Warrants” 

The PATRIOT Act permits expanded use of “sneak and peek warrants,” which 

allow federal authorities to conduct a search without notifying the subject of the 

search. These searches can involve physical or virtual entry, visual examination, 

taking photographs, copying documents, or any other kind of search that does not 

 308 Congressional Research Service, The Foreign Intelligence Surveillance Act: An Overview of 

the Statutory Framework and Recent Judicial Decisions, 17 n. 26 (Mar., 31, 2003) 

(RL30465). 

309 Id. 

310 See id. at 33. 

311 Nola K. Breglio, supra note 298, 180. Title III of the Omnibus Crime Control and Safe 

Streets Act of 1968 regulates electronic surveillance for criminal investigations unrelated 

to foreign intelligence collection. 18 U.S.C. § 2510 et seq.

312 Id. at 188.

313 Id. at 190 (citing Benjamin Wittes, Inside America’s Most Secretive Court, Legal Times 

(Feb. 19, 1996)). 
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include the seizure of tangible property.314 As a general matter, the Fourth 

Amendment requires officers to knock and announce their presence before 

executing a search warrant.315 Courts have, however, recognized the occasional 

need for delayed notification of searches in pressing circumstances, as well as in 

cases involving electronic communications in the hands of a third party, foreign 

intelligence surveillance, or Title III wiretaps, or in the case of some drug 

investigations.316

Section 213 of the PATRIOT Act expands these authorities by permitting delayed 

notice in any case where a court finds that giving notice may have an adverse 

result. “Adverse results” are defined in a separate part of the criminal code to 

include (1) endangering life or physical safety; (2) flight from prosecution; (3) 

destruction of evidence; (4) intimidation of witnesses; and (5) otherwise seriously 

jeopardizing an investigation or unduly delaying a trial.317 Of these potential 

grounds, civil liberties groups have expressed particular concern over the last, 

which they contend is a very low standard that is likely to be abused.318

 

4. Expanding the Use of Federal Grand Juries 

Section 203 of the PATRIOT Act authorizes disclosure of foreign intelligence or 

counterintelligence information collected by a federal grand jury to any federal law 

enforcement, intelligence, protective, immigration, national defense, or national 

security official. This change permits the executive branch to use the secret 

power of the grand jury to collect intelligence without any meaningful judicial 

oversight.319 

A federal grand jury enjoys virtually unfettered power to conduct secret 

investigations. The grand jury conducts its business outside the supervision of a 

judge, without the presence of a witness’s lawyer, and under strict rules of secrecy. 

Although prosecutors have access to these proceedings, the rules of secrecy also 

limit how the government can use grand jury information. Matters discussed 

 314 Congressional Research Service, supra note 296, at 62–63. 

315 Id. (citing Richards v. Wisconsin, 520 U.S. 385 (1997)). 

316 Id.; Jacob R. Lilly, National Security at What Price?: A Look into Civil Liberty Concerns in 

the Information Age under the USA PATRIOT Act of 2001 and a Proposed Constitutional 

Test for Future Legislation, Cornell Journal of Law and Public Policy, 447, 461–63 (Spring 

2003); Kevin Corr, Sneaky But Lawful: The Use of Sneak and Peek Search Warrants, 

University of Kansas Law Review, 1103 (Aug. 1995). 

317 18 U.S.C. § 2705 (a)(2). 

318 E.g. American Civil Liberties Union, How the USA-PATRIOT Act Expands Law 

Enforcement “Sneak and Peek” Warrants (Mar. 7, 2002) 

(http://www.aclu.org/Privacy/Privacy.cfm?ID=9769&c=39 html). 

319 See Congressional Research Service, The Federal Grand Jury (Feb. 5, 2002) (95-1135). 
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before the grand jury generally cannot be disclosed to other law enforcement 

officials unless they are deemed necessary to assist a government attorney to 

enforce federal criminal law.320 The Supreme Court has explained that revealing 

grand jury information to other government employees, such as those prosecuting 

or defending civil actions, might tempt prosecutors “to manipulate the grand jury’s 

powerful investigative tools to root out additional evidence useful in the civil suit, 

or even to start or continue a grand jury inquiry where no criminal prosecution 

seemed likely.”321

The PATRIOT Act, however, opens the grand jury to a wide variety of 

government officials when the matters discussed involve foreign intelligence or 

counterintelligence. Section 203(a) of the PATRIOT Act amends Rule 6(e) of 

the Federal Rules of Criminal Procedure to allow disclosures of such grand jury 

information “to any federal law enforcement, intelligence, protective, 

immigration, national defense, or national security official in order to assist the 

official receiving that information in the performance of his official duties.” 

One former federal prosecutor warned that “wider disclosure could undermine the 

integrity of the grand jury in that the government will be enticed into using the 

unique weapons available to the grand jury to gather evidence in cases where no 

criminal prosecution is contemplated.”322 Moreover, these weapons are even more 

prone to abuse once they are outside the hands of federal prosecutors, as 

intelligence or defense officials who receive grand jury material do not appear to 

be subject to grand jury rules of secrecy or the court’s contempt power.323 

B. Secret Detentions, Trials, and Deportations 

Since the September 11, 2001, attacks, the Bush Administration has asserted 

unprecedented authority to detain anyone whom the executive branch labels an 

“enemy combatant” indefinitely and secretly.324 The Administration has claimed 

the right to designate and hold such individuals in secret without access to any 

 320 Fed. R. Crim. Proc. 6(e)(3)(A). 

321 United States v. Sells Eng’g, 463 U.S. 418, 432 (1983). 

322 Jennifer M. Collins, And the Walls Came Tumbling Down: Sharing Grand Jury Information 

with the Intelligence Community under the USA PATRIOT Act, American Criminal Law 

Review, 1261, 1276 n. 39 (Summer 2002). 

323 Id. at 1281. 

324 Jeffrey Toobin, supra note 297, at 9–10; Lawyers Committee on Human Rights, Assessing 

the New Normal: Liberty and Security for the Post-September 11 United States (Sept. 2003); 

see Congressional Research Service, Detention of American Citizens as Enemy Combatants, 

2–4 (Dec. 18, 2003) (RL31724). 
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judicial review, a position recently rejected by the Supreme Court.325 It has 

authorized military trials that can be closed not only to the public but also to the 

defendants and their own attorneys. And the Administration has authorized 

procedures for the secret detention and deportation of aliens residing in the 

United States. 

1. Detentions of Enemy Combatants 

Since the terrorist attacks of September 11, the U.S. military and CIA have 

operated a worldwide network of detention centers, many of them secret, holding 

an estimated 9,000 prisoners.326 Although the Administration has released limited 

information about these detentions, it has not provided a complete account of 

how many individuals are currently being held by the U.S. authorities at military 

and intelligence detention facilities, what legal status the detainees have been 

accorded, and what process was followed to determine their legal status.327 The 

International Committee of the Red Cross (ICRC) recently issued a statement 

that it is “increasingly concerned about the fate of an unknown number of people 

captured as part of the so-called global war on terror and held in undisclosed 

locations” and identified the collection of this information as “an important 

humanitarian priority.”328

At one facility — the U.S. Naval Station at Guantanamo Bay, Cuba — the Bush 

Administration has held detainees from over 40 countries in near total secrecy as 

unlawful enemy combatants.329 Approximately 650 are reportedly in custody 

today at the facility, many for more than two years.330 Limited information about 

these detentions, as well as the conditions of confinement and the interrogations, 

have prompted criticism from international humanitarian organizations and the 

legal community. The ICRC, for example, complained that “U.S. authorities have 

placed the internees in Guantanamo beyond the law. This means that, after more 

than eighteen months of captivity, the internees still have no idea about their fate, 

 325 Jeffrey Toobin, supra note 297, at 10; Rasul v. Bush, No. 03-334, Slip Op. at 16–17 (S. Ct. 

June 28, 2004). 

326 Secret World of U.S. Interrogation: Long History of Tactics in Overseas Prisons Is Coming to 

Light, Washington Post (May 11, 2004). 

327 Human Rights First (formerly named the Lawyers Committee for Human Rights), Ending 

Secret Detentions, 8 (June 2004). 

328 Id. at 4. 

329 Congressional Research Service, Treatment of “Battlefield Detainees” in the War on 

Terrorism (Mar. 15, 2004) (RL31367); Guantanamo — A Holding Cell in the War on 

Terror: Prison Represents a Problem That’s Tough To Get out Of, Washington Post (May 2, 

2004). 

330 Id., Rasul v. Bush, supra note 325, at 2. 
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and no means of recourse through any legal mechanism.”331 In proceedings before 

the United States Supreme Court, military lawyers representing the detainees 

depicted their detentions as a “legal black hole.”332 

Very little is known about the identity of the Guantanamo Bay internees or the 

circumstances of their confinement. Detainees have no access to family, and few 

have been allowed to consult with an attorney.333 Journalists who visit the 

detention facility must sign contracts not to speak to detainees, and in one 

reported instance, military escorts abruptly ended the tour of a group of journalists 

who, when asked by a detainee if they were journalists, merely replied that they 

were from the BBC. 334 According to Amnesty International, military authorities 

have withheld information about the precise numbers, identities, or nationalities 

of the prisoners.335 In addition to holding individuals in secret, the Bush 

Administration took the position that the cases of these individuals were not 

entitled to judicial review. The Supreme Court recently rejected this position, 

holding that U.S. courts have jurisdiction to consider challenges to the legality of 

the secret detentions.336

If little is known about detainees held by the U.S. military at Guantanamo Bay 

and other military facilities, even less is known about “ghost detainees” in the 

custody of the CIA. The March 2004 report by General Taguba into abuses of 

Iraqi prisoners found that military police at the Abu Ghraib prison held CIA ghost 

detainees “without accounting for them, knowing their identities, or even the 

reason for their detention.”337 Defense Secretary Donald Rumsfeld has admitted 

that he ordered secret detentions of prisoners captured in Iraq at the request of the 

CIA, and in at least one instance instructed military officials not to register a 

detainee with the ICRC.338 An Army inquiry completed in August 2004 found 

eight documented cases, but two Army generals testified the following month that 

the number was far higher. Gen. Paul Kern, who oversaw the inquiry, told the 

 331 International Committee of the Red Cross, Guantanamo Bay: Overview of the ICRC’s 

Work for Internees (Jan. 30, 2004). 

332 See, e.g., Al Odah v. United States, No. 03-343 (S. Ct. Jan. 14, 2004) (Brief of the Military 

Attorneys Assigned to the Defense in the Office of Military Commissions as Amicus 

Curiae in Support of Neither Party). 

333 Justices To Rule on Detainees’ Rights: Court Access for 660 Prisoners at Issue, Washington 

Post (Nov. 11, 2003). 

334 Guantanamo — A Holding Cell in the War on Terror, supra note 329. 

335 Amnesty International, The Threat of a Bad Example — Undermining International 

Standards as “War on Terror” Detentions Continue, 18 (Aug. 2003). 

336 Rasul v. Bush, supra note 325, at 4–6. 

337 Secret World of U.S. Interrogation, supra note 326. 

338 Rumsfeld Admits To Holding “Ghost Detainees,” Knight Ridder Newspapers (June 18, 

2004). 
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Senate Armed Services Committee that “[t]he number is in the dozens, to perhaps 

up to 100.” He and another general both testified, however, that they could not 

give a precise number because no records were kept on most of the CIA 

detainees.339 

In February 2004, after human rights groups expressed concern about the openended imprisonment of detainees, Secretary Rumsfeld promised annual reviews of 

detainees. These reviews, however, will reportedly exclude some detainees to 

keep their existence secret for intelligence reasons.340

2. Trials of Enemy Combatants 

On November 13, 2001, President Bush issued an order, unprecedented in its 

scope, authorizing military commissions to conduct trials of non-U.S. citizens who 

are alleged to be al-Qaeda members or members of other terrorist organizations.341 

Under the order and implementing guidelines promulgated by the Defense 

Department, any noncitizen is subject to detention and trial by military tribunal if 

the President, in his sole discretion, finds “reason to believe that such individual 

. . . has engaged in, aided or abetted, or conspired to commit, acts of international 

terrorism, or acts in preparation therefore,” that could harm the United States.342 

Under the rules established by the Bush Administration, the commissions will 

consist of panels of three to seven U.S. military officers and one or more alternate 

members determined to be competent by the Secretary of Defense.343 In these 

proceedings, the government will have broad discretion to close proceedings to 

the public, to civilian defense counsel, and even to the defendant.344 For instance, 

the military orders governing the commissions permit the prosecution to deny the 

defendant and his or her civilian counsel access not only to classified information, 

but also to “protected information.” This is defined broadly to include 

information “concerning intelligence and law enforcement sources, methods, or 

 339 Army Says CIA Hid More Iraqis than It Claimed, New York Times (Sept. 10, 2004). 

340 Pentagon Reportedly Aimed To Hold Detainees in Secret: Proposal To Keep Some Prisoners 

“off the Books” Went against Promise for Yearly Case Reviews, Los Angeles Times (July 9, 

2004). 

341 Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 

Fed. Reg. 57,833 (Nov. 16, 2001) (hereinafter “Military Order”). 

342 Military Order, supra note 340, at §2; Lawyers Committee on Human Rights, supra note 

324, at 56. 

343 Congressional Research Service, Trying Terrorists by Military Commission (Sept. 8, 2004) 

(online at http://www.congress.gov/brbk/html/ebter206.html.) 

344 Human Rights First (formerly the Lawyers Committee for Human Rights), Trials under 

Military Order: A Guide to the Final Rules for Military Commissions, 3 (June 2004). 
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activities . . . . or . . . concerning other national security interests.”345 Civilian 

attorneys representing defendants must acknowledge under oath that their 

qualification as counsel does not guarantee their presence at closed proceedings or 

guarantee access to any protected information.346 Assigned military defense 

counsel may be allowed to be present when civilian counsel are excluded, but they 

are prohibited from discussing this information with excluded individuals, 

including the defendant.347

The President’s order appears to be broader in scope than any similar order issued 

by past presidents.348 It has drawn criticism from human rights groups and the 

criminal defense bar. The National Association of Criminal Defense Lawyers has 

taken the position that it is “unethical for a criminal defense lawyer to represent a 

person accused before these military commissions because the conditions imposed 

upon defense counsel before these commissions make it impossible for counsel to 

provide adequate or ethical representation.”349 

3. Detentions and Deportations of Aliens 

The Bush Administration has detained hundreds of aliens in the United States 

who resemble the ethnic, national origin, and religious characteristics of the 

September 11 hijackers and has subjected many to closed deportation 

proceedings.350 Following the September 11 terrorist attacks, the Attorney 

General directed the FBI and other federal law enforcement agencies to use “every 

available law enforcement tool” to arrest persons who “participate in, or lend 

support to, terrorist activities.”351 Within two months, law enforcement 

authorities had detained more than 1,200 citizens and aliens.352 Of this number, 

the INS detained 762 aliens whom the FBI believed had a connection to the 

 345 Id.

346 Id. 

347 Id. 

348 See Id. at 1. 

349 Lawyers Committee on Human Rights, supra note 324, at 58 (citing National Association 

of Criminal Defense Lawyers (NACDL), Ethics Advisory Committee, Op. 03-04 

(approved by the NACDL Board of Directors Aug. 2, 2003)). 

350 Congressional Research Service, Detention of Noncitizens in the United States, 25 (Nov. 4, 

2002) (RL31606). 

351 U.S. Department of Justice, Office of Inspector General, The September 11 Detainees: A 

Review of the Treatment of Aliens Held on Immigration Charges in Connection with the 

Investigation of the September 11 Attacks, 1 (Apr. 2003) (quoting Memorandum from 

Attorney General John Ashcroft to United States Attorneys, Anti-Terrorism Plan (Sept. 

17, 2001)). 

352 Id. 
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terrorist attacks or could not be cleared of involvement in terrorism.353 Many of 

these aliens and others who were subsequently detained were subject to removal 

for violating immigration laws. The Justice Department identified some aliens as 

“special interest cases” on the grounds that they “might have connections with, or 

possess information pertaining to, terrorist activities against the United States.”354

Apart from exclusion hearings, immigration hearings are generally required to be 

open to the public. Immigration judges are authorized, however, to close or limit 

attendance at hearings in limited circumstances, such as to protect witnesses, 

parties, or the public interest. 355 Shortly after September 11, the Attorney 

General authorized Michael J. Creppy, the Chief Immigration Judge, to issue 

instructions requiring immigration judges “to close the hearing[s] to the public, 

and to avoid discussing the case[s] or otherwise disclosing any information about 

the case[s] to anyone outside the Immigration Court.”356 The instructions require 

judges to exclude visitors, family, and press, and prohibit even confirming or 

denying whether a special interest case is on the docket or scheduled for a 

hearing.357 One court of appeals characterized the rules as a “complete 

information blackout along both substantive and procedural dimensions.”358

Plaintiffs in several lawsuits have sought, with mixed results, to obtain information 

about alien detainees in special interest cases. The American Civil Liberties 

Union filed suit in New Jersey state court seeking names and other information 

about alien detainees housed in INS facilities located in the state. The trial judge 

initially ordered disclosure of the information under New Jersey law, but the 

decision was later reversed on appeal.359 In another case, the Center for National 

Security Studies and other civil liberties groups sought disclosure of detainee 

names in a Freedom of Information Act suit filed in federal court. The trial judge 

found that the federal government could not justify exempting disclosure of the 

identities of the detainees or their lawyers under FOIA, but the court of appeals 

 353 Id.at 2. 

354 North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 202 (3rd Cir. 2002), cert. denied, 

123 S.Ct. 2215 (2003). 

355 8 C.F.R. § 1003.27(b). The other exceptions authorized include limiting attendance to 

conform to the physical limitations of the facility; closing hearings to protect the privacy 

of abused alien spouses or children; or to protect information subject to a protective 

order. Id. 

356 North Jersey Media Group, supra note 345, at 202–03. 

357 Id. 

358 Id. 

359 Congressional Research Service, supra note 350, at 27 (citing ACLU of New Jersey v. 

County of Hudson, 799 A.2d 629 (N.J. Super. Ct. App. Div. 2002). 
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partially reversed the decision, holding that this information fell within FOIA’s 

law enforcement exemption and could be withheld from the public.360

Plaintiffs in other suits have attempted to open removal proceedings in special 

interest cases, also with mixed results. In Detroit Free Press v. Ashcroft, members of 

the press and public sought a declaration that closure of removal proceedings 

violated their First Amendment right of access.361 In a major setback for the 

Administration, the Sixth Circuit Court of Appeals held that the Chief 

Immigration Judge’s order impermissibly infringed on the plaintiffs’ constitutional 

rights. The court wrote: 

the Executive Branch seeks to take this safeguard away from the public by 

placing its actions beyond public scrutiny. Against non-citizens, it seeks 

the power to secretly deport a class if it unilaterally calls them “special 

interest” cases. The Executive Branch seeks to uproot people’s lives, 

outside the public eye, and behind a closed door. Democracies die behind 

closed doors.362

 Another federal court of appeals, however, reached the opposite conclusion in a 

similar case. In North Jersey Media Group v. Ashcroft, the Third Circuit Court of 

Appeals held that newspapers did not have a First Amendment right of access to 

deportation proceedings which, in the view of the Attorney General, presented 

significant national security concerns.363

Since these decisions, the Attorney General issued regulations authorizing 

immigration judges to close hearings on a case-by-case basis and to issue 

protective orders as needed to protect sensitive national security information.364 

The Chief Immigration Judge issued another memorandum implementing these 

guidelines.365

Civil libertarians have criticized the secrecy of these proceedings and their 

effectiveness as a tactic in the war on terror. David Cole, a law professor at 

Georgetown University, observed: “Just as the Palmer Raids turned up no actual 

bombers and the McCarthy era tactics identified few spies or saboteurs, so also the 

government’s yield of actual terrorists from its current preventive detention 

 360 Center for National Security Studies v. Dep’t of Justice, 215 F. Supp.2d 94 (D.D.C. 2002),

rev’d in part, 331 F.3d 918 (D.C. Cir. 2003). 

361 Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2003). 

362 Id. at 683. 

363 North Jersey Media Group, supra note 354. 

364 Congressional Research Service, supra note 350, at 31. 

365 Id.
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program has been staggeringly small.”366 He points out that of the approximately 

two thousand aliens detained by the Bush Administration, only four at that time 

had been charged with any crime relating to terrorism.367

PART III: CONGRESSIONAL ACCESS TO INFORMATION

Under the system of checks and balances established by the Constitution, 

Congress has the authority and responsibility to exercise oversight of executive 

branch activities. Congressional oversight encompasses investigation, review, and 

monitoring of federal agencies’ programs and activities.368 As the Supreme Court 

has held, the oversight authority derives from Congress’ enumerated powers in the 

Constitution.369 In addition, Congress has adopted laws to facilitate its oversight, 

including numerous laws requiring the executive branch to provide information to 

or report to Congress. 

Compared to previous Administrations, the Bush Administration has operated 

with remarkably little congressional oversight. The most striking contrast is with 

the Clinton Administration, which received intense and extensive oversight. In 

addition to holding hearings and calling for outside investigations, Congress 

obtained vast quantities of information from the Clinton White House and 

administrative agencies. 

While President Clinton was in office, Congress demanded and received 

information concerning discussions between the President and his advisors, 

confidential communications from the White House Counsel’s Office, internal 

White House e-mails, and Department of Justice and FBI investigative and 

prosecutorial materials.370 The total amount of material provided to Congress was 

enormous. For example, GAO found that over an 18-month period from October 

1996 to March 1998, White House staff spent over 55,000 hours responding to 

over 300 congressional requests, producing hundreds of thousands of pages of 

 366 David Cole, The New McCarthyism: Repeating History in the War on Terrorism, Harvard 

Civil Rights-Civil Liberties Law Review, 1, 25 (Winter 2003). 

367 Id. 

368 See Congressional Research Service, CRS Report for Congress: Congressional Oversight

(Jan. 2, 2001) (97-936 GOV). 

369 McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 319, 328 (1927) (“We are of opinion 

that the power of inquiry — with process to enforce it — is an essential and appropriate 

auxiliary to the legislative function.”) 

370 Minority Staff, House Committee on Government Reform, Congressional Oversight of the 

Clinton Administration (undated) (online at htttp://www.democrats.reform.house.gov/ 

Documents/20040625102138-25063.pdf). 
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documents and hundreds of video and audio tapes to Congress.371 The House 

Government Reform Committee alone received well over 1.2 million pages of 

documents from the Clinton Administration between January 1997 and January 

2001.372 

The Bush Administration has been subject to no similar oversight. This is 

partially attributable to the alignment of the parties. The Republican majorities in 

the House and the Senate have refrained from investigating allegations of 

misconduct by the White House. Another major factor has been the 

Administration’s resistance to oversight. The Bush Administration has 

consistently refused to provide to members of Congress, the Government 

Accountability Office, and congressional commissions the information necessary 

for meaningful investigation and review of Administration activities. 

For example, the Administration has: 

• Contested in court the power of the Government Accountability Office to 

conduct independent investigations. 

• Refused to comply with the statutory Seven Member Rule, which allows 

members of the House Government Reform Committee to obtain information 

from the executive branch, forcing the members to go to court to enforce their 

rights under the law. 

• Ignored and rebuffed numerous requests for information made by members of 

Congress attempting to exercise their oversight responsibilities with respect to 

executive branch activities. 

• Repeatedly withheld information from the investigative commission 

established by Congress to investigate the September 11 attacks. 

I. GAO Authority to Investigate 

The U.S. Government Accountability Office is the nonpartisan, investigative arm 

of Congress. GAO serves Congress and the public as “the government’s 

accountability watchdog,” and its investigative authority is a key tool used by 

Congress in overseeing activities of the executive branch.373 

 371 Minority Staff, House Committee on Government Reform and Oversight, The Cost of 

Congressional Campaign Finance Investigations to the U.S. Taxpayer, 3 (Oct. 7, 1998). 

372 Minority Staff, House Committee on Government Reform, supra note 370. 

373 GAO, The History of GAO (online at http://www.gao.gov/about/history/ 

introduction.htm). 
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The authority of GAO was challenged early on by the Bush Administration. In 

June 2001, the Administration refused to comply with GAO’s request for 

information on the energy task force chaired by Vice President Cheney.374 This 

refusal and the outcome of the resulting lawsuit limited GAO’s power to conduct 

independent investigations. As a result, Congress is less able to oversee executive 

branch activities, and the executive branch has a greater ability to operate in 

secret. 

GAO was created in 1921 by the Budget and Accounting Act.375 At the request 

of members of Congress and on its own initiative, GAO has the authority to 

investigate all matters related to the use of public money.376 GAO reports are 

made available to Congress and to the public, providing an important window into 

government operations. 

The challenge to GAO’s authority came in a case involving the National Energy 

Policy Development Group, a task force established by President Bush in January 

2001 to develop a national energy policy. Vice President Cheney chaired the 

NEPDG, which was composed of Administration officials. In April 2001, 

following reports that major campaign contributors had special access to the task 

force while environmental and consumer groups and the public were shut out, 

Rep. Waxman, the ranking member of the Government Reform Committee, and 

Rep. John D. Dingell, the ranking member of the Energy and Commerce 

Committee, asked GAO to investigate the NEPDG.377 Specifically, the members 

requested that GAO determine “who serves on this task force; what information is 

being presented to the task force and by whom it is being given; and . . . the costs 

involved in the gathering of the facts.”378 

The members’ request to GAO was routine. During the Clinton Administration, 

GAO investigated the White House China Trade Relations Working Group and 

the Task Force on Health Care Reform. These investigations were similar to the 

NEPDG investigation in both the type of task force being investigated and the 

information being requested. In both cases, the Clinton Administration provided 

GAO extensive information regarding the groups’ participants and contacts with 

 374 Letter from David S. Addington, Counsel to the Vice President, to Anthony Gamboa, 

General Counsel, General Accountability Office (June 7, 2001). 375 42 Stat. 20 (1921).

376 31 U.S.C. § 712. 

377 Letter from Reps. John D. Dingell and Henry A. Waxman to Comptroller General David 

M. Walker (Apr. 19, 2001) (online at 

http://www.democrats.reform.house.gov/Documents/20040831095928-35054.pdf). 

378 Id. 
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outside parties.379 In a letter to the Vice President, GAO noted that information 

of this sort “has been commonly provided to GAO for many years spanning 

several administrations.”380 

The GAO statute requires executive branch agencies to comply with GAO 

requests, and sets out a specific process GAO should follow in the face of 

Administration recalcitrance. If the executive branch refuses to comply with a 

request and does not make one of three types of certification that allow it to 

withhold information, GAO may sue the agency to gain access to the records it 

has requested. Until the NEPDG case, GAO had always been able to negotiate 

successfully with agencies to gain access to necessary information, rather than 

using its authority to sue. 

In the NEPDG case, GAO followed all of the required steps to request and then 

demand information. Contrary to the statute, the Administration did not produce 

the requested materials and neither the President nor the Director of the Office of 

Management and Budget made any certification that would have blocked a 

lawsuit. Instead, the Vice President’s office took the position that GAO did not 

have the authority to conduct the investigation, arguing that the inquiry “would 

unconstitutionally interfere with the functioning of the Executive Branch.”381 The 

Vice President maintained this stance and refused to negotiate with GAO, even 

after GAO narrowed its request to include only “limited factual and nondeliberative information.”382 

In February 2002, nine months after requesting information about the NEPDG 

from the White House, the Comptroller General filed suit to gain access to the 

requested information, with the strong support of the original requestors and the 

chairs of four Senate committees and subcommittees.383 In a January 30, 2002, 

 379 GAO, Report from Comptroller General of the United States David M. Walker to the Vice 

President of the United States, 5 (Aug. 17, 2001). 

380 Id. 

381 Letter from Vice President Richard B. Cheney to the House of Representatives (Aug. 2, 

2001) (online at http://www.democrats.reform.house.gov/Documents/20040830233716-

42929.pdf). 

382 GAO, supra note 379, at 4. 

383 Letter from Reps. John D. Dingell and Henry A. Waxman to Comptroller General David 

M. Walker (Jan. 24, 2002); Letter from Sen. Fritz Hollings et al. to Comptroller General 

David M. Walker (Jan. 22, 2002). While the Vice President’s Office provided GAO with 

77 pages of information, GAO stated that these “contain little useful information or 

insight into the overall costs” of the task force, which GAO was unable to determine. 

GAO, Energy Task Force: Process Used to Develop the National Energy Policy, 22 (Aug. 

2003) (GAO-03-894). The suit requested documents that provide information about (1) 

who attended NEPDG meetings, (2) the professional staff assigned to provide support to 

NEPDG, (3) with whom each of the members and staff of the NEPDG met to gather 
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letter, GAO wrote: “In our view, failure to pursue this matter could lead to a 

pattern of records access denials that would significantly undercut GAO’s ability 

to assist Congress in exercising its legislative and oversight authorities.”384 

The District Court dismissed GAO’s suit in December 2002, finding that the 

Comptroller General lacked the standing to sue. The court relied in large part on 

the rationale that requests for the investigation and the continuation of the 

lawsuit came from six individual members of Congress, but no committees. The 

Comptroller General made it clear that “GAO strongly believes the district court’s 

decision is incorrect.”385 However, the Comptroller General decided not to appeal 

the decision. 

 

The result of the litigation was a substantial victory for secret government. 

GAO’s ability to investigate executive branch activities has been curtailed by the 

loss of a credible enforcement mechanism.386 Although GAO had never sued the 

executive branch prior to this case, it had effectively used the threat of lawsuit as 

leverage to gain access to information. 387 The implications of the decision are 

particularly troubling for periods of one-party control of Congress and the 

executive branch. If independent congressional investigators have limited access 

to information during these periods, the President, the Vice President, and the 

executive branch agencies can operate without critical scrutiny and effective 

oversight. 

II. Seven Member Rule

The Bush Administration has also challenged the authority of members of the 

Committee on Government Reform to obtain information under the statutory 

Seven Member Rule, which provides any seven members of the Committee with a 

right to information within the Committee’s oversight jurisdiction. As a result, 

Committee members were for the first time in history forced to go to court to 

enforce their rights under the rule. 

 

information for the National Energy Policy, as well as the date, subject, and location of 

each meeting, and (4) direct and indirect costs incurred by the NEPDG. 

384 Letter from Comptroller General David M. Walker to Rep. Henry A. Waxman (Jan. 30, 

2002). 

385 GAO, GAO Press Statement on Walker v. Cheney (Feb. 7, 2003). 

386 See Congressional Research Service, Walker v. Cheney: District Court Decision and Related 

Statutory and Constitutional Issues, 5–6 (updated Mar. 8, 2004). 

387 Id. at 6–7; Congressional Research Service, Walker v. Cheney: District Court Decision and 

Issues on Appeal (Feb. 3, 2003). 
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In 1928, Congress passed a law, known as the Seven Member Rule, to require an 

executive agency to provide information on any matter within the jurisdiction of 

the Committee on Government Reform upon the request of any seven of its 

members.388 The Seven Member Rule provides that: 

an Executive agency, on request of the Committee on Government 

Operations [now the Committee on Government Reform] of the House of 

Representatives, or of any seven members thereof, or on request of the 

Committee on Governmental Affairs of the Senate, or any five members 

thereof, shall submit any information requested of it relating to any matter 

within the jurisdiction of the committee.389 

As a matter of legal interpretation, the Department of Justice has taken the 

position that the Seven Member Rule does not entitle members of the 

Government Reform Committee to information from the executive branch.390 As 

a matter of practice, however, federal agencies have commonly complied with 

requests under the Seven Member Rule. For example, members of the 

Government Reform Committee have used the rule to obtain information from 

the U.S. Merit Systems Protection Board,391 the Federal Deposit Insurance 

Corporation (FDIC), 392 the Office of Thrift Supervision,393 the Food and Drug 

Administration,394 the Department of State,395 and the Department of Energy.396 

 388 5 U.S.C. § 2954. The statutory language refers to the “Committee on Government 

Operations.” The Committee was renamed the Committee on Government Reform and 

Oversight in the 104th Congress and again renamed the Committee on Government 

Reform in the 106th Congress. References in law to the Committee on Government 

Operations are treated as referring the Committee on Government Reform. See

References in Law to Committees and Officers of the House of Representatives, Pub. L. 

No. 104-14, § 1(6), 109 Stat. 186 (1995). 

389 Id.

390 See Letter from William H. Rehnquist, Assistant Attorney General, Office of Legal 

Counsel, to Dr. Lee A. DuBridge, Director, Office of Science and Technology (June 3, 

1970); Statement of Antonin Scalia, Assistant Attorney General, Office of Legal 

Counsel, on S. 2170, the Congressional Right to Information Act, before the Senate 

Committee on Government Operations, Subcommittee on Intergovernmental Relations 

(Oct. 23, 1975); and Letter from Kent Markus, Acting Assistant Attorney General, 

Office of Legislative Affairs, to Rep. William F. Clinger, Jr. (June 30, 1995). 

391 Letter from Rep. John Conyers et al. to Chairman Ben Erdreich, U.S. Merit Systems 

Protection Board (Aug. 3, 1993); Letter from Chairman Ben Erdreich, U.S. Merit 

Systems Protection Board, to Rep. Collin C. Peterson (Aug. 5, 1993). 

392 Letter from Rep. William F. Clinger, Jr., et al. to Acting Director Jonathan L. Fiechter, 

Office of Thrift Supervision (Sept. 20, 1994); Letter from Acting Director Jonathan L. 

Fiechter, Office of Thrift Supervision, to Rep. William F. Clinger, Jr. (Oct. 21, 1994). 

393 Letter from Rep. William F. Clinger, Jr., et al. to Acting Chairman Andrew Hove, Federal 

Deposit Insurance Corporation (Apr. 22, 1994); Letter from Alice C. Goodman, Director, 
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The Bush Administration, however, has resisted providing members information 

under the Seven Member Rule, forcing Committee members to initiate litigation 

on two separate occasions to enforce their rights. The first case involved access to 

census records. On April 6, 2001, eighteen members of the Government Reform 

Committee used the Seven Member Rule to request the adjusted data for the 

2000 Decennial Census from the Department of Commerce.397 The request was 

made because the Department had prepared both an unadjusted data set and a 

data set adjusted to correct for sampling errors, but had only released the 

unadjusted data. The Bush Administration rejected the request.398

In May 2001, sixteen members of the Committee on Government Reform filed 

suit to enforce their request for the census data under the Seven Member Rule. 

On January 18, 2002, the U.S. district court in Los Angeles ruled against the Bush 

Administration and granted summary judgment in favor of the members of 

Congress.399 In the first judicial ruling interpreting the Seven Member Rule, the 

court found that “the Seven Member Rule requires an executive agency to submit 

all information requested of it by the Committee relating to all matters within the 

Committee’s jurisdiction upon the Committee’s request.”400 

 

Office of legislative Affairs, Federal Deposit Insurance Corporation, to Rep. William F. 

Clinger, Jr. (May 3, 1994). 

394 Letter from Rep. Henry A. Waxman, et al. to Michael A. Friedman, Acting Commission, 

Food and Drug Administration, Dept. of Health and Human Services (Feb. 2, 1998). 

The letter requested a prehearing briefing, which FDA officials provided the following 

day. 

395 Letter from Rep. Henry A. Waxman et al. to Secretary of State Colin L. Powell (Apr. 10, 

2003); Letter from Assistant Secretary Paul V. Kelly, Office of Legislative Affairs, 

Department of State, to Rep. Henry A. Waxman (June 16, 2003); Letter from Rep. 

Henry A. Waxman et al. to Anne W. Patterson, Deputy Inspector General, Department 

of State (Apr. 6, 2004); Letter from Anne W. Patterson, Deputy Inspector General, 

Department of State, to Rep. Henry A. Waxman (Apr. 15, 2004). 

396 Letter from Rep. Henry A. Waxman et al. to Secretary of Energy Spencer Abraham 

(Apr. 10, 2003); Letter from Assistant Secretary Vicky A. Bailey, Office of Policy and 

International Affairs, Department of Energy, to Rep. Henry A. Waxman (May 7, 2003).

397 Letter from Rep. Henry A. Waxman et al. to Secretary of Commerce Donald L. Evans 

(Apr. 6, 2001). 

398 Letter from Secretary of Commerce Donald L. Evans to Rep. Henry A. Waxman (June 5, 

2001). This letter was not written until after the lawsuit was filed. 

399 Waxman v. Evans, 2002 U.S. Dist. LEXIS 25975 (C.D. Cal 2002), vacated as moot, 52 

Fed. Appx. 84 (9th Cir. 2002), as amended by Waxman v. Evans, No. 02-55825 (9th Cir. 

Jan. 9, 2003) (order clarifying that the judgment of the district court was not reversed.) 

400 Id.
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The Administration appealed to the U.S. Court of Appeals for the Ninth Circuit, 

which consolidated the Seven Member case with a FOIA case brought by two 

state legislators for the same census data.401 On October 8, 2002, the appeals 

court ruled in the FOIA case, holding that the Commerce Department had to 

release the adjusted census data.402 Shortly thereafter, the Commerce Department 

released the adjusted census data to the 16 members of the Government Reform 

Committee, mooting the government’s appeal. 

Despite the outcome of the census case, the Administration continues to resist 

complying with the Seven Member Rule. As a result, the members have been 

forced to file a second case to enforce their rights. 

On February 2, 2004, the media reported information indicating that the Bush 

Administration had withheld from Congress estimates showing that the Medicare 

prescription drug legislation would cost $100 billion more than the Administration 

had represented.403 On February 3, 2004, the ranking members of three House 

committees of jurisdiction requested that the Department of Health and Human 

Services provide copies of the withheld cost estimates and other analyses prepared 

by the HHS Office of the Actuary during congressional consideration of the 

Medicare prescription drug legislation.404 The Administration, however, refused 

to respond to the February 3, 2004, letter from the ranking members. 

On March 2, 2004, nineteen members of the Government Reform Committee 

requested the withheld cost information pursuant to the Seven Member Rule. On 

April 16, 2004, the Administration responded by releasing four already public 

documents and otherwise refusing to provide the requested information. On April 

26, 2004, the 19 members of the Government Reform Committee wrote again to 

the Department, stating that the HHS response did not satisfy the request and 

reiterating the request. When the Administration continued to refuse to comply, 

the 19 members of the Government Reform Committee filed suit in federal district 

court on May 17, 2004, to enforce their request.405

 

 401 See Carter v. U. S. Dept. of Commerce, 307 F.3d 1084 (9th Cir. 2002). 

402 Id.

403 White House Says Congressional Estimate of New Medicare Costs Was Too Low, New York 

Times (Feb. 2, 2004). 

404 Letter from Rep. Henry A. Waxman, Rep. John D. Dingell, and Rep. Charles B. Rangel 

to Secretary of Health and Human Services Tommy G. Thompson (Feb. 3, 2004). 

405 Complaint for Declaratory and Injunctive Relief, U.S. District Ct., Central District of CA 

(May 17, 2004).
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III. Information Requests from Ranking Members of 

Congressional Committees 

Since the beginning of the Bush Administration, the ranking member of the 

Government Reform Committee, Rep. Henry A. Waxman, has attempted to 

conduct basic oversight of the Administration. Yet these efforts have repeatedly 

been frustrated by the Administration’s refusal to cooperate with congressional 

requests for information. In over 100 instances in which Rep. Waxman attempted 

to conduct oversight on important issues, the Bush Administration ignored 

requests for information, refused to provide information, or provided incomplete 

and inadequate responses. In addition, where the Administration provided 

responses, whether complete or incomplete, they were usually substantially 

delayed, commonly missing the deadlines for responding by several months or 

more. 

The information that the Bush Administration failed to provide spanned 

numerous subjects. The requests were directed to a wide range of executive 

branch agencies and the White House. They commonly sought specific factual 

information and documents relating to good government issues and matters of 

great public interest. For example: 

• On June 13, 2004, Rep. Waxman wrote to Vice President Cheney regarding 

contacts between the Vice President’s office and the Department of Defense 

involving the award of a task order and sole-source contract worth up to $7 

billion to Halliburton to work on Iraqi oil infrastructure.406 For over a year, 

Vice President Cheney had consistently maintained that there were no 

contacts between his office and the government officials responsible for the 

awards. However, Rep. Waxman revealed in the letter that the Vice 

President’s chief of staff, I. Lewis “Scooter” Libby, had been briefed on a 

proposal to award the task order to Halliburton. To clarify the nature of the 

Vice President’s involvement in these contract awards to Halliburton, Rep. 

Waxman requested that Vice President Cheney provide copies of his staff’s 

communications on this topic. The Administration has not responded to this 

request. 

• On June 3, 2004, the ranking members of eight House committees wrote to 

President Bush announcing their determination to investigate the prison 

abuses at Abu Ghraib and elsewhere.407 The ranking members requested that 

 406 Letter from Rep. Henry A. Waxman to Vice President Richard B. Cheney (June 13, 

2004). 

407 Letter from Rep. Henry A. Waxman et al. to President George W. Bush (June 3, 2004). 
SECRECY IN THE BUSH ADMINISTRATION 

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the Administration provide documents necessary for the ranking members to 

conduct their investigation. The President has not responded to this request. 

• In October 2003, Rep. Waxman wrote to the Department of Health and 

Human Services regarding the politicization of science in the Bush 

Administration.408 In particular, Rep. Waxman criticized a “hit list” 

identifying more than 150 NIH-funded scientists researching HIV/AIDs, 

human sexuality, and risk-taking behaviors. Officials from the National 

Institutes of Health officials were contacting researchers identified on the list, 

raising fears that their research might be defunded, even though the grants 

had been awarded based on a rigorous peer review. Rep. Waxman’s letter 

asked for copies of any communications between HHS and the Traditional 

Values Coalition, a conservative group that claimed responsibility for 

developing the list. The Administration never provided information about any 

such contacts. 

• Between March and July 2003, Rep. Waxman wrote a series of letters to 

President Bush and National Security Advisor Condoleezza Rice seeking 

information and documents that would explain why the President falsely 

asserted in the State of the Union address that Iraq was seeking to import 

uranium from Africa.409 One letter, for example, sought copies of October 

2003 memoranda from the CIA to the White House warning the President 

not to cite the evidence.410 President Bush and Ms. Rice did not respond to 

these requests. 

• In June and July 2001, Rep. Waxman wrote to Karl Rove, Senior Advisor to 

the President, and Alberto Gonzales, Counsel to the President, requesting 

information about Mr. Rove’s meetings and phone conversations with 

 408 Letter from Rep. Henry A. Waxman to Secretary of Health and Human Services Tommy 

G. Thompson (Oct. 27, 2003); Letter from Rep. Henry A. Waxman to Secretary of 

Health and Human Services Tommy G. Thompson (Oct. 28, 2003). 

409 Letter from Rep. Henry A. Waxman to President George W. Bush (Mar. 17, 2003); 

Letter from Rep. Henry A. Waxman to Condoleezza Rice, Assistant to the President for 

National Security Affairs (June 10, 2003); Letter from Rep. Henry A. Waxman to 

Condoleezza Rice, Assistant to the President National Security Affairs (July 29, 2003). 

The State Department replied to the March 17, 2003 letter, but did not provide most of 

the information requested in that letter, and did not respond to the subsequent letters. 

See Letter from Paul V. Kelly, Assistant Secretary for Legislative Affairs, Department of 

State to Rep. Henry A. Waxman (Apr. 29, 2003). 

410 Letter from Rep. Henry A. Waxman to Condoleezza Rice, Assistant to the President for 

National Security Affairs (July 29, 2003). 
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executives of companies in which he owned stock.411 The White House 

refused to provide the requested information.412 

Other ranking members have encountered similar problems. For example, on 

November 7, 2003, the director of the White House Office of Administration 

informed the House and Senate Appropriations Committees that in the future, 

the White House would only respond to requests for information signed by the 

chairman of the committee.413 

In the Senate, Senator Jeffords, the Ranking Member of the Environment and 

Public Works Committee, was driven to place holds on several EPA nominees on 

April 7, 2004, in an attempt to force the Administration to address 12 separate 

outstanding information requests, dating from May 2001 through January 2004.414 

In announcing the holds, Senator Jeffords stated: “This attempt by the Bush 

Administration to prevent Congress from fulfilling its oversight duties is 

unprecedented, shameful and flies in the face of our Constitutional 

responsibilities.”415

IV. Investigative Commissions 

Upon occasion, rather than conducting oversight through GAO or committee or 

member investigations, Congress establishes an independent commission to 

investigate major issues of national significance. One of the most prominent 

examples of such a commission is the Warren Commission, which Congress 

established to investigate the assassination of President Kennedy. 

Congress took this step in November 2002, when it created by statute the 

National Commission on Terrorist Attacks upon the United States (commonly 

 411 Letter from Rep. Henry A. Waxman to Karl Rove, Senior Advisor to the President (June 

15, 2001); Letter from Rep. Henry A. Waxman to Alberto R. Gonzales, Counsel to the 

President (June 25, 2001); Letter from Rep. Henry A. Waxman to Alberto R. Gonzales, 

Counsel to the President (July 17, 2001). 

412 Letter from Alberto R. Gonzales, Counsel to the President, to Rep. Henry A. Waxman 

(June 29, 2001); Letter from Alberto R. Gonzales, Counsel to the President, to Rep. 

Henry A. Waxman (Aug. 10, 2001). 

413 White House Puts Limits on Queries from Democrats, Washington Post (Nov. 7, 2003). 

414 Senator Jim Jeffords, Statement of Senator Jim Jeffords, EPW Business Meeting (Apr. 7, 

2004); Senator Jim Jeffords, U.S. Senate Committee on Environment and Public Works, 

Outstanding Document and Information Requests to EPA as of March 25, 2004 (Apr. 7, 

2004). 

415 Senator Jim Jeffords, Statement of Senator Jim Jeffords, EPW Business Meeting (Apr. 7, 

2004).
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called the 9/11 Commission).416 Congress gave the 9/11 Commission the 

responsibility to examine the “facts and causes relating to the terrorist attacks,” 

“make a full and complete accounting of the circumstances surrounding the 

attacks,” and “report to the President and Congress on its findings, conclusions, 

and recommendations for corrective measures that can be taken to prevent acts of 

terrorism.” 

Despite Congress’ direction that the Commission should have full access to 

necessary information, the Bush Administration resisted cooperating with the 

Commission’s inquiry. In a number of instances the Administration was slow to 

respond to requests, and in others it obstructed access to Administration officials 

and documents. For example: 

• In July 2003, the Commission’s Republican chairman Thomas Kean and 

Democratic chairman Lee Hamilton issued a joint statement that the 

executive branch, and in particular the Departments of Defense and Justice, 

were hampering the inquiry by failing to provide requested information. They 

also objected to the Administration’s insistence that “minders” from the 

Administration be present at all interviews with intelligence officials.417 

• In October 2003, the Commission was forced to subpoena records about air 

traffic on September 11, 2001, from the Federal Aviation Administration. 

• In November 2003, the Commission had to issue a second subpoena for similar 

information from the Defense Department.418 The Commission stated that it 

“has encountered some serious delays in obtaining needed documents from the 

Department of Defense” and that “records of importance to our investigation 

had not been produced.”419

• From the fall of 2003 until April 2004, the White House blocked repeated 

attempts by the Commission to obtain access to key presidential intelligence 

briefing documents, including the August 6, 2001, President’s Daily Brief, 

which had warned of the al-Qaeda threat in August 2001. After the 

Commission threatened to subpoena the documents, the White House agreed 

in November 2003 to allow a few members of the Commission to review the 

documents and prepare a summary for the other commission members.420 In 

January 2004, the White House refused to allow the commissioners who 

 416 Title VI of the Intelligence Authorization Act for Fiscal Year 2003 (P.L. 107-306). 

417 9/11 Commission Says US Agencies Slow Its Inquiry, New York Times (July 9, 2003). 

418 9/11 White House Subpoena Omits Classified Briefings, Washington Post (Nov. 8, 2003) 

419 Id. 

420 9/11 Panel Issues Third Subpoena, Washington Post (Nov. 21, 2003). 
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reviewed the documents access to their own notes, prompting another 

subpoena threat from the Commission.421 In February 2004, the White House 

allowed the full Commission access to a summary prepared by the 

commissioners who had been granted access, but continued to refuse to allow 

the full Commission to read the August 6 President’s Daily Brief.422 Finally, 

after the contents of the document became a matter of widespread public 

debate, the White House allowed the full Commission to view the document, 

and then declassified and released it to the public on April 10, 2004.423

• In the winter and spring of 2004, the White House repeatedly refused to allow 

national security advisor Condoleezza Rice to testify publicly and under oath 

before the Commission.424 The White House finally reversed itself on March 

30, 2004, under continued pressure from the Commission and adverse 

publicity.425

• In March 2004, the White House attempted to limit the Commission’s 

meeting with President Bush and Vice President Cheney to one hour.426 After 

objections from the Commission, the White House backed down and agreed 

to allow more time.427 

Ongoing delays in obtaining information from the Administration throughout the 

investigation ultimately forced the Administration and Congress to agree to 

extend the Commission’s deadline for issuing its report.428 In March 2004, 

Congress approved an extension of the deadline for the Commission to complete 

its investigation from May 27, 2004, to July 27, 2004.429 

 421 White House Holding Notes Taken by 9/11 Commission, Washington Post (Jan. 31, 2004). 

422 9/11 Panel to Accept Summary of Briefings, Washington Post (Feb. 11, 2004). 

423 Central Intelligence Agency, The President’s Daily Brief: Bin Ladin Determined To Strike in 

US (Aug. 6, 2001) (declassified and approved for release Apr. 10, 2004). 

424 See e.g., Extension of 9/11 Probe Backed, Washington Post (Feb. 5, 2004); White House vs. 

9/11 Panel: Resistance, Resolution, Washington Post (Mar. 9, 2004); GOP Officials Press 

Rice to Testify on 9/11, Baltimore Sun (Mar. 29, 2004). 

425 Bush Allows Rice to Testify on 9/11 in a Public Session, New York Times (Mar. 31, 2004). 

426 White House vs. 9/11 Panel: Resistance, Resolution, New York Times (Mar. 9, 2004). 

427 Bush Vows to Answer All Questions Posed by 9/11 Panel, Washington Post (Mar. 10, 2004). 

428 White House vs. 9/11 Panel, supra note 426. 

429 Pub. Law 108-207 (108th Cong.).
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CONCLUSION

This review of the nation’s open government laws reveals that the Bush 

Administration has systematically sought to limit disclosure of government records 

while expanding its authority to operate in secret. Through legislative changes, 

implementing regulations, and administrative practices, the Administration has 

undermined the laws that make the federal government more transparent to its 

citizens, including the Freedom of Information Act, the Presidential Records Act, 

and the Federal Advisory Committee Act. At the same time, the Administration 

has expanded the reach of the laws authorizing the Administration to classify 

documents and to act without public or congressional oversight. Individually, 

some of the changes implemented by the Bush Administration may have limited 

impact. Taken together, however, the Administration’s actions represent an 

unparalleled assault on the principle of open and accountable government.