Takeover, page 14
In April 2005, an employee of the group Human Rights Watch found an unclassified draft of a new policy on a Defense Department website. The document proposed holding suspected Iraqi insurgents without trial in the same way that accused Taliban members have been imprisoned at Guantánamo Bay. After the group issued a press release denouncing the idea, the Pentagon took down its entire electronic library of unclassified documents, including many hundreds of unrelated papers. The military later put part of the website back up, but dozens of documents that had previously been available to the public were still gone.42
Such moves were increasingly criticized across the political spectrum. Senator John Cornyn, a Texas Republican, introduced a bill to strengthen the Freedom of Information Act, but his colleagues in the GOP-led Congress never took it up. Moreover, a report coauthored by the Heritage Foundation, a conservative think tank, attacked “overzealous” decisions to dismantle entire websites over security fears. It also said that the Bush-Cheney administration had not conducted a systematic review of formerly public information that had been made secret, by weighing the likelihood that it could help terrorists against the “countervailing public safety and other benefits of providing” the information.43
The Bush-Cheney administration argued that it was just being cautious about keeping sensitive information from terrorist hands. But skeptics said that the administration was also suppressing politically awkward information that had no connection to national security.
Starting in October 2002 and extending into 2003, for instance, a political appointee on the White House Council on Environmental Quality, Philip A. Cooney, used his position to alter drafts of reports by the Environmental Protection Agency about scientific findings related to global warming. Handwritten notes by Cooney, a former oil industry lobbyist with no scientific training, showed that he adjusted the language of draft reports and sometimes crossed out whole paragraphs in order to cast doubt on what climate scientists said were solid links between the burning of fossil fuels and global warming.44
On Christmas Eve of 2002, the administration announced that the Bureau of Labor Statistics would stop publishing its monthly Mass Layoffs Statistics Report, which detailed factory closings around the country.45 The administration said the report was too costly; labor unions said the government was seeking to suppress negative economic news.
Three months later, in March 2003, the administration announced that it would no longer publish an annual report that laid out how much money each state received from each federal program. At the time, governors of both parties were loudly complaining that budget cuts in Washington were creating huge shortfalls in state capitals. Without the annual four-hundred-page report, however, it became much harder to track how the budget cuts were affecting each state. An administration official said that such information would still be available “in a different mode” from each of the many federal agencies that handle grants, but Democrats accused Bush of simply trying to conceal the cuts.46
In October 2003, the Department of Justice posted on its website a copy of a report it had commissioned about its own record on racial diversity in the workplace. But half the report’s 186 pages had been censored, including its summary and conclusions. In Tucson, Arizona, a First Amendment activist named Russ Kick downloaded a copy of the report and realized that he could digitally remove the redaction lines to see what had been kept from the public. Kick, the author of books such as 50 Things You’re Not Supposed to Know, unmasked the black lines and revealed that the administration was hiding the fact that minority lawyers at the department perceived their work climate to be rife with “stereotyping, harassment and racial tension.” After Kick posted the uncensored diversity report on his website, TheMemoryHole.org, civil rights lawyers and Democrats in Congress accused the administration of ignoring its own report because it didn’t like the findings, and unjustifiably hiding those findings from the public. But a Justice Department spokesman said that the portions of the report that had been blacked out—including its conclusions—were “deliberative and predecisional” under the administration’s interpretation of the Freedom of Information Act, so it was legal to exclude them from the public version.47
That same month, October 2003, Kick read a small news story about how the administration had quietly banned news coverage of America’s war dead arriving at military bases. Incensed, he immediately filed a Freedom of Information Act request for any photos of caskets at the base. The military rejected his request, and, without hoping for much, Kick appealed. Four months later, he received a package in the mail. To his amazement, some military official had reversed the decision. The package contained a CD with 361 photographs of flag-draped coffins, mostly the caskets of soldiers killed in Iraq, arriving at the Dover Air Force Base. There was no personally identifiable information visible in the images—just row upon row of anonymous coffins strapped down in the hold of transport planes. Kick immediately posted the photographs on his website, writing, “Score one for freedom of information and the public’s right to know.”48 The images soon appeared on the front pages of newspapers and on television news. The Bush-Cheney administration quickly ordered the Pentagon to conceal such photographs in the future, citing privacy concerns, even though no names were attached to the pictures. (This would prove to be a common tactic. After 60 Minutes II broadcast pictures of the Abu Ghraib torture scandal in 2004, the Pentagon would ban troops from taking cell-phone cameras into detention facilities. After the Washington Post reported about substandard conditions for injured Iraq war veterans at Walter Reed Army Medical Center in 2007, the Pentagon would order all patients not to speak with reporters.) The move to block the release of pictures from Dover drew a rebuke from Rep. Jim McDermott, a Washington Democrat who served in the navy during the Vietnam War. “This is not about privacy,” McDermott told reporters. “This is about trying to keep the country from facing the reality of war.”49
In August 2004, Education Department researchers released a surprising study of test scores showing that students at charter schools were performing worse than comparable students at regular public schools.50 The findings were a disappointment for those in the Bush-Cheney administration who favored charter school funding. Less than two weeks later, the Education Department decided to sharply cut back on the information it collected about charter schools.51
In January 2006, Dr. James Hansen, the director of NASA’s Goddard Institute for Space Studies and a top climate scientist, revealed that the Bush-Cheney administration had ordered the agency’s public affairs staff to review his lectures, papers, website postings, and interview requests after he gave a lecture calling for the reduction of emissions of greenhouse gases linked to global warming. “They feel their job is to be this censor of information going out to the public,” Hansen said, vowing to ignore the restrictions. A space agency spokesman denied any attempt to muzzle Hansen, saying the restrictions applied to all NASA officials and that it was inappropriate for government scientists to make policy statements.52
In February 2006, the Family Research Council, a conservative Christian group, sent a letter to the Department of Health and Human Services complaining about a government website that for six years had provided the public with information about gay-oriented health issues. Two weeks later, the entire website disappeared.53
In December 2006, the administration imposed unprecedented controls on scientists at the U.S. Geological Survey, an agency that studies environmental issues such as global warming and endangered species. Under the new rules, scientists were required to submit research papers and prepared speeches to higher-ups for screening prior to dissemination. The rules also required the scientists to alert the public affairs office of “findings or data that may be especially newsworthy, have an impact on government policy, or contradict previous public understanding to ensure that proper officials are notified and that communication strategies are developed.” Scientists at the agency complained about the prospect of political appointees looking over their shoulders. “The explanation was that this was intended to ensure the highest possible quality research,” said Jim Estes, a marine biologist who had worked for the agency for more than thirty years. “But to me it feels like they’re doing this to keep us under their thumbs.”54
And in March 2007, the U.S. Fish and Wildlife Service issued new rules for scientists about to attend an international meeting on the Arctic. The guidelines said the scientists were not allowed to talk about climate change, polar bears, and sea ice—even if asked. The Bush-Cheney administration said it wanted to have one person in the delegation be the official spokesman for such issues simply out of diplomatic protocol. But Deborah Williams, a former Interior Department official in the Clinton administration who obtained the memos, criticized the administration’s efforts to impose political control over what government scientists could talk about to their peers. “This sure sounds like a Soviet-style directive to me,” Williams said.55
8.
Back in June 2002, three months after Card instructed the executive branch to tighten its control over information in light of the war on terrorism, a Justice Department legal ethics adviser named Jesselyn Radack faxed a set of internal government e-mails about a key terrorism legal case to a Newsweek reporter. The e-mails, which Radack herself had written, concerned the case of John Walker Lindh.56
A California-born twenty-year-old who had converted to Islam, Lindh had traveled to Pakistan and Afghanistan to study religion. Attracted to the Taliban’s attempt to build a so-called perfect Islamic society, he had joined them in their civil war against the Northern Alliance—all before 9/11. After the attacks, when U.S. bombers helped the Northern Alliance sweep over the Taliban, Lindh was among the prisoners taken to Mazar-e Sharif, and he was among the handful of surviving prisoners. His discovery had prompted a sensation—Lindh became notorious as the “American Taliban.” It had also prompted the first major terrorism prosecution after 9/11. With a dramatic flourish, Attorney General Ashcroft personally unveiled a ten-count indictment against Lindh, including charges of conspiracy to kill Americans and to provide material support to international terrorists.
Almost the entire basis for the indictment was his own statement to interrogators after he was taken prisoner, and without a defense attorney present. Ashcroft declared that Lindh had no attorney at the time, so his statement should be admissible. But Radack, who had been consulted early on about the case, had e-mails that proved otherwise. Investigators had known that Lindh’s father had already retained a defense attorney for his son before they interrogated him. Radack had warned the FBI not to question Lindh without his attorney present—but the FBI interrogated him anyway. Moreover, when a judge had ordered the department to turn over all its internal correspondence about Lindh, department supervisors had tried to conceal the order from Radack, and her e-mails had disappeared from the Lindh files. At the same time, Radack’s supervisors suddenly forced her out of her job with an unscheduled performance evaluation giving her terrible ratings, less than a year after they had given her a merit bonus and a promotion.
Radack still had a copy of her e-mails. As the Lindh case unfolded and the administration continued to swear that it knew nothing of the fact that Lindh already had a defense attorney at the time of his interrogation, she decided to send them to a reporter. “I wasn’t in my mind saying, ‘Gee I want to be a whistle-blower,’ ” Radack later recalled. “I was just trying to correct the wrong, just trying to set something straight.”57
The resulting article added to questions about whether Lindh’s interrogation had been mishandled. Already a photograph had leaked showing the conditions of Lindh’s initial interrogation: he was naked, blindfolded, strapped to a board with duct tape, and not given immediate medical treatment for a bullet wound in his leg. Three weeks after Newsweek published its article about Radack’s e-mails, the Department of Justice announced a surprise plea bargain deal to end Lindh’s case on the eve of an evidence-suppression hearing that would have probed the facts surrounding his interrogation. The government dropped most of the more spectacular charges against Lindh, and in return, Lindh pled guilty to simply aiding the Taliban regime and carrying a weapon while doing so. He was sentenced to twenty years without parole.
As Lindh’s case was abruptly ending, however, Radack’s ordeal was just getting going. Radack had done nothing illegal. The Lindh e-mails were not classified, and there is no law against leaking unclassified materials. But the Bush-Cheney administration came down hard on Radack for revealing information to the public that it had wanted to keep secret. While working for a private law firm, Radack was informed by her supervisors that the government told them she was a “criminal” who could not be trusted. The firm forced her out as well. The Justice Department also launched a yearlong criminal investigation of Radack, though she had broken no law; investigators never identified a potential charge against her, and no charges were ever filed.
“My attorneys asked what I was being investigated for and never got an answer,” she said. “There is no law against leaking. This was nonclassified stuff. I think they were just trying to get me to slip into making a false statement. Beyond that, it never seemed like they were really going to bring charges. This was just to harass me.”
The harassment did not end there. The Bush-Cheney administration also referred her for “discipline” to the bar associations in the states where she was licensed to practice law, submitting a secret report she was not allowed to see and making it almost impossible for her to fight the allegations or find a new job. And the government further harassed Radack by putting her on the “selectee” version of the “no-fly list,” forcing her every time she went through airport security to endure the kind of invasive extra screening that is supposed to be for potential security risks.58 After missing one too many flights while being forced, once again, to remove her underwire bra at security, Radack gave up.
“I quit trying to fly,” she said. “I just got sick of being told, for the nineteenth time, that I’d been ‘randomly selected’ to go through secondary screening measures. I just drove to Disney World from Washington, DC, with three young children rather than flying because I can’t have them go through security while I’m stuck going through a full body search.”
Whatever one thinks of Lindh’s actions and his ultimate fate, the Justice Department had no legal standing in attempting to conceal Radack’s e-mails from the judge. Moreover, Congress has passed numerous laws, including the Whistleblower Protection Act of 1989, making the rules clear: Whistle-blowers are supposed to be protected from retaliation when they bring government misconduct to light. But the existing laws contain no mechanism by which a victim can enforce the limits, such as a right to sue the government for breaking the law. Instead, the protections rely only on the willingness of high-ranking executive branch officials to obey a statute.
The whistle-blower laws did nothing to help Radack when the Bush-Cheney administration decided to make an example of her, sending a clear warning to other officials who might be inclined to bring secret executive branch wrongdoing to light.59 And Radack would not be the last.
9.
In November 2002, President Bush signed two bills passed by Congress that would have a dramatic—and opposite—impact on his administration’s ability to control government secrets.
The first bill, which Bush signed on November 25, 2002, was the Homeland Security Act. Most media coverage of the bill focused simply on its plan to create a new federal cabinet department, pulling together agencies such as immigration services, customs, border patrol, airport security, and the Coast Guard into a single organization. Other coverage focused on a political dispute between Republicans and Democrats over whether employees of the department should be exempted from normal worker protection rules; in a win for the White House, the final law granted unusual powers to the president’s political appointees to hire, fire, promote, and move career officials around at will. Much less covered was the bill’s grant of vast new secrecy powers to the executive branch. Lawmakers included sweeping new powers to withhold information from the public about “critical infrastructure” such as emergency plans for major industrial sites, criminalizing the release of such information to the public by a government official. Ostensibly aimed at preventing terrorists from obtaining a “road map” for planning attacks, the new law virtually eliminated the public’s right to know about risky practices at industrial sites in their communities.60
Two days later, Bush signed a bill creating the 9/11 Commission to look into how the disastrous Al Qaeda terrorist attacks had succeeded and what should be done to prevent such a thing from happening again. For months, the White House had resisted the creation of such an independent panel. When it became increasingly clear that Congress, prompted by victims’ families, would go forward with the creation of the commission, the White House lobbied to prevent the panel from looking into secret intelligence. But the pressure from victims groups for a full investigation became too much to resist, and the 9/11 Commission was given a legal mandate to look into everything.
That mandate would hit home in early April 2004, when Bush’s national security adviser, Condoleezza Rice, appeared before the 9/11 Commission to testify about steps the administration had taken, and failed to take, to stop Al Qaeda before the attacks. The White House had resisted allowing Rice to provide such information to the commission—and the public—for months but relented under the increasingly heavy pressure from the commission and family members of the victims. During her testimony, Rice let slip the title of a heavily classified Presidential Daily Briefing that Bush had received thirty-six days before the attacks. Written by the CIA, the memo was entitled “Bin Laden Determined to Strike Inside US.”
