Hiding in plain sight

After all the conflict over former President Nixon’s tapes and papers, Congress in 1978 passed a law to regulate the handling of such records. The Presidential Records Act gave former presidents 12 years to control their records, presumably to write memoirs. Then they were to become public property, open to all.

The last of President Reagan’s documents still withheld from release by the Ronald Reagan Presidential Library were to be open, under the law, on Jan. 21, 2001, the day after President Bush’s inauguration. But Bush’s lawyers asked for an extension, and then two more extensions, to consider “many constitutional and legal questions.”

On Nov. 1, 2001, Bush issued an executive order that: (1) let former presidents keep their records closed as long as they live; (2) after their deaths, allowed friends and relatives to invoke executive privilege as a basis for keeping records secret; and (3) shifted the burden so that people seeking access to records must show justification instead of the former president having to give a reason to withhold.

John W. Dean tells that story in “Worse Than Watergate: The Secret Presidency of George W. Bush” as an example of Bush’s obsessive desire for secrecy. So it is. But it is something more. It is an example of Bush’s view of law as something to be ignored or manipulated for his convenience.

Dean well understands that the law was thus twisted in the case of the Presidential Records Act. “In essence,” he writes, “Bush was repealing an act of Congress and imposing a new law by executive fiat.”

Secrecy and lack of regard for the law, in fact, go hand in hand in the Bush administration, as they did in Richard M. Nixon’s. No one knows that better than Dean, who served as Nixon’s White House counsel for 1,000 days. For those too young to remember, it was Dean who warned Nixon that Watergate was a “cancer” on his presidency and who then testified in the congressional hearings that helped drive Nixon from office. Dean thinks the secrecy of the Bush administration is far worse, and he makes a powerful case in a riveting book.

Secrecy and disregard for the law have played a crucial part in the Bush administration’s environmental policy, for example. Again and again, Bush has sought to exempt industry from having to comply with the Clean Air Act. Impatient at attempts to amend the act, with all the public debate and congressional bargaining involved, Bush has chosen the closed-door process of executive regulations.

One of the crucial provisions of the act requires “new source review.” It provides that owners of a power plant must install new pollution controls if they make any significant -- that is, more than routine -- changes in the plant’s equipment. The purpose is to ensure that there will be less pollution as plants are modernized, among them those in the Midwest that send thousands of tons of pollutants through the air to the East, where they stunt forests and intensify breathing difficulties for many children.

The question for the Environmental Protection Agency was how big an expenditure could be allowed as routine repair and maintenance. EPA staffers suggested allowing as routine annual spending equal to 0.75% of a generating unit’s value. Thus, if the unit was worth $1 billion, the owner could spend up to $7.5 million a year on it without having to add antipollution equipment.

What happened in the Bush administration was described by Bruce Barcott in an April 4 New York Times Magazine article. After secret internal discussions among Bush’s EPA appointees, the agency issued an order that spending up to not 0.75%, but 20% of a power unit’s value, would be considered routine. So the owners of a $1-billion plant could spend up to $200 million a year without having to install new pollution controls.

For anyone who cares about the environment, the Barcott article made for grim reading. The 20% figure is so outlandishly high that no power company would ever be required to install new pollution controls, effectively a repeal of a central provision of the act. And because the deliberations were all behind closed doors, hardly any of the millions of Americans who suffer the effects of sulfur, mercury and other pollutants in the air knew what Bush and his people had done to them.

Even before he became president, there was evidence that Bush had little reverence for the law, no feeling for it, really. As governor of Texas, he declined to intervene as 152 men and women were put to death, the largest number executed under any governor at least since the U.S. Supreme Court lifted a national death penalty ban in 1976. The Chicago Tribune studied all of the death cases at a point when 131 had been executed. In a third of them, it found, the defendant had been represented at trial by a lawyer who had been or later was sanctioned or disbarred. In 40 cases, the lawyer presented no evidence or only one witness in the sentencing phase of the trial.

Asked about the Tribune study, then-Gov. Bush said the defendants in every case had had “full access to a fair trial.” His statement ignored the rank reality of capital trials in Texas -- that appointed defense counsel have been asleep or drunk during trials, or incompetent.

Just before he left the governorship to move to Washington, Bush took an extraordinarily brazen action to keep his gubernatorial papers secret. Texas law requires that a governor’s papers be indexed by state archivists upon leaving office and made available to the public immediately. But Bush had the papers shrink-wrapped on 60 large pallets and sent to his father’s presidential library at Texas A&M; University. There, federal archivists said they were too busy with the father’s papers to process the son’s. Again, secrecy combined with disregard for law -- Texas law in this case.

Dean writes that Peggy D. Rudd, director of the Texas State Library, fought and eventually won a battle with the former president’s library to get control of the gubernatorial papers, but then Bush’s successor as governor, Rick Perry, used other methods to keep many of the governor’s papers locked up. One wonders: What are they trying to hide?

Bush’s inclination to secrecy was fortified by his choice of a running mate. Dick Cheney is probably the most influential vice president in U.S. history, but he works so secretively that he leaves virtually no marks. He has spent years fighting to keep Americans from knowing which private business executives advised his energy policy group, an issue now before the Supreme Court.

The terrorist attacks of Sept. 11, 2001, have turned the federal government more radically toward the path of secrecy. At the same time, they legitimized Bush as president, giving him the stature he lacked after being put in the White House by the Supreme Court, and provided a rationale for greater secrecy.

Bush has a particularly zealous advocate of secrecy in his attorney general, John Ashcroft. In the weeks after Sept. 11, on Ashcroft’s orders, FBI agents arrested about 5,000 noncitizens (the exact number has been kept secret) and held them in prison for weeks or months on suspicion of terrorist connections. Their names and places of detention were not disclosed. Most have been deported for such violations of immigration rules as overstaying visas after closed deportation hearings.

Then Ashcroft invented a secret substitute for trials. He detained two U.S. citizens without trial -- and without counsel -- as “enemy combatants.” At this writing they have been imprisoned for more than 23 months, in solitary confinement, unable to challenge the government’s charges that they are linked to Al Qaeda. Their cases, too, are before the Supreme Court.

Anyone looking for a philosophical view of these matters will not find it here. Dean has written what he calls a “bill of particulars”: a detailed account of what Bush has kept secret and how. Dean says he is angry -- and scared. He has reason to be. *