Covering a multitude of sins In its unprecedented drive for greater government secrecy, the Bush administration is hiding vital information under the cloak of national security - leaving the nation stumbling in the dark BY HARVEY A. SILVERGLATE AND CARL TAKEI

JOHN F. KENNEDY once recounted a revealing joke told by Nikita Khrushchev, the Soviet premier during the 1950s and ’60s, in response to Kennedy’s complaints about the uncontrollable Washington press corps: a Russian ran through the Kremlin shouting, "Khrushchev is a fool! Khrushchev is a fool!" For this outburst, the man was sentenced to 23 years in prison. When Kennedy retorted that in the United States it was impossible to imprison a newsman for insulting the nation’s leader, Khrushchev explained that only three years of the sentence were for insulting the premier — the remaining 20 were for "revealing a state secret."

Government officials too often avoid accountability by sweeping incompetence and dishonesty under the rug of "national security." Yet our country — unlike Khrushchev’s Soviet Union — has a tradition of counterbalancing such secrecy by protecting a free press, allowing citizens to converse without risk, and honoring the efforts of brave whistle blowers — those who defy the culture of secrecy and leak information to the press to inform the public of governmental wrongdoing, mistakes, and deceptions. The Bush administration, however, is aggressively working to prevent such public scrutiny in four distinct ways: it has widened the range of classified and otherwise confidential (but non-classified) materials. It has expanded its ability to criminally prosecute government employees who leak such materials. It has signaled a willingness to move against reporters who publish those leaks. And, most significantly, it is using new "material support" statutes to do an end run around the First Amendment and criminalize many forms of political advocacy.

The Bush administration’s assault on free speech, free press, and free association threatens to constrict our "threshold" liberties. This category of liberty, which also includes the right to be free from arbitrary arrest and indefinite detention (see "Crossing the Threshold," News and Features, March 5), lies at the heart of what it means to live in a free society and is essential for our other institutions to function as intended. If the press is free, if open elections are held, and if the courts are performing their sworn duty, even a president who tries to assume the powers of an emperor can be dealt with. But the more the press, the public, and the courts allow a president to chip away at the threshold rights that restrain his or her powers, the less democratic, free, and safe the nation becomes.

Overclassifying documents

The Bush administration’s push for greater government secrecy began as soon as the president took office. Between March and August 2001, for instance, the White House issued three successive orders to the National Archives to postpone the scheduled public release of some 68,000 pages of Reagan-era documents. But in the wake of the September 11 terrorist attacks, Bush took advantage of the confusion and fear to accelerate his restrictive agenda. On October 15, 2001, the Justice Department issued new rules for how agencies should handle Freedom of Information Act requests, reversing the Clinton administration’s policy of making files available by default if there was no apparent reason to keep them classified. The new policy required an affirmative reason to declassify the files. Then, on November 1, 2001, the White House added Executive Order 13233, allowing the sitting president to block disclosure of past presidential records even when past presidents want records disclosed.

The information blackout cast by this preference for secrecy makes it nearly impossible for citizens to judge for themselves whether their government is using effective and appropriate means to, among other things, combat terrorism. Yet just how essential it is for citizens to be able to assess our leaders’ performance has been made clearer than ever by the proceedings of the 9/11 commission. A policy of excessive secrecy, it appears, served largely to conceal enormous incompetence at the top, bureaucratic bungling throughout the national-security apparatus, and inconvenient facts about the way the Bush White House does business.

One particularly stunning example of how secrecy can interfere with accountability was the White House’s attempt last year to retroactively classify parts of the Joint Congressional Intelligence Committee’s report on its inquiry into 9/11, including excerpts from the FBI’s July 2001 Phoenix flight-school memo (which had already been published elsewhere), the names of senior administration officials, and information on anti-terror intelligence that had been aired in public testimony. The administration also sought to block the report’s release. When the document finally became public in July 2003 — after much wrangling between the committee and the Bush administration — 28 of its 832 pages were redacted. The section not made public dealt mostly with alleged Saudi involvement in the 9/11 terrorist attacks. In explaining the redactions — which had been made over the objections of committee co-chairs Senator Bob Graham (D-FL) and Representative Porter Goss (R-FL), and even of Saudi ambassador Prince Bandar bin Sultan — Bush said that declassifying the information would "help the enemy" by revealing intelligence sources and methods.

This overclassification seems, like Khrushchev’s joke, to be driven less by true national-security concerns than by a desire to bury inconvenient facts. Bush, after all, has made exceptions to his closed-mouth policy in order to declassify material embarrassing to his political opponents. Shortly after he took office, he allowed the declassification of partial transcripts of phone calls between former president Bill Clinton and Israeli prime minister Ehud Barak, dealing with Clinton’s controversial last-minute pardon of fugitive financier Marc Rich, who had been convicted of tax-evasion, among other things. When Clinton requested that the full transcripts be released, Bush refused. And in April, the Bush administration allowed Jamie Gorelick’s 1995 national-security memo, authored when she was a deputy attorney general in the Clinton administration, to be declassified solely so that Ashcroft could use it to take potshots at Gorelick, now a member of the 9/11 commission, during his testimony before that body.

Not content with overclassifying documents, the Bush administration is also seeking the courts’ assistance in restricting information. In Center for National Security Studies v. Department of Justice, the Justice Department argued — and, on June 17, 2003, the DC Circuit Court of Appeals agreed — that it could withhold from the public vital information about post-9/11 detainees, including their names, arrest dates, locations of arrest and detention, dates of release, and even the names of the lawyers representing them. On January 12, the US Supreme Court denied review, letting the secrecy surrounding the detentions stand.

The case of Mohamed K. Bellahouel, an Algerian student who overstayed his visa and was detained after September 11, perhaps best illustrates this trend. Bellahouel was a waiter at the Kef Room, a Middle Eastern restaurant in Boca Raton, Florida, where, FBI investigators testified in a sealed statement to the court, he "likely" served food to two of the 9/11 hijackers, one of whom was Mohammed Atta. FBI investigators also told the court of an uncorroborated report, given by an unidentified movie-theater ticket agent, that Bellahouel once went to the movies with another of the hijackers. These fleeting contacts caught the FBI’s attention, and Bellahouel was detained one month after the 9/11 attacks for having violated his student visa. When Bellahouel filed a habeas corpus petition seeking to be released from custody, his entire case was, for reasons that remain unclear, put under unusually tight seal: nothing about this case is available for public inspection.

Although court cases involving secret evidence and documents often include individual sealed items that are noted as such on the docket — such as the name of an intelligence operative or a secret intelligence report — the docket itself (that is, the list of items on file in the case and of the actions taken and hearings held) is almost always public. In Bellahouel’s case, his identity — indeed, his very existence and that of his case — was withheld from public disclosure. Interestingly, however, Bellahouel was allowed to post a $10,000 bond for his release while the secret case was still pending; the courts apparently felt that disclosing any information about Bellahouel’s case was dangerous, but that letting him walk the streets was perfectly fine. The case came to light when, more than a year after proceedings had begun, a court clerk erred and inadvertently published Bellahouel’s initials (M.K.B.) and the case number on the electronic argument calendar for the 11th Circuit Court of Appeals. A sharp-eyed reporter from the Miami Daily Business Review noticed the anomaly and broke the story of the "super-sealed" case. Although a range of media outlets and organizations — from CNN to the Association of Alternative Newsweeklies — sought to intervene in the case of M.K.B. v. Warden and have the docket unsealed, it remains cloaked in mystery because the US Supreme Court denied review on February 23. Indeed, the secrecy perpetuated itself even during this final stage of the process, when Solicitor General Theodore Olson filed a sealed brief with the Supreme Court. This brief remained sealed even after the court denied review.