Cone of silence From the Patriot Act to presidential records, George W. Bush has presided over an unprecedented rise in government secrecy BY DAN KENNEDY

A FEDERAL JUDGE recently struck a blow for liberty by ruling that a portion of the Patriot Act allowing the government to poke into people’s private lives without judicial oversight has "no place in our open society." US District Court judge Victor Marrero’s September 29 decision was straightforward enough. But the case itself is perverse and surreal, standing as a particularly apt metaphor for how George W. Bush has conducted his presidency: in secret, out of public view, with as little oversight and accountability as he can manage.

The case involves the president of an Internet service provider who was handed a so-called national-security letter ordering him to turn over company records about some of his customers. Under the Patriot Act, the executive was barred from telling anyone he had received such a letter; he ignored that and informed the ACLU, which agreed to challenge the letter on his behalf. But the lawsuit that the ACLU filed, rather than making headlines, was heard in secret, thanks to yet another dubious provision of the Patriot Act. Even now that Marrero’s decision has been announced, we still don’t know the identity of the Internet company or its chief executive, or what the government was seeking.

In a twist worthy of a Salvador Dali painting, the ACLU has revealed that when the company executive attempted to assert the principle that the citizenry should be able to keep an eye on its government, the prosecution grabbed a black Sharpie to hide those seditious words from public view. In a heavily blacked-out affidavit, the executive said, "I find it ironic that [deleted] I freely engage in political debate on the government’s use of the Patriot Act. [deleted] I know much more about the way the Patriot Act works [deleted]." After Judge Marrero partially lifted the gag order, the ACLU revealed what the executive said in the final blacked-out section: "the public should be able to monitor how the government is using these new powers so that it can police against possible abuses."

Of course, you can’t be too careful. If people are allowed to see things like that, the next thing you know, they might start reading the Bill of Rights.

The case of the Internet provider and the Patriot Act is just a small example of the lengths to which the Bush administration has gone to hide its activities from the public it purports to serve. Since Bush took office in January 2001, the White House has weakened the Freedom of Information Act, which is supposed to make it possible for citizens to obtain most government documents; removed public information from government Web sites under the guise of national security; made it much more difficult for historians (or anyone else) to gain access to the official papers of former presidents; and even refused to respond to requests for information from Democratic members of Congress. To be sure, the trend toward secrecy has accelerated since the terrorist acts of 9/11, and at least some security-related measures were probably inevitable and necessary. But the evidence is clear that George W. Bush has wanted to reverse the long march toward greater government openness from the moment he was sworn in.

"My sense is that this is one of the most deeply worrying developments of the last four years, because you can’t really have transparency, which is what democracy needs," says Nancy Murray, director of the Bill of Rights Education Project for the ACLU of Massachusetts. "You have to know what a government is up to in order to know whether you want to keep that government."

For a harrowing example of what Murray is talking about, all you have to do is look at the front page of Monday’s New York Times. The paper reported that 380 tons of highly dangerous explosives were removed from an ammunition dump in Iraq not long after the American-led invasion in the spring of 2003. It’s possible — even likely — that because Pentagon planners did not think to secure those explosives, they have been used against American troops in suicide bombings and terrorist attacks. Yet even though the White House has known about this catastrophic failure for many months, it did everything it could to avoid telling the public — or, for that matter, the International Atomic Energy Agency, which reportedly is anxious because the explosives are well-suited for use as triggers in nuclear bombs. Administration officials were content to ride it out until after the election. Finally, despite their attempted cover-up, the truth was revealed just eight days before Americans go to the polls.

Or consider another front-page Times story, this one from Sunday. In the first of a two-part overview of how the Bush administration came up with the idea of secret military tribunals for foreign prisoners suspected of terrorism, the Times reported that Vice-President Dick Cheney conspired to keep the plan a secret (that’s right: secret plans about secret trials) from Secretary of State Colin Powell and national-security adviser Condoleezza Rice, who, he suspected, would oppose the tribunals.

Of course, it’s that kind of insular decision-making — hush-hush, cloak-and-dagger, cut off from any opposing voices or critical thought — that one could argue is directly responsible for the disastrous manner in which the White House has planned and prosecuted the entire struggle against terrorism and the war in Iraq.

In January 2002, Cheney gave an interview to ABC News in which he described his battle to keep another secret — the proceedings of the energy task force that he chaired — as virtually a mission from the Founding Fathers. "I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job," he said. "We saw it in the War Powers Act, we saw it in the Anti-Impoundment Act. We’ve seen it in cases like this before, where it’s demanded that the presidents cough up and compromise on important principles. One of the things that I feel an obligation on — and I know the president does, too, because we talked about it — is to pass on our offices in better shape than we found them to our successors."

If, by "better shape," Cheney meant "more secretive and less accountable," then he and Bush have been a brilliant success.

On September 14, US Representative Henry Waxman, a California Democrat who is the ranking minority member of the House Committee on Government Reform, issued a 90-page report titled Secrecy in the Bush Administration. Sadly, it received almost no attention in the mainstream media. (A notable exception: Boston Globe editorial-page editor Renée Loth, who wrote an op-ed piece condemning the "cloak of secrecy" that the Waxman report documented.) Not only did Waxman’s report deserve a better fate, it should have been a centerpiece of the presidential campaign. In meticulous detail, the report documents how the Bush administration has engaged in "an unparalleled assault on the principle of open and accountable government."

In an interview last week, Waxman told me, "I think there are two very serious problems with this administration’s penchant for secrecy, which is greater than we’ve ever seen before, even worse than the Nixon administration during Watergate. First of all, it undermines the ability of our governmental system to work, because the public is kept in the dark and there’s no accountability. And the second problem I see is that when an administration only talks to itself, it’s inevitable that there are going to be huge mistakes, which they’ve already done. A government is supposed to be responsive to the people, and information that is not of national-security consequence ought to be available to people."

The Waxman report defies easy summary, and deserves to be read in full (it’s online at democrats.reform.house.gov/features/secrecy_report). But here are a few key lowlights.

• On October 12, 2001, Attorney General John Ashcroft issued a memo directing federal agencies to make aggressive use of exemptions to the Freedom of Information Act (FOIA), a move that made it far easier to keep documents under wraps. Ashcroft’s action reversed the "presumption of disclosure" that had prevailed under his Clinton-administration predecessor, Janet Reno. The result: federal agencies are now more empowered to say "no" to FOIA requests than at any time since the law’s passage, in 1966.

• In March 2002, White House chief of staff Andrew Card issued another memo, this one encouraging agencies not to release "sensitive but unclassified information." As just one example, the Department of Defense relied on the Card memo in refusing to release an unclassified report, based entirely on public documents, regarding lessons learned from the 2001 anthrax attacks.