Bush and Constitution at Odds

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Secrecy in government is antithetical to democracy. Our Constitution carefully attempts to make government employee's actions, from the President on down, accountable to the people, or their elected representatives. Yet, in this complicated world where evil intentions are planned and executed in secret, our government must have secrecy as a tool to be used to fend off harm planned for American citizens, both at home and abroad. Thus, the issue of secrecy in government is not whether our democracy should permit it or not; the issue is how much secrecy and how much oversight?

In the headlines this week is a BBC article entitled 'Justice denied' at Guantanamo. This article raises the issue of whether the Supreme Court of our land should review the legality of holding 100's of individuals, incommunicado and indefinitely, without being charged with any crimes, without judicial review of the justification for their being jailed, without legal representation, and without speedy trial and determination of their fate. U.S. law permits such events to take place during times of war. Currentlythe detention is legal. But, as our history shows many times over, legal does not mean right, nor does legal mean that a law conforms to the checks and balances designed into our Constitution.

The recent issue of leaks allegedly from the Whitehouse, exposing a CIA undercover operative as a means of obtaining political retribution, seriously raises the stakes in the issue of government secrecy. For if the serious leaks like this now occur, the argument will and is being made that secrecy must be even more secret. That is to say, that even fewer representatives of the people, if any, should have access to what is secret. If this argument is acted upon, the government will become less accountable to the people for its actions and pose a serious undermining of the Constitution of the U.S.

In the 103rd Congress, a study was done on secrecy in government, and the PDF summary of that document is highly recommended reading for all voters in America. In the summary, our representatives conclude,

The best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall.

The Freedom of Information Act, (FOIA) was signed into law on July 4, 1964, by President L.B. Johnson. A short and easily read history of the FOIA through 1996 was issued by the Society of Professional Journalists. Following is an excerpt of great importance to the subject of government secrecy:

The act had only one day to go before dying of presidential neglect in the form of a pocket veto.

Hardly an auspicious beginning for a law that spawned parallel "sunshine laws" in all 50 states. A law that has served as a model for nations around the world trying to make government more accessible and accountable to their citizens. A law that set out to make manifest the Jeffersonian principle of an informed citizenry.

Thirty years later, the friends of FOIA in official Washington remain few and far between and the complaints familiar: The FOIA is an unwelcome drain on scarce resources. It is overused by prisoners and aliens to overtax the system. It is abused by lawyers to circumvent court discovery rules. It is employed by businesses to gain unfair advantage over competitors. It is exploited by journalists to invade personal privacy and endanger national security.

Those complaints aside, the FOIA has compelled federal agencies to yield millions of documents relating to government operations and performance. Every week, a news organization, scholar or public-interest group somewhere reports information of significance to public health or safety or good governance - based on material gleaned from FOIA requests.

The history of the FOIA reveals an interesting political fact regarding secrecy in government. A Democrat signed the bill into law. In the link above it is reported that the FOIA

worked more fitfully and slowly during the 1980s, when administration policy confounded much of the act's intentions.

Then, in October of 1993, President Clinton issued a memo to department and agency heads mandating a new attitude toward the FOIA. "The act is a vital part of the participatory system of government," Clinton said to the officials. "I am committed to enhancing its effectiveness in my administration."

At the same time, Attorney General Janet Reno reversed a Department of Justice policy established in 1981. She said that the department no longer would defend an agency's denial of an FOIA request merely because there was a "substantial legal basis" for doing so.

Today, again under a Republican administration, Eweek reports on the Privacy Threat Index (PTI) stating: "Used to track the growing threat to privacy from expanding government surveillance, the PTI level currently is at orange--or "high"--because of ongoing invasive search techniques used by the government." Concluding Eweek's article is the following statement: "When government employees are able to cloak their work in secrecy, the threat not only to privacy but also to civil rights must be made a top priority."

Under President Bush's administration, The Patriot Act, and it's proposed enhancement Patriot Act II, reflect a greater role for secrecy in government, less accountability by the people's representatives, and therefore, a greater potential threat to American liberties. With secrecy comes abuse of power. What is the one thing all perpetrators of crime seek? Keeping their identity secret, is the answer. Under the Patriot Act, government employees are to varying degrees free to pursue the application of the powers of their office while cloaking their identity and their actions with the Patriot Act. Already journalists are uncovering alleged abuses of the Patriot Act by government officials. CBS News reports in an article entitled Patriot Act Abuses Seen,

Over the six-month period that ended in June, the Justice Department's inspector general found 34 complaints of rights violations that appeared credible, reports The New York Times. Some of the charges have yet to be fully investigated. Not all the complaints concerned physical abuse.

The report has been provided to Congress and will soon be publicly released. The complaints concern the way the Justice Department has enforced the 2001 Patriot Act, a law passed in the immediate aftermath of the Sept. 11 attacks that granted wider powers to federal law enforcement officers to conduct surveillance and detain immigrants.

An 2600 News article reporting a photographer's tale of abuse under the Patriot Act provides an eloquent example of how abuse of the Act can take place. Whether one believes the photographer's account or not, his story highlights perfectly how safeguards against such abuse are needed. For if his account is true, the powers of the Patriot Act provide the means for abusers to conceal their abuses. It is no safeguard that the Inspector General for the Justice Department, charged with investigating abuses of the Patriot Act, is employed by the very Justice Department that exercises the powers of the Patriot Act. The potential for cover up of abuse constitutes a real threat to civil liberties of American citizens.

The threats posed by growing secrecy in our government may be very long-lived. The war on terrorism following the 9/11 attacks and which spawned the Patriot Act, is one that the U.S. will be fighting for decades. The root causes of terrorism like fundamentalism, patriotism, a global marketplace for small arms and explosive devices, poverty, lack of education and sustainable living standards, will not be quickly or easily eradicated if they ever are. Therefore, the war on terrorism is one we will be engaged in for at least the next generation or two of young Americans. Therefore, the threats and potential for abuses of our liberties and civil rights enjoyed prior to 9/11, shall be with us for decades.

Americans are divided on this issue. Many feel that some liberty lost is a small price to pay in the prevention of catastrophic lethal and maiming attacks upon American citizens. Others feel that life is inherently dangerous, driving vehicles, walking the neighborhood, spending time in a hospital, or visiting a local convenience store at the wrong time while a robbery commences. These may argue that there never can be such a level of security as to protect Americans from harm and that the threat of abuse toward, and loss of, civil liberties, constitutes as great a threat upon their sense of security in America as terrorist acts do for those willing to sacrifice freedom.

If history since the signing of the Freedom of Information Act is any indication, those who vote on this issue alone, and who fear terrorists will likely want to vote Republican. Those who fear abuse of power and threat to American freedoms and civil liberties will likely want to vote Democratic or Green. There is no question secrecy can enhance police power. There is also no question that secrecy is the most sought after goal of those who would circumvent laws and abuse power. It is an issue Americans may want to consider in the voting booths in November of 2004.

by David R. Remer PoliWatch.Org

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This page contains a single entry by David R. Remer published on October 16, 2003 10:35 AM.

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