For years, Democrats in Congress and open government groups battled, with little success, to expose many of the most closely guarded secrets of President George W. Bush’s time in office.
Now President Barack Obama holds the power to reveal them, but some of his allies may be disappointed when he doesn’t pull back the curtain as far — or as fast — as they would like.
The documents still under wraps stem from the hottest scandals and controversies of the Bush era: warrantless wiretapping, alleged torture of prisoners in the war on terror, the abrupt dismissal of a batch of U.S. attorneys in 2006 and a criminal investigation into the White House’s involvement in the leak of a CIA operative’s identity.
Obama signed two orders calling for government openness but also said he’d rather turn the page on some Bush-era fights than rehash them. Still, he and his aides may feel pressure to lay the cupboards bare — all in the name of transparency, the mantra of his presidential campaign.
But what Obama must remember is this: Whatever he releases retroactively about Bush might well be released someday about his own administration’s inner workings and private debates. And that’s enough to give any president pause.
“A president that sets the tone of openness and demands it of others would be held ultimately, I think, to the same standards,” said Douglas Kmiec, a former Justice Department official under Presidents Ronald Reagan and George H.W. Bush. He backed Obama in November. “I’d hope the new president would say, ‘Amen.’ Of course, it’s easier to say, ‘Amen’ in the abstract when you’re not at issue.”
A liberal group that peppered the Bush administration with requests for sensitive records — and with lawsuits when those requests were refused — says there’s no sign yet that Obama’s pronouncements have affected scores of pending court cases over those disputes.
“We haven’t seen any practical evidence of any change,” said Anne Weissman, chief counsel for Citizens for Responsibility and Ethics in Washington. “Everybody’s waiting to get some concrete evidence of what this means. ... If all the litigation goes forward — status quo, there’s going to be a huge sense of disappointment, a feeling of betrayal.”
Attorney General Eric Holder has promised to review the Bush administration’s use of the state secrets privilege to shield controversial anti-terror practices. But in the first case to come to court since Obama took office, the Justice Department on Monday defended the use of state secrets to block a lawsuit over extraordinary renditions, the practice of sending terror suspects to be imprisoned in foreign countries.
Here are the top Bush-era secrets that could finally see the light of day under Obama — or not.
U.S. attorney firings/Justice Department politicization
In 2007, Bush invoked executive privilege to keep Karl Rove and other top officials from testifying to Congress about the White House’s role in the firing of U.S. attorneys, as well as about allegations of political interference in prosecutions.
Four days before Bush left office, then-White House counsel Fred Fielding sent Rove a letter, first reported by Newsweek, saying “the president continues to direct him” not to testify. On Jan. 27, House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) sent Rove a fresh subpoena, reigniting the issue before the new Congress.
Rove’s lawyer promptly turned the issue over to the office of Obama’s White House counsel, which will have to decide whether to back Bush, hang Rove and him out to dry or seek some middle ground.
Some see the Rove fight as a bellwether for whether Obama plans to follow through on his openness promises. “The subpoena for Rove from Conyers will be the first big test,” Weissman said.
The Obama White House doesn’t have much time to make up its mind — facing a Feb. 18 appeals court deadline to decide whether to stick with Bush’s don’t-testify position. A district court judge rejected Bush’s blanket refusal, ruling that Rove had to at least show up and haggle with the committee on a question-by-question basis.
Even if Obama doesn’t back Bush, Bush could go to court himself to try to block the testimony, citing Nixon’s post-presidency efforts to keep secret his White House tapes.
Likely verdict: Rove will have to show up on the Hill but may resist answering specific questions. “Presumably, lawyers will be there representing the White House as well as some representing former President Bush. And they’ll give conflicting directions to the witness as to whether they think something is privileged,” said Scott Nelson of Public Citizen. “That’ll be a lot of fun.”
The program Bush set up to tap international phone calls without a warrant is a cause célèbre among liberal activists and the Netroots, but even seemingly obvious aspects of the program are officially secret.
“The Bush administration claimed secrets that really don’t pass the giggle test, like the claim that the mere fact the government might have a relationship with a telecommunications company ... is a state secret that could endanger the nation,” said Cindy Cohn of the Electronic Frontier Foundation, one of the groups suing on behalf of telecom customers.
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One potential headache for Obama, though, is that even basic concessions on the secrecy front could have a dramatic impact on the lawsuits charging that the Bush program was unconstitutional.
Candidate Obama denounced the Bush administration’s wiretapping program — but then angered liberal supporters when he voted for a surveillance bill even though it sought to shield the telecom firms from legal harm.
“Whether you can read into that that he’s about to completely throw us under the bus, that depends on your perspective. I think time will tell,” Cohn said.
Likely verdict: Obama will hold the line, maintaining Bush-era secrecy on the wiretapping program by claiming disclosure will undercut similar surveillance efforts still under way — now with the blessing of the bill he supported in Congress.
Bush’s and Cheney’s statements in CIA leak case
Reporters were tantalized and then disappointed when Vice President Dick Cheney was mentioned as a likely defense witness for his former chief of staff, Lewis Libby, during his 2007 trial in the CIA leak investigation. Libby was convicted, but defense lawyers never called Cheney to the stand, leaving aspects of his role murky.
Later that year, Rep. Henry A. Waxman (D-Calif.) demanded copies of interviews that Cheney, Bush and other top officials did with the special prosecutor, Patrick Fitzgerald. The Justice Department ultimately handed over the interviews with most White House officials but refused to cough up the Bush and Cheney interviews.
Weissman’s group sued for the Cheney statements. The Justice Department is fighting the suit, arguing that turning over the records “could significantly undermine future Department of Justice criminal investigations involving official White House activities.”
“I think it’ll be a really good show of support for [Obama’s] policy if Obama or the AG just say we’re going to disclose it,” Weissman said.
Likely verdict: Fitzgerald didn’t object to releasing the Bush or Cheney interviews, so Obama might well put them out. But he recently did his own interview with Fitzgerald’s investigators — in the case of Illinois Gov. Rod Blagojevich — and might decide a little presidential privilege here isn’t a bad thing.
The ‘torture’ memos
About 40 legal opinions the Justice Department drafted under President Bush on interrogation, rendition and other war-on-terror policies remain secret despite aggressive efforts by Congress and outside groups to bring the memos to light.
“Only a handful have come out,” said Jameel Jaffer, of the American Civil Liberties Union, which is pressing Obama officials to release them. “One actually lists the interrogation methods they can use. We got a very, very redacted copy of that. ... Another talks about military operations inside the U.S.”
The memos will show how Bush administration officials pushed the legal envelope after the Sept. 11 attacks and just how accommodating Justice Department officials were to those requests.
Likely verdict: Almost all the memos will be released — at least in part — though some specific techniques may be held back. “We don’t say, ‘Release them wholesale.’ We say, ‘Release as much you can,’” Jaffer said.
Bush’s secret prisons directive
One of the first actions Obama took as president was to shut down a program under which the CIA ran secret prisons at “black sites,” reportedly in Thailand, Afghanistan, Romania, Poland and other countries. Bush mothballed the program in recent years but never formally closed it.
The marching orders for the secret prison program were set out by Bush in a presidential directive in 2001. “We’ve been fighting for this document now for five years,” Jaffer noted.
The CIA and perhaps the State Department are likely to resist official confirmation of the countries that hosted such facilities, especially if officials have publicly denied it. Confirming details of the prisons program could also upset investigations into who leaked its existence to The Washington Post back in November 2004.
Likely verdict: The Bush CIA-prisons directive will come out as part of an Obama-led cleansing for war-on-terror wrongs, but the names of specific countries will be left out to help them save face.