WASHINGTON - When it comes to the Bush White House's decision to withhold from
the public Dick Cheney's interview with FBI agents investigating the
CIA leak case, the Obama administration says its predecessor did the
right thing. And it's fighting hard to do the same.
On Wednesday night, in another move that puts the administration on
the side of secrecy over openness, Obama's Justice Department filed a
memo supporting its ongoing opposition to a lawsuit requesting the
release of the Cheney interview. This memo included a declaration from
Assistant Attorney General Lanny Breuer, who said that if the Cheney
interview is made public it could cause public officials in the future
to not cooperate with criminal investigations.
Breuer, who heads the department's criminal division, noted:
As a general matter, the non-public nature of law enforcement
interviews can be a significant factor in securing the voluntary
cooperation of witnesses. Indeed, it is not uncommon for prosecutors
and law enforcement investigators to inform witnesses that, subject to
applicable statutes, regulations and rules, they will attempt to
maintain the confidentiality of information provided. A non-public
interview can be particularly important in gaining the cooperation of
senior-level White House officials given the public role of such
witnesses, the sensitive nature of the subject matters that may be
discussed, the potential politicization of these sensitive issues, and
the possibility that whatever matter is being investigated ultimately
may not warrant any law enforcement action.
In other words, top government officials may only cooperate with a
criminal investigation--that is, submit to questioning without being
subpoenaed--if they are promised confidentiality. Now what sort of
public servant would a person be if he or she refused to help the FBI
during an investigation? But Breuer claimed this is a real threat to
A White House official's reluctance to submit voluntarily to an
interview or share certain information in an interview could hamper an
investigation in several important ways....A law enforcement
investigation based upon interviews subject to an expectation of
confidentiality also benefits from senior officials more inclined to
provide identifiable leads, name percipient witnesses, offer
credibility assessments of the accuser or other witnesses, and even
articulate inferences, insight or hunches that can be invaluable to a
law enforcement investigator. A law enforcement investigation could
lose these potential benefits if the senior official believes his or
her statement will be subject to public disclosure.
But Citizens for Responsiblity and Ethics in Washington,
the public interest group that filed the lawsuit seeking the Cheney
interview, points out that "Cheney was never promised confidentiality,
as Special Counsel Patrick Fitzgerald confirmed in a letter to Rep.
Henry Waxman (D-CA), then Chairman of the House Oversight Committee."
That is, Cheney participated in the investigation voluntarily without
the cloak of confidentiality. If he could do so, why won't future
officials? Melanie Sloan, CREW’s executive director, notes, "It is
astonishing that a top Department of Justice political appointee is
suggesting other high-level appointees are unlikely to cooperate with
legitimate law enforcement investigations. What is wrong with this
The Justice Deparment also filed a declaration noting that because
the Cheney interview covered "confidential deliberations" he held with
other senior administration officials, its disclosure "could chill
future internal discussions about matters of national importance, thus
limiting...full, frank, and open discussion." This separate declaration
also maintained that the Cheney interview can be withheld because it
also covered "confidential communications" he had with Bush. This is
the argument that the Bush administration routinely used, such as when
it opposed the release of information related to Cheney's energy task force.
By fighting the CREW lawsuit--adopting arguments made by the Bush
administration--the Obama administration is demonstrating that even as
it encourages greater transparency in government operations, it still
is reluctant to yield secrecy that applies to White House actions. For
instance, it is still seeking to block the release of White House visitors logs. Cheney, no doubt, is appreciative.