Obama’s Got Promises to Keep — and He’s Keeping ‘Em

Pres. Obama took another step yesterday toward reversing the extreme secrecy of the Bush years: He initiated a new process that will make it much harder for a president — any president — to invoke executive privilege in order to block Americans’ access to government documents:

On his first day in office, President Obama put former president Bush on notice. His administration just released an executive order that will make it difficult for Bush to shield his White House records–and those of former Vice President Dick Cheney–from public scrutiny by invoking the doctrine of executive privilege. Shortly after taking office, Bush handed down his own executive order, amending the Presidential Records Act to give current and past presidents, along with their heirs, veto power over the release of presidential records, which are considered the property of the American people.

“[Obama]’s putting former presidents on notice that if you want to continue a claim of executive privilege that [Obama] doesn’t think is well-placed, you’re going to have to go to court,” says Anne Weismann, the chief counsel for Citizens for Ethics and Responsibility in Washington (CREW).
In Obama’s remarks on Wednesday morning, he said that, “Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.” The effect of that particular phrase is enormous, as emphasized by the response of a reader over at Talking Points Memo who works for the Justice Department. “That highlighted phrase has signaled a significant discussion around these parts.” You can be certain that Obama’s early moves to promote government transparency and accountability will be the subject of discussion and debate for a long time to come.

The effect is enormous because of what it suggests: that the Obama administration might be able to apply the new rule “retroactively to previous administrations, making it easier to pry loose records that the Bush White House has fought to keep secret[.]”

But could they?

According to Anne Weismann, a lawyer for Citizens for Responsibility and Ethics in Washington, the tentative answer is yes.

As David notes, the order says:

Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law.

As a result, Weismann told TPMmuckraker, the order could affect any case in which the White House has claimed executive privilege over presidential (or, to be clear, vice presidential) records. Most important, it would subject those claims to review by the Justice Department. “It does have the potential to impact ongoing litigation,” she said.

Steven Aftergood, of the Federation of American Scientists, told McClatchy that Obama is sending a clear signal about the value his administration attaches to transparency and openness in government:

The new order could expand public access to records of President Bush and Vice President Dick Cheney in the years to come as well as other past leaders, said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

“It’s extraordinary that a new president would address this issue on his first full day in office,” Aftergood said. “It signifies the great importance he attaches to open, accountable government. The new order suggests President Obama will take a narrow view of executive privilege and assert it in a much more limited way than what we’ve seen in the recent past.”

Under Bush’s order, former presidents had broad ability to claim executive privilege and could designate others including family members who survive them to exercise executive privilege on their behalf.

Obama’s new order gives ex-presidents less leeway to withhold records, Aftergood said, and takes away the ability of presidents’ survivors to designate that privilege.

Ed Morrissey calls Obama’s action “good policy“:

Obama’s one significant legislative accomplishment came when he partnered with Tom Coburn to force the federal government to create a searchable database of the federal budget.  This follows that effort at openness, and it couldn’t come at a better time.  When the federal government begins to see itself as a guarantor of private industry and throws tons of money at every wailing mouth, we need to have access to the records of how those decisions get made, both in the White House and throughout the bureaucracy.  This executive order will facilitate that.

I believe in executive privilege for presidents to work effectively with their advisors, but the Bush administration made a big mistake with these two orders.  Government belongs to the people, and it should be as open and accountable as possible.  Only national security should keep the internal workings of our government from the eyes of the people who give it its power, or eventually we will become its slaves instead of its master.  Extending executive privilege beyond death was particularly senseless, as no one elected family members to make decisions about what can and cannot be available for review by citizens.

Ed’s response is not a total surprise, because Ed does occasionally do just that — surprise. He is a conservative Republican, but still, he has a more reasonable, fair approach for the most part.

On the other hand, there are those on the right who will never be anything other than intemperate crackpots. Cernig takes down one such:

… At least one other conservative thinks this executive order is “nothing more than him throwing a meaty bone to his constituency who hopes to be able to find out “The Truth” about the Bush administration’s alleged plans to turn this nation into a dictatorial theocracy.” That’s simply mean-spirited hyperbole, hiding an implied argument. Who would really want to argue, out there in plain words, that stopping Bush’s bosses (the American people) from finding out what’s in millions of his administration’s emails is a good thing?

Cernig links to her, so I don’t have to.

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