Keeping Secrets
The Bush administration is doing the public's business out of the public eye. Here's how--and why
From the start, the Bush White House has resisted efforts to disclose information about executive-branch activities and decision making. The energy task force headed by Cheney is just one example. In May 2001, the task force produced a report calling for increased oil and gas drilling, including on public land. The Sierra Club and another activist group, Judicial Watch, sued to get access to task-force records, saying that energy lobbyists unduly influenced the group. Citing the Constitution's separation of powers clause, the administration is arguing that the courts can't compel Cheney to disclose information about his advice to the president. A federal judge ordered the administration to produce the records, prompting an appeal to the Supreme Court.
Energy interests aren't alone in winning a friendly hearing from the Bush administration. Auto and tire manufacturers prevailed in persuading the administration to limit disclosure requirements stemming from one of the highest-profile corporate scandals of recent years. Four years ago, after news broke that failing Firestone tires on Ford SUVs had caused hundreds of deaths and many more accidents, Congress enacted a new auto and tire safety law. A cornerstone was a requirement that manufacturers submit safety data to a government early-warning system, which would provide clues to help prevent another scandal. Lawmakers backing the system wanted the data made available to the public. After the legislation passed, officials at the National Highway Traffic Safety Administration said they didn't expect to create any new categories of secrecy for the information; they indicated that key data would automatically be made public. That sparked protests from automakers, tire manufacturers, and others. After months of pressure, transportation officials decided to make vital information such as warranty claims, field reports from dealers, and consumer complaints--all potentially valuable sources of safety information--secret. "It was more or less a bait and switch," says Laura MacCleery, auto-safety counsel for Public Citizen, a nonprofit consumer group. "You're talking about information that will empower consumers. The manufacturers are not going to give that up easily."
Get out of jail free. Government officials, unsurprisingly, don't see it that way. Lloyd Guerci, a Transportation Department attorney involved in writing the new regulations, declined to comment. But Ray Tyson, a spokesman for the traffic safety administration, denies the agency caved to industry pressure: "We've listened to all who have opinions and reached a compromise that probably isn't satisfactory to anybody."
Some of the strongest opposition to making the warning-system data public came from the Alliance of Automobile Manufacturers. The organization, whose membership comprises U.S. and international carmakers, argued that releasing the information would harm them competitively. The Bush administration has close ties to the carmakers. Bush Chief of Staff Card has been General Motors' top lobbyist and head of a trade group of major domestic automakers. Jacqueline Glassman, NHTSA's chief counsel, is a former top lawyer for DaimlerChrysler Corp. In the months before the new regulations were released, industry officials met several times with officials from the White House's Office of Management and Budget.
The administration's commitment to increased secrecy measures extends to the area of "critical infrastructure information," or CII. In layman's terms, this refers to transportation, communications, energy, and other systems that make modern society run. The Homeland Security Act allows companies to make voluntary submissions of information about critical infrastructure to the Department of Homeland Security. The idea is to encourage firms to share information crucial to running and protecting those facilities. But under the terms of the law, when a company does this, the information is exempted from public disclosure and cannot be used without the submitting party's permission in any civil proceeding, even a government enforcement action. Some critics see this as a get-out-of-jail-free card, allowing companies worried about potential litigation or regulatory actions to place troublesome information in a convenient "homeland security" vault. "The sweep of it is amazing," says Beryl Howell, former general counsel to the Senate Judiciary Committee. "Savvy businesses will be able to mark every document handed over [to] government officials as `CII' to ensure their confidentiality." Companies "wanted liability exemption long before 9/11," adds Patrice McDermott, a lobbyist for the American Library Association, which has a tradition of advocacy on right-to-know issues. "Now, they've got it."
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