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Preservation Is Essential Part of Transparency

Early in President Bush’s first term, there was much discussion about his administration’s efforts to expand executive power and maintain high levels of secrecy. The energy task force was held up as a prime example. Vice President Cheney met secretly with former Enron chief Kenneth Lay and other captains of industry to plan the administration’s energy policy, while the public was left in the dark.

The administration continues to pursue these twin goals as vigorously as ever. For inexplicable reasons, however, its efforts have attracted limited public attention. Perhaps now that we are learning that the administration has taken its dedication to secrecy to a new level, by ensuring that the historical record is purged of evidence that might cast the administration in a less than favorable light, Americans will take notice.

In response to multiple Freedom of Information Act requests sent by Citizens for Responsibility and Ethics in Washington and others, including Judicial Watch and The Washington Post, for records created and maintained by the Secret Service of visitors to the White House and residence of the vice president, the administration claimed for the first time that these records were “presidential” and therefore not available under FOIA. If the administration prevails on this claim — now in federal court — a significant piece of historical evidence will be off-limits to the public.

For example, we know from visitor logs previously released by the administration that in the first two years of the Bush presidency, Americans for Tax Reform President Grover Norquist visited the White House on a weekly basis. From this we can glean the extent of Mr. Norquist’s influence on the administration’s tax policies.

Recently we have learned that the administration has gone a step further by ensuring that records are not even created in the first instance. Now-convicted former lobbyist Jack Abramoff was warned not to use White House e-mail addresses when communicating with White House officials. Similarly, documents released by the Department of Justice regarding the dismissal of eight U.S. attorneys in 2006 revealed that Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales, communicated with White House officials by sending them e-mails at accounts maintained by the Republican National Committee rather than their official White House e-mail addresses.

White House officials understood that if they used their assigned White House e-mail accounts, the records would be preserved as required by the Presidential Records Act and, at some point in the future, they would be available for public view. By using outside e-mail accounts, administration officials knew they could avoid preservation and, as a necessary consequence, avoid having to turn such records over in response to Congressional and other inquiries.

During the Clinton administration, there was a clear written policy that White House officials were required to use only their official e-mail addresses to ensure compliance with the Presidential Records Act. In fact, there was a specific prohibition on using outside e-mail accounts. Did the Bush administration retract this policy? If officials like Karl Rove are routinely using RNC e-mail accounts rather than the White House account, are these e-mails being preserved as required by law?

Congress currently is considering amendments to FOIA that would bring more transparency to the federal government and promote public disclosure under the act. Congress also should consider amending the Presidential Records Act to allow judges to hold officials legally accountable when they skirt the preservation requirements.

The administration, for its part, is working just as furiously to promote secrecy and ensure that the historical record it leaves behind is purged of potentially damaging evidence. As the administration nears its end and prioritizes legacy over legality, we can expect these efforts to intensify. The White House has made no secret of its goals; shame on us if we don’t pay attention.

Melanie Sloan is executive director of Citizens for Responsibility and Ethics in Washington. Anne Weismann is CREW’s chief counsel.

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