SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 1
January 5, 2009

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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NARA CANNOT ASSURE COMPLETE TRANSFER OF BUSH RECORDS

The impending transfer of Bush Administration records to the custody of the National Archives and Records Administration (NARA) will challenge the capacity of the Archives to absorb them because of their enormous volume and the diverse formats of various electronic records.

But there is also a fundamental question concerning the integrity of the transfer process, which relies on the good faith of executive branch officials and which can be subverted by design or neglect.

"There really is no practical way we know of for NARA to be assured that every document in paper or electronic form has been received from an agency," Dr. Allen Weinstein, the former Archivist of the United States, told Congress last year. "Nor can NARA police the records management practices of over 300 federal agencies to ensure that permanent records are not purposefully or unintentionally withheld from the National Archives. Federal agencies are expected to fulfill their statutory responsibilities."

"NARA must rely on the agency records officers, other agency officials, and a vigilant public and press to inform us of any such failure to act," he said.

As for presidential records in particular, Dr. Weinstein said "the incumbent President is solely responsible for ensuring that ... components of the Executive Office of the President adhere to the records requirements set out in [the Presidential Records Act]." Although the President is supposed to obtain the written views of the Archivist prior to any proposed destruction of non-permanent records, "the final disposal authority rests with the incumbent president... regardless of the Archivist's views."

See "National Archives Oversight: Protecting Our Nation's History for Future Generations," hearing before the Senate Committee on Homeland Security and Governmental Affairs, May 14, 2008 (esp. pp. 131-136):

An estimated 25,000 boxes of White House documents are to be transferred to the Archives, R. Jeffrey Smith of the Washington Post reported ("Bush E-Mails May Be Secret a Bit Longer," December 21). Electronic records of the Bush White House are believed to total 100 terabytes of information, or about 50 times the volume of electronic records left behind by the Clinton White House in 2001, Robert Pear and Scott Shane reported ("Bush Data Threatens to Overload Archives," New York Times, December 27, 2008).

Volume aside, the White House electronic records were often generated in non-standard formats using proprietary software that somehow must be accommodated by NARA.

"The biggest risk facing NARA that could disrupt a successful transition is our ability to ingest the electronic records of the White House," Dr. Weinstein said. A plan to address this risk was approved November 7, the New York Times reported.

Vice President Dick Cheney recently argued (at p. 24) that "The Vice President alone may determine what constitutes vice presidential records or personal records, how his records will be created, maintained, managed and disposed, and are all actions that are committed to his discretion by law" (as reported by Pamela Hess of Associated Press on December 18).

That view was disputed by Citizens for Responsibility and Ethics in Washington and historians who filed a lawsuit seeking to ensure compliance with the Presidential Records Act (PRA). "[The Vice President's] demand for unchecked discretion not only contravenes binding Circuit precedent, but ... is repugnant to our democratic ideals and the rule of law," they argued in a December 22 pleading.

NEW BOOK PROBES THE BUSH "FAMILY OF SECRETS"

What does it say about the American political system that someone like George W. Bush was able to ascend to the highest office in the land, despite his meager and ambiguous record?

In pursuit of an answer to that question, investigative journalist Russ Baker has constructed a full-fledged counterhistory of the last half-century as it pertains to the Bush family. He writes in his new book "Family of Secrets" that he discovered a "dimension of power" that conditions and distorts the American political process. It lies at the intersection of corporate oil interests, finance and intelligence, and the Bushes have been at the heart of it.

With a brief apology to the reader, Baker revisits the JFK assassination (and George H.W. Bush's peculiar response to it) and he embraces a radical reinterpretation of Watergate in which President Nixon is the target and victim of the conspiracy rather than its instigator.

"Family of Secrets" postulates a network of politically and financially powerful individuals working in concert and behind the scenes to advance their interests at the expense of the nation. Because the book consciously challenges the generally accepted record of several decades of public events, it assumes a burden of proof that it cannot fully discharge. It relies heavily on insinuation based on isolated facts, it emphasizes "relationships" as a primary manifestation of political allegiance and influence, and in the end it does not clearly state a significant hypothesis that could be corroborated or refuted by further investigation.

But Baker is an energetic reporter and a good storyteller. He has conducted prodigious research and interviewed both familiar and unfamiliar sources to produce riveting (if occasionally appalling) revisions of the JFK assassination and Watergate stories. Even readers who find his methodology unsound may profit from the fruits of his research. It is astonishing to learn, for example, that ousted CIA Director Allen Dulles was a contributor to the 1963 Encyclopedia Britannica yearbook entry on the Bay of Pigs. And I had forgotten, or never knew, that the Central Intelligence Agency refused a direct request from President Nixon to provide documents concerning the Bay of Pigs and other topics.

Baker makes a cogent case for a "deep" interpretation of the JFK assassination, Watergate and other events. He stresses the fact that Kennedy and Nixon each had real personal and political enemies who benefitted when these presidents were removed from office. In each case, he says, the Bush family was among the beneficiaries.

Because of its undisciplined use of historical data and the absence of rebuttal (the Bush family did not agree to be interviewed), "Family of Secrets" should not be the only book of recent history that anyone reads. But at its best, it provides a reader with an arsenal of new questions with which to interrogate and rethink the historical record.

CONSTITUTIONALITY OF FISA TO BE REVIEWED

A federal appeals court in Oregon will hold a hearing next month on a government appeal of a 2007 judicial ruling that the Foreign Intelligence Surveillance Act (FISA) is unconstitutional.

The FISA is the statute that regulates domestic intelligence collection, and generally requires judicial authorization for intelligence search and surveillance within the United States. Critics of Bush Administration electronic surveillance activities such as the "Terrorist Surveillance Program" have argued that they are unlawful because they circumvented the provisions of the FISA.

But the FISA itself, as modified by the USA PATRIOT Act, is unconstitutional, a federal court ruled on September 26, 2007.

That ruling came in response to a challenge by Brandon Mayfield, who was erroneously arrested in connection with the Madrid train bombings in 2004 based on a false fingerprint match and subsequent surveillance under the Foreign Intelligence Surveillance Act. The FBI later apologized for his mistaken arrest and provided a financial settlement. But Mayfield continued to challenge the legal foundation of the arrest.

He successfully argued that FISA, as modified by the PATRIOT Act, violates the Fourth Amendment because it eroded the requirement of probable cause as a pre-condition for obtaining a search warrant, and because it permitted warrants to be issued under FISA without a showing that the "primary purpose" of the search is to obtain foreign intelligence information (as summarized by Judge Vaughn Walker in a July 2008 opinion, at pp. 39-41).

Judge Ann Aiken of the District Court of Oregon agreed with this assessment in her September 2007 order and declared FISA unconstitutional.

The government promptly appealed that ruling, but the case has been dormant since May 2008. A hearing on the appeal has now been scheduled for February 5, 2009 at the Ninth Circuit Court of Appeals in Portland, Oregon.

It is not known whether the incoming Obama Administration will reconsider the pending appeal of the lower court ruling.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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