Froomkin also received a question about the FOIA legislation that President Bush signed, asking whether there was a signing statement attached to it. There of course was not a signing statement, which had some of his readers scratching their heads. In particular, a reader from Hartford, CT wrote:
I read over the weekend that Bush signed some kind of FOIA-related legislation, but didn't read whether he attached a signing statement. I can't imagine he'd sign anything that required more disclosure without exempting himself from it. What do you know?
Froomkin's answer was not the whole story. Froomkin noted, correctly, that most of the White House is exempt from FOIA. What he didn't say, and what is important to remember, is that a key provision of the bill President Bush signed was stripped out in conference by the Senate in order to get the bill to the president's desk, and then to get him to sign it. As the Federation of American Scientist's "Secrecy Report" stated yesterday, the policy established by former Attorney General John Ashcroft in the days following the 9/11 attacks is still in place. Back then, AG Ashcroft sent everyone with an Executive Branch listing a memo urging them to withhold information from FOIA requests until the potential ramifications of release could be assessed. Simply put, reject any FOIA request. To give this order an exclamation point, Ashcroft assured any Executive Branch agent that the Department of Justice would back him or her up if sued in court.
The Democrats in the House had originally pushed through a bill that negated the Ashcroft policy, putting in place a policy "establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret." But Representative Tom Davis, a Republican from Virginia (and earlier considered to be a main contender for the Senate seat vacated by the upcoming retirement of John Warner) defended the Ashcroft position:
...the provision repealing the so-called Ashcroft memorandum was eliminated.... The Ashcroft memorandum established that the administration would defend agency decisions to withhold records under a FOIA exemption if the decision was supported by a sound legal basis, replacing the pre-9/11 Janet Reno standard of always releasing information absent foreseeable harm.
In another area involving secrecy (and showing consistency among the Bush administration as it leaves office), the FAS has filed a complaint with the Department of Justice's "Office of Professional Responsibility" asking it to answer why Steven Bradbury, who, in his position as head of the OLC, refused to abide by an executive order issued by President Bush (this can't bode well for Bradbury's bid to make that OLC stint last until January, 2009). The issue here involves the lack of cooperation by the vice president's office when it was asked for information by the Information Security Oversight Office (ISOO). As you recall, it was this issue where the vice president attempted to wiggle out of compliance by arguing that it was not an executive office, but rather a legislative one due to the vice president's role as the President of the Senate. The president's executive order required the Justice Department to adjudicate any problems with compliance, which the agency refused to do.
