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Thursday, June 09, 2005

Soros-backed Group's Attack on Ashcroft Is a Serious Setback for FOIA Reformers

Former Justice Department Office of Public Affairs head Bert Brandenburg's report - "Open Government in the Ashcroft Era: What Went Wrong, and How to Make it Right" - was made public today during a panel at the National Press Club.

I was privileged to serve as a member of the panel, which was expertly moderated by PBS's Terence Smith and included in addition to Brandenburg and I Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press, and retired reporter Ron Ostrow, who covered the Justice Department for many years for The Los Angeles Times.

Brandenburg's report was published by Watching Justice, which is associated with one of the many George Soros-financed groups, the Open Society Policy Center.

I'm afraid I was the skunk at the party this morning. The first chapter of Brandenburg's report is an extremely harsh 22-page critique of former Attorney General John Ashcroft's approach to dealing with the national media.

Ashcroft's approach is contrasted with that of his predecessor, Janet Reno, during the Clinton administration. As you can imagine, Brandenburg thinks the Reno era was vastly more friendly to open government than was the Ashcroft reign at Justice.

I was the skunk because I pointed out that, whatever one thinks of the Ashcroft media strategy, it has little to do with the case for reforming the federal Freedom of Information Act, as proposed by Sen. John Cornyn, R-TX, in his "Open Government Act of 2005." Sen. Patrick Leahy, D-VT, is the major Senate co-sponsor.

In fact, I argued, the Brandenburg report is illustrative of the constant bashing of Bush and Ashcroft that typifies so much of the FOIA reform effort's public discourse and it is that rhetoric which is creating unnecessary obstacles on Capitol Hill.

Here are my talking points in making that argument:

1. The biggest challenge for FOIA reformers on Capitol Hill is persuading the conservative GOP majority in Congress that transparency is their best friend and Big Government’s worst enemy. Portraying a kind of Clinton administration FOIA Camelot under Janet Reno while constantly bashing Bush administration “spin and secrecy” is exactly the wrong strategy, yet for the most part it’s the only strategy FOIA reformers seem to know. Do we want to score cheap political points against Bush or persuade GOPers on the Hill to vote for FOIA reform?

2. It is not credible to claim – based on 64 anonymous sources in a mere 22 pages - that the Clinton FOIA Camelot ended the day John Ashcroft walked into the Justice Department. (Chapter One of Brandenburg). Brandenburg says in his intro that he was “not interested in a simple rehash of the past few years or in bashing Attorney General Ashcroft and his staff.” Yet Brandenburg’s report does exactly that and does so in language so divisive and hard-edged it might even make a highly partisan Democrat like Henry Waxman wince.

3. Brandenburg distracts officials from dealing with more significant problems by exaggerating the importance of Bush political appointees, the Ashcroft Memo and the Justice Department’s role in guiding federal agencies on FOIA issues. At least 99.99 percent of all FOIA requests are handled entirely by career federal employees and are never even seen by a political appointee. Political appointees represent only .00119 percent of all executive branch workers. There are 2.4 million career employees, compared to 2,830 Bush political appointees, according to the U.S. Office of Personnel Management (OPM).

4. The fundamental FOIA problem is not political appointees of any administration, but the complete absence of negative consequences when career employees who administer the law or the careerists they must depend upon violate the law. No career or politically appointed federal employee has ever been fired for violating the FOIA. It truly is a law with no teeth.

5. Emphasizing the Ashcroft memo and the Justice Department role in FOIA misrepresents the real problems for two reasons: First, career employees can ignore orders from higher ups without fear. This is why 61 percent of the agencies surveyed in 2003 by the National Security Archive said they simply forwarded the Ashcroft memo to the FOIA officers with little or no change in how they administer the law. Second, whether the Justice Department defends agencies or not in FOIA cases is essentially irrelevant because so few FOIA requestors can afford to take the government to court.

6. The Justice Department has little effect on how agencies administer the law because Justice devotes virtually no resources to FOIA enforcement. With a total workforce of 104,383, according to the latest available OPM data, Justice’s Office of Information Policy's 42 employees represent 0.0004 percent of the Justice Department workforce.