How the Bush Administration Legalized Intelligence Deceptions, Assassinations, and Aggressive War By Jeremy Brecher and Brendan Smith How has the Bush administration gotten away with such apparently illegal acts as hiding intelligence reports from Congress, creating secret prisons, establishing death squads, kidnapping people and spiriting them across national borders, and planning unprovoked wars? Part of the answer lies in the administration's deliberate effort, initiated even before September 11, 2001, to tear down any existing legal and institutional means for preventing, exposing, or punishing violations of national and international law by American officials. Back in 2002, Adriel Bettleheim wrote in the Congressional Quarterly that Vice President Dick Cheney "considers it the responsibility of the current administration to reclaim those lost powers for the institution of the presidency." Indeed, the Bush administration has tried to remove all conceivable restrictions on the "imperial presidency," setting its sights in particular on dismantling the Freedom of Information Act, the Intelligence Oversight Act, and the War Powers Resolution. Restoring limits on the power of the executive branch to conceal information, tell (and hide) lies, make war at its own discretion, or kidnap, torture, and kill without interference from Congress, the courts, and the public will be crucial tasks, if future Abu Ghraibs are to be prevented. The Freedom of Information Act provides a good example of the constraints Cheney aimed to remove. Essentially a sunshine law passed by Congress in 1966, the FOIA requires that government agencies disclose their records upon written request. The Act provides nine "exemptions" to the public's right of access, but in the Clinton years Attorney General Janet Reno advised agencies that information should be released as long as it did "no foreseeable harm." Shortly after the 9/11 attacks, Attorney General John Ashcroft issued a sweeping memorandum which interpreted out of existence much of the FOIA, discouraging government agencies from releasing any information that could conceivably be withheld. ("Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.") Department and agency heads who decided to withhold records were "assured that the Department of Justice will defend your decisions" unless they lacked a sound legal basis -- as determined by the administration itself. Ashcroft's memo advocated broad interpretation of the exemptions, particularly Exemption 5 which protected agency and interagency memos. Subsequent communications recommended that government agencies withholding requested information cite as well Exemption 2, regarding agency personnel rules and practices, and Exemption 4, regarding proprietary interests. A recent study by the Coalition of Journalists for Open Government comparing the handling of FOIA requests in 2000 and 2004 found that Exemption 2 was cited three times more often in 2004; exemption 5, almost twice as frequently; and Exemption 4, 68% more often. More important than the rising number of exemptions has been the kind of information restricted. By far the greatest part of what the public has so far learned about prisoner abuse, torture, and other criminal acts at Abu Ghraib, Guantanamo, and elsewhere by government and military officials resulted from FOIA requests that were first denied by government agencies, and only then ordered fulfilled by the courts. The same goes for evidence that such criminal actions were encouraged by high government officials -- witness the FBI emails from Guantanamo, released only by order of the courts, indicating that abusive interrogation techniques had been authorized by "an Executive order signed by President Bush." Right now the Bush administration is trying to further restrict the use of the FOIA. The pending defense and intelligence authorization bills, for instance, include language that would empower the director of the Defense Intelligence Agency (DIA) to place its "operational files" completely outside the purview of the FOIA. This would stop the ACLU and other human rights organizations from continuing to use FOIA requests to extract crucial hidden documents from the administration and so expose abuses like those at Abu Ghraib and Guantanamo. The National Security Archive, a research institute at George Washington University that collects and publishes documents acquired through the FOIA, calls the legislation the "Abu Ghraib Protection Act."