For the week of August 21 - 27, 2002

Beware Mr. Mobbs

Commentary by ADAM TANOUS

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President Bush has asserted a need for secrecy that is not in keeping with our political system.

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Secrecy is insidious in its own way. The obsession with secrets comes upon us when we are no more than 3 or 4. Even then we sense there is something special about them. That something special is, of course, power.

By their mere hushed existence secrets divide us. They affirm individuality in that those who are privy to them sense they are different from those who aren’t privy to them. Parents seem to intuitively know something is amiss with secrets as they are always telling kids: It’s not nice to keep them. The danger is that the self satisfaction brought on by secrets can so easily distort perspective. To feel special by being privy to secrets is one thing, but with kids it can be just a step away from discriminating among peers for no good reason. With adults that feeling of specialness can transform into megalomania and consume us.

Things get even trickier when we, as a nation, try to maintain a democracy that is infused with secrecy. An effective democracy is predicated upon access to information, in that citizens need it to make decisions. It is the food for the living, breathing and, albeit, clumsy beast that is democracy.

The Bush administration has reached a level of obsession with secrecy that is quickly undermining the balance of power in government. On three separate issues—the handling of prisoners in the war on terrorism, our potential war with Iraq and a recent presidential directive regarding historical records—President Bush has asserted a need for secrecy that is not in keeping with our political system.

Yaser Esam Hamdi has been discussed in this column before, but his case seems to get more bizarre by the day. Hamdi is an American citizen captured in Afghanistan with the Taliban forces. He is being held in Norfolk, Va., as an "unlawful enemy combatant," a designation without any constitutional protections. There are no charges, therefore no trial and no access to counsel. Unlawful enemy combatants don’t even get the benefits of being classified as prisoners of war.

A battle is being waged in U.S. District Court in Virginia over how the government decides to put people in this Star Chamber of sorts.

The government lawyers, in defense of their policies on this point, submitted a declaration of facts by Michael H. Mobbs, a special advisor in the Defense Department. Upon questioning by U.S. District Court Judge Robert G. Doumar, the government lawyers refused to say what qualified Mr. Mobbs—other than the fact that he was involved with detainee issues—to make such a momentous determination. When the judge pointed out that the Mobbs declaration has no mention of how long Hamdi should be held—whether it is a few months, a year, or 10 years—the government lawyers said they didn’t know how long they would hold him. Nor is there mention in the document what Hamdi actually did, nor why he was brought to the Navy brig. The government refused to offer more information. The upshot of the government case seems to be this: If Mr. Mobbs says Hamdi should be held indefinitely, then we should hold him. The judge has said he will soon rule on whether this mysterious Mobbs declaration is enough to throw out due process.

Do we really want a citizen, for all practical purposes, to vanish from the legal system simply on the obtusely worded statement from a "special advisor?" It is not enough to simply win this war on terrorism. We have to win with our system of justice and democracy still intact.

The case for war with Iraq is equally disturbing. For weeks now, the president, vice president and other top officials—though notably not the heads of the armed services nor the secretary of state—have beat the war drum for a preemptive attack on Iraq. Yes, we’ve all been told that Iraq is part of the "axis of evil," and we are told he may be building weapons of mass destruction. There have been implications that Iraq was somehow involved with the September 11 attacks.

But we’ve had no hard information as to why President Bush is so convinced of the imminent threat to the U.S. that he is willing to lose American lives, spend billions of dollars and risk widespread instability in a part of the world that seems like a gas can looking for a match. I, too, suspect Hussein was somehow involved in Sept. 11 and that he is building biological weapons. But that’s a suspicion. When the government is willing to share some information as to any of the above suspicions being true, I’d say let the bombs fly. Just stating a country threatens our national security, however, is not enough in my view to spill blood, ours or theirs.

It is a difficult task, but the president must figure out a way to release intelligence information in making his case without compromising agents or troops. So far he has resisted doing so, hoping, I think, that the electorate will simply trust him to make the call.

A last point may seem more benign compared to cases for war and holding combatants, nonetheless, the recent battle over presidential records is more evidence of the president’s obsessive control over information that borders on being anti-democratic.

The Freedom of Information Act (FOIA) allows any citizen to have access to government documents, whether for historical documentary reasons or simply reasons of curiosity. Classified documents, however, are exempt for 25 years. Presidential records under the Presidential Records Act, for instance, must be released 12 years after a given president leaves office.

In January 2001, over 70,000 records from the Reagan presidency were scheduled to be released. President Bush blocked that release by issuing an executive order that, among other things, gave for the first time in history the vice president—in this case his father—executive privilege. President Bush also asserted an incumbent president’s right to prevent disclosure of documents older than 12 years. To justify his position President Bush cited national security, despite the fact that classified documents would not be released anyway. It is a brazen attempt by the president to control information that is not his to control.

In passing the FOIA and the Presidential Records Act, the legislative branch established the public’s right to government documents. In so doing, the Congress did its part to preserve an accurate historical record. President Bush has been circumventing this effort with his executive order.

Over time, the balance of power among the executive, judicial and legislative branches of government always seems to shift in the wind a bit. But every indication is that this administration, under the blanket rationale of national security, is hoping to tilt the scales more than a bit to the side of the executive branch.

 

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