No Comment — June 19, 2009, 11:34 am

Obama Justice Department Loves Secrecy

More evidence of the Obama team’s repudiation of its commitment to transparency, this time as it tries to keep Dick Cheney’s darkest secrets. Today’s Washington Post reports (on page A17, which is where the paper generally buries the truly important news):

A federal judge yesterday sharply questioned an assertion by the Obama administration that former Vice President Richard B. Cheney’s statements to a special prosecutor about the Valerie Plame case must be kept secret, partly so they do not become fodder for Cheney’s political enemies or late-night commentary on “The Daily Show.” U.S. District Judge Emmet G. Sullivan expressed surprise during a hearing here that the Justice Department, in asserting that Cheney’s voluntary statements to U.S. Attorney Patrick J. Fitzgerald were exempt from disclosure, relied on legal claims put forward last October by a Bush administration political appointee, Stephen Bradbury. The department asserted then that the disclosure would make presidents and vice presidents reluctant to cooperate voluntarily with future criminal investigations.

But career civil division lawyer Jeffrey M. Smith, responding to Sullivan’s questions, said Bradbury’s arguments against the disclosure were supported by the department’s current leadership. He told the judge that if Cheney’s remarks were published, then a future vice president asked to provide candid information during a criminal probe might refuse to do so out of concern “that it’s going to get on ‘The Daily Show’” or somehow be used as a political weapon.

Let’s focus a bit on this. The subject is Cheney’s FBI interview on the subject of the outing of a covert CIA agent. As it happens, that’s a felony, even if it’s done by a vice president. This is a matter of intense public interest and concern, particularly given a federal prosecutor’s decision to treat Cheney as an unindicted co-conspirator in a criminal prosecution that secured the conviction of his chief-of-staff. It is a fair inference from Patrick Fitzgerald’s comments that he believed that Cheney was guilty of criminal conduct but believed that he had technical problems in building a case–or that political considerations weighed in opposition to it. Disclosure of the interview notes would give the public a strong sense of Cheney’s culpability. At a time in which Cheney has reasserted himself into the public sector, emerging as the principal spokesman of a disintegrating G.O.P., public interest in his possible involvement in a criminal conspiracy is hardly a matter of historical interest.

A career Justice Department spokesman is saying that Cheney’s secrets should stay secret because a vice president in the future might refuse to cooperate with a criminal investigation if he knew his remarks might make him the subject of public ridicule. Am I understanding that correctly? An elected public official fully understands that his or her conduct and statements in a criminal investigation may be exposed and—particularly if they prove to be false or misleading, or if they disclose criminal dealings—may subject him or her to public ridicule. That’s what we call democratic process.

The Bush Justice Department never saw things that way. It made historically unprecedented use of prosecutorial power as a political tool to influence elections and to implement its partisan political agenda. On the other hand, it viewed the White House as a site of executive prerogative, and it disdained entirely the notion of accountability. No surprise there. And no surprise that Steven G. Bradbury would be allergic to disclosure. This is the same Steven G. Bradbury who authored a series of torture memoranda, and in displays of characteristic cowardice kept them secret and then revoked the earlier torture memoranda just as he was packing his desk to leave. It’s easy to understand why Mr. Bradbury craves secrecy. Indeed, he apparently is having a very difficult time finding a job, and a full vetting of his conduct in office would make things even tougher for him.

But Jeffrey M. Smith, a career Justice Department attorney, claims that his new bosses adhere to the same reasoning and viewpoints as their predecessors. On this point we need to know more. Who are these nameless Obama Justice functionaries who bend before the idol of secret government? They really should have an opportunity to explain themselves before a Congressional committee. And it would have been better had they explained themselves before their confirmation. Obama came to Washington promising an era of transparency in government; Eric Holder promised to uphold this commitment in the Department of Justice. So far, their decisions reflect straight-line continuity with the abuses of the Bush regime. The litigation may be about Cheney’s dark secrets, but they’re obviously focused on their own dark secrets to come.

The solution for this problem is for Judge Sullivan to make his own assessment. If he upholds their conclusions, I’d be satisfied. I’d also be shocked. The arguments they have made in defense of secrecy are more evidence of the arrogance and intoxication of power.

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