When I learned last December that President-elect George W. Bush had decided to appoint Senator John Ashcroft to head the Department of Justice, I dashed off a letter congratulating the senator and offered him a little free advice. Senator Ashcroft had expressed concern about the culture of corruption that had characterized the Clinton administration. With one exception, the Republicans failed to use their investigative powers to expose and obtain prosecution of high government officials for serious crimes, ranging from perjury about sex to sharing secret technology with China in return for campaign contributions.
The one case that Independent Counsel Kenneth Starr referred to Congress as an impeachable offense was Bill Clinton’s lying under oath about not having sex with Monica Lewinsky. Starr backed away from recommending that Congress act on the far more serious crime of the White House arranging for the payment of over $700,000 to Webster Hubbell, the disgraced former associate attorney general, to buy his silence. With the President leading the way, Attorney General Reno saw to it that high government officials were rarely prosecuted. Perjury, the crime for which Alger Hiss had been convicted and sent to prison in 1950, was virtually decriminalized for government officials.
The advice that I gave Attorney General-designate Ashcroft was to take steps that would make it more difficult to cover up lying by high government officials. I recommended rescinding Executive Order 13039. President Clinton issued it to keep the truth about the cause of the crash of TWA Flight 800 from being revealed by the Navy personnel that recovered the wreckage. This executive order told those involved in the salvage operation that they should keep their mouths shut if they valued their jobs. By rescinding it, President Bush would send the message that they were free to tell what they found on the ocean floor that the Clinton administration wanted hidden.
“Another important move you could take,” I wrote, “would be to make it clear to all departments and agencies that they should quit stonewalling on Freedom of Information Act (FOIA) requests when they have no legitimate reason for doing so.” I pointed out that it is usually necessary to sue to get information released. And when you sue, the Justice Department supplies lawyers to the defendants to help them get away with holding back anything of significance.
I suggested that it would be far better for Justice Department lawyers to advise the defendants to comply with the Freedom of Information Act instead of helping government agencies flout it. Larry Klayman’s Judicial Watch has shown how useful the FOIA can be in exposing corruption. But success depends a lot on suing and getting the cases assigned to judges who appreciate the importance of the act. Clinton-appointed judges tend to favor government officials anxious to cover up their misdeeds.
Executive Order 13039 has not been rescinded. The Navy personnel who found evidence that missiles shot down TWA Flight 800 are no more free to tell the truth today than they were five years ago. Federal workers have not been told that it is their right and their duty to expose official wrongdoing. The whistleblowers that were punished by the Clinton administration have not been restored to their jobs, but many of their persecutors remain in place.
As for FOIA requests, Attorney General Ashcroft has done just the opposite of what I suggested. On October 12, he sent word to the federal government agencies that if they legitimately reject FOIA requests citing law enforcement or national security grounds, they will be backed by the Justice Department. The government always claims that its rejections of FOIA requests are legitimate, and the Justice Department rarely refuses to defend the refusals. Attorney General Ashcroft’s message was a reaffirmation of the policy that has enabled government agencies to continue to cover up the crimes of the Clinton administration.
Under John Ashcroft, the Justice Department has sent out letters claiming that there was nothing wrong with the official investigation of the crash of TWA Flight 800. If so, why hasn’t Executive Order 13039, which seals the lips of those who brought up the wreckage, been rescinded? Why does the government continue to reject FOIA requests for, among other things, radar data, satellite imagery and analyses of the shrapnel found in the victims’ bodies if it has nothing to hide? Why, Mr. Ashcroft, has my four-page letter detailing the flaws in the official investigation and the demonstrable lies told by officials gone unanswered by your Criminal Division for over two months?