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Context of 'February 17, 2006: Defense Department Suggests Released Guantanamo Prisoners Detained Further to Avoid Negative Press Coverage'

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The presidential papers of Ronald Reagan are scheduled to be released to the public (by Reagan’s own decision), but on his first day in office, Bush invokes a clause in the Presidential Records Act (PRA) to allow him 30 days to “review” the papers before releasing them. He will continue to “review” them every month until November 2001. Then Bush will issue an executive order giving him essentially carte blanche in deciding if and when any presidential papers will ever be released (see January 20-September 10, 2001 and November 1, 2001). The standard of the 1978 Presidential Records Act is to make presidential records and documents available after twelve years, if not voluntarily made available sooner, and with some obvious exceptions such as classified materials concerning national security. The first president to whom the new law applies is Ronald Reagan, and his vice-president, George H.W. Bush. The Reagan library has already released, or is readying for release, all but about 68,000 pages. The law provides that an incumbent president can double-check the release to ensure it falls within the law’s provision. According to the Act, the 68,000 pages are to be released now. Bush’s order will declare that not only can a former president assert executive privilege over his papers against the will of the incumbent president (a measure Reagan instituted just before he left office) but that a sitting president could also block the papers of a predecessor, even if that predecessor had approved their release. The implications of this change are breathtaking. “It’s pretty fishy,” says Anna Nelson, an American University history professor. “The precautions on ‘national security’ are extreme. These are not Iran-Contra papers.” Steve Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, says, “This is a test of Congress to see how much the administration can get away with. It is not at all surprising the executive branch would want to operate in secret. The question is, How much will Congress accept?” [Nation, 2/7/2002; Dean, 2004, pp. 89-90]

Entity Tags: George W. Bush, Steven Aftergood, Anna Nelson, Ronald Reagan

Timeline Tags: Civil Liberties, Iran-Contra Affair

George W. Bush signs Executive Order 13233 which limits public access to papers of all presidents since 1980. A 1978 law provided for the release of presidential papers 12 years after the president leaves office, so Ronald Reagan’s papers would have been released next year. Reagan issued an order in 1989 that called for disclosure of most of his official papers 12 years after he left office but under the new executive order the papers can be kept secret even if the president in question wants them released. President Bush’s father was vice president during the Reagan administration. [Seattle Post-Intelligencer, 11/8/2001] The Guardian notes that now Bush’s “personal papers detailing the decision-making process in the current war on terrorism could remain secret in perpetuity.” [Guardian, 11/2/2001] In March 2001, Bush signed a temporary order delaying the release of these papers for 90 days, and then signed for another 90 day delay before signing this order making the change permanent (see January 20, 2001). [New York Times, 1/3/2003]
'Executive Fiat' - Bush’s executive order radically reforms the PRA and unilaterally imposes limitations never contemplated by Congress. Bush is, according to former Nixon White House counsel John Dean, “in essence… repealing an act of Congress and imposing a new law by executive fiat.” If not overturned by Congress or lawsuits, the executive order mandates the following, according to Dean:
bullet Former presidents can keep their papers sealed indefinitely.
bullet Vice presidents have the power to invoke executive privilege, an authority limited to the president since 1969.
bullet The burden shifts from a presumption to release presidential documents unless good cause exists to keep them sealed, to the opposite, where an applicant must show good cause why a set of documents should be unsealed.
bullet Any request to release a former president’s papers must be approved by both the former president and the current incumbent. Either one’s objection keeps the papers sealed.
bullet “Representatives of former presidents” may invoke executive privilege after a former president’s death. Dean will write, “Although there is no constitutional basis whatsoever for this, under Bush’s order such a right can be passed from generation to generation, to friends, anyone.”
Tom Connors of the Society of American Archivists will say, “What seems to be coming out of the [Bush-Cheney] administration is the idea that public information is a dangerous thing.” Historian Hugh Davis Graham, who will, before his death, take part in a lawsuit to overturn the order, will observe, “George W. Bush has a fetish for secrecy. And unless this executive order is overturned, it will be a victory for secrecy in government—a victory so total that it would make [former president Richard] Nixon jealous in his grave.” Dean will add, “Bush and Cheney assumed office planning to take total and absolute control of executive branch information. The truth will be what they say it is. They will decide what the public should know and when, if ever.” [Dean, 2004, pp. 89-92]

Entity Tags: Society of American Archivists, Bush administration (43), Tom Connors, George Herbert Walker Bush, Ronald Reagan, George W. Bush, John Dean, Hugh Davis Graham

Timeline Tags: Civil Liberties

A Bush administration official sends an e-mail to senior members of the Defense Department’s Transportation Command, including General Norton Schwartz, who later becomes the Air Force chief of staff. The e-mail recommends that a set of prisoners slated for release from Guantanamo be detained longer for fear of negative press coverage. The e-mail will be released three years later as part of an American Civil Liberties Union (ACLU) Freedom of Information Act (FOIA) request (see February 12, 2009). The name of the author of the message will be redacted from the document. It reads in part: “We may need to definitely think about checking with Southcom to see if we can hold off on return flights for 45 days or so until things die down. Otherwise we are likely to have hero’s welcomes awaiting the detainees when they arrive.… It would probably be preferable if we could deliver these detainees in something smaller and more discreet.” The e-mail forwards correspondence entitled “US Getting Creamed on Human Rights,” which cites international news coverage of UN reports on conditions at Guantanamo. The e-mail cites that press coverage, along with “lingering interest in Abu Ghraib photos,” all of which “adds up to the US taking a big hit on the issues of human rights and respect for the rule of law.” In 2009, reporter Liliana Segura will observe: “The line fits neatly with the rest of what we know about the Bush administration’s philosophy: that perceptions of abuse were worth worrying about; the abuse itself? Not so much.” Gitanjali Gutierrez, a lawyer with the Center for Constitutional Rights, will add: “It is astonishing that the government may have delayed releasing men from Guantanamo in order to avoid bad press. Proposing to hold men for a month and a half after they were deemed releasable is inexcusable. The Obama administration should avoid repeating this injustice and release the innocent individuals with all due haste.” [Center for Constitutional Rights, 2/12/2009; AlterNet, 2/13/2009]

Entity Tags: Gitanjali Gutierrez, American Civil Liberties Union, Bush administration (43), Center for Constitutional Rights, US Southern Command, US Department of Defense, Norton Schwartz, Obama administration, Liliana Segura

Timeline Tags: Civil Liberties

Michael Hayden, in the last days of his position as CIA director, defends the agency’s use of secret prisons and extreme interrogation methods on suspected terrorists. Hayden claims the techniques and practices helped prevent new terrorist attacks, though he refuses to provide evidence of this claim, and says that they were done “out of duty, not out of enthusiasm.” Hayden says the CIA detainee program should not be subject to a public investigation, because the program was made legal by secret Justice Department memos (see January 28, 2009) and some members of Congress were informed of the program’s existence. In addition, a public investigation could possibly damage the careers of CIA officers and the agency’s espionage operations. “We are asked to do things routinely that no one else is asked to do, that no one else is allowed to do,” Hayden says. “You can’t do this to these people.” Asked if he was concerned that Attorney General-designee Eric Holder unequivocally termed waterboarding as torture, Hayden responds, “It’s an uninteresting question to the Central Intelligence Agency.” He continues: “We don’t do that. We haven’t done it since March 2003, and we don’t intend to do it. What the agency has done in the past, what it is doing now, what it will do in the future is based on the best legal counsel it has at the time.” Hayden says he was “heartened” by President Obama’s recent remarks that the nation must “move beyond” the Bush years. [McClatchy News, 1/15/2009]

Entity Tags: Michael Hayden, Central Intelligence Agency

Timeline Tags: Civil Liberties

President Barack Obama issues an executive order limiting the ability of former presidents to block the release of records from their time in the White House. Obama’s order overturns an executive order from former President Bush (see November 1, 2001) that is currently the subject of a federal lawsuit, and was found in part illegal by a federal judge in 2007. Obama’s order invalidates Bush’s order entirely. Obama’s order allows former presidents to ask the National Archives to keep certain documents private, but strips their power to compel the Archives to do so. The order also covers former vice presidents and the families of deceased presidents. “It’s a great signal to send on the president’s first day in office,” says Scott Nelson, a lawyer with the civil liberties group Public Citizen, which led the challenge to Bush’s order. Nelson says the order will make it easier for researchers to gain access to White House records.
Strips Power from Former Executives - Under the Presidential Records Act, former presidents can restrict access to some of their records, including confidential communications with advisers, for up to 12 years. Bush’s order extended that restriction indefinitely, and gave former vice presidents and even the families and heirs of deceased presidents the same power to restrict documents. Obama’s order limits claims of executive privilege to records concerning national security, law enforcement or internal communications; it also specifies that only living former presidents may request that papers not be made public, and gives them 30 days to say so once they get word of the archivist’s intention to release records. The order gives the Obama administration and the National Archives, not the former executives, the final decision-making power. Under Obama’s order, former Vice President Dick Cheney can no longer block access to records from his records during his eight years in the White House. Cheney is engaged in a lawsuit to block access to his vice-presidential records. [Washington Post, 1/21/2009]
Wide-Ranging Impact - Experts agree that the executive order could have wide-ranging impacts on a number of issues relating to the Bush administration. Douglas Kmiec, a conservative law professor and an expert on executive privilege, says the order could strongly impact current battles over Bush’s records, “whether it be the dismissal of US attorneys, whether it be other assertions of executive privilege dealing with White House emails and the like.” It could also affect investigations into the outing of CIA agent Valerie Plame, and the Bush administration’s efforts to precipitate a war with Iraq. [TPM Muckraker, 1/22/2009] Neil Eggleston, who served as White House counsel in the Clinton administration, says he believes the Obama order is specifically designed to pry loose information from the Bush administration about such issues. “This is absolutely about all those issues,” he says. In a sense, Eggleston continues, it is an order to the National Archivist: “It says, ‘Archivist—if Bush calls up and says don’t release certain papers, don’t listen to what he says, listen to what I say.’” [TPM Muckraker, 1/23/2009]

Entity Tags: National Archives and Records Administration, Barack Obama, Bush administration (43), George W. Bush, Richard (“Dick”) Cheney, Presidential Records Act, Douglas Kmiec, Scott Nelson, Neil Eggleston

Timeline Tags: Civil Liberties

The American Civil Liberties Union (ACLU) asks the Obama administration to publicly release some 50 secret Bush Justice Department memos that were written to justify the Bush administration’s interrogation and domestic spying programs. The Bush White House consistently refused to release the memos, citing national security, attorney-client privilege, and the need to protect the government’s deliberative process. The ACLU request comes after President Obama rescinded a 2001 executive order that gave government agencies broad legal cover to reject public disclosure requests (see January 21, 2009). Obama has asked agencies to be more transparent in deciding what documents can and cannot be released under the Freedom of Information Act; the ACLU intends to put Obama’s words to the test. “The president has made a very visible and clear commitment to transparency,” says Jameel Jaffer, the director of the ACLU’s National Security Project. “We’re eager to see that put into practice.” Many see the Justice Department memos, written by lawyers in the Office of Legal Counsel, as the “missing puzzle pieces” that will help explain the Bush administration’s antiterrorism policies. Critics of the Bush administration say that the memos may help determine whether officials of the former administration should be held accountable for legal opinions that justified waterboarding and other illegal interrogation practices. “We don’t have anything resembling a full picture of what happened over the last eight years and on what grounds the Bush administration believed it could order such methods,” says Jaffer. “We think the OLC memos are really central to that narrative.” The ACLU is aware of the memos’ existence, but not much else. Jaffer says: “There are about a dozen memos where we just have one or two lines about the subject matter and that’s it. When you put it all together you realize how much is still being held secret.” [McClatchy News, 1/28/2009]

Entity Tags: Jameel Jaffer, American Civil Liberties Union

Timeline Tags: Civil Liberties

The American Civil Liberties Union (ACLU) and other human rights organizations release over a thousand pages of government documents obtained through the Freedom of Information Act (FOIA). The documents provide new details of the Bush administration’s treatment of prisoners in its “global war on terror.” Among other things, the documents show a much closer collaboration between the CIA and the Defense Department than initially believed; the Defense Department was intimately involved with the CIA’s practices of indefinite “ghost” detentions and torture. The documents confirm the existence of a previously “undisclosed detention facility” at Afghanistan’s Bagram Air Base and details of the extensive abuse and torture of prisoners at that facility. They also show that the Defense Department worked to keep the Red Cross away from its detainees by refusing to register their capture with the International Committee of the Red Cross (ICRC) for two weeks or more, “to maximize intelligence collection,” a practice the Defense Department officials acknowledged in their private communications to be illegal under the Geneva Conventions.
CIA, Defense Department in Collusion? - The Center for Constitutional Rights notes, “These policies demonstrate the ease with which the CIA could have used DOD facilities as ‘sorting facilities’ without having to worry about ICRC oversight or revelation of the ghost detainee program.” The documents also include e-mails sent to Defense Department Transportation Command officials recommending that a number of prisoners slated for release from Guantanamo be detained longer, for fear of negative press coverage (see February 17, 2006). [AlterNet, 2/13/2009] “These newly released documents confirm our suspicion that the tentacles of the CIA’s abusive program reached across agency lines,” says Margaret Satterthwaite of New York University’s International Human Rights Clinic. “In fact, it is increasingly obvious that defense officials engaged in legal gymnastics to find ways to cooperate with the CIA’s activities. A full accounting of all agencies must now take place to ensure that future abuses don’t continue under a different guise.”
Heavy Redactions Thwart Intent of FOIA - Amnesty International’s Tom Parker notes that much of the information in the documents was blacked out before its release. “Out of thousands of pages, most of what might be of interest was redacted,” he says. “While the sheer number of pages creates the appearance of transparency, it is clear this is only the tip of the iceberg and that the government agencies have not complied with spirit of President Obama’s memo on Freedom of Information Act (FOIA) requests (see January 21, 2009). We call on Attorney General Eric Holder and the Obama administration to put teeth into the memo and work actively to comply with FOIA requests.” [Center for Constitutional Rights, 2/12/2009]

Entity Tags: US Department of Defense, Geneva Conventions, Central Intelligence Agency, Center for Constitutional Rights, Amnesty International, American Civil Liberties Union, International Committee of the Red Cross, Obama administration, International Human Rights Clinic, New York University, Margaret Satterthwaite, Tom Parker

Timeline Tags: Torture of US Captives, Civil Liberties

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