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Several weeks ago the Washington Post reported on the Department of Justice’s (DOJ) efforts to keep Dick Cheney’s voluntary statements to U.S. Attorney Patrick Fitzgerald from being made public. A year ago Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit seeking this information and the Bush DOJ vigorously opposed it. After the election there was a possibility that the Obama DOJ would stop opposing it and allow the information to be released, but in this as with other issues there has been remarkable continuity between administrations. Perhaps we should call the new Attorney General Eric Holdover.
I am not a lawyer but the original reason given for keeping notes of the statements out of CREW’s hands ("that it’s going to get on ‘The Daily Show’") does not seem especially persuasive, and fortunately the judge agreed. Last week David Corn reported the DOJ took another stab at it, this time claiming their release "could cause public officials in the future to not cooperate with criminal investigations." Jeralyn Merritt agreed that CREW’s motion should be denied "in order to protect the privacy and reputation of those who are mentioned or discussed by the subject of a law enforcement interview…I’d rather have that than a precedent that allows reports of law enforcement interviews of the average citizen who ultimately is not indicted, and who may have slandered Tom, Dick and Mary during their interview, subject to public disclosure."
Cynthia Kouril then took issue with Merritt, writing that Cheney’s interview was not Grand Jury (GJ) material, which "consists of information, including testimony, that is presented to the Grand Jury as well as material that has been subpoenaed by the GJ, whether or not the Grand Jury actually ever sees it. Everything else is regular investigative material and therefore subject to the Freedom of Information Act." Later she adds, "this whole mess exists because Congress did not do its job as a co-equal branch of government and appoint a special prosecutor of its own." Ahem. Marcy Wheeler then blew everyone out of the water by pointing out the debate was a purely academic exercise because Cheney’s lawyer had already leaked the content of the interview. Still, I suspect we have not seen this kind of issue raised for the last time, so it still may be worthwhile to continue bouncing ideas around.
I side with Kouril for several reasons. First, her reasoning is more persuasive to me than Merritt’s. We already have a good, longstanding definition of what gets protected by the GJ. If anyone thinks it needs to be changed then start lobbying to have the law changed to cover it, but do not go with an ad hoc sort of "oh, that too" approach. I am not as concerned with the precedent Merritt cites as I am with the precedent of allowing the cover of secrecy to be further stretched in such an informal way.
Another danger to keeping it from public view is that it will validate a key strategy of Cheney: Never testify to anything. He bent over backwards to be able to work behind the scenes and not be subject to formal processes and procedures. Overall that seems like a bad long term strategy because scrutiny is inevitable. If, for example, you think torture is fine then you need to make that case to the public instead of adopting tricky legalisms in classified memos. Policies implemented in furtive back channels will likely not be very durable when exposed. For purposes of this discussion there is another drawback, namely the protection frequently provided by formal channels. He did not want to testify to the GJ; fine. But then he forfeits GJ protection. We cannot allow people to game the system by providing the wiggle room of unofficial statements with the privacy protections of official ones. Cheney decided not to testify. His interview is therefore not protected.
Finally, I disagree with Merritt’s conflation of average citizens with high public officials. If her concern is for equality under the law then it seems more urgent to provide for that by investigating the possibility of war crimes committed by White House officials, not by allowing creative interpretations of existing standards in ways that might theoretically benefit ordinary people down the road. More importantly, vice presidents should expect for there to be a bias towards openness in the conduct of official business. In this instance we are talking about an investigation into the outing of a CIA operative, not some personal affair. He and his successors should get the unambiguous message that under those circumstances transparency will be expected and that the law will be interpreted with an eye towards disclosure. Secrecy has ruled for long enough.