Public Confidentiality? Oxymoron or just plain morons?

Confidentiality has its intrinsic worth in many areas of the government’s business, but there are limits to this right and they grow thin when the business involves considering monumental national policies decisions such as the nomination of a Supreme Court justice. These decisions have implications that affect us all. I believe that the privilege of confidentiality should be reserved only to those cases where a national security threat can be shown. Even then, that threshold should be crossed to the satisfaction of a federal judge, not the executive branch’s legal advisors. Of course, these advisors will want to keep such information confidential. Someday it may be them in the hot seat, and they will want to keep some of what they wrote confidential so they cannot be judged on the merits of this writing.

I am, of course, talking about the announcement by the White House this evening that they no intention of turning over records regarding or authored by John Roberts from the time he served as Solicitor General. Judge Roberts is the President’s choice for a lifetime appointment to the Supreme Court. One would think that if the Senate is to take the serious step of considering him, the administration would want to make a good faith effort to make sure that they have all the information they need to accomplish this in a competent and thorough manner.

This administration, however, doesn’t ever use that sort of harsh tone on the record (unless their hand is forced). No, the public front of the Bush administration, Press Secretary Scott McClellan stated in his briefing today that the White House wants “to work with the members of the Senate to make sure that they have the appropriate information so that they can do their job…" but off the record, administration sources are saying that they have no intention of turning over records from when Judge Roberts served as deputy Solicitor General (from 1989-1993).

Briefly, for those of you that don’t know, the Solicitor General is a position at the Justice Department that is tasked with arguing on behalf of the United States government before, you guessed it, the Supreme Court. Having held this position makes Judge Roberts, in my opinion, a very qualified candidate for a justice on the high court. He certainly knows the inner workings, the procedure and traditions of the court. It also means that he has probably used that position to forward at least some positions that he holds or he would not have been appointed to that position to begin with. This is a political appointment, and it is certain that Presidents, Democrat and Republican alike, choose their Solicitors General based on ideological compatibility with their own views.

The usual cadre of GOP mental midgets has come forth to support this line of thinking. They include Senator Sam Brownback of Kansas who said; "I don't think it is appropriate for a lawyer to release documents they've produced for their clients." Of course Senator Brownback is a lawyer as are most of the nincompoops inside the Beltway. If these so-called lawyers are anywhere near the caliber in their trade as Dr. Frist is in his, then we are doomed to painful ignorance across the board. But I digress!

These minions argue that as Solicitor General, John Roberts was serving as the President’s lawyer and therefore these papers are protected by attorney-client privilege. I am not a lawyer, but I am very confident in saying, regardless of legal precedent, the Solicitor General is not the President’s lawyer. He is the American people’s lawyer, and therefore the Senate (as the people direct legislative representatives in this process) have every right to see every single document from decisions and opinions down to doodle pads if they so please.

This is not the first time this administration and others have tried to claim executive privilege. Some may remember the battle between the U.S. General Accountability Office (GAO) and the Vice President’s office over the release of documents pertaining to meetings held with energy industry officials while the administration was formulating their national energy policy. They claimed that they should not be required to give up this information because it is the stated right of the executive branch to meet with whoever they want to develop policy alternatives. This is, of course, absolutely correct. They do have the right to meet with anyone they want about any subject. What they are wrong about, however, is that they have the right to keep that information a secret from the American people (in this case represented by the Sierra Club, the Natural Resources Defense Council and a number of other environmental organizations). They claimed that executive privilege exists in these cases.

It is funny that they should take that stand after the GOP took the opinion that the Clinton administration should release the names of all the people that they consulted on Hillary Clinton’s now infamous health care policy overhaul debacle. For the record, the GOP was right then, and now that it does not suit their needs they have switched teams. Seems like typical beltway “flip-flopping” to me!

I don’t want to get off on a tangent. The point I hope I have made is that our government does not have the right to keep secrets from us unless there are legitimate national security concerns. Even then, as I have stated, I would favor reforms to the law so that these national security concerns are overseen and audited by the judicial branch, though a good deal of discretion should be granted to the administration with regards to national security matters. I often think that they tell us far too much on this subject.

What I cannot abide is the belief that policy is best made in secret. I believe that the best policy formulation comes about as a part of a great national conversation about what the American people need and what role they want their government to play. Some will say that this is fulfilled when American’s vote. I say that is not enough, I believe that it works best when we are involved in every step of the process, voicing our opinions loudly, even angrily if necessary. Had it been left to our leaders, independence would never have happened. The Boston Tea Party would never have happened. The abolition of slavery would never have happened. The labor movement, women’s suffrage or the civil rights movement would never have happened. All great leaps forward have been the result of citizen involvement in the policy process. Perhaps restoring this will bring the people’s interest back to public affairs of state.