• The Bush administration since 2001 has become known above all as a national security presidency.
• This policy direction, exemplified by the USA Patriot Act, new regulations on treatment of prisoners and new policy on foreign intelligence surveillance, puts it in tension with federal statutes and common law on official information control.
• These include, besides two dozen Supreme Court opinions and many District of Columbia circuit court opinions, a group of statutes such as the Electronic Freedom of Information Act, Privacy Act, Presidential Records Act, Federal Advisory Committee Act and Administrative Procedures Act.
• The roles of three leading members of the administration, Vice President Dick Cheney, Director of Central Intelligence George Tenet and Secretary of Defense Donald Rumsfeld, have come in for particular criticism of the press for their control of official information.
• This project will explore executive actions and statutory change since 2001 in search of patterns that may indicate whether there has been a substantial policy shift -- or merely cosmetic changes -- on official information.
• The paper will place those changes in the context of the policy history since 1966.

Introduction.
Following Churchill's dictum that truth is the first casualty of war, some have observed that freedom of information (FOI) was the first casualty of the war on terrorism.  This paper will explore various policy changes that impacted official information, privacy, surveillance, searches and seizures, and related matters during the first George W. Bush administration of 2001-2004.  (To avoid confusion with his father's presidency, we shall refer to the son as W. Bush or Bush (43)).  We shall attempt to separate those policy changes which are normal when a republican administration replaces a democratic one, from those brought about in national security eras.

To accomplish this, we need to explore the policy history of open government, and establish the tensions during policy cycles between eras of national security dominance and eras of open government.  Put in terms of party administrations, national security has been more dominant in the postwar republican presidencies of Eisenhower, Nixon, Reagan and both Bushes (more so W. Bush.)  Open government has been more a motif of the democratic administrations of Kennedy, (not so much Johnson), Carter, and Clinton.

National Security Issues during the administration of W. Bush.
The W. Bush administration was characterized initially by unilateralism, rejection of treaties representing multilateral approaches to safeguarding the environment and controlling some types of advanced weapons.  In the first ten months of 2001, it showed less interest than its predecessor in the fight against Al Qaeda (AQ, or "the base") and its leader, Osama Bin Laden (OBL).  Following the September 11 attacks, however, the president found a new voice, new counter terrorist policy, new homeland security bureaucracies, and a new doctrine of preventive war.

The domestic security initiatives included:

• The USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), passed on 26 October, 2001.
• widespread domestic surveillance of individuals including citizens with even loose connections to terrorism.
• arrests, detention and deportation of such individuals sometimes without the release of names of those affected.
• increased surveillance of the internet and library patrons.
• radically increased searching of airline passengers regardless of reasonable suspicion constraints.
• erosion during counter terrorist investigations of the walls between law enforcement and intelligence, with a focus on cooperation and shared information.
• a major bureaucratic reorganization creating a new Homeland Security department.
• repurposing of the Coast Guard for counter terrorist (CT) port security measures.
• developing and then dropping the Total Information Awareness Program, to integrate databases of law enforcement and intelligence in the pursuit of terrorists.
• Experiments in cooperation with private companies including Northwest Airlines to share passenger data.  (Northwest's action was upheld by the Transportation department since its privacy policy, while banning sales of passenger data, did not ban giving away the data.  (Access Reports, 22 Sep. 2004, 11-12)

A military and intelligence campaign against AQ, primarily using aerial bombardment plus special forces to lead and support Afghan warlords in fighting and ousting the Taliban regime and the local Al Qaeda forces.

A more conventional infantry battle against AQ at Tora Bora in mountainous eastern Afghanistan, which although doing considerable damage to AQ, was less successful in preventing the escape of AQ survivors.

Some degree of multilateral cooperation (Comras, 2004) in tracking AQ's financial assets via the United Nations (UN)

Extensive increases in appropriations requests for defense, intelligence and security.

Symbolic refusals to make public the intelligence budget totals, and apparent reversal of a trend.

Apparent de facto reversal of president Ford's executive order (1975) which had symbolically barred political assassinations by the US (though not necessarily those via US allies).

Attempts, led by Secretary of State Colin Powell, to secure United Nations support for actions against Iraq.

The public use of intelligence material to back claims that Iraq's development of weapons of mass destruction (WMD) and connections to terrorist organizations (hosting Al-Zarqawi, possible meetings with AQ, and financial support for the PLO) amounted to a threat to the US.

An Anglo-American invasion and occupation of Iraq in 2003-04 by large scale conventional forces, with a coalition of other nations offering minor assistance in battalion or regimental strength.

Information and Privacy Issues during the administration of W. Bush.

Domestic initiatives to reduce processing and releasing public records under the FOIA included:

• The Ashcroft memo, October 2001.
• The Card memo, March 2002.
• The executive order on the Presidential Records Act.
• The FOIA fee waiver denial policy.
• FERC's removal of critical internet infrastructure information from release under the FOIA.