WASHINGTON — When administrations get into trouble, it is usually because of something the president or his aides have said or done. The Bush White House is different. It is running into problems because of its silence.
Its refusal to talk or to share information is frustrating the other two branches — Congress and the courts — and is spawning more controversy than is healthy when President Bush is trying to sustain broad support for a war on terrorism and an ambitious domestic agenda.
The headline dispute has been the battle between the General Accounting Office (GAO), an arm of Congress, and Vice President Cheney over access to certain records of the energy policy task force Cheney headed.
That issue has not yet gone to court, but federal judges last week expressed impatience at foot-dragging by the administration on other requests from private groups for information on energy matters.
Meantime, key legislators in both parties were chagrined to learn from The Washington Post’s Barton Gellman and Susan Schmidt that Bush had instituted a "shadow government" of sequestered senior civil servants after the 9/11 attacks without telling anyone on Capitol Hill.
Bush is absolutely right in saying that he has "an obligation as the president (to) put measures in place that, should somebody be successful in attacking Washington, D.C., (would guarantee) there’s an ongoing government."
But it is inexplicable that he would not share his prudent action with the four top congressional leaders, with whom he meets weekly, so they would have the reassurance that came from that knowledge. If he cannot trust them that far, what does it imply?
The leaders have been restrained in their public comments, but you know it rankles. As House Minority Leader Dick Gephardt has said repeatedly, his comment to Bush at the first bipartisan meeting after 9/11 was, "Mr. President, we have to trust you, and you have to trust us."
That trust is vital, for there will be issues on which disagreement is inevitable. Energy is one. Critics of the administration plan are seeking to defeat it, not just on the merits but on the claim that it was shaped by industry lobbyists, some of whom were also significant contributors to the Bush-Cheney campaign.
In an ideal world, the debate would center on substance, but probing the process by which a high-profile proposal is formulated is certainly not unprecedented. Remember the fuss about Hillary Clinton’s health care task force.
The courts so far have turned a deaf ear to administration efforts to keep its energy meetings secret. Judge Gladys Kessler last week ordered the Energy Department to give an environmental group some 7,500 pages of documents on contacts between outside organizations and department officials working on the task force. Two other judges accused the administration of stalling on related suits.
The issue is different in the GAO suit against Cheney; it is a test, not of the Freedom of Information Act, but of the statute that lets the GAO audit executive branch activities.
Last week, I interviewed GAO head David Walker, its top lawyer and two senior officials on Cheney’s staff. It is perfectly clear that this is a dispute that does not have to become a test of strength or a constitutional showdown between the branches.
Presidents are entitled to have confidential discussions with their aides. But that is not at issue here. Walker already has modified his original request for notes and memos of meetings with executives of Enron and other energy companies and now is asking only for the names, places, dates and subjects of meetings between the task force and outsiders.
Cheney’s aides insist that the demand for "subject matter" would inevitably escalate into a perusal of notes and minutes, but Walker says that is not his goal.
Meantime, by insisting "on principle," as they put it, that Congress and the GAO have no authority to inquire into the activities of the president or vice president, because the White House is not an "agency" under the meaning of the statute, Cheney’s team has rejected two options that would stop the GAO in its tracks.
Cheney could invoke executive privilege, but does not wish to create the impression that he has something sinister to hide. Alternatively, he could say that GAO is seeking "deliberative material" and that its request would "substantially impair the operations of government." Under a 1980 statute, such a certification could not be appealed to the courts.
Cheney’s team is well aware of these options, but will not use them, because that would imply that GAO has jurisdiction to probe the task force, a claim Cheney disputes.
In choosing confrontation over one of the available compromises, the administration is escalating a secrecy fight that only damages itself. It is time for talking, not stonewalling.
David Broder can be reached at The Washington Post Writers Group, 1150 15th St. NW, Washington, DC 20071-9200.
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