06/01/07


White House officials had lengthy debate before deciding to call visitor records confidential

By PETE YOST
Associated Press Writer

WASHINGTON (AP) -- In the past year, lawyers for President Bush and Vice President Dick Cheney directed the Secret Service to maintain the confidentiality of visitor logs, declaring them to be presidential records.

The drive to keep secret the lists of visitors to the White House complex and Cheney's home, the administration says, is essential to ensuring the president and vice president receive candid advice to carry out their duties. The decision made the logs exempt from a law requiring their disclosure to whoever asks to see them.

The latest part of the strategy emerged this week when the government disclosed a letter from Cheney's counsel placing visitor logs for his personal residence on the Naval Observatory grounds in the category of presidential records.

The Secret Service is turning over all visitors' data to the White House.

"Every record from the U.S. Secret Service received by the White House or the office of the vice president is being preserved pursuant to the Presidential Records Act," White House spokesman Tony Fratto said Friday.

Cheney's counsel wrote the Secret Service last September, stating the agency "shall not retain any copy of these documents and information" once the material is given to Cheney's office.

A week ago, the government filed court papers stating that the Secret Service is retaining copies of the visitor logs because of pending lawsuits, and that Cheney's office agrees with the decision.

A private group, Citizens for Responsibility and Ethics in Washington, has filed two lawsuits under the Freedom of Information Act seeking Secret Service visitor logs. But the FOIA does not apply to presidential records.

The Bush administration has exploited that different treatment of records between the two laws, which prompted the fight in federal court. The administration is seeking dismissal of the lawsuits.

In trying to get the cases thrown out, the Justice Department has filed documents in court outlining a behind-the-scenes debate over whether Secret Service records are subject to public disclosure. The discussions date back at least to the administration of President Bush's father and involve the Justice Department and the National Archives as well as the White House and Secret Service.

The government's court filings show that the Bush White House focused on the issue in the months before Election Day 2004.

Discussions moved into high gear when the Jack Abramoff lobbying scandal prompted news organizations and private groups to demand that the administration release Secret Service records of visitors to the White House complex and the vice president's residence.
There was precedent for the demands.

During the Clinton administration, Republican-controlled congressional committees obtained Secret Service visitor logs while conducting investigations of the president and first lady.
Christopher Lehane, a former special assistant counsel to President Clinton and press secretary to then-Vice President Al Gore, points out the political implications of the Bush administration campaign to close off access to the records.

"The question it raises is 'What are these guys hiding?'" said Lehane, now a Democratic consultant. "They can live with it because they've only got a year or so left, but it doesn't do a lot for public confidence in open government."

Fratto said Thursday, "I can't comment on a case in litigation, and I can't speak to the decisions made by other administrations."

The Bush administration says it is standing on principle.

"It is important that the president be able to receive candid advice from his staff and other members of the administration," Fratto said. "To ensure that he receives candid advice, it is essential as a general matter that the advice remains confidential."

In a declaration filed in court a week ago, Cheney's deputy chief of staff, Claire O'Donnell, said that "systematic public release of the information regarding when and with whom the vice president and vice presidential personnel conduct meetings would impinge on the ability of the OVP (office of the vice president) to gather information in confidence and perform its essential functions, including assisting the vice president in his critical roles of advising and assisting the president."

In May 2006, the Secret Service and the White House signed a memorandum of understanding designating visitor records as presidential.

They are "not the records of an 'agency' subject to the Freedom of Information Act," says the agreement that was not disclosed until months later, in late 2006. The records are "at all times under the exclusive legal custody and control of the White House."

Four months after the memorandum of agreement, Cheney's counsel wrote to the Secret Service, stating that visitor records for the vice president's personal residence "are and shall remain subject to the exclusive ownership, custody and control of OVP."

The Sept. 13, 2006, date on the Cheney letter coincides with requests by The Washington Post seeking records on the vice president's visitors under the Freedom of Information Act.
"If any documents remain in your possession, please return them to OVP as soon as possible," the letter stated.

The Justice Department filed the Cheney letter last Friday in one of the lawsuits brought by Citizens for Responsibility and Ethics in Washington, which is invoking the FOIA law in seeking the identities of conservative religious leaders who visited the White House complex and the vice president's residence.

The group, which represents Valerie Plame and her husband in their lawsuit against Cheney and other key administration figures in the leak of Plame's CIA identity, also is seeking White House visitor logs in the Abramoff scandal.

According to government documents, the Secret Service routinely destroyed five of eight categories of information relating to visitors to Cheney's residence. Of the records it retained, the Secret Service regularly turned over handwritten visitor logs to Cheney's office.

The Secret Service stopped the destruction in June 2006 because of lawsuits by various groups, according to the court papers. The law enforcement agency also is retaining copies of the material, contrary to the directive in the September 2006 letter from Cheney's counsel.
The court filings by the government show that:

-- On three occasions late in the administration of the first President Bush and during the first term of President Clinton, the Secret Service proposed treating copies of White House visitor documents as non-presidential records. In its court filings, the current Bush administration opposes releasing details of the Secret Service proposals, saying this "poses a substantial risk of creating public confusion" because the proposals were never adopted.

-- In January 2001, as Clinton prepared to leave office, White House lawyers proposed the transfer of visitor records from the Secret Service to the White House. The proposal was entitled "Disposition of certain presidential records created by the USSS," or the Secret Service. The records are now at the Clinton library in Little Rock, Ark., the National Archives confirmed Thursday.

-- In September 2004, a lawyer for the Bush White House and a special assistant to the director of the Secret Service proposed "informal views on one way to address the disposition" of visitor records, according to court documents. The unnamed associate White House counsel and the Secret Service assistant jointly authored a July 29, 2004, document bearing the same title as the Clinton administration document from 3 1/2 years earlier.

-- In July 2005, the Secret Service gave a presentation on the issue to the White House counsel's office, the Justice Department and the National Archives.

-- On May 11, 2006, the Justice Department's Office of Legal Counsel provided a legal opinion on the issue, which is among the many documents the government is refusing to disclose. Six days later, the White House and the Secret Service signed the agreement designating the records as presidential.

Presidential records are released starting five years after a president leaves office. Under the Presidential Records Act of 1978, nonclassified material is disclosed first, with classified documents and advice to the president released later after review by federal agencies, the White House and the former president.

Under an executive order President Bush signed in 2001, the archivist of the United States cannot unilaterally release the records without the permission of the current president, former presidents and their representatives.

"The scary thing about this move by the vice president's office is the power grab part of it," said Tom Blanton, head of the National Security Archive, a private group that uses the FOIA law to pierce government secrecy.

"We're looking at a huge problem if the White House can reach into any agency and say certain records have something to do with the White House and they are presidential from now on," Blanton said. "This White House has been infinitely creative in finding new ways and new forms of government secrecy."