The Constitution is a document of power granted by liberty, not a document of liberty granted by power. – James Madison

Last month we took a look at the increasing rate of government secrecy as measured by the classification of documents:

…government secrecy in the United States has reached a historic high by several measures. Federal departments now classify documents at the rate of 125 a minute as they create new categories of semisecrets bearing vague labels like “sensitive security information.”
[…]
Meanwhile, the declassification process, which made millions of historical documents available annually in the 1990s, has slowed to a relative crawl, from a high of 204 million pages in 1997 to just 28 million pages last year.
[…]
Since 2001, President George W. Bush has extended the power to classify documents to the heads of the Environmental Protection Agency, the Department of Health and Human Services and the Department of Agriculture.

This isn’t an accident, and in addition to the acres of paper receiving classified status, the recent battle over John Bolton‘s nomination to become Ambassador to the United Nations and the coming confirmation hearings concerning Supreme Court nominee John Roberts have pressed the issue at the highest levels.

This Washington Post story looks at the big picture:

At the heart of battles over President Bush’s nominations to the Supreme Court and United Nations is a broader — and largely successful — campaign to reassert executive prerogatives lost under his predecessor and limit public access to the internal workings of government.

In the case of both nominations, Democratic senators demanded certain documents from executive branch deliberations to help them evaluate Bush’s choices, and he refused.

While it’s true that Bush has made an unprecedented effort to reclaim the power to keep just about everything secret, the Post‘s use of the word “lost” to describe Bill Clinton‘s loss of executive privilege is misleading. Clinton’s executive privilege was taken by Kenneth Starr in multiple court decisions that in turn led to Clinton relinquishing further privilege as the pressure mounted on his administration. The same Republicans pounded on the table to claim that Clinton’s advisors (even the lawyers) had to testify and turn in their papers now defend this President’s right to keep everything up to and including his lunch menu a secret—national security, you know.

But the real issue is Separation of Powers and checks and balances. The President exercised his right to use a recess appointment to appoint Bolton, but only after he attempted to make a mockery of the Senate’s advise-and-consent role in the confirmation process. By not releasing documents requested by Senators, Bush in effect was forcing the Senate to rubber-stamp Bolton with less information than the President had access to. “National Security” was one of the excuses given, but the documents withheld were records of Bolton requesting NSA intercepts on his own colleagues. Surely those records could have been entrusted to Senators without damaging national security. Embarrassment isn’t a good enough reason, especially when it’s John Bolton that is now representing us at the U.N.

The coming battle over Roberts is more important than Bolton and even Clinton because if confirmed, he will sit on the Supreme Court for as long as he chooses, possibly 30 years. His writings while he was a government employee are the property of the citizens of this country. They have nothing to do with national security, were paid for with the tax dollars this administration resents so much, and their continued embargo only serves the secrecy fetish in which this administration seems to take pride.

There should be no vote on Roberts until his papers are released at least to members of the Senate. No papers, no vote.