Justice and the Public Interest
Alberto Gonzales, the press and the public’s right to know
From the Winter 2005 issue of The News Media & The Law, page 17.
Attorney General Alberto Gonzales will significantly affect the media’s ability to gather and report news, and the public’s right to know what its government is doing. But it’s unclear exactly how he’ll do it.
Gonzales has shown a penchant during four years as White House counsel for strictly regulating access to government and executive branch information, though his record as Texas Supreme Court justice from January 1999 to December 2000 indicates a recognition of First Amendment interests in newsgathering and reporting.
During his January confirmation hearing before the Senate Judiciary Committee, Gonzales pledged to work with open government advocates Sen. John Cornyn (R-Texas) and Sen. Patrick Leahy (D-Vt.). Gonzales committed to working with Cornyn to ensure that the Administrative Conference — re-established to work on open government issues after a nine-year hiatus — plays a strong role in bolstering government agency response to the Freedom of Information Act.
Gonzales could, but is not expected to, change the October 2001 directive from predecessor John Ashcroft that told government FOI officers that the Justice Department would, whenever possible, defend the use of exemptions for withholding information under the FOI Act. Although the attorney general typically sets FOI policy for the federal government, the memorandum of guidance historically has not been changed within an administration with a switch of the attorney general.
Ashcroft’s guidance replaced his predecessor Janet Reno’s direction that information should be public unless some harm from its disclosure could be cited. In written responses to Leahy’s questions, Gonzales acknowledged that “open government is an important part of a free society.”
Gonzales also told Leahy that he knew little about “critical infrastructure information,” a category of secret information that private companies voluntarily share with the government to use in spotting vulnerabilities that might be exploited by terrorists. Gonzales also said he recognized both “safeguarding” such information and “protecting the openness and transparency of government.”
The details of Gonzales’ information clampdown during his four years in the White House and acknowledgment of free press interests as a state jurist have been compiled in a report, “Gonzales, Press Freedoms and the Public’s Right to Know,” researched and written by The Reporters Committee for Freedom of the Press. An abridged version of the report follows. The full report is available at: https://www.rcfp.org/news/documents/20041115gonzales.html
Gonzales’ interpretation of executive privilege
Gonzales has defended what is best described as a quasi-executive privilege, invoked repeatedly by the Bush administration in attempts to keep government information from public scrutiny. Gonzales believes that the executive branch’s effectiveness hinges on the president’s ability to communicate confidentially with his advisers without fear that they will later testify about those conversations.
The quasi-executive privilege is so named because the privilege’s breadth, as defined by the Bush administration, is much greater than what is commonly known by lawyers as executive privilege.
Despite the novelty of quasi-executive privilege, Gonzales supported its use against requests for official testimony and government documents. When the National Commission on Terrorist Attacks Upon the United States requested sworn testimony from National Security Adviser Condoleezza Rice, Gonzales said that permitting Rice to testify under oath would abridge President Bush’s ability to receive candid advice from his advisers, and would violate constitutional separation of powers.
Eventually, the Bush administration permitted Rice to testify, which led the commission to request a copy of an Aug. 6, 2001, Presidential Daily Briefing (PDB) in which the CIA warned Bush about an impending al-Qaida attack on the United States.
The commission had earlier requested 360 PDBs dating back to the Clinton administration. Gonzales largely refused access but granted extremely limited access to 24 PDBs; selected commission members could look at them and summarize them for their colleagues. After intense public demand for access to the Aug. 6, 2001, PDB, the White House declassified it April 10.
Justice Gonzales’ First Amendment record on the Texas Supreme Court
In Gonzales’ two-year tenure on the Texas Supreme Court — ending in December 2000 — he wrote 13 opinions, none of which apparently concerned pure First Amendment issues, according to an analysis of online legal research.
Gonzales joined the majority in upholding the rights of the media — while in some cases also declining to adopt increased protections recognized in other jurisdictions — in all four Texas Supreme Court cases involving free press or freedom of information issues that were decided during his tenure.
In two libel cases, the court declined to recognize additional protections for media defendants, but nonetheless sided with the media parties on the merits of the cases.
In Huckabee v. Time Warner Entertainment Co., a family court judge sued over an HBO documentary that he claimed falsely portrayed him as a “good ole boy” who awarded custody of children to fathers accused of child abuse.
The trial court denied summary judgment for the media and the state appeals court reversed. In an opinion written by Chief Justice Tom Phillips and joined by Gonzales, the Supreme Court held that the traditional summary judgment standard — whether there is sufficient evidence of a claim — was applicable, rather than the higher standard of “clear and convincing” evidence.
The higher standard, required when the case involves a public official, makes it more difficult for a public official to win a libel suit. Phillips wrote that the higher standard as adopted by the U.S. Supreme Court was “based merely on federal procedure,” not the First Amendment, and therefore did not bind state courts.
In dismissing the case, the court found in Huckabee that even under the traditional standard, the plaintiff failed to establish actual malice — knowledge of falsity or reckless disregard for the truth — on the part of the media defendants.
In Turner v. KTRK Television Inc., a lawyer who was running for mayor sued a news reporter and television station over a story questioning his role in an attempted multimillion-dollar life insurance scam. The high court, in an opinion also written by Phillips and joined by Gonzales, held that a claim for defamation may be based on an entire publication or broadcast, as opposed to specifically identifiable false statements. Claims based on the entirety of a publication are more difficult for the media to defend.
While Turner proved the story as a whole was false and defamatory, he failed to show clear and convincing evidence that the defendants acted with actual malice, Phillips wrote in affirming the appellate judgment for the media.
The first media law opinion that Gonzales joined as a Texas Supreme Court justice concerned the right of access to judicial records.
In In re Nolo Press/Folk Law Inc., the court vacated a previous order shielding from the public all records of the court’s Unauthorized Practice of Law Committee. The court deemed such documents to be judicial records and as such, subject to a new rule that generally required them to be disclosed upon request.
Similarly, in City of Garland v. The Dallas Morning News, the court held that a draft memorandum by a city manager to the city council regarding the possible firing of the city finance director was public, not exempt from disclosure under the state Public Information Act.
Gonzales wrote a concurring opinion in Osterberg v. Peca, a First Amendment-related case in which four other justices dissented from the majority opinion upholding the constitutionality of a statute that penalized violation of campaign-disclosure laws.
Gonzales wrote that the issue before the court was not merely whether the penal statute prevented the defendants from exercising their First Amendment right to make campaign donations. The broader question, Gonzales wrote, was whether the application of the law was constitutional.
“Imposing liability on an unknowing violator has the indirect effect of penalizing core First Amendment speech,” Gonzales observed.
However, he concluded that the law was constitutional after balancing the government’s “significant” interests in mandating disclosure of election-campaign spending against the burdens such requirements impose on free speech.
He reasoned that punishing only those who knew they were breaking campaign-finance laws would weaken the law’s effectiveness, while enforcing the reporting requirements against everyone “provides incentive to learn what the regulations require and to abide by them.”
Gonzales involvement in reporter’s privilege cases
Little is known about Gonzales’ involvement in the grand jury investigation into apparent White House leaks of the identity of CIA undercover operative Valerie Plame.
After being notified in September 2003 that the Department of Justice was opening a criminal investigation into the leaks, Gonzales told all White House staff to preserve anything they had concerning Plame or contacts with several journalists, including newspaper columnist Robert Novak, who had identified Plame in a column.
Gonzales, who was responsible for ensuring the White House complied with Justice Department requests, vetted all information turned over by White House staff in order to assert executive privilege. But he later told staff that attorney-client privilege would not be used to protect information disclosed to him.
Gonzales, who did not advise or represent Bush in the investigation, testified before the grand jury in June. The White House confirmed that he testified, but would not discuss his testimony.
Gonzales advice to the president on presidential, gubernatorial papers
Gonzales played a key role in keeping presidential records out of the public eye and asked for several extensions to deadlines for turning over papers of former Presidents Ronald Reagan, George Bush and Bill Clinton. The Presidential Act of 1978 says presidential papers are to be handed over to professional government archivists and ultimately to the public after 12 years.
President Bush issued an executive order in November 2001 that gave himself — as well as former presidents — the right to veto requests to open any presidential records. Even if a former president wants his records to be released — as Bill Clinton does — the executive order permits the sitting president to exercise executive privilege.
Bush’s Executive Order 13,233 also applies to vice presidents. The White House has argued that these new restrictions balance public access with “national security concerns.” National security documents already can be excluded from public scrutiny under an exemption to the Freedom of Information Act. Gonzales said the White House did not create any new privileges or obstacles but “simply implemented an orderly process to deal with this information.”
A coalition of open-government advocates and historians — including The Reporters Committee for Freedom of the Press — sued in federal court in November 2001, arguing for release of the presidential papers. The lawsuit is pending.
Gonzales also advised Bush in 2001 when the president and Texas Gov. Rick Perry attempted to defeat the Texas Public Information Act. Perry helped the new president keep secret his papers from his 1995-2000 tenure as Texas governor.
Gonzales and the Cheney Energy Task Force
Gonzales argued throughout the summer of 2002 that Vice President Dick Cheney and the records of his energy policy task force should not be subject to open-government laws. A tug-of-war between Gonzales and the Senate Governmental Affairs Committee eventually forced the White House to hand over about 2,100 pages of documents. However, full disclosure of the records of the task force, including the identity of its members, has not yet been given.
The Supreme Court declined in June to order the Bush administration to make public details of Vice President Cheney’s National Energy Policy Development Group, but kept the case alive by sending it back to a lower court.
Gonzales released limited information about Guantanamo detainees
Facing allegations that it authorized the use of torture to gain information from al-Qaida and Taliban detainees, the Bush administration buckled to congressional and public pressure and on June 23 released hundreds of pages of documents detailing the administration’s debates and decisions about the use of torture.
The release included the infamous January 2002 memorandum in which Gonzales advised Bush that detainees in U.S. custody do not qualify as prisoners of war and therefore are not subject to the 1949 Geneva Conventions prisoner-of-war guidelines. Public pressure and news reports about that memo and others sparked the release.
In a rare appearance at a news conference, Gonzales hinted that secrecy would remain the norm for related documents.
“The government is releasing an extraordinary set of documents today, and this should not be viewed as setting any kind of precedent,” Gonzales said. “But we felt it important to set the record straight. Additional documents may be withheld in the future for national security and other reasons.”