Privilege shouldn't cover up this mess
A Boston Herald editorial
Monday, December 17, 2001
The decision by President Bush to withhold Justice Department and FBI
documents on the handling of criminal informants in the Boston area going
back more than 30 years is an outrageous slap in the face of justice.
Four innocent men went to prison for a 1965 murder on the perjured
testimony of Joe Baron, testimony the FBI knew was a lie. This is not ancient
history: The House Government Reform Committee wants to know why
informant James ``Whitey'' Bulger, now a fugitive and charged with 19
murders, was given carte blanche for so many years.
Yet the president said release of documents sought by the committee would
``inhibit the candor'' prosecutors need in discussions about actual and
prospective cases.
It's a mystery why he thinks so. No previous president has sought to withhold
such records. The same argument can be made about government memos
of any kind - firefighting strategies in the Forest Service, who gets a Small
Business Administration loan guarantee and so forth. Under the U.S.
Constitution, Congress makes the laws and appropriates the funds and is
entitled to see how well the laws and appropriations worked out.
There is one exception: The courts do recognize an ``executive privilege'' to withhold documents and records of
advice to, and discussions with, the president personally.
President Bush has no personal involvement in any of this (it all happened before he took office), which makes it
highly doubtful that he could prevail in a court fight. He hasn't claimed that Presidents Clinton, Bush the elder,
Reagan, Carter, Ford, Nixon or Johnson had any personal involvement. He hasn't claimed that release of the
documents sought would jeopardize the Justice Department investigation of informant handling - now about to
enter its fourth year.
Sheer embarrassment is no reason to clam up. Congress and the nation cannot prevent repetition of such gross
perversion of law enforcement if they cannot find out what happened, who decided what and who knew what at
each point.
Bush may be counting on his party's control of the House to avoid a subpoena for the documents, but that would be
unwise. Protection of institutional prerogatives can trump party loyalty. Cooperation with the committee is not only
the right thing to do, it may avoid an unwinnable fight.
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