That might have been the end of the matter, but the Bush administration has other ideas. Last week, budget director Josh Bolten and a Justice Department lawyer named Steven Bradbury issued their own opinion about the fake news stories. Their conclusion: The GAO is wrong, and the fake news reports are perfectly legal. Moreover, as the Washington Post1 reports today, Bolten and Bradbury said that legal advice for the executive branch is supposed to come not from the Government Accountability Office but from the Justice's Office of Legal Counsel.
That would be the same Office of Legal Counsel that issued a legal memorandum in August 2002 defining torture out of existence and opining that the president's commander-in-chief power gives him authority to defy federal law in the name of national security -- and the same Office of Legal Counsel that retracted that memo in December 2004, just in time for Alberto Gonzales' confirmation hearings.
The OLC may well be the right entity to provide legal advice to the executive branch, but that doesn't mean that its advice is any better on the fake news stories than it was on the torture of detainees. In words that could have described either issue, the head of the GAO told the Post yesterday that the administration's approach to the fake news stories is not just illegal but wrong. "This is more than a legal issue," said Comptroller General David Walker. "It's also an ethical issue and involves important good government principles, namely the need for openness in connection with government activities and expenditures. We should not just be seeking to do what's arguably legal. We should be doing what's right."
A government that aspires to morality and not just to the bare minimum of legality? The notion seems so . . . quaint.
1 Washington Post: http://www.washingtonpost.com/ac2/wp-dyn/A35010-2005Mar14?language=printer
GAO Called Tapes Illegal Propaganda
By Christopher Lee
Washington Post Staff Writer
Tuesday, March 15, 2005; Page A21
he Bush administration, rejecting an opinion from the Government Accountability Office, said last week that it is legal for federal agencies to feed TV stations prepackaged news stories that do not disclose the government's role in producing them.
That message, in memos sent Friday to federal agency heads and general counsels, contradicts a Feb. 17 memo from Comptroller General David M. Walker. Walker wrote that such stories -- designed to resemble independently reported broadcast news stories so that TV stations can run them without editing -- violate provisions in annual appropriations laws that ban covert propaganda.
But Joshua B. Bolten, director of the Office of Management and Budget, and Steven G. Bradbury, principal deputy assistant attorney general at the Justice Department, said in memos last week that the administration disagrees with the GAO's ruling. And, in any case, they wrote, the department's Office of Legal Counsel, not the GAO, the investigative arm of Congress, provides binding legal interpretations for federal agencies to follow.
The legal counsel's office "does not agree with GAO that the covert propaganda prohibition applies simply because an agency's role in producing and disseminating information is undisclosed or 'covert,' regardless of whether the content of the message is 'propaganda,' " Bradbury wrote. "Our view is that the prohibition does not apply where there is no advocacy of a particular viewpoint, and therefore it does not apply to the legitimate provision of information concerning the programs administered by an agency."
The existence of the memos was reported Sunday by the New York Times.
Supporters say prepackaged news stories are a common public relations tool with roots in previous administrations, that their exterior packaging typically identifies the government as the source, and that it is up to news organizations, not the government, to reveal to viewers where the material they broadcast came from.
Critics have derided such video news releases as taxpayer-financed attempts by the administration to promote its policies in the guise of independent news reports.
Within the last year, the GAO has rapped the Department of Health and Human Services and the Office of National Drug Control Policy for distributing such stories about the Medicare drug benefit and the administration's anti-drug campaign, respectively.
In an interview yesterday, Walker said the administration's approach is both contrary to appropriations law and unethical.
"This is more than a legal issue. It's also an ethical issue and involves important good government principles, namely the need for openness in connection with government activities and expenditures," Walker said. "We should not just be seeking to do what's arguably legal. We should be doing what's right."
White House spokesman Scott McClellan said yesterday that federal agencies have used video news releases for years. "As long as they are providing factual information, it's okay," he said.
Walker said that even by that standard, some prepackaged news stories are out of bounds.
"Congress has got to settle it -- either Congress or the courts," Walker said. "Congress may need to provide additional guidance with regard to their intent in this overall area."
Sen. Frank Lautenberg (D-N.J.) said through a spokesman yesterday that he will try to attach language to an appropriations bill to clarify that taxpayer money cannot be spent on such productions. He and fellow Democratic Sen. Edward M. Kennedy (Mass.) wrote to President Bush yesterday asking him to pull back the new memos from Justice and the OMB.
They noted that following revelations this year that the Education Department had paid conservative commentator Armstrong Williams to promote the No Child Left Behind law, Bush had directed agencies to abandon such clandestine public relations practices.
"Whether in the form of a payment to an actual journalist, or through the creation of a fake one, it is wrong to deceive the public with the creation of phony news stories," the lawmakers wrote.