by Paul Lagasse

[Note: this essay was originally published in 2002 on the website of a nonprofit human rights organization. (c) 2002 Paul Lagasse]

The idea of access to government information as a civil right is a peculiarly American concept. Information is the means by which citizens in a democracy hold their elected officials accountable. The concept of “freedom of information” is so much a part of the culture that it has become a widely recognized abbreviation ­ FOI. The legal premise that citizens have the right of access to government records is embodied in the Freedom of Information Act (FOIA), which became law in July 1966. Individuals have the right to petition government agencies to review and release classified materials. It is also, by extension, embodied in the first amendment to the US Constitution, guaranteeing freedom of speech. In the United States, therefore, freedom of information represents something that is both philosophically broad and legally specific.

The September 11 attacks and the subsequent war in Afghanistan have thrown the issue of public access to government into sharp relief. President Bush’s administration has been accused of taking advantage of the current crisis to limit the release of a wide range of records created by the White House, other federal agencies, and even former presidents. While many of these efforts had been implemented or at least planned before September 11, their effects have been considerably enhanced by the state of heightened vigilance that has since taken hold. They are further aggravated by the tight control on information about the conduct of the war in Afghanistan and about immigrants detained by the government on suspicion of being connected to terrorist organizations.

To many people, the issues at stake seem more like turf wars and legal hair-splitting than tangible threats to civil liberties. The public is perennially suspicious of lawyers and journalists, both of whom are arguing publicly on both sides of the issue. However, as shown by the continuing release of tapes and documents created by Richard Nixon more than thirty years ago, an unaccountable government is incompatible with democratic ideals. As former Nixon counsel John Dean recently wrote, “a president acting secretly usually does not have the best interest of Americans in mind.”

Attorney General’s Memorandum is a Policy Wind Vane

At the beginning of a new presidential administration it is customary for the appointed head of the Department of Justice, the Attorney General, to issue a policy memorandum to the other federal agencies explaining how the incoming administration will interpret and enforce FOIA. When Attorney General John Ashcroft issued the memorandum on October 12, 2001, it touched off a firestorm of outrage from information rights advocates. Critics accused the Department of Justice of blatantly attempting to stifle the release of government information in the wake of the terrorist attacks. However, the real intent of the memorandum, diffused behind a veil of banal bureaucratic language, will remain undisclosed until it is legally challenged.

The previous FOIA memo, issued by Attorney General Janet Reno in 1993, emphasized the release of requested documents unless the information would cause “foreseeable harm.” Critics charge that Ashcroft’s memorandum encourages agency FOIA officers to default to withholding information as long as there is a “sound legal basis” for doing so. Under the Reno memorandum, “the implication was that, unless there was foreseeable harm, the [Department of Justice] wouldn’t defend an agency’s decision to withhold information,” says Patrice McDermott of the American Library Association. The opposite is true of the Ashcroft memorandum, she says. “[It] seems to say, ‘If you have a sound legal basis for withholding, we will defend you.’”

The memorandum does not override the law, but rather serves as a “wind vane” for government information policy. The language of the Ashcroft FOIA memorandum hews to the now-standard White House line. It stresses the protection of “candid and complete” deliberations by agencies and lawyers from unauthorized intrusion by “Congress and the courts.” The memorandum also explicitly emphasizes that “[n]o leader can operate effectively without confidential advice and counsel.” “I think it’s becoming clear,” says the ALA’s McDermott, “that the memorandum is exemplary of a tendency in the Bush administration toward withholding information and toward asserting an extensive executive privilege.”

New Executive Order Could Close Presidential Records

Less than one month after the issuance of the Attorney General’s FOIA memorandum, President Bush issued an Executive Order, a legally binding directive to all federal agencies, related to the release of the records of former presidents. The order was presented as a simple procedural document. However, many observers, conservative and liberal alike, quickly claimed that the order really seeks to arrogate to incumbent and former presidents the right to restrict access to records that would otherwise be made available under law.

Like the Ashcroft FOIA memorandum, work on the Executive Order was underway before September 11. It appears to have been written so as to prevent the release of 68,000 pages of documents created by the Reagan administration. According to the law governing the release of presidential records ­ the Presidential Records Act (PRA) ­ those records were to be opened to the public in January 2001, at the same time that the Bush administration was assuming office. After being notified of the impending release, as is standard practice under PRA, the White House ordered the documents to be withheld while the White House conducted a “thorough legal review of the PRA.”

The result was Executive Order 13233, often called the “Bush Order,” which extends executive privilege, or the right to presidential confidentiality, to a broad range of records not specified in the PRA. Whereas the PRA makes all presidential records available for public access after 12 years, the Bush Order asserts an automatic executive privilege over the documents and requires that users provide a “demonstrated, specific need” to gain access. The Bush Order claims that executive privilege extends to state secrets, presidential communications, attorney-client communications, and “the deliberative processes of the President or his advisors.”

Rights advocacy groups have already filed a lawsuit against the government, claiming that Executive Order 13233 is “contrary to law.” Paradoxically, taking the issue to court could have a worse effect than attempting to withdraw the Bush Order by other means. “Litigation intended to promote openness in government…almost invariably harms the cause of open government,” according to Steven Garfinkel, former head of the federal Information Security Oversight Office, speaking at a recent freedom of information conference in Washington, DC. “The courts almost never substitute their judgment for that of the Executive Branch on national security issues.”

The House of Representatives in Congress has proposed a bill that would nullify E.O. 13233 as contrary to law. The bill, supported by both Republicans and Democrats, is a direct challenge to White House authority. This action could prove to be a major test of the Bush administration’s contention that Congress has no oversight authority over the White House.

“Strategic Influence” or Media Control?

The Department of Defense created the Office of Strategic Influence (OSI) in late February 2002 to encourage foreign countries to support the war against terrorism. A week after publicly announcing its existence, Secretary of Defense Donald Rumsfeld publicly announced its disbanding ­ the result of a widely reported New York Times article claiming the OSI would provide false stories to foreign media. Rumsfeld said that the OSI “clearly was so damaged” by the accusation “that it could not function effectively.”

The incident highlights concerns that the Department of Defense is limiting or controlling information related to the war on terrorism. The Department of Justice has not released the names of immigrants being detained under suspicion of links to terrorist organizations. While some observers have pointed out that this silence is not unusual for immigration cases, others have criticized the large number of detainees, the length of their detention, and the fact that that the USA Patriot Act grants the government access to their legal consultations.

Shortly after the September 11 attacks, White House staff encouraged newspapers and the broadcast media to “abridge” recordings and transcripts by Osama bin Laden and other members of his al Qaeda group. Fairness & Accuracy in Reporting (FAIR), a media watchdog organization, fears this encouragement sets a bad precedent. “It is troubling for government to shape or influence news content,” FAIR stated in a news release. The media’s access to first-hand information related to the war in Afghanistan is strictly limited to media pools, reflecting the administration’s determination to provide citizens with a centrally controlled, carefully crafted image.

The major American media outlets, for their part, appear to be willing to shape their content accordingly. For example, a FAIR study conducted in late 2001 found that the three commercial broadcast networks have deliberately avoided discussing the effects of accidental or collateral bombings of Afghan civilians. The study claimed that network journalists have neither inquired about the numbers of casualties nor discussed the legal implications of these bombings. Instead, they have framed the issue of civilian casualties as a regrettable but justifiable consequence of America’s military retaliation.

“Sensitive” Security Information Removed from Internet

Recent instructions from the National Archives and Records Administration (NARA) and the Department of Justice lay down rules for “safeguarding” information that relates to “weapons of mass destruction” or that “could be misused to harm the security of our nation.” Classified documents that are due for routine declassification will have their classification extended for up to 25 years. Unclassified information can be immediately classified. Even information that “could reasonably be expected to assist in the development or use of weapons of mass destruction” can be withdrawn without notice. The NARA instructions apply especially to electronic documents placed on agency Web sites.

Even before the NARA guidelines came out, government agencies had begun removing information from their Web sites that had previously been publicly available. Removed materials include:

• Locations of nuclear power plants
• Chemical hazard risk management plans
• Terrain and pipeline maps
• Reports related to hazardous chemicals, aerospace research, and environmental issues

Much of this information had originally been placed on the Internet to help civilians to protect themselves against the effects of attacks and accidents.

The NARA instructions promise to bring order to a chaotic situation. Prior to the release of the guidelines, individual government agencies had their own definitions of what constituted sensitive information. As a result, the removal process was wildly inconsistent and confusing. The instructions are the first step to developing uniform criteria and procedures for all agencies. Open-government advocates can also point to the guidelines when challenging the removal of Web pages.

Because a large number of reclassified documents are likely to remain out of the public domain for many years, the repercussions of their removal may long outlive the current crisis. For example, organizations involved in litigation related to land rights claims and environmental cleanups may now have a harder time getting vital information in a timely manner. The impact has already extended into the realm of humanitarian aid. According to the Project on Government Secrecy, a researcher working on a mine-clearing project at the National Archives in Washington, DC, was recently denied access to a previously-available regional map from the 1960s because it had been reclassified.

USA Patriot Act Taking a Toll on Telecommunications Companies

The USA PATRIOT Act, passed by the United States Congress in October 2001 to provide law enforcement agencies with broad powers to override individual privacy rights, is already having a dramatic effect on Internet service providers (ISPs) and telecommunications companies. According to Newhouse News Service, law enforcement agencies “face an escalating barrage of subpoenas [legal requests] for subscriber lists, personal credit reports, financial information,” and more. Prior to the USA PATRIOT Act, such information was considered beyond the reach of law enforcement agencies unless they had court orders for specific information related to named suspects. In many cases, the companies are losing money as they work overtime to meet the demand for information.

The legal implications have yet to catch up with the rush to obtain subscriber information. For example, companies may face lawsuits from the individuals whose privacy rights were violated. In effect, the current action turns private companies into extensions of federal law enforcement agencies, a position that may not be legally defensible if challenged in court. Torn between conflicting obligations to the government and to their customers, companies are attempting to address new and serious ethical concerns.

American citizens have a long history of trying to ensure that their government protects national security while also preserving Constitutional principles. President Lyndon Johnson expressed this enduring dilemma when he signed the FOIA into law 36 years ago. “A democracy works best when the people have all the information that the security of the nation permits,” he said. “No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.”

At the same time, Johnson also cautioned that the FOIA “in no way impairs the President’s power…to provide for confidentiality when the national interest so requires.” Whether the Bush administration’s emphasis on confidentiality proves to be in the national interest remains to be seen.

Sources:

“Access to Historical Maps Denied at Archives, Secrecy News, vol. 2002, no. 28, April 5, 2002
http://www.fas.org/sgp/news/secrecy/2002/04/040502.html.

Benson, Miles, “In the Name of Homeland Security, Telecom Firms are Deluged with Subpoenas,” Newhouse News Service
http://www.newhouse.com/archive/story1a041002.html.

Dean, John W., “GAO v. Cheney is Big-Time Stalling,” FindLaw.com, http://www.writ.news.findlaw.com/dean/20020201.html.

Dean, John W., “Hiding Past and Present Presidencies: The Problems with Bush’s Executive Order Burying Presidential Records,” FindLaw.com
http://www.writ.news.findlaw.com/dean/20011109.html.

Gilmore, Gerry J., “Strategic Influence Office ‘Closed Down,’ says Rumsfeld,” American Forces Information Services DefenseLINK, http://www.defenselink.mil/news/
Feb2002/n02262002_200202263.html.

“How Many Dead? Major Networks Aren’t Counting,” FAIR Action Report, December 12, 2001
http://www.fair.org/activism/afghanistan-casualties.html.

John E. Moss Foundation, “Statement of the President upon Signing S. 1160 [the Freedom of Information Act], July 4, 1966
http://www.johnemossfoundation.org/foi/LBJ.htm.

Nelson, Scott L., et al., In the United States District Court for the District of Columbia,, “Complaint for Declaratory, Injunctive, and Mandamus Relief,” November 28, 2001
http://www.citizen.org/litigation/briefs/FOIAGovtSec/
articles.cfm?ID=6515.

United States Congress, House Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations, Oversight Hearing on the Presidential Records Act of 1978, Statements of Witnesses
http://www.house.gov/reform/gefmir/hearings/2001hearings/
1106_presidential_records/1106_witnesses.htm.

United States Department of Justice, “New Attorney General FOIA Memorandum Issued”
http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm.

Vasishtha, Preeti, and Dawn S. Onley, “Some Feds Welcome Order to Scrub Web,” Government Computer News
http://www.gcn.com/21_7/news/18308-1.html.

White House, “Executive Order 13233 of November 1, 2001: Further Implementation of the Presidential Records Act”
http://fas.org/irp/offdocs/eo/eo-13233.htm.

York, Byron, weekly column, The National Review, http://www.nationalreview.com/york/york.html.

Related Sites:

Federation of American Scientists, Project on Government Secrecy, “Bush Administration Documents on Secrecy Policy”
http://www.fas.org/sgp/bush/index.html.

OMB Watch, “Access to Government Information Post September 11”
http://www.ombwatch.org/article/archive/104.

National Security Archive, “Government Guidance, Directives and Statistics on the Freedom of Information Act (FOIA)”
http://www.gwu.edu/~nsarchiv/nsa/foia/govfoia.html.

United States Congress, House Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations, Oversight Hearing on the Presidential Records Act of 1978, Statements of Witnesses
http://www.house.gov/reform/gefmir/hearings/2001hearings/
1106_presidential_records/1106_witnesses.htm.