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7/31/2019 Govt Secrecy
Decisions Without Democracyby David Banisar
Preace by Bob Barr and John Podesta
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Government Secrecy:Decisions Without DemocracyBY DAVID BANISAR
OpenTheGovernment.org is a coalition o consumer and good government groups, environmentalists, journalists,
library groups, labor and others united to make the ederal government a more open place in order to make us saer,strengthen public trust in government, and support our democratic principles.
OpenTheGovernment.org, 1742 Connecticut Avenue N.W., 3rd Floor, Washington D.C. 20009 202-332-OPEN (6736)
A project o the Fund or Constitutional Government.
All donations are tax-deductible to the maximum allowable by law.
People For the American Way Foundation is an energetic advocate or the values and institutions that sustain a
diverse democratic society, and which are threatened by the political rise o the religious right. PFAW Foundation
seeks to protect undamental rights and reedoms guaranteed under the Constitution, sustain an independent
judiciary and mobilize activists to support progressive causes.
People For the American Way 2000 M Street, NW,
Suite 400 Washington, DC 20036Telephone: 202-467-4999 or 800-326-7329 [email protected]
Donations to People For the American Way Foundation, a
nonproft 501(c)(3) organization, are tax deductible
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
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PREFACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
PREFACE.(1987.EDITION) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EXECUTIVE.SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.OPENNESS:.AN.AMERICAN.VALUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.THE.DARKENING.CLOUD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Its.a.Secret:.Classied.and.Semiclassied.Inormation 13Classied inormation 13
The U.S. Executive Order on Classication 14Declassication 15
Now you see it, now you dont: Secret Reclassications 16Watching the Watchers: Oversight o the classication system 16
Go Away: The State Secrets Privilege 17Keep away: Its Sensitive (but not classied)! 18Propaganda and Dis-inormation 20
The Freedom rom Inormation Act: Limiting the FOIA 20Executive Privilege 22Closing the Courthouse Doors 25
Gag rules 26Plugging the Whistle 27Ocial Secrets?: The Espionage Act and other criminal statutes 28
Attacking the Messenger: the Media and Protection o Sources 29
3.OPPORTUNITIES.FOR.PUBLIC.ACCESS.AND.PARTICIPATION.IN.A.DIGITAL.AGE . . . . 3 1
Electronic.Government 31Access to government inormation online 31
Digital Divide 34Disappearing documents and web sites 35
Managing Born Digital Inormation 35
Activism/ organizing 36
APPENDIX..LIST.OF.RELEVANT.LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
APPENDIX..RESOURCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
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1Government Secrecy: Decisions Without Democracy
Excessive secrecy is the enemyo public accountability and democratic governance. Unortunately, it isbecoming standard operating procedure or many government ocials. Vice President Dick Cheneys recentinsistence that his oce is not subject to secrecy regulations that apply to the executive branch is just the
latest evidence o a systematic campaign to keep inormation about government activities out o the handso the American public.
Freedoms o Inormation laws are grounded in the recognition that knowledge about the governmentsactions is the necessary rst step in oversight and accountability. Most Americans recognize the need to
saeguard national security inormation rom improper public disclosures that would damage the nationalinterest. But national security has become a blanket excuse to withhold inormation rom the public as well
as rom Congress, especially in the atermath o the 9/11 terrorist attacks.
The National Security Archive has documented widespread agency mismanagement and obstruction whichlead to delays as long as 17 years in responding to public Freedom o Inormation Act requests. Only one inour agencies is complying with the Electronic Freedom o Inormation Act a decade ater it passed.
O course, the right to know is also undermined by the release o inormation that is inaccurate or mislead-
ing. At the ederal level, politics increasingly trumps sound science: reports on key environmental issues arealtered by political appointees; inormation about HIV/AIDS is manipulated to promote a particular ideologi-
cal viewpoint; and ederal employees are muzzled rom sharing their expertise.
The misuse o secrecy and the manipulation o science and other inormation undermine the publics right to
know and the health o our democracy. And they threaten the health o the public as well: a re at a chemi-cal plant situated near a neighborhood could pose a serious threat to residents health, but it is dicult or
individuals to learn the most basic inormation about hazards to which their amilies may be exposed.
The preace to this report, written by Republican Robert Barr and Democrat John Podesta, reects that theimportance o the publics right to know is not a partisan issue; it is a undamentally American issue.
Over the years, regardless o the political party in charge, our three organizations have challenged excessivegovernment secrecy and ofered ideas to protect the publics right to know. For example, in 1987, People or
the American Way, OMB Watch, the Benton Foundation, and the Advocacy Institute launched a public edu-cation campaign to draw attention to the ways in which government was withholding inormation rom the
public. One element o that campaign was the publication by People or the American Way o GovernmentSecrecy: Decisions Without Democracy, a primer on secrecy that serves as the model or this publication.
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2 Government Secrecy: Decisions Without Democracy
OMB Watch and National Security Archive ollowed Government Secrecy with a retreat at the Blue Mountain
Center in New York in the early 1990s that established principles or advancing the public right to know thathave guided the public interest community or more than a decade.
But today the oundation o democratic accountability is being steadily eroded. At the same time thattechnology has given us new tools or linking government inormation in ways that could empower citizens,
policies and procedures at the ederal, state, and local levels serve as barriers to ullling the promise. Andpublic condence in the openness o the ederal government is shrinking, as documented in a recent poll by
the Association o Newspaper Editors.
Our three organizations are part o OpenTheGovernment.org, a broad-based coalition that brings togetherjournalists, librarians, academics, individual citizens, advocacy groups, and proessional associations commit-ted to strengthening and protecting our right to know. This primer is just one step in engaging the public in
a campaign to make our government more transparent and accountable to the public. We the people mustexercise our rights to strengthen, i not preserve, democracy. We encourage you to get involved by visiting
the website (www.openthegovernment.org) to learn what you can do.
We want to thank David Banisar, the author o this publication, or his excellent work. Patrice McDermott,the director o the OpenTheGovernment.org, and Emily Feldman, the policy associate, shepherded the
process rom start to nish. They did a wonderul job. This project would have not started had not ConradMartin o the Fund or Constitutional Government suggested the idea. The Steering Committee or Open-
TheGovernment.org provided invaluable assistance in establishing the themes o this book: the expansive
and myriad secrecy we conront; and the opportunities that a more digital government presents to us orgreater participation, openness, and accountability. Special thanks goes to Elliot Mincberg while he was with
People or the American Way, Steve Atergood, Marge Baker, Mary Alice Baish, and Charles Davis who servedas a panel to provide the ongoing advice, guidance and review that led to this strong report.
Executive Director, OMB Watchand co-chair, OpenTheGovernment.org
Thomas.S.Blanton.Executive Director, National Security Archive
and co-chair, OpenTheGovernment.org
President, People or the American Way
and partner, OpenTheGovernment.org
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3Government Secrecy: Decisions Without Democracy
Prefaceby Bob Barr and John Podesta
Twenty years ago, People or The American Way published the rst Government Secrecy primer. At the
time, our ounding principles o openness and accountability were being strained under the decades-longCold War with the Soviet Union. Presidents o both parties repeatedly invoked security to justiy greater
secrecy, very oten in ways that did not reect legitimate security concerns but rather served what Arthur
Schlesinger, Jr. called in his preace the Imperial Presidency.
Today, we ace a new security threat, but the Imperial Presidency is back. In the atermath o the 9/11 terror-ist attacks, the current administration has laid claim to a dramatic expansion o executive power, sometimes
with congressional approval, as with the PATRIOT Act, and sometimes through legally dubious assertions, aswith the National Security Agencys domestic surveillance program.
At the same time, the administration has routinely withheld inormation that should be made public, there-
by insulating itsel rom democratic accountability. As this primer documents, secrecy has been advancedin a myriad o ways, including excessive classication, brazen assertions o executive privilege and statesecrets, new control markings to restrict sensitive but unclassied inormation, and new limits on Freedom
o Inormation Act requests.
The government should, o course, keep certain kinds o inormation secret. Our laws recognize the need toprotect national security inormation, such as intelligence sources and military plans, or example, as well
as personally identiable data, such as inormation provided on tax returns. But the secrecy claims assertedby the administration go ar beyond what is contemplated by the lawand ar beyond what is healthy ordemocracy, which depends on an inormed citizenry.
Citizens deprived o relevant inormation cannot participate in their governments decisions or hold their
leaders accountable. Without this check, government ocials are more likely to make decisions contraryto the public interest, abuse their authority, and engage in corrupt activities. In words that ring prophetic
today, James Madison warned in 1822, A popular Government, without popular inormation, or the meanso acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.
The administrations embrace o secrecy comes rustratingly at a time o great opportunity or government
openness. The Internet and other new inormation technologies make it ar easier and cheaper or govern-ment to disseminate inormation and interact with the public. Through government Websites, or example,citizens can now access the Congressional Record, track environmental pollution in their neighborhoods,
and comment on regulatory proposals. Instead o building on this oundation, however, the executivebranch is retrenchingin a host o cases, government inormation previously available through the Internethas been removed.
This primer by David Banisar on behal o OpenTheGovernment.org and People or the American Way clearly
documents the expansion o secrecy and the dangers posed to democracy. In doing so, it provides ammuni-tion to reclaim the open and balanced system o government set orth in our Constitution and Bill o Rights.
It is now up to all o us to make our voices heard.v
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Government Secrecy: Decisions Without Democracy
Secrecy is the bane of democracy because it is the enemy o accountability. The ramers o the AmericanConstitution designed a system o government intended to bring power and accountability into balance. Thesecrecy system, as it has been nurtured by the executive branch over the last orty years and with special zealover the last seven years, is the indispensable ally and instrument o the Imperial Presidency.
Now no one can question the right o the state to keep certain things secret. Weapons technology and deploy-
ment, diplomatic negotiations, intelligence methods and sources, and military contingency plans are amongthe areas where secrecy is entirely deensible. Secrecy is deensible too in certain domestic areas: personal data
given the government on the presumption it would be kept condentialtax returns, personnel investiga-tions and the like; and ocial decisions that, i prematurely disclosed, would lead to speculation in land or com-modities, preemptive buying, higher governmental costs and private enrichment.
But the contemporary state has extended the secrecy system ar beyond its legitimate bounds. In doing so, the
target is ar less to prevent the disclosure o inormation to enemy governments than to prevent the disclosureo inormation to the American Congress, press and people. For governments have discovered that secrecy is
a source o power and an ecient way o covering up the embarrassments, blunders, ollies and crimes o theruling regime.
When governments claim that a broad secrecy mandate is essential to protect national security, they mostlymean that it is essential to protect the political interests o the administration. The harm to national security
through breaches o secrecy is always exaggerated. The secrecy system has been breached since the beginningo the republicrom the day in 1795 when Senator Mason o Virginia enraged President Washington by giv-
ing the secret text o Jays Treaty to the Philadelphia Aurora, or the day in 1844 when Senator Tappan o Ohioenraged President Tyler by giving the secret text o the treaty annexing Texas to the New York Evening Post. Noone has ever demonstrated that such leaks, or the publication o the Pentagon Papers either, harmed national
security. No one can doubt that these disclosures beneted the democratic process.
The republic has survived great crisesthe War o 1812, the Civil War, the First and Second World War with-out erecting the sufocating structure o secrecy the Reagan administration proposes today. One wonders what
greater crisis justies the extreme measures taken and contemplated by the Reagan administration since 1981.The consequences or American democracy o the cult o secrecy may be dire. For the secrecy system not only
saeguards the executive branch rom accountability or its incompetence and its venality. Worse, it emboldensthe state to undertake rash and mindless adventures, as the Iran-contra scandal sadly reminds us. Thoughsecrecy in diplomacy is occasionally unavoidable, wrote James Bryce, who was not only an acute student o
comparative government but also a distinguished diplomat, it has its perils...Publicity may cause some losses,but may avert some misortunes. Perhaps President Reagan will one day regret that the press had not exposed
Preface to the 1987 Editionby Arthur Schlesinger, Jr.
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Government Secrecy: Decisions Without Democracy
his secret intentions toward Iran in time to block his ill-considered policy, as President Kennedy regretted that
the New York Times had not played up its story on the exile invasion o Cuba. I you had printed more aboutthe operation, he told a Times editor, you would have saved us rom a colossal mistake.
Because the secrecy system is controlled by those on whom it bestows prestige and protection, it has longsince overridden its legitimate objectives. The religion o secrecy has become an all-purpose means by which
the American Presidency seeks to dissemble its purposes, bury its mistakes, manipulate its citizens and maxi-mize its power. This People For the American Way report by Steven L. Katz is a meticulous and dispassionate ac-
count o the growth and widening reach o the secrecy system and o the danger it poses to American democ-racy. It is not too late or Congress to bring the secrecy system under control and redress the balance between
presidential power and presidential accountability.
The issue is hardly new. Executive secrecy, John Taylor o Caroline, the philosopher o Jefersonian democracy,
wrote in 1814, is one o the monarchial customs, plausibly deended, and certainly atal to republican govern-ment...How can national sel government exist without a knowledge o national afairs? or how can legislatures
be wise or independent, who legislate in the dark upon the recommendation o one man?v
December 1987, New York
The Steering Committee or OpenTheGovernment.
org provided invaluable assistance in establishing thethemes o this book: the expansive and myriad secrecy
we conront; and the opportunities that a more digitalgovernment presents to us or greater participation, open-
ness, and accountability. A smaller editorial committee
provided ongoing advice, guidance and review that led to
this strong report.Recognition must also be given to the staf o OpenThe-
Government.org who shepherded the process and assisted
with the proo-reading and copy-editing.
OpenTheGovernment.org is most grateul or the generoussupport o the Angelina Fund, CS Fund, Educational Foun-
dation o America, HKH Foundation, Knight Foundation,
Open Society Institute, Philanthropic Venture Fund, andWarsh-Mott Legacy, which made this publication possible.
We would like to acknowledge our partners in
OpenTheGovernment.org, many o whom have labored
in these elds or many years and all o whom continueto work to push back secrecy and advance openness and
accountability in our government:
American Association o Law Libraries, AmericanBooksellers Foundation or Free Expression, American
Library Association, American Society o Newspaper
Editors, Association o American Publishers, Association ForCommunity Networking, Association o Research Libraries,
Bill o Rights Deense Committee, Caliornians Aware,Center or American Progress, Center or Democracy and
Technology, Center or National Security Studies, Center
or Progressive Reorm, The Center or Public Integrity,
Common Cause, Electronic Frontier Foundation, ElectronicPrivacy Inormation Center, EnviroJustice, Environmental
Deense, Essential Inormation, Federation o AmericanScientists, First Amendment Foundation, Florida First
Amendment Foundation, Free Expression Policy Project,
Friends Committee on National Legislation, Fund or
Constitutional Government, Good Jobs First, GovernmentAccountability Project, Humanist Society o New Mexico,Human Rights First, Illinois Community Technology
Coalition, Indiana Coalition or Open Government, Institute
or Deense and Disarmament Studies, James MadisonProject, League o Women Voters, Liberty Coalition,
Mine Saety and Health News, Minnesota Coalition onGovernment Inormation, National Coalition Against
Censorship, National Coalition or History, National
Committee Against Repressive Legislation, NationalFreedom o Inormation Coalition, National Security Archive,
National Security Whistleblowers Coalition, New JerseyWork Environment Council, Northern Caliornia Association
o Law Libraries, NPOTechs, OMB Watch, PEN American
Center, People For the American Way, Political ResearchAssociates, Positive Financial Advisors, Inc, Project On
Government Oversight, Public Employees or EnvironmentalResponsibility, ReadtheBill.org, ReclaimDemocracy.org,
Reporters Committee or Freedom o the Press, Society oAmerican Archivists, Society o Proessional Journalists,
Southeastern American Association o Law Libraries,
Special Libraries Association, Sunlight Foundation,Taxpayers or Common Sense, Transactional Records
Access Clearinghouse, U.S. Public Interest Research Group,Washington Coalition or Open Government, Working
Group on Community Right-to-Know.
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7Government Secrecy: Decisions Without Democracy
Openness is an American value. It promotes democracy and good government. It reduces corruption andensures that rights are respected and protected. In the past six years, the basic principle o openness as theunderpinning o democracy has been serious undermined. The Administration has taken an extreme view o
the power o the presidency. In its view, its powers to operate are largely unchecked by the Congress, courts,states or the public.
Existing laws on openness have been undermined while secrecy is increased. The Administration has issued
executive orders placing limits on the Freedom o Inormation Act and Presidential Records Act, expandedthe power to classiy inormation or national security reasons, and created a whole range o new categorieso sensitive inormation. Classication o inormation has nearly doubled while eforts toward declassi-
cation have largely been stopped and many records were secretly reclassied. Thousands o records havedisappeared of o public web sites. The State Secrets privilege has been regularly invoked in shutting down
Congress and the public have been misled about important issues. Government decision-making leading upto and ollowing the invasion o Iraq has been rie with misinormation and secrecy. Key evidence relating to
the presence o chemical and biological weapons was misrepresented and key inormation withheld romCongress and the public. Once the initial invasion was over, inormation about contracts activities and coststhat shows millions o dollars have been lost in raud and mismanagement has been systematically hidden.
Records relating to abuses in prisons were classied. The photos o the caskets o dead soldiers, bringinghome the severity o the war, were prohibited rom being released.
The public health has been threatened. In 2006, the Environmental Protection Agency approved changes
limiting the collection o inormation about how much chemical waste they released into the environment.In 2004, the National Highway Trac Saety Administration restricted the amount o inormation on the
saety o automobiles that would be released to the public.
Dozens o whistleblowers who have revealed inormation about misconduct in ederal agencies have been
red, lost their security clearances or been transerred to lesser jobs. Scientists have aced new restrictionson their ability to speak to the press about scientic issues. Employees at NASA were censored rom speak-
ing about global warming. The EPA decreed that whistleblower protections under environmental laws nolonger applied to workers. Journalists have also been investigated and jailed or reusing to identiy thesources o their inormation.
At the same time, advances in digital technology have increased the amount o inormation and the speed
at which it is available. Federal laws, regulations and structures are available online. Inormation that was
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8 Government Secrecy: Decisions Without Democracy
once dicult to obtain is now available at the click o a button.
The new digital technologies also ofer unprecedented opportunities or organizations and citizens toobtain and use inormation to monitor the government and afect government policy. E-government allows
or easier access to services and some governance such as rulemaking.
However, digital inormation is not a panacea. Problems continue with technology distribution and educa-tion to ensure that all persons have equal access to government inormation. Inormation can also disappear
in the blink o an eye. Thousands o pages were abruptly removed rom ederal web sites ollowing 9/11.Long term strategies or collecting, archiving and maintaining inormation are not yet ully developed.
It is now time or Congress to take charge. Oversight is needed to ensure that laws are enorced. Many needrevisions to replace the policies that have been put in place in the last six years with more openness. Others
need to be updated to recognize changes in law, society and technology in the past decade. v
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9Government Secrecy: Decisions Without Democracy
Liberty cannot be preserved without a general knowledge among the people, who have a right,from the frame of their nature, to knowledgeand a desire to know; but besides this, they have
a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied
kind of knowledge, I mean, of the characters and conduct of their rulers.1
JOHN ADAMS, 1765
The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers
may be concealed from them.2
PATRICK HENRY, 1788
A popular Government, without popular information, or the means of acquiring it, is but a Pro-
logue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a
people who mean to be their own Governors, must arm themselves with the power which knowl-
JAMES MADISON, 1822
Openness: an American Value
American democracy is based, in the words oThomas Jeferson, on government deriving their
just powers rom the consent o the governed. Ithas been long recognized that openness is essential
to ensuring that government is working on behalo its citizens. Individuals have the right to know,
either directly rom ocials, or through organiza-
tions, the media or their elected representatives,how government is operating to ensure it is on their
behal. The inormation held by the government isowned by the American people and only held in
trust or them by the government and its ocials.
Openness has many benets or both citizensand governments. It promotes trust and ecientgovernment, it reduces mismanagement and cor-
ruption, and it promotes rights, airness and therule o the law.
awareness.and.trust.in.governmentGovernmentocials are less able to mislead the public or politi-
cal reasons i the system is open and inormationis widely available. As noted by President Nixon in1972, Fundamental to our way o lie is the belie
that when inormation which properly belongs tothe public is systematically withheld by those in
power, the people soon become ignorant o theirown afairs, distrustul o those who manage them,
and---eventually---incapable o determining theirown destinies.4 Public awareness o the inormationand reasons behind decisions can improve support
and reduce misunderstandings and dissatisaction.The public can also better participate in the process
when they have inormation about the activities o
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10 Government Secrecy: Decisions Without Democracy
the government. Condence in the government is
also improved i it is known that the decisions willbe predictable.
ment As the uture President Woodrow Wilson said
in 1913, Everybody knows that corruption thrivesin secret places, and avoids public places, and we
believe it a air presumption that secrecy meansimpropriety. So, our honest politicians and our
honorable corporation heads owe it to their reputa-tions to bring their activities out into the open.5Billions o dollars are spent every year by the ederal
government. Openness in public spending makes itpossible or representatives and citizens to moni-
tor their government actions and publicize poorspending. The public controversy over The Bridge
to Nowhere and other earmarks show that publicrebuke is oten more powerul than the Congres-
sional appropriations process. Billions misspent andwasted in Iraq and in the cleanup o Katrina havebeen revealed; armed with this knowledge, citizens
can demand meaningul reorms rom their govern-ment. Billions have been recovered by whistleblow-
ers in the past ten years.
Openness.prevents.abuses As Justice Louis
Brandeis said, Sunlight is said to be the best odisinectants; electric light the most ecient
policeman.6 Government ocials are less likely to
abuse their power i they believe the abuse wil beexposed. At a minimum, ocials will stop abuses,once they become public. The revelations o abuses
o detainees in Iraq and o domestic surveillance inthe U.S. show that the spotlight o public scrutiny
can orce changes when internal administrativeprocesses and Congressional oversight ail.
Openness allows government agencies to bettershare inormation and learn lessons. Sharing re-duces redundant eforts and allows better analy-
sis. Overspending and double spending can bereduced. The 9/11 Commission ound that the lack
o sharing among government agencies was one othe reasons the plot was able to succeed.
An open system o law allows individuals to knowtheir rights and responsibilities. Each year, millionso veterans access their records held by the ederal
government to help determine their disabilities.Local citizens and municipalities can better protect
themselves rom chemical hazards. Openness couldhave helped the dozens who have died in the ater-math o 9/11 due to respiratory problems around
the site o the World Trade Center.
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11Government Secrecy: Decisions Without Democracy
development Inormation sharing between scien-tists and others allows or greater innovation. Manyo the most signicant technical developments in
the past thirty years, including the Internet, havecome out o open scientic research sponsored
by the government. These developments havesubstantially beneted the U.S. economically. Today,
many areas o new scientic development suchas genetics are based on government- sponsored
projects. Inormation sharing can also be a benetin protecting the national deense, as sharing canlead to aster breakthroughs in areas such as cures
or developments o immunizations or the u virusand other biological threats.
lations Over hal o the release o toxic materials millions o tons o pollutants have been reduced
due to public availability o inormation on pollut-ants.7 Consumers are better able to make decisionson products when inormation, such as saety and
reliability, are made available.
Openness.improves.the.stability.o.marketsMil-lions o investors use the public lings o companiesto evaluate their nancial worthiness. Money can
then be invested in well-managed companies withinnovative ideas rather than only those with the
best public relations and slickest brochures. Themarkets can also act more airly. Better general ac-
cess to nancial inormation makes secret deals and
monopolies more dicult.
As the initial statements show, many o the ound-ing athers recognized the power o inormationin promoting democracy. Along with a ree press,
government openness was seen as a necessity topromote trust.
Our system o government was not totally openoriginally and in many areas, such as oreign rela-tions, there was great secrecy imposed by the ex-ecutive branch. But there are many early examples
o the openness o activities on the ederal level.In 1813, Congress initiated the beginnings o the
Federal Depository Library Program by requiringcopies o its Journals to be sent to university and
state libraries. As ar back as 1816, the salaries o theemployees in ederal agencies were being pub-lished. Congress too opened its proceedings almost
rom the beginning and published them. In 1860,
it created the Government Printing Oce, whichopened the day o Abraham Lincolns inauguration.From the beginning, the judicial system was based
on the English principle that an open court wouldensure airness and limit abuses.
The states have been at the oreront o providing
inormation to citizens about their activities. Moststates have provided inormation about local and
police activities or over a century. In Wisconsin, thelegislature in 1849 adopted a law on the opennesso country records and meetings.8 In Louisiana, the
1940 Public Records Act set up the rst comprehen-sive system or the archiving and access to public
records. Today, the states are still at the oreront aslaboratories o democracy, with many still trying
innovative new ideas to promote openness lateradopted by the ederal government.
The development o the ederal administrative statein the early 20th century led to a great concern
about the transparency and accountability o thenewly-created powerul ederal administrative
agencies. Within a short period o time, many largeagencies were created and issued thousands opages o orders and regulations with little organiza-
tion. Even individuals working at the highest levelso government ound it dicult or impossible to
keep track o all o them. And or the regulatedpublic, this new body o executive legislation was
inaccessible and virtually hidden. 9
In 1935, a case10 that went to the Supreme Court
revealed that the section o a rule under which acompany was being prosecuted was omitted rom
the publication o the regulation. Soon thereater,the Congress enacted a law ordering the creation o
the Federal Register to publish all regulations in asystematic way.11
In 1946, the Administrative Procedures Act (APA),which was intended to regulate the activities o the
agencies, was adopted. The law provided or a lim-ited to right o access or those who were afected
by agencies decisions. A permissive provision in thelaw encouraged agencies to make more inormationabout their activities available. Most, however, took
a restrictive view and did not disclose inormation .
Starting in 1950s, Congress, led by CongressmanJohn Moss (D-CA), began investigating the right
o access and ound that agencies did not makemuch inormation available. A campaign led bymedia organizations resulted nally in the 1966
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12 Government Secrecy: Decisions Without Democracy
Freedom o Inormation Act (FOIA). For the past
40 years, this Act, subsequently amended severaltimes to enhance openness and supplemented withother laws, has stood as the pinnacle o openness
or the public.
It has been supplemented by laws such as: the Gov-ernment in the Sunshine Act to ensure that meet-
ings o ederal agencies headed by a collegial body,such as the Federal Communications Commission,
are open to the public and minutes or transcriptsare kept o the meetings; the Federal AdvisoryCommittee Act which ensures that committees that
advise the ederal government are composed airlyand hold open meetings; and the Privacy Act, which
allows individuals to obtain and correct their per-
sonal inormation in records held by ederal bodies.
As new technologies have made the provision
more easily available and increased demand bycitizens to know more, the trend toward more
openness has continued. In 1993, Congress en-acted a law to require that the Federal Register be
published in electronic orm. In 1996, the Congressadopted the Electronic Freedom o Inormation
Act to extend the FOIA to electronic records and toprovide or more use o electronic resources. Morerecently, eforts to improve electronic government
have increased both access to inormation andincreased participation.v
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13Government Secrecy: Decisions Without Democracy
The Darkening Cloud
Behind closed doors, there is no guarantee that the most basic of individual freedoms will be pre-
served. And as we enter the 21st Century, the great fear we have for our democracy is the envelop-
ing culture of government secrecy and the corresponding distrust of government that follows.12
FORMER SENATOR DANIEL PATRICK MOYNIHAN 2000
In the past six years, the basic principle o open-ness as the underpinning o democracy has been
seriously undermined and distrust o government ison the rise.
The Administration has taken an extreme view othe power o the presidency. In its view, its powersto operate are largely unchecked by the Congress,courts, states, or the public. The number o se-
crets generated has substantially increased, whilerelease o inormation has declined. New categories
o semi-secret sensitive inormation prolieratewhile laws on access to inormation are under-
mined or ignored. Whistleblowers and journalistsare threatened with jail while billions o dollars aresquandered on secret contracts or incompetence.
Scientists are gagged while propaganda and misin-ormation are released rom the highest oces.
The system o protecting inormation or nationalsecurity reasons is out o control. Inormation is
classied at an astounding rate. On an average day
o the year, nearly 40,000 items (such as docu-ments, les, or videos) 15 million in 2004 and
14.2 million in 2005 are classied by governmentocials and private contractors. This number has
been increasing or the last ten years up rom 3.5
million in 1995; it has substantially increased in thelast six years.
For every Tax Dollar Spent DeclassifyingOld Secrets, The Government Spends
$134 Creating and Securing Old Secrets
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14 Government Secrecy: Decisions Without Democracy
Problems with the classication system have been
long recognized. In 1994, Congress approved thecreation o the Commission on Protecting andReducing Government Secrecy, chaired by Senator
Daniel Patrick Moynihan. The Commission issued adetailed report in 1997 that ound that the system
or classied inormation was severely broken:
The result today is a system which neither protectsnor releases national security inormation particu-
larly well. Substantial concerns exist with respectto both the ability o the classication system toprotect secrets efectively and the adequacy o the
procedures in place to make inormation availableto those outside the Government.13
The biggest problem is the prevalence o mis-clas-
sication and over-classication. It is estimated thatbetween 10 percent and 90 percent o all docu-
ments are over-classied. Lee Hamilton, the Vice-Chair o the 9/11 Commission said that 70 percento the classied inormation that he saw during the
Inquiry was needlessly classied. Reviews by theGovernment Accountability Oce have ound nu-
merous problems with the classication levels andmarkings employed in agencies.14
Even government ocials admit there are seriousproblems. Carol Haave, the Deputy Under-Secretary
o Deense, testied in a Congressional hearing in2004 that she believed that 50 percent o inorma-
tion was over-classied. At the same hearing, Wil-
liam Leonard, Director o the Inormation SecurityOversight Oce thought it was even higher. He
noted that over-classication was disturbinglyincreasing, where inormation is being classied
that is clear, blatant violation o the order.15 FormerCentral Intelligence Agency (CIA) Director (now Sec-
retary o Deense) Robert Gates testied to the 9/11Commission We overclassiy very badly.16
The rules or classication o inormation or
national security reasons are set by the U.S. Execu-tive Order 12958 on Classied National Security
Inormation originally issued by President Clinton in1995 and amended by President Bush in 2003.17 TheOrder sets out procedures on the classication o
inormation including who can classiy, under whatstandards they can do so, or how long inorma-
tion can be classied, and a process or its eventualdeclassication and release. There are a limited
number o people who are authorized to create
classied inormation (around 4,000 total) and they
must mark each time why it is classied and or howlong it needs to be protected.
There are eight categories o inormation that areeligible or classication:
(a) military plans, weapons systems, or operations;
(b) oreign government inormation;(c) intelligence activities (including special activities),
intelligence sources or methods, or cryptology;(d) oreign relations or oreign activities o theUnited States, including condential sources;
(e) scientic, technological, or economic mattersrelating to the national security, which includes
deense against transnational terrorism;( ) United States Government programs or sae-
guarding nuclear materials or acilities;(g) vulnerabilities or capabilities o systems, installa-
tions, inrastructures, projects, plans, or protectionservices relating to the national security, whichincludes deense against transnational terrorism; or
(h) weapons o mass destruction.
Depending on the sensitivity o the inormation,there are three levels o classication:
Top Secret - where unauthorized disclosure couldbe reasonably expected to cause exceptionally
grave damage to the national security. Secret - where disclosure could be expected to
cause serious damage to the national security.
Condential - disclosure could be expected tocause damage to the national security.
The E.O. prohibits the classication o inorma-
tion to conceal violations o law, ineciency, oradministrative error, prevent embarrassment to a
person, organization or agency, retain competi-tion, or prevent or delay the release o inormationthat does not require protection in the interest
o national security inormation. It also prohibitsthe classication o basic scientic inormation
not clearly related to national security. In practice,however, these prohibitions have oten been unsuc-
cessul, with inormation such as the report on theabuses rom the Abu Ghraib prison being classiedto prevent its release.18
The deault period or inormation to be classied is
ten years unless the person who issues the clas-sication can identiy an earlier date or event that
would cause it to be available sooner, or makes aspecic determination that it is sensitive to a laterdate. Since the adoption o the Clinton order, ap-
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1Government Secrecy: Decisions Without Democracy
proximately ty percent o all inormation is set or
declassication in 10 years or less.
Changes to the Order by President Bush
The 2003 Bush Amendment (E.O. 13292) let thestructure o the Clinton order mostly intact butsignicantly changed the presumptions about
classication. It removed the requirement that, ithere were a signicant doubt about classication,
it should not be classied. Expert Harry Hammitdescribes it as a when in doubt, classiy standard.Other changes include:
Set presumption that inormation in categories
shall be considered or classication rather thanmay be classied.
Expanded categories to include Inormation inra-
structure, WMD, and terrorism. Allowed or easier reclassication o inormation.
Removed presumption o 10 years or classica-tion i no date can be determined.
Eliminated requirement that each agency makeplans or declassication.
Extended the deadline or automatic declassica-tion to December 2006.
Allowed the CIA Director, unless overruled by
President, to block decisions by the InteragencySecurity Classication Appeals Panel (ISCAP) to
declassiy inormation. Expanded protection o inormation provided by
The other, equally important, side o protectingclassied inormation is ensuring that it is declas-
sied and released once it is no longer sensitive.The Clinton Executive Order required, and the Bush
order retained the requirement, that all inorma-tion 25 years and older that has permanent histori-
cal value be automatically declassied, starting in
December 2006 (originally set or 2000), unless itis specically exempted and is subject to outsidereview. The Order created a new standard by plac-
ing the burden on the government agency to justiywhy the inormation should not be declassied,
rather than why it should be.
The result o the order was the massive systematicreview by agencies o their records. Between 1995and 2001, one billion pages were reviewed and de-
classied, 200 million pages in 1997 alone. Since thebeginning o the Bush Administration, that efort
signicantly declined, dropping below 30 millionpages in 2004 and 2005.
Limited eforts have also occurred to declassiyinormation in special areas where there was a com-
pelling interest. Congress enacted two specializedlaws on the access to les relating to the assassina-
tion o President John F Kennedy (ollowing themovie JFK),19 and to Nazi and Japanese war crimes20
held by government agencies, including the intel-ligence services. Both Acts created review boards
to collect and examine documents and decide ontheir release. Over our million pages were released,including thousands o previously classied records
under the JFK Act.21 Over eight million documentshave been released under the war crimes laws.
However, the Administration has also oten used se-
lective declassication or political means. PresidentBush secretly declassied sections o a NationalIntelligence Estimate that supported its claims o
weapons o mass destruction in Iraq. These wereleaked to reporters by the Oce o the Vice-Presi-
dent.22 The Attorney General went beore the 9/11Commission with what Senator Leahy called a
conveniently declassied memo to attack a Com-missioner. In 2004, Secretary o State Rice quotedrom a selectively declassied 2001 memo prepared
or the National Security Council by then-counter-
Official Classification Down Slightly as More Documents are Released
New classi fied documents ( in millions) Number of pages declassified
Source: Information Security Oversight Office Compiled by OpenTheGovernment.org & National Security Archive
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1 Government Secrecy: Decisions Without Democracy
terrorism czar Richard Clarke.23 It has also used it to
stymie Congressional oversight o the Foreign Intel-ligence Surveillance Act and anti-terrorism policy.
A bill was introduced in the 109th Congress whichwould require notication to the Intelligence Com-
mittees when inormation was declassied.
In the110th Congress, the House Intelligence Committee
has already announced plans to investigate thepractice o selective declassication.25
As noted above, the Bush amendments to the
Clinton Executive Order make it easier to reclassiyinormation. Under the Clinton Order, inormationcould not be reclassied i it had been declassied
and released to the public. Now, inormation canbe reclassied i the head o the agency determines
that it is in the interest o national security, theinormation may be reasonably recovered and the
Director o the Inormation Security Oversight O-ce (ISOO) is notied.
In 2006, it was discovered that over ty-ve thou-sand pages o records were secretly reclassied at
the National Archives and the Presidential librariesunder an agreement with the CIA and other agen-
cies.26 Many were documents that had never beenclassied in the rst place or were already published
by the State Department. Some were over 60 yearsold, such as the Korean War era assessments by theCIA that China was not likely to intervene in Korea
two weeks beore China entered the war. An ISOOaudit o the les ound that over one third were
not even eligible or classication. It also ound asignicant number o instances when records thatwere clearly inappropriate or continued classica-
tion were withdrawn rom public access.27 The U.S.Archivist apologized or the secret agreements, stat-
ing There can never be a classied aspect to ourmission. Classied agreements are the antithesis o
our reason or being.28
The Administration is not the only party at ault
in promoting excessive secrecy. In 1998, Congressordered that the Department o Energy withdraw
rom public availability all o its recently declassieddocuments that might be related to the design o
nuclear weapons, to ensure that improper declas-sication did not take place.29 In all, the Departmentwithheld and reviewed over 200 million pages.
Only 6,640 pages containing classied inormation
were ound, mostly long-public material about the
previous locations o weapons that are no longersensitive. Many documents that were previouslypublic were withheld, such as a 1971 Congressional
brieng by Secretary o Deense Melvin Laird onTheatre Nuclear Forces and Strategic Forces, the
numbers o weapons and bombers in the 1960sand 1970s, and agreements with the Canadian gov-
ernment rom the 1960s.30 The review has cost $22million and delayed eforts by the DOE to continue
its declassication efort.
The Inormation Security Oversight Oce (ISOO)
An intelligent system o classication needs in-
dependent oversight to ensure that it is working.Under the Executive Order, the Inormation Security
Oversight Oce, a division o the National Archives,has general responsibility relating to the develop-
ment and oversight o protections on classica-tion and declassication o inormation. Its dutiesinclude:
Implementing Directives, Instruction and
Regulations Liaison, Inspections and General Oversight
Statistical Collection, Analysis and Reporting
Recommending Policy Changes
Each year, the ISOO collects statistics on the clas-sication and declassication o inormation the
previous year and presents a public document onthe amount o classication and its estimated costs.
The ISOOs powers are limited, however. It auditsand makes recommendations on agencies clas-
sication practices; the agencies, however, are notrequired to ollow its guidelines and recommenda-
tions. This is why Senator Moynihan's Commissionon Protecting and Reducing Government Secrecy
recommended the creation o a National Declassi-cation Center.
Missing in Action: The Public InterestDeclassifcation Board
In 2000, Congress approved the creation o the
Public Interest Declassication Board.31 The boardunctions are to:
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17Government Secrecy: Decisions Without Democracy
Advise the President and other executive branchocials on classication and declassication
process; Promote public access to a thorough, accurate,
and reliable documentary record o signicantU.S. national security decisions and signicantU.S. national security activities;
Provide recommendations to the President ondeclassication o inormation o extraordinary
public interest; and Review and make recommendations to the
President with respect to any Congressionalrequest on declassication o inormation.
The board was the only recommendation o theCommission on Protecting and Reducing Govern-
ment Secrecy that was adopted. To date, it has notbeen o much use. The board remained in a legal
vacuum or over ve years while the White Housedelayed appointing members and providing und-
ing or it. It was not until 2005 that the Presidentappointed members and it began to hold meetings.
Now that it is nally in place, the Board has alreadytaken a very limited view o its own powers. In Sep-
tember 2006, members o the Senate IntelligenceCommittee asked the Board to review two commit-tee reports on Iraq intelligence that had been clas-
sied by the Administration. The Chairman, L. BrittSnider, a ormer CIA Inspector General, responded
that it could not review the classied documents
unless it was asked to do so by the President. Itrecently announced that it plans to move ahead
unless it hears rom the President.
Another justication invoked by the governmentto deny access to inormation is the claim that the
inormation is privileged as involving state secrets.The privilege was rst recognized by the Supreme
Court in a 1953 case where the widows and amilieso several civilians killed in the crash o an Air Force
airplane conducting experiments sued under theFederal Torts Claims Act.32
The sources o the privilege are nebulous. It hasbeen attributed to pre-constitutional powers, sepa-
ration o powers, executive privilege and others.33 Itsscope is not well dened. In many cases, it allows the
government to prevent courts rom even evaluatingthe inormation beore ruling on the merits. Somecourts treat it as absolute and dismiss cases as soon
as the privilege is invoked; others have rejected thatview and demanded access to the records to ensure
that they are actually state secrets.34
Over the years, the government has used this privi-lege controversially in many cases to shut down
lawsuits against it and prevent having to deendagainst them. A recent review o the cases in the Po-
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18 Government Secrecy: Decisions Without Democracy
litical Science Quarterly notes At present, it is cost-
less or the president to assert a secrecy privilege:the overwhelming odds are that the assertion willbe successul, and even i unsuccessul, the process
o overturning claims o privilege is lengthy and theonly potential cost o excessive claims o national
security is in bad publicity.35
Tom Blanton, Directoro the National Security Archive, is more direct in his
criticism: State secrets privilege continues as a kindo the neutron bomb o whistleblower litigation. It
leaves no plaintif standing.
In the past six years, the privilege has been invoked
over 20 times by the ederal government to endcourt cases. These include:
. .RENDITIONS Khaled El-Masri, a German citizen
who was taken by the CIA in Macedonia and sentto Aghanistan where he was tortured or six
months. El-Masri sued the CIA or an apology. Thecase was dismissed ater the court ruled that thestate secrets privilege was absolute. It was also
successully invoked in the case o Maher Arar,a Canadian on his way through New York back
to Canada, who was sent to Syria where he wastortured. His case was also dismissed.
. .ILLEGAL.SURVEILLANCE In separate casesbrought by the American Civil Liberties Union
(ACLU), Electronic Frontier Foundation and theCenter or Constitutional Rights on the warrant-
less surveillance by the National Security Agency,
the government has invoked the state secretsprivilege to demand that all o the cases be dis-
missed. In at least one case, the court has rejectedthe privilege.
. .WHISTLEBLOWERS The privilege has been used
to prevent ormer FBI translator Sibel Edmondsrom challenging in court her dismissal rom theFBI ater revealing numerous problems with the
translation division. The FBIs Inspector Generalound that she was improperly terminated and
that her allegations were never properly investi-gated. She was also prevented rom testiying in a
civil suit brought by the amilies o victims o 9/11.
The growth in secrecy has not been limited justto classied inormation. In the past six years,there has been substantial growth in categories o
inormation designated as sensitive and thereore
restricted. Some o these categories have statutory
authorization but, or the most part, these designa-tions are made internally by each agency and haveno legal authority.
While categories designating inormation sensitive
have existed or at least thirty years in some ormor another, their use appears to have dramatically
expanded since March 2002 when White HouseChie o Staf Andrew Card issued a memorandum
to all agencies requiring review o their inorma-tion with an eye to protect inormation that couldbe misused to harm the security o our nation and
the saety o our people, and urged the agencies toview FOIA exemptions broadly.36 It is estimated that
there are now more than 100 diferent designationsor categories o sensitive inormation.
Some o the recent uses o sensitive inormation
The prosecution o a Miami-based Transportation
Security Administration (TSA) employee caughtstealing baggage was dropped and local police
ocials are not allowed rom publicly reportingon incidents in airports without permission othe TSA. 37
The DC government was not allowed to seeinormation on trains that are allowed to travel
through the District carrying hazardous cargoes. The Nuclear Regulatory Commission (NRC)
attempted to suppress a report by the National
Academy o Sciences that it did not agree with. Federal Energy Regulatory Commission (FERC)
reused to share inormation about the saetyo a proposed Liquid Natural Gas plan with the
Connecticut Attorney General because it wasSensitive Energy Inormation.38
Department o Homeland Security (DHS)cited it when it reused to name the new DHSombudsman.39
The TSA withheld inormation about inormationcirculars that had been published in the 9/11
Commission report as sensitive, only releasingthem ater it was directly pointed that it was
published in the 9/11 Commission report.
Currently, there are no government-wide proce-
dures on how sensitive inormation is to be desig-nated, who can impose it, how it is to be reviewed
or release or its withholding appealed. A reportsponsored by the Department o Deense noted
in 2004 that the status o sensitive inormationoutside o the present classication system ismurkier than ever ... Sensitive but unclassied data
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19Government Secrecy: Decisions Without Democracy
is increasingly dened by the eye o the beholder.
Lacking in denition, it is correspondingly lackingin policies and procedures or protecting (or notprotecting) it, and regarding how and by whom
it is generated and used."40 Representative HenryWaxman describes sensitive as, a code word or
embarrassing to senior ocials.
The lack o standards results in overuse o thedesignations and greater restrictions on inorma-
tion both or internal use and or public availability.A 2006 Government Accountability Oce reviewound over ty diferent categories o inorma-
tion designated as sensitive, ranging rom Sensi-tive Homeland Security Inormation, Sensitive but
Unclassied, Law Enorcement Sensitive, to ForOcial Use Only.41 The GAO ound that, in difer-
ent agencies, similar inormation was oten beingdesignated or control using diferent labels and
procedures. It also ound that ew agencies provid-ed adequate guidance, training or internal controls.
The GAO concluded that the lack o such recom-
mended internal controls increases the risk that thedesignations will be misapplied. This could result
in either unnecessarily restricting materials thatcould be shared or inadvertently releasing materialsthat should be restricted. Within departments such
as Justice, the GAO ound numerous proceduralproblems due to lack o ormal policies, inadequate
training, and poor oversight. In the FBI, any em-ployee or contractor could designate inormation as
sensitive even though the FBI had no guide and did
not provide adequate training.42
A 2006 review by the National Security Archive o37 major agencies and components ound little
consistency across government agencies.43 Onlyeight o the agencies had legal authority to desig-
nate inormation as sensitive, while 24 were onlyollowing their own internal guidelines. Eleven hadno policy at all. Nearly one-third o the policies
allowed any employee to designate inormation assensitive, but they did not set policies on how the
markings could be removed, and only seven totalset restrictions on how they can be designated. The
review also ound that policies set ater 9/11 werevague, open-ended or broadly applicable com-pared with those beore.
Even though the designations oten have no ocial
standing, agencies are more restrictive in many cas-es with such inormation when it is requested under
FOIA.44 The National Security Archive ound thatat least hal o the agencies subject the inorma-tion to greater review and more restrictions when
requested under FOIA; only two made any attempts
at ensuring that the restrictions were balanced withthe publics right to know.45
The designation is also being used to create deacto secret laws. The 2002 Homeland Security Act
allows the Department o Homeland Security todesignate dozens o categories o inormation as
sensitive. This includes DHS regulations that au-thorize requiring showing ID to get on a plane and
who can be searched. Republican CongresswomanHelen Chenoweth-Hage was reused access ontoa plane ater she demanded unsuccessully to be
shown the legal authorization or being searched.When asked why the regulations were not shown,
a TSA spokesman said Because we dont haveto ... That is called sensitive security inormation.
Shes not allowed to see it, nor is anyone else.46In another case involving the no-y list, a District
Court ound that the TSA used rivolous claimso exemption in designating the security policiesas sensitive.47
In December 2005, the White House issued a
memorandum ordering government-wide stan-dardization o procedures and standards ordesignating, marking, and handling SBU inorma-
tion.48 Agencies were required to conduct reviewso their procedures or sensitive inormation and
report to the Director o National Intelligence. Aninter-agency working group led by the DNI was due
to issue guidance by the end o 2006, but there are
reports that it has been delayed due to controversyamong agencies on which headings should be
kept. A report in June 2006 rom the DHS and DOJwas reported to be rejected by the White House
because it lacked substance.49
Congress has shown some recognition that sen-sitive inormation needs to be limited. In 2002,Congress required the President to come up
with a government-wide denition o homelandsecurity inormation.50 The standards were never
issued and might have been pre-empted by theDecember 2005 memorandum. In 2005 and 2006,
a number o House and Senate Committees heldhearings on Sensitive Security Inormation (SSI) andPseudo-classication. In 2006, Congress approved
an amendment to the Department o HomelandSecurity Appropriations Act requiring that the DHS
amend its regulations to review SSI inormationwhen requested under FOIA, declassiy SSI or most
inormation that is over three years old unless theDHS secretary identies a rational reason why theinormation must remain SSI, and allow access to
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20 Government Secrecy: Decisions Without Democracy
SSI by parties to lawsuits who need to access or the
lawsuit, subject to restrictions on urther disclo-sure.51 These changes were not expected to makea substantive improvement to the overall problem,
though, because o the limitation o the stricturesto the DHS.
The dissemination o truthul inormation is essentialto allow or an inormed electorate and Congress.
This has also been systematically disregarded in thepast six years. The Administration has selectively re-leased inormation, actively deceived Congress and
the public, secretly hired journalists and releasednews videos and other similar activities.
Following 9/11, the White House instructed the EPA
to tell the public that the air around Ground Zerowas sae, even though the EPA had not conductedull testing. The EPAs Oce o the Inspector General
issued a critical report in 2003, nding that theWhite House had convinced EPA to add reassur-
ing statements and delete cautionary ones.52 TheMount Sinai Medical Center ound that 70 percent
o ground zero responders had some orm o respi-ratory problem.53 At least 75 police and reghtershave been ound to have developed cancer and
several have died.54
The administration has also engaged in active de-
ception o Congress. When Congress was debatingthe cost o the changes to Medicare bill in 2004, itwas told by the Administration that the total wasgoing to be $395 billion. However, the Chie Actu-
ary o Health and Human Services (HHS) was awarethat the actual cost was over $720 billion and was
told not to inorm Congress o the actual cost. TheWhite House claimed that it has a constitutional
power to withhold inormation.55
Under ederal law, spending money or publicity
or propaganda purposes is prohibited.56 However,there has been a series o incidents where the
government has been paying or news articlesor inuencing journalists. In 2002, the Pentagon
proposed the creation o an Oce o StrategicInuence to inuence media outlets to avor theUnited States. It was widely reported that the oce
would engage in misinormation and planting ostories in oreign media and on the Internet. The
proposal was quickly killed of by the Pentagonollowing public outcry. However, in 2005, the
LA Times revealed that U.S. military was secretlypaying to have stories planted in the Iraqi press.57
The Education Department secretly paid conserva-
tive commentator Armstrong Williams $240,000to promote the No Child Let Behind Act. The HHSproduced videos that were intended to look like
news stories promoting changes to Medicare whichwere unknowingly run on 40 television stations. The
Governmental Accountability Oce ound that thiswas covert propaganda prohibited by law.
The Freedom o Inormation Act (FOIA) is one o themost important pieces o legislation in ensuring thatinormation is available to the public.58 It has two
principal unctions. First, it requires that government
agencies publish inormation about their activities.Second, it gives a legal right to any person to requestinormation rom ederal government agencies. The
FOIA sets a presumption that all persons have a rightto know inormation about what the ederal govern-ment is doing and the government has a legal obliga-
tion to tell them, subject to a ew limited exemptions.Over 4 million requests were made in 2005 under the
FOIA and the vast majority (over 90 percent, mostlypersonal les) were responded to in ull.
The FOIA was signed by President Lyndon BainesJohnson on July 4, 1966 and went into efect in
June 1967 ater a teen year campaign by mediaand members o Congress to reduce secrecy in ed-
eral agencies. Prior to the FOIA coming into efect,agencies used a variety o diferent excuses, includ-
ing an obscure 1798 Housekeeping Statute and amisreading o the Administrative Procedures Act, todeny access to inormation. The FOIA was substan-
tially amended in 1974 over the veto o PresidentFord, in 1986, and in 1996 with the Electronic FOIA
The FOIA only applies to agencies o the executivebranch o the ederal government such as the De-partment o Homeland Security, the Environmental
Protection Agency, the Department o Deense andthe Department o Health and Human Services. It
does not apply to the Congress, the ederal courts,oces directly under the President such as the
National Security Council, private contractors orstate government bodies.59 Any individual, withoutregard to interest, legal status or geographic loca-
tion, can request records rom the agencies.
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21Government Secrecy: Decisions Without Democracy
There are nine exemptions under the FOIA. They
Classied inormation relating to the national
deense or oreign policy; Internal personnel rules and practices o an
agency; Inormation made secret by another statute;
Condential trade and business secrets; Internal and inter-agency communications;
Personal inormation; Law enorcement; Financial institutions;
Well and geologic inormation.
Most o these exemptions are discretionary (agen-cies may, but are neither required to release nor
withhold inormation requested). The presumptionoverall is or the release o inormation and agen-
cies can withhold it only i there is a good reason.The 1986 amendments to the law also allow agen-cies to reuse to conrm to existence o records
i the inormation would interere with a currentsecret criminal investigation, records about inor-
mants, and some classied and secret FBI intelli-gence or terrorism les.
A person denied inormation can rst appealinternally to the agency to reconsider. A lawsuit
can also be led in the ederal District court wherethe requestor resides or the U.S. District Court in
Washington, DC. Several hundred law suits are led
For ees purposes, requestors can be broken downinto three categories commercial; educational or
noncommercial scientic and news media (includingpublic interest groups); and other. Commercial-use
requestors are required to pay or all search, reviewand duplication costs; news media and representa-tives o scientic or educational organizations are
required to pay or duplication o records o morethan 100 pages. Requestors who are not commercial,
news media, scientic or educational requesters arerequired to pay search costs or more than 2 hours
and duplication costs or more than 100 pages.
Attempts by agencies to use the ees as a barrier
have been increasing. The CIA in October 2005began demanding search ees rom public inter-
est groups and the news media i it determinedthat the inormation requested was not important
enough news to justiy a waiver.
In 1996, the U.S. Congress adopted the ElectronicFOIA (E-FOIA) Act, the most signicant amend-
ment to the FOIA since 1974. The primary goal othe E-FOIA was to improve how agencies handledelectronic inormation related to FOIA requests.
This included a specic recognition that requestsor electronic inormation were to be treated in
the same way as requests or physical documents,and greater obligations or publishing inormation
online and accepting electronic requests.
However, the requirements have not been ully
implemented more than ten years ater the adop-tion o the Act. Many agencies still do not have
adequate web sites with Electronic Reading Roomsor accept electronic requests or inormation.
The chilling o FOIA in the Bush Administrationbegan nearly rom its outset. In October 2001, At-
torney General John Ashcrot issued a memo onFOIA that substantially undermined the presump-
tion o openness.60 The memo encouraged agenciesto limit disclosure o inormation, ordering them
to careully consider interests including nationalsecurity, business inormation, and personal privacybeore allowing the release o any inormation.
The agencies were told that the Justice Depart-ment would deend them in court except in the
most extreme cases. The DOJ then issued guidancesuggesting expanded views on exemptions such
as privacy and internal agency rules and practices.This substantially changed the presumption o theprevious order issued by Attorney General Reno.
That order created a presumption o openness andstated that the DOJ would only deend agencies i
a oreseeable harm existed, not i there were onlya substantial legal basis (the standard under the
Following the 2001 memo, studies have ound that
the number o exemptions cited expanded greatly.The use o the privacy exemption has been espe-
Delays - Waiting until kingdom come
One o the most signicant problems with theFOIA is the oten long delays that occur in agen-cies providing inormation to requestors. The FOIA
requires that agencies respond to requestors within20 working days. However, there are no set dead-
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22 Government Secrecy: Decisions Without Democracy
lines or actually making the inormation available,
rather the inormation must be provided promptly.In some cases, requestors can wait years or theinormation that they requested. A review by the
National Security Archive in 2006 ound that theoldest request was 17 years old. The GAO ound that
the backlog o agencies requests had also increasedrom 2002 to 2005 by 14 percent.61
In part, this is a resource issue. Many agencies have
not provided or enough resources to ensure thatrequests are responded to in a timely manner. Butagencies know that unless a lawsuit is led, they do
not have to respond in a timely manner and manyuse that as a means to deny access.
Another signicant problem with the FOIA is thelack o a central authority to monitor and enorce
it. Many U.S. states such as Connecticut, Florida,Hawaii, and New York (and over orty other coun-
tries) have appointed a Commission or ombuds-man which has this task. The oce can also play a
proactive role in providing guidance and training toassist agencies.
The best the U.S. has is the FOI and Privacy Oce inthe Department o Justice. The DOJ provides guid-
ance to agencies but its actual authority is limitedto some administrative unctions on annual reports.
The Department also deends agencies who aresued but, under the Ashcrot memorandum, itsduty is to deend in nearly all cases.
Proposals or Improvements
In the past several years, Congress has again been
discussing improvement to the FOIA. Hearings wereheld and a number o bills were introduced and dis-
cussed by Committees in the House and the Senatein the 109th Congress.62
In December 2005, President Bush issued an execu-tive order requiring agencies to improve their admin-
istration o FOI.63 The order requires that each agencyestablish citizen centered policies that require that
requestors are treated courteously and appropri-ately and agencies operate in a results-orientedmanner. Specically each Agency was required to:
Designate a senior ocial as Chie FOIA Ocer
with overall power over agency compliance andimplementation;
Conduct a review o FOI operations and drat a
plan or improvements including review o theuse o inormation technology and reducingbacklogs;
Establish one or more FOIA Requester ServiceCenter(s);
Designate a FOIA Public Liaison to work withrequestors.
It was widely suspected that the executive order
was issued to undermine Congressional eforts toadopt amendments to the FOI to improve opera-tions. Most o the requirements such as Chie FOI o-
cers and Liaisons were already in place, and it doesnot address problems such as the 2001 Ashcrot
memo that sets the deault at withholding inorma-tion rather than releasing it.
In October 2006, the Attorney General released the
rst report based on the implementation plans. Thereport presented a very rosy view o the ExecutiveOrder, calling it a rst o its kind FOIA executive
order and the most signicant administrativedevelopment in its history and lauding it as an
international standard. The order was describedas having an immediate and widespread positiveefect on the operations o the ederal agencies. It
recommended minor changes to the administra-tion including a meeting o Chie FOIA Ocers,
improvement o acknowledgement letters, a reviewo orms and better use o technology. A review o
the same reports by the National Security Archive
was much less cheery, saying that the review ailsto provide an honest assessment o where agencies'
FOIA programs stand today. The review noted thatmany agencies have still not implemented the 1996
E-FOIA amendments; many plans rely on uncer-tain unding; there is a lack o recognition o the
resources needed to resolve longstanding backlogproblems; and there is a lack o any cross-agencyauthority or FOI.64
In March 2007, the House passed the Freedom o
Inormation Act Amendments o 2007 (H.R. 1309),and the OPEN Government Act (S. 849) was intro-
duced in the Senate. S. 849 has passed out o theJudiciary Committee and is awaiting oor time ordebate and a vote.
Underlying many o the Administrations claims ordenying inormation is the belie that the Adminis-
tration is not subject to most requests (even legal)
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23Government Secrecy: Decisions Without Democracy
or inormation because its release would violate
executive privilege. The administration has romthe beginning strongly worked to enhance itspowers in relation to the other branches o govern-
ment and the public. It has stated its belie that thePresidency should return to the (largely mythical)
unchecked powers that it held beore the Water-gate era. As Bush told a press conerence in 2002,
Im not going to let Congress erode the power othe Executive Branch.65
The privilege comes rom the constitutional sepa-
ration o powers and is promoted to protect theadvice given to presidents. Scholar Mark Rozell de-
nes it as the right o the president and high-levelexecutive branch ocers to withhold inormation
rom those who have compulsory power -- Con-gress and the courts (and thereore, ultimately,the public).66
The claim was rst made in the administration oGeorge Washington, but it was not recognized
by the courts until the 1950s. In cases such as theWatergate tapes and debates over the les o Presi-
dent Nixon, the Courts ound that it is limited anddiminishes over time.67
Hiding rom Congress
Starting in 2001, the Administration began usingexpansive claims o executive privilege to resist
Congressional inquiries into a variety o areas,including the Boston FBIs misconduct in the 1960sthat resulted in an innocent man being imprisoned
or 30 years, Justice Department memorandums oncampaign nance prosecutions, and copies o the
Presidents Daily Brie relating to perceived terrorthreats prior to 9/11. Ocials have claimed, under
executive privilege, that they are immune rom
testiying beore Congress and providing inorma-tion. Instances include the activities o White HouseCounsel Alberto Gonzales when he was nominated
or Attorney General, and Supreme Court nominee
John Roberts activities in the Justice Department.
The claim o executive privilege also has been used
to stymie investigations by Congressional ocers.The General Accounting Oce (now the Govern-ment Accountability Oce), the investigative arm
o the Congress, was asked to review the activitieso the 2001 task orce on energy policy chaired by
Vice-President Cheney, which had held a series osecret meetings. It was widely believed that these
included meetings with controversial compa-
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24 Government Secrecy: Decisions Without Democracy
nies such as Enron. The GAO was asked to obtain
inormation on the meetings, who participated andwhat was discussed. The Oce o the Vice-Presidentreused and in February 2002, or the rst time ever,
the GAO led suit to enorce its powers. The casewas dismissed in December 2002 ater the court
ound that, as there was no personal injury to theGAO, it could not bring the case. It chose not to ap-
peal the case.
In June 2007, the House Oversight and GovernmentReorm Committee released letters and other docu-mentation showing the Vice-President asserting that
his oce was not bound by Executive Order 13292on national security classication as it was not an
entity in the Executive Branch. This is an odd claimrom an ocial asserting Executive Privilege.
The 110th Congress has sent numerous requests
or documents to the White House, on such topicsas the White Houses involvement in the hiring andring procedures o the Justice Department and
the warrantless surveillance program rst revealedin late 2006. The White House is responding with
assertions o executive privilege, but the new Con-gress does not appear inclined to back down andaccept these claims without a ght.
Accessing Presidential Records
Executive privilege is also being used to justiy limit-ing access to the historical les o the past presi-
dents. In 1978, ollowing Watergate, the Congressenacted the Presidential Records Act.68 The Act setthe principle that presidential records are owned by
the public rather than private property o the presi-dent and are to be maintained and made public by
the National Archives. The law allows records to bekept sealed or 12 years and ollowing that period to
be made public subject to nearly all o the exemp-tions o the Freedom o Inormation Act. Under anExecutive Order issued by President Reagan, the
President and his predecessors were given 30 daysnotice when records were about to be released and
the Archives was required to identiy any recordsthat would afect executive privilege.69 The records
would then be released unless the President or the
previous president claimed privilege. Requestorscould challenge the decision in court.
In November 2001, President Bush issued an Execu-
tive Order that restricted access to these records.70The new order revokes the Reagan order, and in
the words o the House Committee on GovernmentReorm, converts the Acts presumption o disclo-
sure into a presumption o non-disclosure. Underthe new order:
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2Government Secrecy: Decisions Without Democracy
The release o inormation must be rst approved
by both the current and previous president eveni privilege is not claimed.
The current president can withhold documents
even i the previous one disagrees. The current president must ollow the wishes o
the previous president to withhold Absent com-pelling circumstances. The Archivist must ollow
the wishes o the ormer president and deendthe withholding even i it is without merit.
Persons who challenge the designation o execu-tive privilege must show a demonstrated, specicneed" or the records.
The ormer president can designate a riend orrelative who can claim the privilege even ater the
ormer president is dead. Requests rom the public must be responded to
in 90 days but can be delayed indenitely. The claim o executive privilege was extended to
The American Historical Association and other
groups led a lawsuit in 2002 challenging the orderas violating the law. The suit is still pending.71 Sev-
eral bills were introduced in the House and Senatein the 109th Congresses and gathered bi-partisansupport, but were not adopted.
In March 2007, the Presidential Records Act Amend-
ments o 2007 was introduced in both the House(H.R. 1255) and the Senate (S. 886). It passed the
House on March 14th and was passed out o the
Senate Homeland Security and Governmental A-airs Committee in June. It is awaiting a oor vote.
Americans have a long-held presumption that trialsare to be open. The Supreme Court has described
open courtrooms as recognized as an indispens-able attribute o an Anglo-American trial as arback in history as could be ound.72 However, the
same cloud o secrecy that has enveloped theexecutive branch has been advancing on the
Since 9/11, inormation about cases has becomeincreasingly dicult to obtain. Individuals havebeen detained secretly, oten held or months on
immigration-related charges without any noticeto their amilies or being given a chance to obtain
legal representation, hearings have been closed,and lings and bries have been sealed.
In September 2001, Chie Immigration Judge
Michael Creppy (an employee o the JusticeDepartment, not an independent judge) issued amemorandum ordering that immigration hearings
in special interest cases be closed and prohibitingdisclosure o inormation about the cases to anyone
but employees and the persons lawyers.73
Over 700people were designated as special interest cases
and o these 500 were deported.74
The closed hearings were challenged in severalcases. The U.S. Court o Appeals or the 6th Circuitound that the rules were unconstitutional, decree-
ing Democracies die behind closed doors.Whengovernment begins closing doors, it selectively con-
trols inormation rightully belonging to the people.Selective inormation is misinormation. 75 In the
3rd Circuit, however, the court ruled or closure othe hearings, nding that immigration cases did
not have a long history o openness; the court gavegreat deerence to Executive expertise.
The secrecy is not limited to