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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.

www.openthegovernment.org

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.

www.paw.org

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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FOREWORD. 1

PREFACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PREFACE.(1987.EDITION) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

EXECUTIVE.SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.OPENNESS:.AN.AMERICAN.VALUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The.Benets.o.Openness 9

The.History.o.Openness.in.the.US 11

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

Closing.Doors 20

The Freedom rom Inormation Act: Limiting the FOIA 20Executive Privilege 22Closing the Courthouse Doors 25

Gagging.the.Insiders:.Public.Employees 26

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

E-Rulemaking 34

Challenges.o.Digital.Government.Inormation 34

Digital Divide 34Disappearing documents and web sites 35

Managing Born Digital Inormation 35

What.the.Public.Can.Do 36

Activism/ organizing 36

APPENDIX..LIST.OF.RELEVANT.LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

APPENDIX..RESOURCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38


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1Government Secrecy: Decisions Without Democracy

Foreword

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.

Gary.D.Bass

Executive Director, OMB Watchand co-chair, OpenTheGovernment.org

Thomas.S.Blanton.Executive Director, National Security Archive

and co-chair, OpenTheGovernment.org

Ralph.G.Neas

President, People or the American Way

and partner, OpenTheGovernment.org

July 2007


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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

Acknowledgements

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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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

court challenges.

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

Executive Summary


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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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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-

edge gives.3

JAMES MADISON, 1822

Openness: an American Value

1

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.

THE.BENEFITS.OF.OPENNESS

Openness.limits.misinormation.and.promotes.

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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the government. Condence in the government is

also improved i it is known that the decisions willbe predictable.

Openness.ghts.corruption.and.mismanage

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.promotes.government.efciency

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.

Openness.helps.individuals.protect.themselves

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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Openness.promotes.scientic.innovation.and.

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.

Openness.can.be.used.as.an.alternative.to.regu

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.

THE.HISTORY.OF.OPENNESS..

IN.THE.US.

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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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


17/52


The Darkening Cloud

2

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.

ITS.A.SECRET:.CLASSIFIED.AND.

SEMI-CLASSIFIED.INFORMATION

Classied.inormation.

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

1997

1998

1999

2000

2001

2002

2003

2004

2005

$150

$100

$50

$0

$134.09


18/52


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.US.Executive.Order.on.Classication

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-


19/52


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

oreign governments.

Declassication

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-

1980

1981

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

1512

9630

Official Classification Down Slightly as More Documents are Released

NewlyClassifiedDocuments

(inmillions)

250200150100500

PagesDeclassified

(inmillions)

New classi fied documents ( in millions) Number of pages declassified

Source: Information Security Oversight Office Compiled by OpenTheGovernment.org & National Security Archive


20/52


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.

24

In the110th Congress, the House Intelligence Committee

has already announced plans to investigate thepractice o selective declassication.25

Now.you.see.it,.now.you.dont:..

Secret.Reclassications

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.

Watching.the.Watchers:.oversight.o.the.

classication.system

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:


21/52


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.

Go.Away:.The.State.Secrets.Privilege

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-


22/52


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.

Keep.away:.Its.Sensitive..

(but.not.classied)!

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

include:

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


23/52


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


24/52


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.

Propaganda.and.Disinormation

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.

CLOSING.DOORS

The.Freedom.rom.Inormation.Act:..

Limiting.the.FOIA

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

(E-FOIA) amendments.

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.


25/52


There are nine exemptions under the FOIA. They

are or:

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

each year.

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.

E-FOIA

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.

Problems

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

2001 order).

Following the 2001 memo, studies have ound that

the number o exemptions cited expanded greatly.The use o the privacy exemption has been espe-

cially aggressive.

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-


26/52


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.

Oversight

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.

Executive.Privilege

Underlying many o the Administrations claims ordenying inormation is the belie that the Adminis-

tration is not subject to most requests (even legal)


27/52


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-


28/52


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:


29/52


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 Vice-President.

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.

Closing.the.Courthouse.Doors

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

judicial branch.

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

govt secrecy

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