Govt Secrecy

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Decisions Without Democracyby David Banisar

Preace by Bob Barr and John Podesta



Government Secrecy:Decisions Without Democracy

BY 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.

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diverse democratic society, and which are threatened by the political rise o the religious right. PFAW Foundation

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judiciary and mobilize activists to support progressive causes.

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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

It’s.a.Secret:.Classied.and.Semiclassied.Inormation 13Classied inormation 13

The U.S. Executive Order on Classication 14Declassication 15

Now you see it, now you don’t: Secret Reclassications 16Watching the Watchers: Oversight o the classication system 16

Go Away: The State Secrets Privilege 17Keep away: It’s 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





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 Cheney’s 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 government’sactions 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 public’s 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 public’s 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 public’s 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.



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 together journalists, 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




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 Agency’s 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 law—and ar beyond what is healthy ordemocracy, which depends on an inormed citizenry.

Citizens deprived o relevant inormation cannot participate in their government’s 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 administration’s 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 retrenching—in 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





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 condential—tax 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 republic—rom the day in 1795 when Senator Mason o Virginia enraged President Washington by giv-

ing the secret text o Jay’s 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 crises—the 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.



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 o American 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.




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




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




Liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge…and 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 o Thomas 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 behal o 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




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.”5 Billions 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 o disinectants; 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 o the 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.




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 Lincoln’s 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 as“laboratories 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 o pages 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




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




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 o the 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.

IT’S.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

1 9 9 7

1 9 9 8

1 9 9 9

2 0 0 0

2 0 0 1

2 0 0 2

2 0 0 3

2 0 0 4

2 0 0 5

$150

$100

$50

$0

$134.09




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-




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, i there 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 than“may” 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-

1 9 8 0

1 9 8 1

1 9 8 2

1 9 8 3

1 9 8 4

1 9 8 5

1 9 8 6

1 9 8 7

1 9 8 8

1 9 8 9

1 9 9 0

1 9 9 1

1 9 9 2

1 9 9 3

1 9 9 4

1 9 9 5

1 9 9 6

1 9 9 7

1 9 9 8

1 9 9 9

2 0 0 0

2 0 0 1

2 0 0 2

2 0 0 3

2 0 0 4

2 0 0 5

1512

9630

Official Classification Down Slightly as More Documents are Released

N e w l y C l a s s i f i e d D o c u m e n t s

( i n m i l l i o n s )

250200150100500

P a g e s D e c l a s s i f i e d

( i n m i l l i o n s )

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

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




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.don’t:..

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 a“signicant 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 on Theatre 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 ISOO’s 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 Interest Declassifcation Board

In 2000, Congress approved the creation o the

Public Interest Declassication Board.31 The boardunctions are to:




• 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-




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 FBI’s 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:.It’s.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 o the 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




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 o 37 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 were“vague, 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 public’s 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 don’t haveto ... That is called ‘sensitive security inormation.’

She’s not allowed to see it, nor is anyone else.”46 In 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) and“Pseudo-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




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 released“news” 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 EPA’s 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 o stories 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.




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 o the 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-




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-oriented”manner. 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 Administration’s claims ordenying inormation is the belie that the Adminis-

tration is not subject to most requests (even legal)




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,

“I’m not going to let Congress erode the power o the 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 o George 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 FBI’s misconduct in the 1960sthat resulted in an innocent man being imprisoned

or 30 years, Justice Department memorandums oncampaign nance prosecutions, and copies o the

President’s 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 o secret meetings. It was widely believed that these

included meetings with controversial compa-




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 House’s 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.70 The new order revokes the Reagan order, and in

the words o the House Committee on GovernmentReorm, “converts the Act’s presumption o disclo-

sure into a presumption o non-disclosure.” Underthe new order:




• 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 person’s 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 o the hearings, nding that immigration cases did

not have a long history o openness; the court gave“great deerence to Executive expertise”.

The secrecy is not limited to immigration hearings,though. Court hearings relating to national security

or terrorism are also being regularly closed, andgag orders are being placed on lawyers to preventthem rom discussing what is happening to their

clients. Bries and decisions issued at the district andappeals level are classied or redacted without any

limits. In a case involving a challenge to the PATRIOTAct, the Justice Department even blacked out a

quote in an ACLU brie rom a 1972 U.S. Supreme

Court case that said, “The danger to political dissentis acute where the government attempts to act un-

der so vague a concept as the power to protect do-mestic security. Given the diculty o dening the

domestic security interest, the danger o abuse inacting to protect that interest becomes apparent.”76

Many cases are not even appearing on dockets.In 2005, People or the American Way led a FOIA

request with the Justice Department asking howmany cases have been completely closed. The DOJ

demanded that PFAW pay almost $400,000 andthen rejected the request as too burdensome, say-

ing that the practice was common and that it didnot keep track o the records. A DC Federal Courtordered the DOJ to conduct the searches.

Nor is the secrecy limited to national security

related cases. The Justice Department is currentlyattempting to close the hearings o the U.S. Court

o Federal Claims on whether the drug Thimerosalcauses autism. The HHS has requested that all theevidence be sealed and not be provided to the




amilies or the press.77 In a recent prosecution o

an employee o Coca-Cola, the prosecution rec-ommending using the procedures developed toprotect classied inormation against the deense.

GAGGING.THE.INSIDERS:..PUBLIC.EMPLOYEES.

As secrecy in the administration has become moresevere, the importance o whistleblowers has

grown. These insiders, oten government ocialswho are dismayed by the activities o their ellow

ocials, can be invaluable in revealing to the publicinormation essential to the public interest that

otherwise never would have seen the light o day.Some o the recent important stories they have

revealed include:

• The existence o the National Security Agency

policy o warrantless wiretapping o telephonecalls between the U.S. and oreign countries.

• Abuses at Abu Ghraib prison.• The existence o CIA rendition and torture

centers.• The substantial no-bid contracts given to

Halliburton and other deense contractors and

price gouging by the companies.

The number o times the administration has started

investigations into leaks has also substantially in-creased. A recent FOIA request by the New York Sunound that 94 investigations o leaks o classiedinormation were started between 2001 and 2006.

Gag.rules

In general, public employees have the same FirstAmendment rights o ree speech as other citi-

zens. However, these rights can be limited in somecircumstances to “promote the eciency o public

services”.78 This is especially true relating to classi-

ed inormation obtained while employed by thegovernment.79 The CIA and other agencies have thepower to review all materials that the employee or

ormer employee wish to publish and censor them.

There has been an increase in eforts to preventpublic employees, especially scientists, rom pre-

senting to the public inormation which challengesthe views o the administration, especially relating

to climate change.80 At NASA, a junior political ap-pointee with no scientic background81 ordered theDirector at the Goddard Institute or Space Studies

to not speak to conerences or the media. At theU.S. Geological Survey, scientists must obtain pre-

approval o all presentations, reports or other publicreleases o any material that has “ndings or data

that may be especially newsworthy, have an impact

on government policy, or contradict previous publicunderstanding”.82 The Department o State Inspec-

tor General ound, at the Bureau o InternationalInormational Programs, a “virtual censorship” o

speakers who were vetted.83

The designation o “sensitive” inormation (seeabove or discussion) is also being used to restrictemployees’ ability to disclose inormation o serious

public interest. Employees o Wackenhut Corpora-tion, which provides Transport Security Administra-

tion screeners, were required in April 2006 to signnon-disclosure agreements ater several publicly

revealed security problems at DHS headquarters.84 A ederal marshal was red in 2003 or releasing TSAplans to limit marshals on long distance ights. The

disclosure led to Congressional and public criticismand a reversal o the plan. In May 2004, the DHS

proposed requiring all 180,000 employees and con-tractors to sign an agreement85 to not disclose any

inormation designated as sensitive, including eveninormation that could be released under FOIA.

The employees would also be subject to random

searches as a condition o employment. This order




was partially repealed in January 2005 ollowing

protests rom employee unions, Congress and civilliberties groups. The policy is still in orce, however,or contractors.

Plugging.the.WhistleAt the same time as the government is clamp-ing down on employees’ speech, there has been

a substantial increase in public recognition o the importance o whistleblowing. In 2002, Time

Magazine made three whistleblowers, including anFBI agent, their “Persons o the Year”. However, theprotections that are given to whistleblowers are

oten inadequate. Some common practices usedagainst whistleblowers, as noted by the Project on

Government Oversight (POGO), include:

• Taking away job duties so that the employee ismarginalized.

• Taking away an employee's national security

clearance so that he or she is efectively red.• Blacklisting an employee so that he or she is un-

able to nd gainul employment.• Conducting retaliatory investigations in order to

divert attention rom the waste, raud, or abusethe whistleblower is trying to expose.

• Questioning a whistleblower's mental health,

proessional competence, or honesty.• Setting the whistleblower up by giving

impossible assignments or seeking to entrap him

or her.• Reassigning an employee geographically so he or

she is unable to do the job.86

Whistleblower Protection Act

Federal whistleblower protection was rst ad-opted in 1978 in the Civil Service Reorm Act and

was extended in 1989 and 1994.87 The revised Act,now known as the Whistleblower Protection Act,

is intended to protect ederal employees rombeing punished when they make a disclosure o

inormation relating to violations o laws, rules orregulations, gross mismanagement, gross waste o unds, abuses o authority, or substantial dangers to

public health. Agencies are prohibited rom making“prohibited personnel practices,” such as discrimi-

nating on appointments, transers, promotions,pay or benets, or changes o duties, because anemployee has blown the whistle.

Under the Act, the Oce o Special Counsel (OSC)

was set up as an independent investigative agency

that takes complaints o “prohibited personnel

practices,” recommends corrective or disciplinaryaction, and brings cases or employees beore theMerit Systems Protection Board. The OSC can also

receive reports rom whistleblowers about illegal orunlawul activities. Employees who are punished or

whistleblowing can appeal to the Merit Systems Pro-tection Board and then to the U.S. Court o Appeals.

Most observers believe that the WPA has not worked

well at protecting public employees. Congressionalcommittees and the Government AccountabilityOce have conducted a number o investigations

into the efectiveness o the Whistleblower Protec-tion Act and have ound serious problems with the

protections and enorcement o the Act.88

The OSC has been a major impediment to whistle-blowers. It was criticized by the GAO in 2004 or

allowing a huge backlog o cases.89

During thebacklog, OSC only ound or the whistleblowerin our percent o the cases. Following the GAO

report, the OSC controversially “dumped” 1,000cases without review. When various staf members

complained, they were sent to oces ar away onshort notice or were orced to resign.90 Appeals havebeen less than efective as well. Since 1999, whistle-

blowers have won only two cases at the Board, andthe Court o Appeals has been widely criticized or

limiting rights even ater successive changes inthe legislation.91

In the 109th Congress, several bills to improve whis-tleblower protections were discussed and approved

in committees. However, nothing was enactedbeore the end o the session. Early in the 110th

Congress, the House passed the “Whistleblower Pro-tection Enhancement Act o 2007 (H.R. 985); it was

reerred to the Senate (S. 274) and passed out o theSenate Homeland Security and Governmental A-airs Committee in June. It is awaiting a oor vote.

National security whistleblowers

Even more problematic are the cases o whistle-blowers who wish to reveal classied inormation.

The 1999 Intelligence Community Whistleblower

Protection Act allows intelligence employees toreport misconduct by ocials to the House andSenate Intelligence Committees and the agency’s

Inspector General. It provides little protection,however, or the employees. Threats have increased

against whistleblowers who are revealing inorma-tion on mismanagement o agencies such as the

NSA and FBI and abuses by military contractors.92




First Amendment Protections

The right o a public employee to reveal abuseshas also been undermined in the courts. The U.S.

Supreme Court ruled in May 2006 that public em-ployees who make statements about abuses theydiscovered while working were not protected by

the Constitution.93

Ofcial.Secrets?.The.Espionage.Act.and.

other.criminal.statutes

The threat o jail or public employees and journal-ists who reveal inormation in the public interest is

the ultimate penalty. While repressive countries likeChina and Russia routinely imprison citizens and

journalists or disclosing embarrassing inormationthat the governments claim is classied, the United

States, with its strong protections o ree speech,does not have an Ocial Secrets Act.

The closest law is the Espionage Act adopted in191794. The Act prohibits the unauthorized disclosure

o classied deense inormation to enemy powerswith the intent to harm the United States. When the

law was being considered in 1917, the Congresson several occasions rejected eforts to includea broader prohibition on disclosure, expressing

concern over the restrictions on ree speech and thepossible misuse o the discretionary power given to

the President to determine what was classied.95 It

is generally accepted that this law does not apply tothe publication o state secrets by newspapers andthere has never been a prosecution o a newspaperin the history o the law.

In the nearly 90 years that the Act has been in place,

there have been only a ew cases under the law ornon-espionage-related incidents. In the Pentagon

Papers case, the government attempted to preventthe publication o a classied history o the VietnamWar that was leaked to the Congress and newspa-

pers.96 The Supreme Court reused to censor the pa-pers, nding that the government had not met the

heavy burden o justication – o “direct, immediateand irreparable damage to our Nation or its people”

in ordering the withholding. The case against DanielEllsberg, the source o the material, ailed due tothe illegal searches conducted against him. In 1988,

Samuel Morison, a navy intelligence analyst, wasconvicted and sentenced to two years in jail or

providing satellite photographs o Soviet installa-tions to Jane’s Deense Weekly, which he worked or

part time. He was pardoned by President Clinton inJanuary 2001.

In the past several years, the barriers to using thislaw have been broken down. In an unprecedentedprosecution, Steven Rosen and Keith Weissman,

staf members o the American Israel Public AfairsCommittee (AIPAC) are being tried under the Espio-

nage Act or receiving inormation rom a DeenseDepartment employee.97 Following the publica-

tion o stories on the National Security Agency’swarrantless wiretapping o telephone calls, At-

torney General Gonzales, Members o Congress,and a ew conservative commentators called orthe prosecution o the New York Times under the

Espionage Act.98 In December 2006, ederal pros-ecutors in New York City cited the Espionage Act

in demanding that the ACLU return all copies o aleaked memo on media policy on photographing

detainees designated as “Secret”. The subpoena wasdropped ollowing a court hearing where the judge

rejected the government’s bid to seal the hearingand expressed skepticism that the case was strongenough to go orward. The government subse-

quently declassied the document in ull.

Attempts have been made in recent years to adoptan Ocial Secrets Act. In 2000, the Senate Intelli-gence Committee included a provision in the Intel-

ligence Authorization Act that would have crimi-nalized any unauthorized disclosure (disclosure

by any person with authorized access to classiedinormation to any person not allowed to see it) o

inormation that the discloser could have reason to

believe might be classied. The penalty was threeyears in jail. The bill was widely criticized by the me-

dia and by Democratic Senators. In November 2000,President Bill Clinton vetoed the bill saying that

the “provision is overbroad and may unnecessarilychill legitimate activities that are at the heart o a

democracy.”99 In 2006, the bill was reintroduced inthe Senate by Senator Kit Bond (R-Mo) but gainedlittle support and was not voted on beore the end

o the 109th Congress.100

Not all ocials support such a new law. In 2002,Attorney General Ashcrot issued a report recom-

mending against adopting new statutes on crimi-nalizing disclosures nding that “current statutesprovide a legal basis to prosecute those who

engage in unauthorized disclosures, i they can beidentied” and called or strong procedures or the

identication o government employees who revealinormation.101

These current laws include laws on general thet. The thet statutes have been used controversially to




penalize employees who leak inormation. In 2003,

a Drug Enorcement Agency employee was convict-ed and sentenced to one year in prison under theederal anti-thet statute or providing unclassied

inormation to the UK’s The Times newspaper onLord Ashcrot, the UK Conservative Party treasurer,

whose bank in Belize might have been involved inmoney laundering.102

Attacking.the.Messenger:.the.Media..

and.Protection.o.Sources

The media is a crucial partner in ensuring that

inormation rom insiders is publicized. However, inorder or many o these sources to come orward,

reporters must promise that their identities will notbe revealed, or ear o retaliation. As Justice PotterStewart once wrote, “When neither the reporter

nor his source can rely on the shield o conden-tiality against unrestrained use o the grand jury ’s

subpoena power, valuable inormation will not bepublished and the public dialogue will inevitably

be impoverished.”

The remedy or this situation is a legal recognition

that journalists and those who work with themhave a privilege similar to a doctor/patient or at-

torney/client, to not have to reveal the identitieso their sources, or provide unpublished works

and other inormation related the journalist’s work when they promise their sources that they will not

do so. This right was rst adopted by the MarylandGeneral Assembly in 1896. It is widely recognizedon the state level with 31 states and DC adopt-

ing specic “shield laws” to protect these sources.In nearly all the other states, the courts have

recognized a right based on common law or thestate constitution.103

There is no recognition o this right, however, at the

ederal level. The Supreme Court ruled in 1973 thatthere is no constitutional right o journalists to nottestiy beore a grand jury.104 The court was sharply

divided and, since then, many ederal courts haveound a limited privilege based on the diferent

opinions in the decision.

Until recently, attacks on journalists to orce themto reveal their sources or testiy in court proceed-

ings were relatively rare over the last 25 years.Under long-standing Attorney General’s Guidelines,ederal prosecutors required the permission o the

Attorney General. It could be sought and givenonly in cases where the inormation sought must

be essential to the investigation and not peripheral,nonessential or speculative. Reasonable attempts

to obtain the inormation rom alternative sourcesmust also be attempted.

In the last six years, there has been a boom o caseswhere prosecutors have demanded that journal-

ists disclose their sources or a variety o reasons. Inmany o the cases, there has been very little point

or orcing the disclosure except as a punitive as-sault on the reporters who published it.105

In the 109th Congress, a number o bi-partisan billswere introduced in the House and the Senate to

provide at least a qualied privilege. In May 2007,the “Free Flow o Inormation Act o 2007” was intro-

duced in both the House (H.R. 2102) and the Senate

(S. 1267).v






The past teen years have seen signicant changesin how government agencies operate, due to thewidespread adoption o inormation and com-

munications technologies (ICTs) such as desktopcomputers and the Internet. They have improved

the way government works and opened new op-portunities or citizens to ollow and participate in

government activities. The technologies can alsosignicantly improve citizen access to governmentinormation. Inormation that once was dicult and

time-consuming to collect, analyze, and distributecan now be easily made available inexpensively to

anyone who wants it.

However, electronic government also creates newchallenges. These include ensuring that access is

available to everyone equally, and that the in-creased volume o inormation being created elec-tronically is going to be kept or uture generations

to be able to nd and use.

ELECTRONIC.GOVERNMENT.

For over a decade, electronic government (E-gov-

ernment) has held the promise o providing moreresponsive and ecient government. There are three

major components to E-government: E-inormation- the making o public inormation available electroni-

cally to the public; E-governance – the use o tech-nologies to acilitate consultations, voting and otherdemocratic activities; and E-services – the better

providing o government services using technologies.

The use o E-government has been steadily increas-ing as more Americans go online. A 2004 study

by the Pew Foundation ound that 77 percent o Internet users (97 million Americans) had used theInternet to obtain inormation rom or to contact

government agencies. Internet users are muchmore likely to contact government oces than non-

Internet users and report a higher level o successin their interaction with the government.106 Still,

the situation is not ideal; 46 percent o those whocontact the government through the Web reporteda problem.

The E-Government Act o 2002 sets a variety o

standards on electronic rulemaking, records man-agement, digital signatures, web sites standards

and other E-government initiatives. 107 The leadgovernment agency or electronic government

is the Oce o Management and Budget (OMB),which through the Oce o Inormation and Regu-latory Afairs, has long been involved in inormation

policy. The E-Government Act created an Oce o Electronic Government at OMB and also requires

the OMB to issue policies to organize inorma-tion to acilitate searching o inormation across

the government.108

Access.to.government.inormation.online

Inormation technologies can be extremely pow-erul at providing access to government inor-

mation online to acilitate the understanding o how government is working. Every Congressman,

Senator and Congressional Committee and ederalagency has a web site and many maintain multiplesites which provide extensive inormation about

their activities.

Opportunities for Public Access and Participationin a Digital Age

3




Much more needs to be done, though. Government

web sites are complex and oten sel-serving. Inor-mation appears and disappears. Many are ormat-ted in such a way that access to raw inormation or

analysis is limited. Public access advocates have askedor years or better management o the government’s

inormation, and now companies such as Google areasking agencies to design the databases to allow or

better indexing by their search engines.109

The ollowing are some examples o inormation

that is available to the public which is used to pro-mote oversight and accountability:

Legislation and regulations

For nearly 150 years, the Government Printing O-

ce has published and made available to the publicinormation such as the texts o laws, the FederalRegister, the Congressional Record and importantgovernment documents such as the report o the

9/11 Commission. The Federal Depository LibraryProgram places government documents in over

1200 libraries in all 50 states to ensure that citizenshave access to the documents.

Electronic publication has steadily increased accessto the inormation available. In 1993, Congress

enacted the Government Printing Oce Electronic

Inormation Enhancement Act to put an indexo documents, the Federal Register, Congressio-nal Record and other records online and act as a

depository online.110

It now maintains thousandso databases and government documents online,

available or ree. Millions o records are accessedeach month.

In 1995, the Library o Congress launched the THOMAS system to allow or citizens to easily and

reely obtain legislative inormation. The systemgives access to bills, committee and oor schedules,

votes on specic bills, hearings, reports and otherrelated inormation. It received over 150 million hits

in FY 2004.111

It is oten dicult or citizens to be able to efec-tively ollow what is going on in the governmentand Congress, however, and many areas where in-

ormation is still dicult to nd. There has alreadybeen some consideration in the 110th Congress

about making more inormation about lobbyists,campaign nancing and travel available. The OpenHouse Project is examining other areas such as

Congressional Research Service reports, Congres-sional Committee transcripts and votes, archiving

Congressional web sites, and making changes to




bills available publicly in an understandable or-

mat.112 ReadtheBill.org is calling on the Congress toenact a “72 hours online rule” to ensure that all billsand conerence reports are available beore they

are voted on to give time or members o Congressand the public to review legislation beore it is

approved.

113

Electronic Budget Ino

In FY 2006, the total budget o the U.S. was 2.7

trillion dollars. According to the CRS, over 1 trilliondollars per year is given in the orm o contracts,grants or loans.114 Public accountability can reduce

money spent or rivolous or wasteul projects suchas the inamous Alaskan “Bridge to Nowhere,” or

lost though mismanagement and poor contract-ing in Iraq and ollowing Hurricane Katrina. The

U.S. has historically had a reasonably open processbut the complexity o procurement and spending,increased secrecy, and attempts to limit the powers

o agency Inspectors General have lessened that. The International Budget Project ranked the U.S.

as the sixth most open country in the world o 59countries, below France, the United Kingdom, New

Zealand, South Arica and Slovenia.115

One o the most innovative developments in the

past ve years in both access to inormation andelectronic government was the adoption o the

Federal Funding Accountability and TransparencyAct in 2006. The law was enacted with overwhelm-

ing bi-partisan support in the House and theSenate and by over 150 groups rom across thepolitical spectrum.

The Act requires that the OMB create a new online

database with a “searchable website” about organi-zations that receive contracts, grants or loans rom

the ederal government by January 2008. This is toexpand to include credit card transactions, sub-

contractors and subgrantees by January 2009. Theinormation will include a description o purpose o the spending, the amount, and the Congressional

district beneting.116 Any person or group will be

able to search to see who received money rom theederal government and or what purpose.

Concerns have already been expressed that theunderlying inormation may be unreliable. The OMBdatabase will use inormation rom the Federal

Procurement Data System (FPDS), Federal As-sistance Award Data System (FAADS), and Grants.

gov. The GAO in 2003 and 2005 expressed concernover the timeliness and accuracy o the FPDS117 and

ound similar problems with FAADS. There was also

concern over the General Services Administration

(GSA) initially blocking access to ederal contractingdata. Ater years o managing a database on ederalcontracts, called the Federal Procurement Database

System (FPDS), the GSA contracted out the respon-sibility. The GSA initially denied FOIA requests or

the data, claiming that, as the contractor also took over collecting the data, GSA did not have the da-

tabase anymore, and that, instead, the data wouldhave to be purchased rom the private contractor.

Eventually, GSA backed of this controversial posi-tion and began having the contractor provide rawdata to those requesting it, ree o charge 118

Corporate Activities

The ederal government also collects and dissemi-

nates inormation about activities o private corpo-rations in many areas including the environment,nancial records and consumer protection.

Environment

In 1986, ollowing the releases o deadly methyl

isocyanate gas in Bhopal, India killing thousands,and in Institute, West Virginia injuring hundreds, the

U.S. Congress enacted the Emergency Planning andCommunity Right to Know Act.

The law requires that companies provide inor-mation to state agencies and the Environmental

Protection Agency on toxic chemicals that they useor release into the environment. The EPA is required

to maintain a Toxic Release Inventory (TRI) andmake that inormation widely public using inorma-tion technology. The inormation is available online

and citizens can type in their zip code and obtaininormation about the releases in their areas.

The data has many users: civil society groups have

combined this data with other records to createcomprehensive search engines or use by citizensgroups;119 the EPA uses the data in developing regu-

lations; and even companies use it to determinewhere they should ocus their eforts on reducing

pollution. The TRI is considered to have successullyreduced the amount o toxic materials released in

the U.S. by nearly hal.120

As mentioned in the previous chapter, the EPA

decided in December 2006 to limit the useulnesso the TRI by raising the threshold o pollution that

is to be allowed beore the companies must notiythe public.




Finances

One o the earliest eforts to use ICTs to dissemi-nate inormation was the Security and Exchange

Commission’s Electronic Data Gathering, Analysis,and Retrieval (EDGAR) system.121 The system allowsinvestors and others to examine lings made by

public companies. It is also used by companiesto create extended databases and tools to assist

investors. Starting in the 1990’s, the system was putonline. The SEC reports that it was searched nearly

400 million times in FY 2005. In 2005, the SEC beganreleasing publicly its Staf Comment letters withoutrequiring a FOIA request.122

Consumer Inormation

Other important inormation that is collected and

is in some part made public includes the saety

o toys and consumer products, autos and ood.One o the rst ederal inormation laws was the1958 Automotive Inormation Disclosure Act whichrequired car companies to place price stickers on

new cars.123 On the other hand, the FCC in 2004overturned a ten-year-old policy and reused to

release inormation on how oten land line and cellphone companies have outages, claiming that the

release o the inormation would help terroristsand harm the companies.124

ERulemaking.One area where there has been signicant progress

is in the development o using ICTs to acilitatepublic participation in developing ederal rules

(e-rulemaking). Each year, 8,000 rules are created byederal agencies and departments. The standardsor rules are set by the Administrative Procedures

Act o 1946, which determines the process that theagency must ollow in developing regulations based

on the principles o inormation, participation, andaccountability.125 In a typical rulemaking, the agency

will publish a Notice o Proposed Rulemaking in the

Federal Register and solicit public comments or aset period. Ater the period, the agency will reviewthe submissions and publish a nal rule and re-sponse to the comments. The rule can be challenged

in court, i it is believed that the agency created itwithout justication or that it ailed to ollow the

requirements o the enabling legislation.

There has been a gradual move to holding rulemak-ings online. It is generally believed that Internetrulemakings allow people to more easily identiy

rulemakings that afect them and to participate.

The development o the rules themselves benetrom receiving input rom a wider ranger o partici-pants. The E-Government Act o 2002 requires that

agencies create “electronic dockets” and receivecomments via their websites on proposed rules.126

In 2003 the regulations.gov website which givesaccess to the rulemakings published in the Federal

Register was launched.

It is not clear whether e-rulemaking substantiallyimproves citizen participation. The new systemsoten duplicate the existing processes that do not

allow or much input into the process. In some cas-es, the lobby groups are the main beneciaries.127

Electronic submissions may also be treated lessseriously by ocials. The EPA decided in Decem-

ber 2006 to reduce the amount o inormation onchemicals released to the environment even ater

over 120,000 individuals, groups and state and localgovernments wrote letters opposing the proposalwhile only 34 supported it.128

E-participation

A more signicant step would be the urtherdevelopment o using electronic networks not

just to provide inormation, solicit comments orprovide services but to increase public participa-

tion in governance beyond rulemaking. These couldinclude holding online orums, running discussion

lists through electronic mail or blog-type orums. There have been limited eforts to use these toolsby ederal departments thus ar.

The use o such tools should not, o course, be

allowed to circumvent the Federal Records Act,the Presidential Records Act, the Federal Advisory

Committee Act or other accountability legislationand regulations.

CHALLENGES.OF.DIGITAL.

GOVERNMENT.INFORMATIONDigital.Divide

One barrier to e-government is adequate accessto computers and networks. While there is steadily

increasing use o the Internet, a signicant portiono the population still lacks access. The number o

adults with access to the Internet reached over 70percent in 2006, but only 42 percent had access to

high speed broadband.129 The level o access is sig-




nicantly lower or those on limited incomes. Only

53 percent o those with household incomes under$30,000 per year had access.

Education or even willingness o individuals to useelectronic services, especially those rom older

generations, is also a serious problem. Only 32percent o those over 65 and only 40 percent o

adults with less than a high school education usethe Internet.130 Language may also be a problem.

There are also privacy and security concerns thatcut across demographics and may limit demand orsome services.

Digital-only access may also limit understanding.

There has been a growing move toward only pro-viding access in electronic orm. In 2006, the EPA

closed ve libraries including its main library at EPAheadquarters, and reduced the times at our oth-

ers. There is concern that many o the resources inthese libraries will not be converted to digital ormto maintain access and will disappear.131 It addition,

the expert help provided by proessional librariansmay also be limited. Also in 2006, the Library o

Congress also stopped collecting certain docu-ments such as dissertations in exchange or accessto a more limited commercial database.132

Thus, or the oreseeable uture, any government

inormation or services should ensure that all per-sons have equal and equitable access. The role o

libraries, particularly public libraries, is very impor-

tant here. According to a 2006 survey, nearly 100percent o all libraries in the U.S. provide some orm

o public Internet access, up rom on 20 percent inten years.133 The libraries are now oten taking on

the role o assisting people with using e-govern-ment sites. However, these libraries are unded

usually by state budgets and are under constantnancial pressures.

Disappearing.documents.and.web.sites.

While electronic dissemination o inormation can

acilitate the release and access to inormation, itcan also make the job o making it disappear easier.

Following 9/11, many agencies removed inorma-tion rom their web sites or blocked public access toinormation that was designated as “sensitive”.

These included:134

• The United States Geological Survey ordered

librarians to destroy a CD-ROM on water supplies.

• The Federal Aviation Administrative removed

inormation on enorcement actions.

• The Environmental Protection Agency removed

Risk Management Plans, chemical hazards,emergency contingency plans, and access to the

largest database o environmental inormation.

A review in 2004 by the Rand Corporation o inor-mation removed rom ederal web sites ound that

most o the inormation was o little use to terroristsand was widely available elsewhere. It also oundthat the possible dangers needed to be balanced

against the interests in pubic access such as inorm-ing people o potential dangers.135

In other cases, the government has been using

expanded excuses o commercial condentialityto justiy the removal o inormation. In 2006, the

Small Business Administration began pulling datarom the Central Contractor Registry on the size o revenue o small companies ater investigations

using the data showed that many o the businessesgiven government contracts under the program

were not eligible.136

Managing.“Born.Digital”.Inormation

Each year, billions o electronic documents are cre-ated in ederal agencies. More data than ever be-

ore is created or collected in email, databases and

other electronic systems. Websites are developed,updated and merged. Previously physical archivesare being converted to digital orm. Documentormats are increasing in number and complexity;

the National Archives has ound over 4,500 diferenttypes o les.137 Many diferent programs and difer-

ent systems are used to operate and manage them.

Determining what should be preserved and ensur-ing that it is maintained and indexed in a orm thatwill be useul both or agencies now and or uture

generations are crucial problems. The entire “liecycle” o the inormation, rom its creation to its

disposal or permanent archiving, must be ensured. This must be understood to include the ability to

access and use the data in its original ormat, or inother ways, over time.

Previously, letters and les were routinely keptbased on a long-standing understanding on how

to handle paper documents. But electronic docu-ments have changed that. Archival systems o

paper-based documents are designed to ensurethat the documents will last at least 100 years. In




comparison, it is estimated that the typical lie cycle

or the technologies – the ormats and systems onwhich the record or our government exists -- is nowonly 18 months. Management o these systems is

still evolving, with very little consistency govern-ment-wide and virtually no oversight within the

executive branch or rom Congress. The challengesare monumental and they do not decrease i and as

we ignore them. Popular Mechanics magazine hasdescribed this as a potential uture “Digital Ice Age”.

WHAT.THE.PUBLIC.CAN.DO

Activism/.organizing.

The role o the Internet as a tool to promote grass-roots democracy can be extremely powerul. Its

developments has come more rom private eforts

then rom government bodies. The web has allowednew groups such as MoveOn to better organize

citizens in ways that were not possible beore.

Many websites have emerged to assist citizens inbetter tracking the activities o government and

Congress. It is now possible to track new legisla-tion through GovTrack 138 or congressional travel139 or spending.140 Sites such as DocuTicker, beSpacic

and the Federation o American Scientists locateand publish government documents and related

reports on major issues.

Websites, blogs and Wikis are used by millions everyday to share, comment and advocate. The Federal

Funding Accountability and Transparency Act in

2006 was enacted due to citizen and public interestgroups rom a wide spectrum using the Internetto coordinate lobbying eforts to identiy which

Senators had placed secret holds on the law andpressure them to remove them. The use o networks

o plane spotters allowed journalists to be able totrack the ights o CIA aircrat used or “rendition” o

prisoners to secrets prisons.141

Video is now widely available outside o the main-stream media or ocial channels though servicessuch as YouTube and MySpace. The availably o

these video sites makes it easier or citizen journal-ists to show abuses. During the 2006 political cam-

paign, the video o Senator George Allen comment-ing on the race o his opponent’s campaign worker

seriously changed the tenor o the campaign andled to his deeat. The widely disseminated video o

an UCLA student being Tasered and other videoso the LAPD using pepper spray on suspects orcedthe police and FBI to address abuses.142

Beyond sharing inormation, though, the public

can join organizations and coalitions that promoteopenness and accountability. A partial list o suchorganizations is provided at the end o this report.

The public needs to hold the government’s eet to

the re – through letters and meetings, in publicorums, and at the ballot box.v




Appendix.–.List.o.Relevant.Legislation.Atomic Energy Act o 1946

Classied Inormation Protection Act

Critical Inrastructure Inormation Act o 2002

Data Quality Act

E-Government Act o 2002

Espionage Act

The Federal Advisory Committee Act (FACA)

Emergency Planning & Community Right to Know Act

The Federal Funding Accountability and Transparency Act

Freedom o Inormation Act

Government in the Sunshine Act

Intelligence Community Whistleblower Protection Act

Intelligence Identities Protection Act

Invention Secrecy Act o 1951

Military Whistleblower Protection Act

National Security Act o 1947

Nazi War Crimes Disclosure Act o 1998 (PL 105-246)

NoFEAR Act o 2002

The President John F. Kennedy Assassination Records Collection Act o 1992

Presidential Records Act o 1978

Public Interest Declassication Act o 2000

Whistleblower Protection Act




Appendix..ResourcesBooks.and.Reports

Report o the Commission on Protecting and Reducing Government Secrecy, 1997

http://www.as.org/sgp/library/moynihan/index.html

Hammitt et al, Litigation under the Federal Open Government Laws 2004 (EPIC 2004)

Alasdair Roberts, Blacked Out: Government Secrecy in the Inormation Act (Cambridge University Press 2006)

Louis Fisher, In the Name o National Security: Unchecked Presidential Power and the Reynolds Case (Kansas

University Press 2006)

Patrice McDermott, Who Needs to Know? The State o Public Access to Federal Government Inormation(Bernan Press 2007)

David Banisar, Freedom o Inormation Around the World 2006, Privacy International.http://www.privacyinternational.org/oi/survey

Susan Maret, On Their Own Terms: A Lexicon with an Emphasis on Inormation-Related Terms Produced by

the U.S. Federal Government, October 2006.http://www.as.org/sgp/library/maret.pd

Secrecy Report Card 2006, OpenTheGovernment.org

http://www.openthegovernment.org/otg/SRC2006.pd

U.S. House Committee on Government Reorm. Citizen’s Guide on Using the Freedom o

Inormation Act (2005)http://www.as.org/sgp/oia/citizen.html

Newsletters

Access Reports. http://www.accessreports.com

Policy and News Updates. http://www.openthegovernment.org

Privacy Times. http://www.privacytimes.com

Secrecy News. http://www.as.org/blog/secrecy

The FOI Advocate. http://noic.org/advocate

Websites.o.FOI.related.Organizations.and.blogs

beSpacic. http://www.bespacic.com

The Brechner Center or Freedom o Inormation. http://brechner.org




Coalition o Journalists or Open Government. http://www.cjog.netCryptome. http://www.cryptome.org

Electronic Frontier Foundation FLAG Project. http://www.ef.org/ag

Electronic Privacy Inormation Center Open Government Page. http://www.epic.org/open_gov

Federation o American Scientists Secrecy Project. http://www.as.org

The Freedom o Inormation Center. http://oi.missouri.edu

Government Accountability Project. http://www.whistleblower.org

The Memory Hole. http://www.thememoryhole.org

National Freedom o Inormation Coalition. http://noic.org

National Security Archive. http://www.gwu.edu/~nsaarchiv

OMB Watch. http://ombwatch.org

OpenTheGovernment.org http://www.openthegovernment.org

Project on Government Oversight. http://pogo.org

Public Citizen FOI Clearinghouse. http://www.citizen.org/litigation/ree_ino

The Reporters Committee or Freedom o the Press. http://www.rcp.org

The Right-to-Know Network (RTK NET). http://rtknet.org

Society o Proessional Journalists. http://spj.org/oi.asp

Sunlight Foundation http://www.sunlightoundation.comSunshine in Government Initiative. http://www.sunshineingovernment.org

Transactional Records Access Clearinghouse (TRAC). http://trac.syr.edu

Federal.Government.Sites

Department o Justice Oce o Inormation and Privacy. http://www.usdoj.gov/oip/oip.html

The Inormation Security Oversight Oce (ISOO). http://www.archives.gov/isoo

U.S. Government Portal. http://www.usa.gov

GPO Access. http://www.gpoaccess.gov

Thomas. http://thomas.loc.gov

PACER. http://pacer.psc.uscourts.gov




Endnotes.1 John Adams, A Dissertation on the Canon and Feudal Law, 1765. http://teachingamericanhistory.org/li-brary/index.asp?document=43

2 Patrick Henry, The Debates in the Convention o the Commonwealth o Virginia, on the Adoption o the

Federal Constitution, June 9, 1788.

3 Letter rom James Madison to W. T. Barry, Aug. 4, 1822, in The Complete James Madison (Harper and Broth-

ers, 1953). Cited in Wiggens, Freedom or Secrecy (Oxord University Press, 1956).

4 Executive Order 11652 - Classication and Declassication o National Security Inormation and Material,June 8, 1972.

5 Woodrow Wilson, The New Freedom: A Call For the Emancipation o the Generous Energies o a People1913

6 Louis D. Brandeis, “What Publicity Can Do,” Other People’s Money, p. 92 (1932). Quoted in Respectully

Quoted: A Dictionary o Quotations. 1989.7 See Gary Bass and Sean Moulton, The Public’s Right to Know: A Case Study rom the United States, in Cal-land and Tilley, The Right to Know, the Right to Live (ODAC, South Arica, 2002); OECD PRTR pages: http://www.oecd.org/env/prtr

8 Reporters Committee or Freedom o the Press, Open Government Guide:

Wisconsin, 5th Edition. http://www.rcp.org/ogg/index.php?op=browse&state=WI

9 The Oce o the Federal Register. “A Brie History Commemorating the 70th Anniversary o the Publicationo the First Issue o the Federal Register, March 14, 1936.” http://www.archives.gov/ederal-register/the-ed-eral-register/history.pd

10

Panama Rening Co. v. Ryan, 293 U.S. 388 (1935).

11 For a detailed review, see Lotte E. Feinberg, Mr. Justice Brandeis and the Creation o the Federal Register,

Public Administrative Review, Vol 61, No 3, May/June 2001.

12 United States Senators Daniel Patrick Moynihan and Ron Wyden, Secrecy in International and DomesticPolicy Making: The Case or More Sunshine, October 2000. http://www.as.org/sgp/library/wyden.html

13 Report o the Commission on Protecting and Reducing Government Secrecy, Sen Doc 105-2. 1997. http://www.as.org/sgp/library/moynihan/index.html

14 GAO, Managing Sensitive Inormation: DOJ Needs a More Complete Stang Strategy or Managing Clas-

sied Inormation and a Set o Internal Controls or Other Sensitive Inormation. GAO-07-83, October 2006;

GAO, Managing Sensitive Inormation: DOD Can More Efectively Reduce the Risk o Classication Errors,GAO-06-706.

15 Too Many Secrets: Overclassication as a Barrier to Critical Inormation Sharing, Hearing beore the Sub-

committee on National Security, Emerging Threats and International Relations, August 24, 2004.

16 Secrecy News, Volume 2003, Issue No. 45, May 27, 2003.

17 Executive Order 13292.

18 Secrecy News, FAS Project on Government Secrecy. Volume 2004, Issue No. 42, May 5, 2004.




19 President John F. Kennedy Assassination Records Collection Act o 1992, PL 102-526.

20 Japanese Imperial Government Disclosure Act o 2000 December 6, 2000; Nazi War Crimes Disclosure Act.

PL 105-246.

21

Final Report o the Kennedy Assassination Records Review Board, 1998.22 Bush Ordered Declassication, Ocial Says, NY Times, April 10, 2006.

23 John Prados, “Declassixation,” The New Republic, April 21, 2004.

24 S. 2660.

25 U.S. House o Representatives, Permanent Select Committee on Intelligence, Oversight Plan or the 110th

Congress, February 7, 2007.

26 U.S. Reclassies Many Documents in Secret Review, NY Times, February 21, 2006; National Security Archive,Declassication in Reverse: The U.S. Intelligence Community’s Secret Historical Document Reclassication

Program, February 21, 2006, http://www.gwu.edu/~nsaarchiv/NSAEBB/NSAEBB179/index.htm

27 Inormation Security Oversight Oce, Audit o the Withdrawal o Records rom Public Access at the Na-

tional Archives and Records Administration or Classication Purposes, April 26, 2006. http://www.archives.gov/isoo/reports/2006-audit-report.html

28 Press Release National Archives Releases Second Declassied MOU, April 17, 2006.

29 The National Deense Authorization Act or Fiscal Year 1999, Public Law 105-261.

30 William Burr, How Many and Where Were the Nukes?”, National Security Archive Electronic Brieng Book No. 197, August 18, 2006. http://www.gwu.edu/~nsaarchiv/NSAEBB/NSAEBB197/index.htm

31 Title VII, FY 2001 Intelligence Authorization Act. It was amended in 2004 to hear appeals rom Congressio-nal committees on classication.

32 U.S. v Reynolds, 245 US 1 (1953).

33 See Chesney, Robert, “State Secrets and the Limits o National Security Litigation”. George Washington Law

Review, 2007 Available at SSRN: http://ssrn.com/abstract=946676

34 For a very detailed analysis, see Louis Fisher, In the Name o National Security: Unchecked Presidential

Power and the Reynolds Case, University Press o Kansas 2006.

35 William G. Weaver and Robert M. Pallitto, State Secrets and Executive Power: Political Science Quarterly, Vol120 No 1, 2005. p86.

36 Memo rom WH Chie o Staf Andrew Card on Action to Saeguard Inormation Regarding Weapons o Mass Destruction and Other Sensitive Documents Related to Homeland Security, March 19, 2002.

37 CRS “sensitive but Unclassied” Inormation and Other Controls: Policy and Options or Scientic and Tech-

nical Inormation, November 4, 2006. p35.

38 Ibid p58.

39 Ibid p64.




40 Jason Program Oce, MITRE, Horizontal Integration: Broader Access Models or Realizing InormationDominance”, December 2004. p5. http://www.as.org/irp/agency/dod/jason/classpol.pd

41 Government Accountability Oce, Inormation Sharing: The Federal Government Needs to Establish Poli-cies and Processes or Sharing Terrorism-Related and Sensitive but Unclassied Inormation, GAO-06-385,

March 2006.42 GAO, Managing Sensitive Inormation: DOJ Needs a More Complete Stang Strategy or Managing Classi-ed Inormation and a Set o Internal Controls or Other Sensitive Inormation. GAO-07-83, October 2006.

43 National Security Archive, Pseudo-Secrets: A Freedom o Inormation Audit o the U.S. Government’sPolicies on Sensitive Unclassied Inormation, March 2006. http://www.gwu.edu/~nsarchiv/NSAEBB/

NSAEBB183/press.htm

44 CRS “Sensitive but Unclassied” Inormation and Other Controls: Policy and Options or Scientic and Tech-nical Inormation, November 4, 2006.

45 NSA report ibid p. 21.

46 Steve Atergood, The Secrets o Flight, Slate, Nov. 18, 2004.

47 “No-Fly” Doesn’t Fly, GovExec.com, June 24, 2004.

48 White House, Memorandum or the Heads o Executive Departments and Agencies: Guidelines and Re-quirements in Support o the Inormation Sharing Environment, December 16, 2005.

49 CRS Ibid, p16.

50 The Homeland Security Act o 2002, PL 107-296 s 892.

51 Department o Homeland Security Appropriations Act, 2007, PL 109-295, s. 525

52 EPA Oce o Inspector General, EPA’s Response to the World Trade Center Collapse: Challenges, Successes,

and Areas or Improvement, Report No. 2003-P-00012. http://www.epa.gov/oig/reports/2003/wtc/toc.htm

53 EPA, NYC Blamed or 9/11 Health Problems, AP, September 8, 2006.

54 Death by Dust, The Village Voice, November 28, 2006.

55 See Fisher p23.

56 See GAO, Principles o Federal Appropriations Law: Third Edition: Volume I http://www.gao.gov/special.

pubs/3rdEditionVol1.pd

57 U.S. Military Covertly Pays to Run Stories in Iraqi Press, Los Angeles Times, November 30, 2005.

58 5 U.S.C. 552

59 Every state, the District o Columbia and most ederal territories have their own FOIA laws. See The Report-

ers Committee or Freedom o the Press, Open Government Guide. http://www.rcp.org/ogg/index.php

60 Attorney General’s October 12, 2001 Memorandum on the Freedom o Inormation Act. http://www.usdoj.gov/oip/011012.htm




61 GAO, Inormation Management: Implementation o the Freedom o Inormation Act, May 11, 2005.

62 S. 394, OPEN Government Act approved by the Senate Judiciary Committee Sept 21, 2006; S 589, FasterFOIA Act o 2005, Approved by the Senate Judiciary Committee March 17, 2005, S. 1181, Approved by Sen-

ate June 24, 2005.

63

Executive Order 13,392, on improving Agency Disclosure o Inormation, December 15, 2005. http://www.whitehouse.gov/omb/memoranda/y2006/m06-04.pd

64 Letter rom National Security Archive to Attorney General Gonzales, October 19, 2006.

65 Secrecy News, Volume 2002, Issue No. 21, March 14, 2002.

66 Mark J. Rozell, Executive Privilege Revived?: Secrecy and Conict During the Bush Presidency, 52 Duke L. J.403 (2002).

67 US v. Nixon, 418 U.S. 563 (1974); Nixon v GSA, 433 U.S. 425 (1977).

68 Public Law 95-591, codied at 44 U.S.C. 2201-2207 .

69 Executive Order 126.

70 Executive Order 13233 o November 1, 2001 Further Implementation o the Presidential Records Act.http://www.as.org/irp/ofdocs/eo/eo-13233.htm

71 See National Security Archive Page. http://www.gwu.edu/~nsarchiv/news/20040430/index.htm

72 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

73 Memorandum rom Michael J. Creppy to Immigration Judges and Court Administrators on “Cases requir-ing special procedures”, Sept. 21, 2001. http://news.ndlaw.com/hdocs/docs/aclu/creppy092101memo.pd

74 Statement o Lily Fu Swenson Deputy Associate Attorney General Beore the House Judiciary Subcommit-tee on Immigration, Border Security and Claims, Concerning Immigration Removal Procedures Implemented

in the Atermath o the September 11th Attacks, June 30, 2005.

75 Detroit Free Press v. Ashcrot 303 F.3d 681 (August 26, 2002).

76 See The Memory Hole. Justice Department Censors Supreme Court Quote http://www.thememoryhole.org/eds/justice_redaction.htm

77 David Kirby, The Other Secret Bush Court?, The Hungton Post, Nov. 15, 2006.

78 Pickering v. Board o Education o Township High School District, 391 U.S. 563 (1968).

79 Snepp v United States, 444 U.S. 507 (1980).

80 Union o Concerned Scientists and Government Accountability Project, Atmosphere o Pressure: Political

Intererence in Federal Climate Science, February 2007.

81 The New Gag Rules, Science 17 February 2006: Vol. 311. no. 5763, p. 917.

82 New Publishing Rules Restrict Scientists, AP, December 2006.

83 United States Department o State and the Broadcasting Board o Governors Oce o Inspector General




Report o Inspection U.S. Speaker and Specialist Program Review Bureau o International Inormation Pro-

grams, Report Number ISP-C-06-52, September 2006. http://oig.state.gov/documents/organization/75589.pd

84 Yost, Guards Say Non-Disclosure Agreements Were Used to Hide Security Flaws at DHS, CQ HomelandSecurity – Industry & Contracting, April 19, 2006.

85 DHS Non-Disclosure Agreement. http://www.as.org/sgp/othergov/dhs-nda.pd

86 ibid. 82.

87 5 USC 2302; PL 95-454, 101-12.

88 Congressional Research Service, National Security Whistleblowers, December 30, 2005.

89 General Accounting Oce, U.S. Oce o Special Council, Strategy or Reducing Persistent Backlog o CasesShould be Provided to Congress GAO-04-36.

90 Joint POGO, PEER, GAP letter to members o Congress regarding U.S. Special Counsel, Scott Bloch’s retali-

ation against employees, January 10, 2005. http://www.pogo.org/p/government/gl-050101-whistleblower.html. See also PEER, Special Counsel Tags Interns to Close Out Whistleblower Cases; Staf Resignations LeaveAgency Short-Handed, March 9, 2005. http://www.commondreams.org/news2005/0309-07.htm

91 See Project on Government Oversight, Homeland and National Security Whistleblower Protections: The

Unnished Agenda, April 28, 2005.

92 ibid.88

93 Garcetti v. Ceballos, No 04-473. May 30, 200689.

94 18 USC 793 et sec.

95 Edgar and Schmidt, The Espionage Statutes and Publication o Deense Inormation, 73 Columbia L.R. 929(1973).

96 New York Times Co. v. United States, 403 U.S. 713, (1971).

97 See FAS page on Selected Judicial Branch Documents on Secrecy, Security, Intelligence and Freedom o

Inormation or bries and decisions on the case. http://www.as.org/sgp/jud/index.html

98 See e.g. Gabriel Schoeneld, Has the New York Times Violated the Espionage Act? Commentary, March

2006.

99 Statement by the President, November 4, 2000.

100 S. 3774. A bill to amend title 18, United States Code, to prohibit the unauthorized disclosure o classiedinormation; to the Committee on the Judiciary.

101 Attorney General’s Task Force Report on Unauthorized Disclosures o Classied Inormation, October 15,2002. Available at http://www.as.org/sgp/othergov/dojleaks.html

102 18 USC 641. See R. Robin McDonald, DEA Employee Gets Prison Term or Leaking to Reporter, Fulton

County Daily Report January 15, 2003; Dmitrieva, Stealing Inormation: Application o a Criminal Anti-ThetStatute to Leaks o Condential Government Inormation, 55 Florida Law Review, 1043 (2003).




103 (CRS, Journalists’ Privilege to Withhold Inormation in Judicial and Other Proceedings: State Shield Stat-

utes, March 8, 2005. Available at http://www.as.org/sgp/crs/secrecy/RL32806.pd , Reporters Committeeor Freedom o the Press, The Reporter’s Privilege. http://www.rcp.org/privilege/index.htm. It should alsobe noted that the right o journalist’s condentiality has been adopted in over 80 countries and has been

recognized by the European Court o Human Rights and the Organisation o American States.).

104

Branzburg v. Hayes, 408 U.S. 665 (1972).105 RCFP, Special Report: Reporters and Federal Subpoenas As reporters acing contempt charges in a num-ber o ederal cases around the country, Congress is taking its rst serious look at a reporter’s shield law in

decades. Current as o: 11/29/06 http://www.rcp.org/shields_and_subpoenas.html

106 Pew Internet and American Lie, How Americans Get in Touch with Government, May 24, 2004.

107 E-Government Act o 2002, PL 107-347.

108 See OMB, Memorandum on Improving Public Access to and Dissemination o Government Inormation

and Using the Federal Enterprise Architecture Data Reerence Model, December 16, 2005.

109

Google seeks better access to government inormation, GovExec.com, October 25, 2006.

110 Government Printing Oce Electronic Inormation Enhancement Act o 1993, PL 103-40.

111 Annual Report o the Librarian o Congress, 2004.

112 http://www.theopenhouseproject.com

113 http://www.readthebill.org

114 See CRS, The Federal Funding Accountability and Transparency Act: Background, overview and Implemen-tation Issues, October 6, 2006.108.

115 The International Budget Project, Open Budget Initiative 2006.

116 For a detailed review o the legislation, see CRS, Ibid.

117 GAO letter to OMB Director Joshua Bolten on Reliability o Federal Procurement Data, December 30, 2003.http://www.gao.gov/new.items/d04295r.pd. GAO letter to OMB Director Joshua Bolten on Improvements

Needed to the Federal Procurement Data System-Next Generation, Sept. 27, 2005. http://www.gao.gov/new.items/d05960r.pd

118 Letter rom 11 non-project groups to GSA, August 9, 2004. http://www.pogo.org/p/government/gl-040801-oia.html

119 See the Right-to-Know-Network http://www.rtknet.org

120 See Gary Bass and Sean Moulton, The Public’s Right to Know: A Case Study rom the United States, in Cal-land and Tilley, The Right to Know, the Right to Live (ODAC, South Arica, 2002).

121 http://www.sec.gov/edgar.shtml

122 US Securities and Exchange Commission, SEC Staf to Publicly Release Comment Letters and Responses,

June 24, 2004.

123 Richard L Smith, The 1958 Automotive Inormation Disclosure Act: A Study o the Impact o Regulation,




Jnl o Industrial Economics, June 1980.

124 Christopher Stern, FCC Cuts Public Line To Phone Outage Data, The Washington Post, August 28, 2004.

125 RFF paper. p3

126

PL 107-116 (December 17, 2002).127 John M. De Figueiredo, E-Rulemaking: Bringing Data to Theory at the Federal Communications Commis-sion, 55 Duke L. J. 969 (2006).

128 See OMB Watch, Against the Public’s Will, December 2006. http://www.ombwatch.org/ino/TRICom-mentsReport.pd

129 Pew Internet and American Lie Project, Internet penetration and impact, April 2006.

130 Ibid, Pew report.

131 CRS, Restructuring EPA’s Libraries: Background and Issues or Congress, January 3, 2007.

132 Thomas Mann, What is Going on at the Library o Congress?, June 19, 2006.

133 Bertot et al, Public Libraries and the Internet 2006: Study Result and Findings, September 2006.

134 See OMB Watch, Access to Government Inormation Post September 11th,http://www.ombwatch.org/ar-ticle/articleview/213/1/1/; Reporters Committee or Freedom o the Press, Homeront Condential: How theWar on Terrorism Afects Access to Inormation and the Public’s Right to Know.

135 Mapping the Risks: Assessing the Homeland Security Implications o Publicly Available Geospatial Inor-

mation, Rand Corporation (2004). http:www.rand.org/pubs/monographs/2004/RAND_MG142.pd

136 Small Business, Miami Herald, Dec. 16, 2006.

137 The Digital Ice Age, Popular Mechanics, November 21 2006.

138 http://www.govtrack.us

139 http://www.opensecrets.org/travel/index.asp

140 http://www.edspending.org

141 How planespotters turned into the scourge o the CIA, The Guardian, December 10, 2005.

142 LA Times, A third incident, a new video, November 16, 2006.




Credits.Page.8,.24,.32

Dwane Powell Editorial Cartoon ©2005 Dwane Powell. Printed originally in the Raleigh News-Observer. Reprinted with the permission o Dwane Powell and Creators Syndicate

Page.2

Frank and Ernest ©2005 Thaves. Used with the permission o the Thaves and the Cartoonist Group. Page.23

Matt Wuerker Editorial Cartoon ©2006 Matt Wuerker. Used with the permission o Matt Wuerker and theCartoonist Group.

Page.10

Nick Anderson Editorial Cartoon ©2005 Nick Anderson. Published originally in the Louisville Courier-Journal.Used with the permission o Nick Anderson and the Washington Post Writers Group in conjunction with theCartoonist Group.

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Signe Wilkinson Editorial Cartoon ©2006 Signe Wilkinson. Published originally in the Philadelphia DailyNews. Used with the permission o Signe Wilkinson and the Washington Post Writers Group in conjunction

with the Cartoonist Group.

