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Words & Reflections
ger in disallowing satellite images to be
sold commercially for news and, perhaps,
other uses.
I noted this morning in your sessions
the contrast between the desire
of the policymakers for secrecy and the
impulse to get information out that
was expressed by the representatives
from the Census Bureau, the Department
of Agriculture, and the United
States Geological Survey. The Bush
administration’s determined efforts to
control information to which the public
is entitled and should have is part of
a larger pattern of restrictions in the
name of security that is affecting civil
liberties and the treatment of noncitizens
from Arab countries.
Government Information Is
More Difficult to Get
Last October, the month following the
terrorist attacks in New York and Washington,
Attorney General John Ashcroft
issued guidelines for how government
agencies were to handle information
requests under the federal Freedom of
Information Act (FOIA). The FOIA,
which first became law in the 1960’s,
enables journalists and the public to
access papers, documents and memoranda
from various government agencies.
There has never been an easy relationship
between the public and the
press and the officials in government
offices responsible for responding in a
timely way to FOIA requests. But the
meaning of the Ashcroft memo signals
even more difficult times ahead. He
directed federal agencies to consider
national security, enhancing the effectiveness
of our law enforcement agencies,
protecting sensitive business information
and, not least, preserving
personal privacy in determining
whether to release information under
FOIA.
It did not escape notice that informing
the public or serving the public’s
right to know was not among the priorities
Ashcroft instructed government
officials to consider. He promised the
Justice Department would stand behind
any agency official whose decision
to deny FOIA access was based on
any of the new priorities.
The American Society of Newspaper
Editors met with senior officials responsible
for administering FOIA and
were reassured that this was not a major
policy change but simply a “natural
shift” under a new administration and
should not result in significant change
in how requests for information are
handled.
The reality, as we’ve observed over
the past year, is quite different. These
comments from a recent article in the
American Journalism Review emphasize
this reality. John Dean, the famous
Watergate figure, has called the Bush
administration “startlingly Nixonian”
in its passion for secrecy. William Powers
of the National Journal has written,
“This administration keeps secrets like
nobody in Washington has kept secrets—maybe
ever.” And journalist Bill
Moyers said recently, “Not only has
George W. Bush eviscerated the Presidential
Records Act and FOIA, but has
clamped a lid on public access across
the board.”
We’re familiar with the demonstrated
evidence, well reported in the
press, of how executive powers are
being employed in wartime climate in
Washington.
• Tracking down, holding for questioning,
and refusing to identify publicly
immigrants, mostly from Middle
Eastern countries.
• Monitoring conversations between
some people in federal custody and
their lawyers.
• Establishing military tribunals to try
foreigners accused of terrorism. Initially
the tribunals were to be secret,
but the administration relented under
pressure from the public, the
press, and Congress.
• Closing deportation hearings.
The President recently signed legislation
that jails or fines journalists who
publish sensitive leaks—a decision that
essentially revives the Official Secrets
Act that President Clinton vetoed as
being “well intentioned” but over-broad
and so it might “unnecessarily chill
legitimate activities that are at the heart
of a democracy.”
The Homeland Security Act [signed
into law by President Bush on November
25, 2002] has serious implications
for access by the press and public. It
would create an exemption from FOIA
for any information voluntarily submitted
to the government. It would
provide corporate immunity from civil
procedures when information is voluntarily
submitted to the government,
and it would preempt state and local
openness laws when the federal government
gives states information. And
in connection with the establishment
of the White House Office of Homeland
Security, the Office of Management
and Budget has been instructed
to create a new classification for information.
Something called “sensitive but
unclassified.” The idea is to keep information
away from the public and the
press without formally classifying it as
secret.
There is no definition for “sensitive”
nor is there any information about who
would have the responsibility for declaring
information “sensitive but unclassified.”
Indeed, the idea of keeping
unclassified information away from the
public is not new. A recent article in a
publication called Secrecy News reported
that there are “at least a dozen
distinct systems of unclassified information
control, including various provisions
implementing the International
Traffic in Arms Regulation and the Export
Administration Act,” to name two.
The article notes that some of these
provisions impose penalties for disclosure
of unclassified information that
are more severe than for disclosure of
classified information. A new set of
regulations to further hide unclassified
information would create an additional
layer of public information intended
to be kept out of reach of
Americans.
This pattern of secrecy recalls the
work of the Commission on Protecting
and Reducing Government Secrecy,
chaired by Senator Daniel Patrick
Moynihan, which reported in the mid-
1990’s that the federal government’s
secrecy system urgently needed reform,
that millions of documents had been
classified as “secret” and had remained
“secret” long after the requirement of
Nieman Reports / Winter 2002 97