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Post-9/11 secrecy: pervasive and dangerous
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
09.11.05

If you sort the millions of pages, documents and computer disks stamped secret by federal employees last year into stacks each as high as the Washington Monument, you would have a dozen or more monuments to government stonewalling obscuring the skyline of this nation’s capital.

When you take into account that as many as half of those new secrets don’t deserve to be secret, as a federal official conceded in congressional testimony not long ago, then you have monumentally darkened the landscape of our open society.

These thoughts are provoked by the release of a new report, “Secrecy Report Card 2005: Quantitative Indicators of Secrecy in the Federal Government,” by OpenTheGovernment.org, a coalition of public-interest, consumer and press organizations.

This report fairly crackles with damning data.

Government workers made 15.6 million classification decisions in 2004, a stunning 81% more than the year before the terrorist attacks of Sept. 11, 2001.

American taxpayers forked over $460 each time a government worker wielded the secrecy stamp last year, shelling out a total of $7.2 billion to keep all of those secrets secure; that compares to $3.8 billion in 1997.

The government spent $148 making new secrets for every dollar it spent unmaking old ones; for comparison, the government spent $20 on classification for every $1 spent on declassification from 1997 to 2001.

The shadowy Foreign Intelligence Surveillance Court granted every single one of the 1,754 requests for surveillance orders on foreign nationals in the United States; the number of such requests has doubled in the last five years.

The White House and federal agencies invoked the “state secrecy” privilege 33 times more often in the last four years than during the height of the Cold War. This legal tactic allows the government to brush off court cases by asserting that going to court would put foreign policy or national-security concerns at risk. Used only 55 times from 1953 to 2001, the state-secrecy privilege has been used to derail legal action against the government 23 times since.

These statistics on classified material form just the tip of the controlled-information iceberg. Restrictions have been placed on access to even more massive amounts of material that do not qualify as secret but instead are described as “sensitive but unclassified.”

The report card identified 50 different ways to label government information SBU and thus deny public access. “The federal government has greatly expanded its ability to control unclassified, public information through vague restrictions that give government officials wide latitude to declare information beyond the public’s reach,” wrote the report’s author, Rick Blum, OTG director.

As for open meetings, nearly two-thirds of the 7,045 meetings governed by the 1972 Federal Advisory Committee Act, which explicitly endorsed the idea of openness in expert scientific and technical advice to policymakers, were nevertheless closed to the public.

The record at the state level was equally dismal. At least 62 new laws putting public information behind closed doors were passed by states last year.

Ironically, while the government is placing more restrictions on access, the OTG report documents a 25% increase in public requests for federal government information — 4,080,737 during 2004. Spending to accommodate those requests rose only 5%, however, to $336.8 million, and only 14 of the 90 agencies surveyed by the Department of Justice were able to respond to those requests as required by law.

There is a lot more, of course, but these examples are enough to paint a picture of a highly disciplined, if vaguely desperate, policy of delay and denial. It demonstrates that secrecy is pervasive throughout all three branches of the national government as well as in the states.

For those who say that such secrecy is understandable, even necessary, during a war on terror, this report card describes a condition of severe democratic distress. It is precisely during times of national crisis that communication between a government and its citizens must be a two-way conversation — honest, open and informed.

Instead, policymakers have rendered this vital civic compact largely null and void. Government officials are demanding and hoarding information about private citizens and providing less about public policy. Beyond that, they are fostering a climate of fear among government workers and intimidating scholars, public-interest groups, the press and others seeking access.

The threat of too little transparency is neither abstract nor hypothetical. What we don’t know can leave us unprepared for our government’s being unprepared. When policy is formulated in isolation from public knowledge or participation, the nation is left dangerously exposed to a lack of government accountability or lack of preparedness for a natural or terrorist disaster.

When our leaders fail to anticipate or adequately respond to threats to the nation or its citizens because the civic dialogue has broken down, we court the emergence of a dysfunctional democracy, or government by hindsight, in which post-crisis commissions, joint committees and endless investigations struggle to explain what never should have happened.

Excess secrecy is a chilling invitation to such calamities.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: pmcmasters@fac.org.


Related

Report: Government secrecy grows, costs more

Coalition finds big jump in secrets from 2003-04, but archives oversight director says numbers don't solely reflect overclassification, as some agencies now work 24/7. 09.06.05

Study: Journalists face long FOIA delays
Society of Environmental Journalists report finds government compliance with Freedom of Information Act has worsened considerably since 2001 terrorist attacks. 09.14.05

Defense Dept. to fund university study on altering FOIA
Open-government advocates say project at Texas law school, which will examine ways of rewriting law to prevent terrorists from getting sensitive information, is troubling. 07.08.06

Report: Government secrecy down slightly from record levels
Study by OpenTheGovernment.org notes Bush administration's assertion of 'state secrets' privilege, use of signing statements. 09.05.06

Too much secrecy is a challenge to justice
By Paul K. McMasters Courts are under enormous pressure to keep vast array of information out of the sight of ordinary citizens. 12.18.05

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