ARLINGTON, Va. While government seeks to cloak its dealings in ever more secrecy, the traditional American press “has virtually looked the other way,” Pulitzer Prize-winning reporter Jack Nelson told the First Amendment Center's National FOI Day conference on March 14.
”Not since Richard Nixon three decades ago has a president been as secretive or combative about leaks of classified information,” he said at the annual conference, held at the Freedom Forum.
Nelson, retired bureau chief of the Los Angeles Times' Washington bureau, was the key speaker in the daylong gathering that assembles a wide array of groups to discuss progress and setbacks in the fight against restrictions on access to government information. Their reports indicated that secrecy is winning.
“President Bush has gone beyond just being extremely secretive about the conduct of the government's business,” Nelson said. “In the name of fighting terrorism, he has amassed powers and wrapped them in a cloak of resilience to normal oversight by Congress and the judiciary. No president since I've been a reporter has so tried to change the very structure of government to foster secrecy.”
Nelson, a journalist for more than 50 years, won the Pulitzer Prize for uncovering malpractice and other wrongdoing at Milledgeville State Hospital in Georgia, then the world's largest mental health institution. At the time, he was a reporter for the Atlanta Constitution. Later, he was a fellow at Harvard University’s Joan Shorenstein Center on the Press, Politics and Public Policy and recently wrote a 13,000-word report there on government secrecy.
The press has an obligation to be aggressive in guarding the public right to have information, Nelson said. Today, he said, there are three special reasons for special vigilance. The first two are excessive secrecy and the consolidation of powers and domination of all three branches of government by one political party. The third reason is that “the opposition party for the most part has been as timid and divided as I can remember.”
Nelson contends the daily press generally ignores information about the growth of secrecy, even when the government itself acknowledges it.
“Actions to classify documents in fiscal 2001 increased 44 percent to an astounding 33 million,” Nelson said. And an increase is certain, he predicted, because of the war on terrorism. The numbers he used came from the Information Security Oversight Office annual report.
Laxity on the part of news organizations has made the public increasingly sympathetic to secrecy and “polls show that on that issue, the public identifies with the government, not the press,” Nelson said.
Earlier in the conference, Tom Blanton, director of the National Security Archive at George Washington University, told the audience of 100-plus people that government agencies vary widely in how they respond to requests made under the Freedom of Information Act. The archive, once described by the Los Angeles Times as “the world's largest nongovernmental library of declassified documents,” recently conducted an audit of FOIA compliance by federal agencies and released a report at the conference.
“Three of the 35 agencies lost our request,” Blanton remarked.
Bill Chamberlin, director of the Marion Brechner Citizen Access Project, which studies open meetings and record laws in the 50 states, said when the states were rated on a “sunshine scale,” the spotlight fell on Tennessee’s law saying essentially that “all things about terrorism should be closed.” It was one of four states with laws to that effect, he said.
There was other discouraging news from the courts for freedom-of-information advocates.
“Federal courts of D.C. are not amenable” to FOI cases, said David Sobel of the Electronic Privacy Information Center in a panel discussion on “The Courts: Are They the Answer?” Sobel said “it is very, very much an uphill battle” to litigate on behalf of FOI concerns in District of Columbia federal courts.
Jane Kirtley of the University of Minnesota was gloomy about getting more public support for open government. Military rules that restrict journalists in the field in the Middle East are causing concerns that reporters in the battle zone could get scooped by colleagues in Washington, she added.
Privacy concerns have emerged among the greatest barriers to release of information, said Indiana University's Fred Cate, speaking of the publication of a First Amendment Center First Report, “The Privacy Problem: A broader view of information privacy and the costs and consequences of protecting it.”
“Many of our First Amendment Defenders have also become privacy defenders,” Cate said.
During a discussion of “Restrictions and the Champions of Access,” panelists addressed how newspapers can mount an effective response to the increasing secrecy practiced by the government.
“Don't do the vague 'the public has a right to know' argument,” said Bob Lystad of the law firm Baker & Hostetler. “Be specific.”
Jeremiah Baumann of the Public Interest Research Group said, “Secrecy is not the solution to terrorist threats.”
At an afternoon session on “Homeland Security and Freedom of Information,” Gary Bass of OMB Watch said, “It should be made clear that public information is useful” to a public worried about terrorist threats.
In summing up the conference, the First Amendment Center's Paul McMasters, who organized and hosted the event, said "the public is scared" but that fear was not a sufficient reason to put up more barriers to Freedom of Information Act requests by the public and the press.
The veteran in the battle against government secrecy pointed out that the terrorists who brought down the Trade Center towers in New York didn't file a freedom of information act request. In a reference to how long it takes to get a response to such requests, he said, “The terrorists don't want to bother with an FOIA request. They don't have the time.”
McMasters said he was looking forward to an end to government efforts to restrict information, saying, “I hope one day we won't be in this defensive crouch.”
(See more National FOI Day information.)
Harry F. Rosenthal is a former reporter for The Associated Press.