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A question of priorities: bin Laden’s privacy or your right to know?
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman

“For me, the most worrying contemporary threat to First Amendment values is the growth of secrecy in the Federal Government,” journalist Anthony Lewis wrote in The New York Times. “Officials naturally find life easier if they do not have to explain and defend their policies.”

Lewis wrote those words 15 years ago, referring to government information policies growing out of decades of Cold War fever. But the threat of too much secrecy continues to be quite contemporary as we find ourselves today in the grip of GWOT – the Global War on Terrorism.

Restrictions on the public’s access to information grow at a startling pace. The office in charge of the national-security classification system reported last month that government classification actions had hit another new high: 15.6 million, up from 14.2 million the previous year.

Some secrets make sense, of course. Others border on the bizarre.

Take, for example, the FBI’s removal of the name of al-Qaida leader Osama bin Laden from declassified material obtained by the public-interest group Judicial Watch through a Freedom of Information Act request. Even though many of the document’s references to bin Laden were to news and magazine articles, the FBI redacted bin Laden’s name because it “would constitute a clearly unwarranted invasion” of the privacy of the man who engineered the 9/11 terrorist attacks.

“It is dumbfounding that the United States government has placed a higher priority on the supposed privacy rights of Osama bin Laden than the public’s right to know what happened in the days following the September 11 terrorist attacks,” said Judicial Watch president Tom Fitton.

Day by day, however, Americans face the prospect of losing access to more and more information, sometimes in massive amounts. Just in the past few weeks —

  • The State Department decided to issue the congressionally mandated annual report on terrorist trends without a critical component: statistics on the number of attacks. A department official insisted that the numbers weren’t relevant. Officials finally told congressional staffers that the numbers showed that serious international terrorist incidents had more than tripled since the last report — from 175 to 655.

  • Hundreds of documents in the Defense Technical Information Center Joint Electronic Library suddenly disappeared from the Web site after news coverage mentioning two of the unclassified documents online had created a public stir.

  • The Pentagon demanded broad authority to withhold Defense Intelligence Agency unclassified manuals and operational files currently available to Congress, the public and the press. A similar request in 2000 was firmly rejected by Congress. The exemption “would enshroud in secrecy files that have been invaluable for human rights investigators looking into foreign militaries,” said Tom Blanton, of the National Security Archive, in a recent op-ed piece in The Washington Post.

  • In what government secrecy expert Steven Aftergood termed an act of “tactical or selective declassification,” Attorney General Alberto Gonzales last month disclosed in Senate testimony information about Justice Department actions under the Foreign Intelligence Surveillance Act. The department had for months rebuffed requests from three senators for the same information, saying it was classified.

    Sometimes, policies come about because of mistaken or overwrought perceptions about risks to privacy and security. For instance, during an appearance before the American Society of Newspaper Editors in April, President Bush said he didn’t use e-mail anymore because “I don’t want you reading my personal stuff. I don’t think you’re entitled to read my mail between my daughters and me.”

    Noting that the president had made the same claim to the same group shortly after he took office, FOIA expert Harry Hammitt wrote in Access Reports, “It was wrong then, and it remains just as wrong four years later.” Hammitt pointed out that the president’s records are not subject to the FOIA, and since his e-mails are personal they would not be subject to release under the Presidential Records Act.

    But proposals for restrictions on access continue to muddle and muzzle public discourse, whether invoked for privacy, security or, ironically, for “freedom.” Even staunch champions of national security concede that we are being much more secretive than we need to be.

    A National Academy of Sciences committee on spent nuclear fuel storage reported in April that the Nuclear Regulatory Commission’s restrictive policies actually increase our vulnerabilities. “Sharing information with the public is essential in a nation with strong democratic traditions for sustaining public confidence in the Commission as an effective regulator of the nuclear industry, and for reducing the potential for severe environmental, health, economic, and psychological consequences from terrorist attacks should they occur,” the committee wrote.

    Unnecessary secrecy costs us much more than it benefits us. It devalues real secrets. It leaves us vulnerable not only to attack but to accident, abuse and potentially lethal mistakes.

    Thoughtful officials must more frequently and honestly question whether not sharing information is more dangerous than sharing it. They must more carefully calculate the point when secrecy becomes no longer a protection for freedom and becomes instead a threat to freedom.

    Whether by calculation or coincidence, the disquieting result of excessive secrecy is a consolidation of political power, control of the public agenda and manipulation of the public mind.

    That is not only a threat to First Amendment values, but also to our security, our privacy and our democratic aspirations. And that threat is quite contemporary.

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    Post-9/11 info access

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