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Government secrecy: dark cloud over open society
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
03.13.05

“It would be a fair guess that if every page of every newspaper published in the United States on a given weekday were given over solely to reprinting the (secret) documents created that day, there would not be enough space.”

Those are the words of Daniel Patrick Moynihan writing in “Secrecy,” a landmark report by the Commission on Protecting and Reducing Government Secrecy, which the late senator chaired.

When the report was issued in 1997, secrecy in the federal government actually was in decline. How times and the two-way information compact between the government and the citizenry have changed.

So, too, has the massive amount of secrecy the federal government regularly turns out. In 1995, this nation was creating 3.6 million government secrets a year. Today, we have reached a stunning pace of 14 million secrets annually — a fourfold increase in a decade.

In fact, there are billions of official secrets warehoused around the nation, but those huge stores are dwarfed by mountains of unofficial secrets — government information that is not classified but is considered too “sensitive” for Congress, the public, scholars or the press.

The argument for most of this secrecy, of course, is to make us safer. The irony is that excess secrecy can — and will — make us less safe. A further and perhaps more pernicious threat lurks in secrecy’s often-unrecognized impact on democratic discourse and decision-making.

How does a nation that celebrates the idea of openness find itself shackled to a government information system that has a default setting of secrecy? Excessive government secrecy, after all, is a rather sharp rebuke to our democratic instincts. It too readily accepts the rationale that to keep America’s enemies at bay, we must keep America’s citizens in the dark.

Government officials have never been comfortable with too much public access to information. The political impulse is to control information, not share it. Indeed, the Bush administration, like its predecessors, has not been able to resist that impulse. Even before the terrorist attacks of Sept. 11, 2001, it was moving aggressively to constrict the flow of government information to the public.

One of its first information-policy actions, for example, was to halt the scheduled release of tens of thousands of unclassified Reagan administration documents to the public. Also early in the administration, the Justice Department began working on a revision of the attorney general’s implementation memorandum for the Freedom of Information Act. When finally issued in October 2001, the document sharply diminished the presumption of openness that had brought the law into being in the first place.

During the past few years, the White House and federal agencies have rebuffed requests for information from Congress, public-interest groups and the press about such crucial issues as meetings of the vice president’s energy task force, detainees rounded up in the wake of 9/11, deportation hearings for detainees, implementation of the Patriot Act, weapons of mass destruction in Iraq, the FBI investigations into the anthrax poisonings and the Los Alamos spy case, and treatment of prisoners at Guantanamo and Abu Ghraib.

Government Web sites have been taken down and thousands of pages removed from other government sites. Government publications and CD-ROMs have been recalled from public availability. Curbs have been placed on the flow of scientific and technical information. Protections for government whistleblowers have been weakened.

One of the most far-reaching changes in government information policy has been the emergence of a massive new system for putting government information beyond the reach of the public, the press and Congress. This category of information is called “sensitive but unclassified” or SBU. This new system quickly began to spread through federal agencies after the White House issued a memo in March 2002 warning employees that they must take care to protect such information.

The decision to safeguard material as SBU can be made at very low levels, based on broad definitions and complicated criteria. Government officials making such decisions have very few incentives for disclosure and strong incentives for withholding, including harsh penalties if their decisions are later questioned.

Thus, in a relatively short time, one of democracy’s core principles, the “right to know” for the public, has devolved into a “need to know” for certain individuals and now threatens to become a “right to control” for government officials only.

The more secretive a government, of course, the more estranged it becomes from democratic principles and traditions. And the less it benefits from the wisdom, experience, enterprise, ingenuity and support of its citizens.

When Americans are kept in the dark about what the government is doing and not doing, finding and fighting terrorist threats becomes much more difficult. So does preventing misuse and abuse of government power.


Related

Journalists to launch 'Sunshine Week'

Nationwide campaign starting in March will press for more access to government information. 01.01.05

News media groups join forces to promote open government
Meanwhile, Sens. Cornyn, Leahy to introduce bill creating panel to study ways to speed release of records under FOIA. 03.10.05

AP review: Federal government sealing off data
'Law itself is unchanged, but it's being interpreted more broadly to withhold more information,' says open-government advocate. 03.14.05

2005 National FOI Day conference
Sen. John Cornyn, R-Texas, Floyd Abrams to speak at event on 'Congress and the Courts: Confronting Secrecy.' 03.15.05

Openness must govern government, Sen. Cornyn says
By Eugenia Harris Democracy requires 'informed consent' afforded by open government, Texas Republican tells conference. 03.17.05

Bush: Openness mustn't trump privacy, security
President tells news editors that public should know as much as possible about government decision-making, but national security, personal privacy — including his — need to be protected. 04.15.05

U.S. must release some Abu Ghraib photos, judge says
District judge says he'll sign order requiring government to hand over some pictures of prisoner abuse to ACLU under Freedom of Information Act. 05.27.05

For Sunshine Week and every week: our FOI material
Sunshine Week, highlighted by National FOI Day, celebrates open government. See compilation of resources on Freedom of Information Act issues. 02.02.06

The public's right to know is under attack
By Sen. Patrick J. Leahy Erosion of Freedom of Information Act weakens vital protections for American citizens, Vermont Democrat writes. 03.15.05

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