What we can’t know hurts us
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman

“The first casualty when war comes is truth,” thundered Hiram Johnson, senator from California, on the floor of the Senate in 1917. But the essential component of truth, information, is so heavily guarded these days that truth, if not a casualty in the war on terrorism, certainly goes missing in action all too often.

In a war setting, of course, the right information in the wrong hands can be lethal. The same is true for homeland security. But there’s also this: The right information in the public’s hands can prove embarrassing, inconvenient or worse for our elected and appointed leaders.

It is no wonder, then, that information is heavy on the minds of government officials.

First and foremost, it is a kind of currency, used for bartering, brokering, managing, safeguarding, hoarding. It is used to purchase influence. It even comes in various denominations: “raw data,” described in a recent government report as having no assessment of its accuracy or implications; “knowledge,” having “a high degree of reliability or validity”; and “intelligence,” which has been “carefully evaluated concerning its accuracy and significance, and may sometimes be credited in terms of its source.”

However it’s categorized or utilized within the government, only a pathetic amount of the total makes its way to the public. Just a few days’ worth of news illustrates how quickly new and improved barriers to public access to government information are springing up all over the nation’s capital.

Perhaps the most troubling recent development was the decision of the Justice Department to require a public interest group to pay almost $400,000 upfront if it wanted to take a peek at records that might reveal how many secret legal proceedings the department had initiated against immigrant detainees rounded up after 9/11.

Department officials initially denied the Freedom of Information request by People for the American Way filed in November 2003, saying that it would violate the detainees’ privacy. Now, it has decided that it could comply with the request if PFAW would pay the $400,000 for the cost of searching its files.

“To say it would take hundreds of thousands of dollars to look for something that should be obvious in any U.S. attorney’s office — cases that are filed under seal — is very difficult to credit,” said Elliot Mincberg, the organization’s general counsel.

Elsewhere in the Justice Department, the Office of Justice Programs denied the request of a reporting team from Cox Newspapers for access to records about illegal aliens convicted of serious crimes and who had been released without being deported. The office explained that the database couldn’t be made available because the privacy interest of the criminals trumped the public interest in information about who and where they were.

The Department of Energy, in a dramatic reversal of intent, announced that it would not release to the public an unclassified history of highly enriched uranium. DOE officials had promised in 1997 that they would publish the history. Now, they’ve decided the history has become an “internal” document.

“This is a bizarre redefinition of the FOIA exemption for ‘internal’ agency records,” said secrecy expert Steven Aftergood, noting that this interpretation of “internal” would probably exempt massive amounts of government records from public disclosure. Aftergood also pointed out that as late as Feb. 2, the history was available on DOE’s Web site.

The CIA, meanwhile, refuses to release to a government working group hundreds of thousands of pages of documents about the United States’ dealings with former Nazis after World War II, despite a 1998 law requiring release of the documents.

(After two years of refusing to budge on this issue and under the threat of CIA director Porter Goss's being summoned to testify in public about the matter, the CIA agreed over the weekend of Feb. 5-6 to broaden its interpretation of the law and release some of the records to the working group, according to The New York Times.)

This is just a sampling of the barriers federal officials are putting in the way of ordinary citizens, public-interest groups and the press seeking to know more about what the government is doing or not doing. These barriers come in many forms: delay, denial, prohibitive fees, new categories of withholding and new ways of interpreting old categories.

Certainly a lot of this activity comes from a heightened sensitivity about security. But some of it also is about reflexive action on the part of some officials. They want to appear to be taking action. They want to appear to be in control. And they often use control of information as a way to buy time to solve a problem, a self-defeating mechanism that shuts out the public, a necessary source of experience, wisdom and support.

Without scanting the needs of security, Americans must reassert their right to examine policy and scrutinize actions taken in their name and paid for with their taxes. They must insist that government leaders get past the reflexive and on to the thoughtful, to share with one another in government agencies rather than compartmentalize without deliberation, to manage sensitive information without trying to control public opinion or participation.

Government policies and action draw allegiance from public awareness and participation. Democracy draws its strength and vitality from the multiplicity of viewpoints and experience embedded in the citizenry.

What we can’t know can hurt us. It can hurt good decisions and policy. It can hurt government accountability. And it can hurt our ability to identify and address our vulnerabilities in the war on terrorism.