‘We’re in a new era of secrecy’

Thursday, March 18, 2004
Scott Armstrong, Information Trust, at 2004 National FOI Day conference

ARLINGTON, Va. — If there was a consensus among the speakers at the First Amendment Center’s National Freedom of Information Day conference, it was, as Scott Armstrong of the Information Trust put it, that “we’re living in a new era of secrecy.”

Amid escalating restrictions on access to government information under the Homeland Security Act, journalists, historians, and representatives of public-interest groups and the federal government engaged in frank and lively discussions March 16 about the need to strike a better balance between national security and the public's right to know.

As one of the leaders in the battle to obtain and disseminate government information, David Sobel of the Electronic Privacy Information Center received the American Library Association’s James Madison Award for his accomplishments in litigating Freedom of Information Act cases.

In his keynote speech, Sobel, the first litigator to receive the prestigious award, said the courtroom was often the only place one could successfully pry information from a reluctant government.

David Sobel, Electronic Privacy Information Center

“It became apparent that writing to a federal agency and invoking the act was often an exercise in futility,” he recounted, “and that FOIA’s judicial-review provision frequently offered the only real hope of enforcing the public’s right to know.”

Sobel reminded the 130 conference participants that this year “marks the 30th anniversary of both the 1974 FOIA amendments and the Privacy Act, two of the key reforms that emerged as a result of Watergate.” He stressed that these laws were now more critical than ever in the wake of Sept. 11 and the government’s increasingly secretive response to terrorism.

The annual National FOI Day conference, held at the Freedom Forum in Arlington, is sponsored by the First Amendment Center in cooperation with the American Library Association. It is organized by Paul McMasters, First Amendment Center ombudsman. This year's conference theme, “Secrecy as Public Policy: Is More Better?”, included panels on such topics as “Homeland Security Act: Secrecy as Safety” and “Secrecy and the Editing of History.”

'Homeland Security Act: Secrecy as Safety'
One of the government’s main responses to terrorism was the Homeland Security Act, which not only restructured a large portion of the government into one big Department of Homeland Security but also made security activities more opaque. Particularly troubling, said Lee S. Strickland of the University of Maryland and formerly of the CIA, is the section of the act known as the Critical Infrastructure Information Act of 2002.

The CII Act, as summarized in a report by First Amendment lawyer Kevin Goldberg (see “FOI Update: Federal legislation”), “allows private entities to submit information related to protection of the nation’s critical infrastructure (mainly in the area of cybersecurity as it affects our nation’s banking, water, oil, transportation, energy, telecommunications and other important industries) in exchange for a promise that the information will not be accessible to the public through a FOIA request and will not be used as evidence of liability in a civil lawsuit.”

In other words, said Strickland, “it transfers enormous authority to industry, and gives it unusual control over information that will be allowed to enter the public domain.”

Also of concern to FOI advocates is the Homeland Security Act’s creation of a whole new category of information called “sensitive but unclassified,” which is information that can be shared among federal, state and local authorities but not with the public.

The range of information that could fall within this category is “breathtakingly broad,” said Jeffrey Smith, former general counsel of the CIA. “Essentially, it will permit the government at the state and local level, and industry, to identify information that they think falls within this category — identify it as sensitive but unclassified — and essentially bar it from public release.”

Said the Information Trust's Armstrong, “The most frightening thing is that it’s anticipated that there are roughly 4 million people (government authorities) eligible for it.” And once they create protected information in this category, he added, “it’s very unclear when it ceases to exist. When does it lose its sensitivity? How does it lose its sensitivity? What are the limits on it?”

Kevin Goldberg, First Amendment lawyer

Speaking as the minority chief counsel of the House Select Committee on Homeland Security, David Schanzer pointed out that the reasoning behind the critical infrastructure information provision was that if industry isn’t protected from liability, then it isn’t going to supply valuable information about its infirmities and vulnerabilities. And in fact, he divulged, at this time industry is not releasing many secrets, precisely because it is not convinced they will be secure and protected.

Further, Schanzer said, the perception that homeland security-related secrets and threats are not being appropriately disclosed to the public is inaccurate. “The disturbing truth,” he said, “is that we have a lot less information about terrorist threats at the federal level than the American people would like to believe.”

Though Schanzer agreed that there were now too many categories of information — “Information should be classified or not” — he said he didn’t believe Congress has the “stomach” at this time to revisit and refine its restrictions on freedom of information in the Homeland Security Act or instigate oversight procedures. The priority for most members of Congress now is increasing security, he said.

Supporting that view, as later reported by Kevin Goldberg, is the apparent fate of congressional legislation introduced in the past year that would ameliorate the FOIA exemption in the Homeland Security Act by repealing the Critical Infrastructure Information Act. That bill has stalled in the Senate for lack of a Republican co-sponsor.

“If we get a hearing on that bill” by this time next year, Goldberg told conference organizer Paul McMasters, “I’ll give you the clippers to shave my head. That’s how unlikely the prospect is.”

Meredith Fuchs, National Security Archive

'Secrecy and the Editing of History'
This panel, moderated by Meredith Fuchs of the National Security Archive, discussed how the current state of government secrecy compares with previous periods of national distress and what the proliferating restrictions on access to information mean for the future and the writing of history.

The Library of Congress’s Harold Relyea called these the third-worst of times. The most pervasive secrecy in U.S. history came during World War I, he said, when the government infringed on civil liberties by such acts as rounding up and detaining socialists, pacifists, Germans and other suspect groups; controlling communications (telegraph and mail); issuing a newspaper censorship code; disseminating propaganda; and recruiting private citizens to act as spies.

The second-most secretive time, said Relyea, was during the Civil War, when documents rarely left the White House and communications were under strict control of the federal government.

Still, all panelists agreed with Anna Nelson of American University when she said, “These are not good times.” Philip Melanson of the University of Massachusetts noted that even before Sept. 11 President Bush had signed an executive order slowing the release of presidential records.

“And since 9/11,” Melanson said, “the exponential growth in secrecy has really done a disservice to our public policy. We can’t have reasoned policy debates if we don’t know enough of what’s going on and know what the policy trade-offs are.”

Alasdair Roberts of Syracuse University spoke of the “extraordinary spread of national FOI laws around the world in recent years — some 55 now,” but said the flip side of that was the growing number of international agreements that exempt information garnered from foreign governments from national FOI laws.

As a related example, he observed, NATO documents are very hard to come by because all member nations have to approve their release. NATO has even refused, said Roberts, “to release an unclassified document called ‘Public Disclosure of NATO Documents.’”

As for what the new era of secrecy and the FOI exemptions in the Homeland Security Act mean for the writing of history, Nelson predicted that it “will be a disaster.”

When the historian is so reliant on declassification, she said, “you have history written in a very peculiar, unobjective way. Basically, when the government can decide what to give you, the government can decide what kind of history is going to be written. So it takes many, many more years to actually get beyond the classification barrier in order for us to actually do our research.”

Melanson agreed, remembering that even before 9/11 declassification release often didn’t happen because the resources weren’t there. “So what will happen,” he wondered, “if you drastically, exponentially increase the amount of information that’s being taken in by all of our agencies? Where are we going to be in five years, even if the war on terror has ended and we’re serious about declassification? Are we going to take the time and resources to be able to do it? Or will our history and policy be in mountains of unclassified material that no one can get at?”

“I think that’s the problem with these unclassified records,” said Nelson. “They’ll end up in Nowheresville, and we’ll never be able to put our fingers on them. And there will be history that will not be written.”

Fighting the good fight
When trying to get information from a government agency through a FOIA request, said keynote speaker David Sobel, it helps to establish for yourself a reputation for being serious and aggressive, willing to go to court if necessary. Though ultimately, he said, you have to assume that the agency will act in good faith — that once you get it to conduct the search, it will come back with an honest account of whatever it finds.

Helping to make sure that is the case is William Leonard, director of the Information Security Oversight Office. As the person responsible to the president of the United States for policy oversight of the government-wide security classification system, as well as the National Industrial Security Program, Leonard told the conference that “secrecy can be very effective” against an enemy, particularly on the battlefield and in intelligence gathering.

William Leonard, Information Security Oversight Office

But he also conceded that “secrecy comes at a price — sometimes a deadly price — and I believe we have to become more successful in factoring that reality into the overall risk equation when it comes to addressing these twin imperatives of information sharing and information protection.”

“When the dissemination of information is restricted,” Leonard said, “the chances of being damaged by a compromise are decreased but the chances of being damaged by being wrong in how the data is interpreted and used are increased.” Audience members had only to recall the recent history of U.S. intelligence on Iraq to confirm that statement.

Leonard also said that although he believed the basic framework of the security classification system is sound, he realized it has been abused by agency prerogative. Therefore, to the standards that must be met for information to be declared legally classified, Leonard suggested another one: “The ‘guffaw test,’ the reaction of incredulity many of us have when we are confronted with the insistence on the part of an official that information known by any well-read grade-school student needs to remain ‘secret’ in the interest of national security.”

Conference participants also heard from three organizations determined to apply the guffaw test and insure the flow of information to the public.

Rick Blum spoke about a new access coalition of journalists, libraries and public-interest groups called Openthegovernment.org. Its goals are to speak with a unified voice about FOI concerns while educating the broader public about what is at stake as more and more government information becomes secret.

Similarly, the Coalition of Journalists for Open Government seeks to coordinate the efforts of journalists as well as educate them about using open government laws more frequently and efficiently. With one example, Coalition of Journalists coordinator Pete Weitzel justified the existence of such organizations: In 2002 alone, he said (quoting John Podesta of the Center for American Progress), the federal government created more than 23 million official secrets at a cost of $5.7 billion.

It also takes money to reveal those secrets, which is where the Knight Foundation has entered the fray. Eric Newton, director of journalism initiatives for the foundation, said Knight had awarded $10 million in grants to organizations such as these that are working for information access.

Expressing optimism for the success of their efforts, Newton said, “This is a good time for this kind of coalition work that we’re involved in. People are beginning to become ready to hear what we have to say.”

Paul McMasters, First Amendment Center ombudsman and conference organizer

Two awards presented at the conference highlighted how much even one individual can do to counteract secrecy. Bill Chamberlin of the University of Florida awarded the Citizen Access Project Service Awards to Patrice McDermott of the American Library Association and Rebecca Daugherty of the Reporters Committee for Freedom of the Press, each of whom volunteered to review more than 1,000 legal statements concerning 120 state laws and court decisions to determine the openness of information in each of the 50 states for Citizen Access.

Updates on developments in various issues and aspects of freedom of information during 2003 and early '04 are posted on the National FOI Day information page.