[huridocs-tech] USA: Threats freedom of information

Climate in U.S. threatens freedom of information
by Paul Lagasse, Digital Freedom Network

(April 22, 2002) The idea of access to government information as a civil
right is a peculiarly American concept. Information is the means by which
citizens in a democracy hold their elected officials accountable. The
concept of "freedom of information" is so much a part of the culture that
it has become a widely recognized abbreviation - FOI. The legal premise
that citizens have the right of access to government records is embodied
in the Freedom of Information Act (FOIA), which became law in July 1966.
Individuals have the right to petition government agencies to review and
release classified materials. It is also, by extension, embodied in the
first amendment to the US Constitution, guaranteeing freedom of speech.
In the United States, therefore, freedom of information represents
something that is both philosophically broad and legally specific.

"Bush's administration has been accused of taking advantage of the
current crisis to limit the release of a wide range of records."

The September 11 attacks and the subsequent war in Afghanistan have
thrown the issue of public access to government into sharp relief.
President Bush's administration has been accused of taking advantage of
the current crisis to limit the release of a wide range of records
created by the White House, other federal agencies, and even former
presidents. While many of these efforts had been implemented or at least
planned before September 11, their effects have been considerably
enhanced by the state of heightened vigilance that has since taken hold.
They are further aggravated by the tight control on information about the
conduct of the war in Afghanistan and about immigrants detained by the
government on suspicion of being connected to terrorist organizations.

To many people, the issues at stake seem more like turf wars and legal
hair-splitting than tangible threats to civil liberties. The public is
perennially suspicious of lawyers and journalists, both of whom are
arguing publicly on both sides of the issue. However, as shown by the
continuing release of tapes and documents created by Richard Nixon more
than thirty years ago, an unaccountable government is incompatible with
democratic ideals. As former Nixon counsel John Dean recently wrote, "a
president acting secretly usually does not have the best interest of
Americans in mind."

Attorney general's memorandum is a policy wind vane

At the beginning of a new presidential administration it is customary for
the appointed head of the Department of Justice, the Attorney General, to
issue a policy memorandum to the other federal agencies explaining how
the incoming administration will interpret and enforce FOIA. When
Attorney General John Ashcroft issued the memorandum on October 12, 2001,
it touched off a firestorm of outrage from information rights advocates.
Critics accused the Department of Justice of blatantly attempting to
stifle the release of government information in the wake of the terrorist
attacks. However, the real intent of the memorandum, diffused behind a
veil of banal bureaucratic language, will remain undisclosed until it is
legally challenged.

The previous FOIA memo, issued by Attorney General Janet Reno in 1993,
emphasized the release of requested documents unless the information
would cause "foreseeable harm." Critics charge that Ashcroft's memorandum
encourages agency FOIA officers to default to withholding information as
long as there is a "sound legal basis" for doing so. Under the Reno
memorandum, "the implication was that, unless there was foreseeable harm,
the [Department of Justice] wouldn't defend an agency's decision to
withhold information," says Patrice McDermott of the American Library
Association. The opposite is true of the Ashcroft memorandum, she says.
"[It] seems to say, 'If you have a sound legal basis for withholding, we
will defend you.'"

The memorandum does not override the law, but rather serves as a "wind
vane" for government information policy. The language of the Ashcroft
FOIA memorandum hews to the now-standard White House line. It stresses
the protection of "candid and complete" deliberations by agencies and
lawyers from unauthorized intrusion by "Congress and the courts." The
memorandum also explicitly emphasizes that "[n]o leader can operate
effectively without confidential advice and counsel." "I think it's
becoming clear," says the ALA's McDermott, "that the memorandum is
exemplary of a tendency in the Bush administration toward withholding
information and toward asserting an extensive executive privilege."

New executive order could close presidential records

Less than one month after the issuance of the Attorney General's FOIA
memorandum, President Bush issued an Executive Order, a legally binding
directive to all federal agencies, related to the release of the records
of former presidents. The order was presented as a simple procedural
document. However, many observers, conservative and liberal alike,
quickly claimed that the order really seeks to arrogate to incumbent and
former presidents the right to restrict access to records that would
otherwise be made available under law.

Like the Ashcroft FOIA memorandum, work on the Executive Order was
underway before September 11. It appears to have been written so as to
prevent the release of 68,000 pages of documents created by the Reagan
administration. According to the law governing the release of
presidential records - the Presidential Records Act (PRA) - those records
were to be opened to the public in January 2001, at the same time that
the Bush administration was assuming office. After being notified of the
impending release, as is standard practice under PRA, the White House
ordered the documents to be withheld while the White House conducted a
"thorough legal review of the PRA."

Rights advocacy groups have already filed a lawsuit against the
government.

The result was Executive Order 13233, often called the "Bush Order,"
which extends executive privilege, or the right to presidential
confidentiality, to a broad range of records not specified in the PRA.
Whereas the PRA makes all presidential records available for public
access after 12 years, the Bush Order asserts an automatic executive
privilege over the documents and requires that users provide a
"demonstrated, specific need" to gain access. The Bush Order claims that
executive privilege extends to state secrets, presidential
communications, attorney-client communications, and "the deliberative
processes of the President or his advisors."

Rights advocacy groups have already filed a lawsuit against the
government, claiming that Executive Order 13233 is "contrary to law."
Paradoxically, taking the issue to court could have a worse effect than
attempting to withdraw the Bush Order by other means. "Litigation
intended to promote openness in government…almost invariably harms
the cause of open government," according to Steven Garfinkel, former head
of the federal Information Security Oversight Office, speaking at a
recent freedom of information conference in Washington, DC. "The courts
almost never substitute their judgment for that of the Executive Branch
on national security issues."

The House of Representatives in Congress has proposed a bill that would
nullify E.O. 13233 as contrary to law. The bill, supported by both
Republicans and Democrats, is a direct challenge to White House
authority. This action could prove to be a major test of the Bush
administration's contention that Congress has no oversight authority over
the White House.

"Strategic influence" or media control?

The Department of Defense created the Office of Strategic Influence (OSI)
in late February 2002 to encourage foreign countries to support the war
against terrorism. A week after publicly announcing its existence,
Secretary of Defense Donald Rumsfeld publicly announced its disbanding -
the result of a widely reported New York Times article claiming the OSI
would provide false stories to foreign media. Rumsfeld said that the OSI
"clearly was so damaged" by the accusation "that it could not function
effectively."

The incident highlights concerns that the Department of Defense is
limiting or controlling information related to the war on terrorism. The
Department of Justice has not released the names of immigrants being
detained under suspicion of links to terrorist organizations. While some
observers have pointed out that this silence is not unusual for
immigration cases, others have criticized the large number of detainees,
the length of their detention, and the fact that that the USA Patriot Act
grants the government access to their legal consultations.

After the September 11 attacks, White House staff encouraged media to
"abridge" recordings by Osama bin Laden.

Shortly after the September 11 attacks, White House staff encouraged
newspapers and the broadcast media to "abridge" recordings and
transcripts by Osama bin Laden and other members of his al Qaeda group.
Fairness & Accuracy in Reporting (FAIR), a media watchdog organization,
fears this encouragement sets a bad precedent. "It is troubling for
government to shape or influence news content," FAIR stated in a news
release. The media's access to first-hand information related to the war
in Afghanistan is strictly limited to media pools, reflecting the
administration's determination to provide citizens with a centrally
controlled, carefully crafted image.

The major American media outlets, for their part, appear to be willing to
shape their content accordingly. For example, a FAIR study conducted in
late 2001 found that the three commercial broadcast networks have
deliberately avoided discussing the effects of accidental or collateral
bombings of Afghan civilians. The study claimed that network journalists
have neither inquired about the numbers of casualties nor discussed the
legal implications of these bombings. Instead, they have framed the issue
of civilian casualties as a regrettable but justifiable consequence of
America's military retaliation.

"Sensitive" security information removed from Internet

Recent instructions from the National Archives and Records Administration
(NARA) and the Department of Justice lay down rules for "safeguarding"
information that relates to "weapons of mass destruction" or that "could
be misused to harm the security of our nation." Classified documents that
are due for routine declassification will have their classification
extended for up to 25 years. Unclassified information can be immediately
classified. Even information that "could reasonably be expected to assist
in the development or use of weapons of mass destruction" can be
withdrawn without notice. The NARA instructions apply especially to
electronic documents placed on agency Web sites.

Even before the NARA guidelines came out, government agencies had begun
removing information from their Web sites that had previously been
publicly available. Removed materials include:

 *  Locations of nuclear power plants
 *  Chemical hazard risk management plans
 *  Terrain and pipeline maps
 *  Reports related to hazardous chemicals, aerospace research, and
    environmental issuesMuch of this information had originally been
    placed on the Internet to help civilians to protect themselves
    against the effects of attacks and accidents.

The NARA instructions promise to bring order to a chaotic situation.
Prior to the release of the guidelines, individual government agencies
had their own definitions of what constituted sensitive information. As a
result, the removal process was wildly inconsistent and confusing. The
instructions are the first step to developing uniform criteria and
procedures for all agencies. Open-government advocates can also point to
the guidelines when challenging the removal of Web pages.

Because a large number of reclassified documents are likely to remain out
of the public domain for many years, the repercussions of their removal
may long outlive the current crisis. For example, organizations involved
in litigation related to land rights claims and environmental cleanups
may now have a harder time getting vital information in a timely manner.
The impact has already extended into the realm of humanitarian aid.
According to the Project on Government Secrecy, a researcher working on a
mine-clearing project at the National Archives in Washington, DC, was
recently denied access to a previously-available regional map from the
1960s because it had been reclassified.

USA Patriot Act taking a toll on telecommunications companies

Law enforcement agencies "face an escalating barrage of subpoenas for
subscriber lists, personal credit reports, financial information," and
more.

The USA PATRIOT Act, passed by the United States Congress in October 2001
to provide law enforcement agencies with broad powers to override
individual privacy rights, is already having a dramatic effect on
Internet service providers (ISPs) and telecommunications companies.
According to Newhouse News Service, law enforcement agencies "face an
escalating barrage of subpoenas [legal requests] for subscriber lists,
personal credit reports, financial information," and more. Prior to the
USA PATRIOT Act, such information was considered beyond the reach of law
enforcement agencies unless they had court orders for specific
information related to named suspects. In many cases, the companies are
losing money as they work overtime to meet the demand for information.

The legal implications have yet to catch up with the rush to obtain
subscriber information. For example, companies may face lawsuits from the
individuals whose privacy rights were violated. In effect, the current
action turns private companies into extensions of federal law enforcement
agencies, a position that may not be legally defensible if challenged in
court. Torn between conflicting obligations to the government and to
their customers, companies are attempting to address new and serious
ethical concerns.

American citizens have a long history of trying to ensure that their
government protects national security while also preserving
Constitutional principles. President Lyndon Johnson expressed this
enduring dilemma when he signed the FOIA into law 36 years ago. "A
democracy works best when the people have all the information that the
security of the nation permits," he said. "No one should be able to pull
curtains of secrecy around decisions which can be revealed without injury
to the public interest."

At the same time, Johnson also cautioned that the FOIA "in no way impairs
the President's power…to provide for confidentiality when the
national interest so requires." Whether the Bush administration's
emphasis on confidentiality proves to be in the national interest remains
to be seen.

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Credits:
"Access to Historical Maps Denied at Archives," Secrecy News, vol. 2002,
no. 28, April 5, 2002
Benson, Miles, "In the Name of Homeland Security, Telecom Firms are
Deluged with Subpoenas," Newhouse News Service
Dean, John W., "GAO v. Cheney is Big-Time Stalling," FindLaw.com
Dean, John W., "Hiding Past and Present Presidencies: The Problems with
Bush's Executive Order Burying Presidential Records," FindLaw.com
Gilmore, Gerry J., "Strategic Influence Office 'Closed Down,' says
Rumsfeld," American Forces Information Services DefenseLINK
"How Many Dead? Major Networks Aren't Counting," FAIR Action Report,
December 12, 2001
John E. Moss Foundation, "Statement of the President upon Signing S. 1160
[the Freedom of Information Act]," July 4, 1966
Nelson, Scott L., et al., In the United States District Court for the
District of Columbia,, "Complaint for Declaratory, Injunctive, and
Mandamus Relief," November 28, 2001
United States Congress, House Subcommittee on Government Efficiency,
Financial Management, and Intergovernmental Relations, Oversight Hearing
on the Presidential Records Act of 1978, Statements of Witnesses
United States Department of Justice, "New Attorney General FOIA
Memorandum Issued,"
Vasishtha, Preeti, and Dawn S. Onley, "Some Feds Welcome Order to Scrub
Web," Government Computer News
White House, "Executive Order 13233 of November 1, 2001: Further
Implementation of the Presidential Records Act"
York, Byron, weekly column, The National Review

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