Government secrecy: dark cloud over an open society
By Paul K. McMasters, Ombudsman, First Amendment Center, March 22, 2005

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"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.

What we can't know hurts us
By Paul K. McMasters, Ombudsman, First Amendment Center, February 07, 2005

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"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 $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.

Paul K. McMasters is one of the nation's leading authorities on First Amendment and freedom-of-information issues. He joined the Freedom Forum in 1992 after 33 years in daily journalism. Since 1995, he has served as the First Amendment ombudsman. In that position, he works to educate and inform about First Amendment issues that arise in Congress, the courts, the media and other areas of public life.

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