The Bush Administration's Secrecy Policy: A Call to Action to Protect Democratic Values - Info & Access News Archive 2002

Info & Access News Archive 2002:

Published: 10/25/2002

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The Bush Administration's Secrecy Policy: A Call to Action to Protect Democratic Values

The American public's right to know about how its government works and what it does is under assault. The Bush Administration has vastly expanded the zone of secrecy that surrounds the White House and most of the federal government. Years of progress -- on freedom of information, on the public's right to understand how its elected leaders act, and on preventing conflict of interest -- are being reversed. And the Bush Administration has done most of this, strikingly, out of the public's view. Without public debate, we are rapidly shifting from a society based on the public's right to know to one in which information is made available on a need to know basis, where the government sits in judgment of whether you should have access to information. We must now join together to protect our freedoms and stop this unprecedented attack on fundamental liberties.

A pdf version of this paper is available here.

Comments and reactions are welcome.
I. Background: The Growth of Secrecy

In less than two years, the Bush Administration has compiled a long record of promoting secrecy and hiding information. The record is clear:

The Vice President's energy policy task force. The Bush administration's refusal to disclose information to Congress or the public about actions taken by Vice President Dick Cheney's energy policy task force has raised important questions about access to top-level decision-makers and conflict of interest. Both Cheney and the president have long-standing ties to the oil industry, raising even more questions about the energy task force's activities. For the first time, the General Accounting Office -- an arm of Congress -- is suing the executive branch, because it cannot get the basic facts about who participated in what meetings. While some information has been disclosed under court mandate resulting from Freedom of Information lawsuits filed by the Natural Resources Defense Council and Judicial Watch, this issue is by no means settled.
Removing web-based information. In the immediate aftermath of the attacks of September 11th, the Bush Administration ordered that thousands of documents and tremendous amounts of data be summarily removed from agency web sites. It is no longer possible for families and communities to get data critical to protecting themselves -- information such as pipeline maps (that show where they are and whether they have been inspected), airport safety data, environmental data, and even documents that are widely available on private sites today were removed from government sites and have not reappeared. All of this was done without policy direction or maintaining a record of what information is now restricted. In one case, the federal depository libraries were asked to destroy a CD-ROM with information about surface water resources, such as lakes and dams. The FBI, at least in Arkansas, even followed up to verify that the CDs had been destroyed.
Creating secret deportation hearings. Beginning in September 2001, the Bush administration closed all immigration hearings and files of "special interest," which means that family members and the media no longer know when or if a hearing is being held. The U.S. Court of Appeals has provided inconsistent rulings regarding the legality of the Bush policy on secret deportation hearings, assuring Supreme Court on this controversial action. The 6th Circuit, in ruling against secrecy said this summer, "Democracies die behind closed doors." However, the 3rd Circuit argued otherwise in a fall decision.
Weakening the freedom of information safety net. In October 2001, Attorney General John Ashcroft released a guidance memo to agencies on implementing the Freedom of Information Act. The memo instructed agencies, in essence, to withhold information whenever possible. This is a fundamental reversal of past policy, which stressed disclosure where possible.
Restricting "sensitive but unclassified" information. A March 2002 memo by White House Chief of Staff Andrew Card accompanied by a memo from the Department of Justice and the National Archives and Records Administration encourages agencies to think twice about disclosing information to the public. The Card/DOJ memo instructs agencies to review procedures for disclosure of "sensitive but unclassified" information, but fails to define the term. In its September 2002 "Strategic Plan for Homeland Security," EPA states it has reviewed "records management procedures to ensure conformance to the DOJ/Card memo direction" and has taken steps on the "protection of sensitive information." The Defense Department acknowledged recently that it has removed more than 6,000 documents from its web site based on the Card/DOJ memo. The memo maybe given greater teeth as OMB is now developing guidance to agencies on "sensitive but unclassified" information at the request of the Homeland Security Office. Presumably, OMB will provide a uniform definition that identifies a new category of information that is currently disclosed to the public but may no longer be in the future or may be restricted in some manner.
Preventing the news media from gathering information. At the end of October 2001, with Bush's blessing, Congress passed the USA Patriot Act, which according to Doug Clifton, the editor of the Cleveland Plain Dealer, "has had a chilling effect on the news gathering process." Clifton notes that the Act "established pretty clearly that secrecy is paramount here," and predicts the restrictions will also limit news coverage when and if U.S. forces invade Iraq. In September 2002, the Associated Press reported that media restrictions at Camp Delta at Guantanamo Bay where nearly 600 suspected terrorists are detained, which have been in place since detainees began arriving in January, have become more severe. The restrictions include monitored interviews with U.S. military personnel, media escorts on the side of the base where the detainees are held including to restrooms and vending machines, and a prohibition on unauthorized interactions with civilians, even in eating establishments or asking to what organization they belong.
Limiting access to Presidential records. At the beginning of November 2001, just before documents from the Reagan administration were to be released, Bush signed an Executive Order that effectively denies the public's right of access to presidential documents by giving an incumbent or former president veto power over any public release of materials. The Reagan documents were to be the first presidential documents released under the Presidential Records Act, which said that 12 years after a president leaves office, the public could use FOIA to seek presidential records, including confidential communications between a former president and his advisers. Public access could be denied under a constitutionally based executive privilege exemption. Now, the law has been turned on its head.
Asserting executive privilege. In December, 2001, in response to a congressional subpoena, President Bush asserted executive privilege to withhold giving information to the House Government Reform Committee regarding documents related to former Attorney General Janet Reno's decision not to appoint a Special Counsel to pursue possible campaign finance misdeeds. In August 2002, Bush's lawyers filed arguments in U.S. District Court to extend executive privilege to include information about presidential pardons. This makes information on presidential pardons more secret than it has ever been and would specifically withhold roughly 4,000 pages related to pardons granted by former President Clinton.
Limiting academic freedom of expression. A March 2002 Department of Defense proposal that has been withdrawn would have created the possibility for criminal sanctions to be brought against individuals publishing unclassified research. The proposal is still being debated. In March 2002, the State Department published interim final rules that may limit communications between U.S. higher education institutions and foreign institutions over public domain information. The rules may also restrict interactions with scientific colleagues who are not citizens of NATO or other friendly countries.
Prohibiting disclosure of critical infrastructure information. Congress, at the urging of the Bush administration, is considering "Critical Infrastructure Information" (CII) legislation as part of the bill to create a new department of homeland security. Voluntarily submitted CII would be exempt from FOIA, and such information could not be used in civil action suits or anti-trust actions. In the House version, disclosure of such information by a civil servant would be a criminal penalty, all but gutting whistleblower protections. Finally, the legislation would preempt state openness laws to insure that anything withheld by the new department could not be disclosed by states. There would be little to no accountability over what gets classified as CII.
Providing energy industry exemptions. In September 2002, the Federal Energy Regulatory Commission (FERC), issued a draft rule that would restrict access to previously public information that is now deemed potentially useful to a person planning an attack on "production, generation, transportation, transmission or distribution of energy." This "Critical Energy Infrastructure Information" (CEII) would suddenly be made exempt from FOIA and overseen by a "critical energy infrastructure coordinator." In essence, the proposal allows industry to categorize its information as CEII so that it will not be disclosed to the public. FERC argues it can exempt CEII from disclosure under FOIA as confidential business information since terrorism causes financial harm.
Growing delays in responding to FOIA requests. At the end of September 2002, the General Accounting Office, the investigative arm of Congress, announced that the number of freedom of information requests within the executive branch agencies have either held even or declined, but the backlog has increased. In its review of implementation of the Electronic Freedom of Information Act Amendments of 1996, GAO found that "agency backlogs of pending requests are substantial and growing government-wide," and that some agencies are not properly making information available through their web sites or are making it difficult to find the information.

II. The Impact

If the saying "Information is the Currency of Democracy" has meaning, then the American people are being pick-pocketed. While no one of these examples may be earth shattering, when taken as a whole it becomes clear that the Bush Administration is laying siege to a critical part of our democratic system. Since the September 11th terrorist attacks, federal, state, and some local governments have taken steps to significantly limit access to government information, particularly related to information about community health and safety. The government's current actions go far beyond the post-9/11 need to balance openness and national security.

Information that deals with the health and safety of the public or that is needed to hold government accountable is being filtered, withheld, and in some cases destroyed. Since 9/11, decisions about disclosure have rested on the question of whether information might possibly be misused for malicious action. This has given large corporations that have long opposed disclosure an opportunity to use the events of 9/11 as a convenient excuse for seeking greater secrecy. It also deflects addressing the root issue -- using the information to make our communities safer places to live. A September 5, 2002 Washington Post report notes that "many of the nation's largest and most influential businesses have quietly but persistently resisted new rules that would require them to make long-term security improvements."

The Bush administration, which was not friendly to openness before September 11, also rides this wave. Gradually the presumption of openness is being discarded, shifting the policy framework from one premised on the public's "right-to-know" to one based on "need-to-know," where each person must demonstrate to the satisfaction of the government that he or she needs to have such information. In the past, those who sought to withhold information had to carry the burden of proof to justify their position. In this new environment where information is measured for its possibility for misuse, secrecy will surely prevail.

When the government proposes pre-publication review of research it funds (in addition to traditional peer review) it threatens academic freedom of expression. When reporters are limited in their ability to obtain or report on information it threatens an open society. And when the public can no longer obtain community-based information, whether it is about airport safety or hazardous chemicals or another issue, it not only threatens core democratic principles but also our safety.

Since September 11th, the unthinkable has happened: two generations of steady progress in opening up government to scrutiny has been thrown into reverse. Damage can be detected as information is pulled off of web sites, the FBI seizes lists of users of information, open hearings on immigration are curtailed, and federal agencies are advised to err on the side of withholding information. Through a combination of Administration directives, actions, and pending new legislation and regulations, aided by strong industry lobbying, the entire structure of openness, so taken for granted, has begun to disintegrate. That such a core democratic right could so quickly start to fall apart reveals the fragile underpinnings of this civil liberty and the urgent need to mobilize support for right-to-know.

III. Research: What the American Public Believes

Polling data and focus groups indicate strong support for public access to government information, particularly when it relates to personal health and safety. However, even the strong support dwindles if the government claims it must be kept secret in the name of homeland security. The polling data clearly demonstrates that whoever frames the debate will win the hearts and minds of the public when it comes to openness.
Three polls on the public's right-to-know versus homeland security show surprising consistency. One poll, conducted in July 2002 by the First Amendment Center and the American Journalism Review, found that 9/11 had very little impact on the public's view that they had too much or too little access to government records. In fact, 48% thought they had too little access in 2001 and felt the same way in the summer of 2002. Only 7% in 2001 thought there was too much access, and that number stayed virtually the same at 8% in 2002.

Even when it comes to the war on terrorism, most people do not feel that they are getting too much information. About 40% of those polled felt they were getting too little information and 38% said it was just about the right amount. Only 16% felt there was too much information about the war on terrorism available.

Click here to view a larger version of this graph

Click here to view a larger version of this graph

Like the First Amendment Center/AJR poll, a survey by the Pew Internet & American Life Project, conducted roughly at the same time, found broad support for access to specific information. For example, 80% of respondents believe that information about pollution caused by individual factories should be posted to the Internet. There was also strong support for posting other types of information such as how and when hazardous materials are transported through communities (57%).

But when the government claims the information could help terrorists, attitudes shift. For example, 60% of those who believed the government should post information about chemical plants and the chemicals they produce agreed that the information should be removed from the Internet if the government said it could help terrorist. Similarly, more than half (54%) of those who supported posting information about pollution from factories and 58% of those who supported knowing about the transportation of hazardous chemicals through their communities felt the same way.

Nearly 7 of 10 people (69%) say that government should be given broad discretion to keep information out of the hands of terrorists, even if means limiting public access to the information. Roughly two-thirds of survey respondents felt government (67%) and businesses/utilities (66%) should remove information from web sites that "might potentially" help terrorists, even if the public has a right to such information. Amazingly, a plurality of respondents (47%) say that they do not believe that withholding or removing information from web sites will make a difference in deterring terrorist.

These poll results are consistent with data collected by Greenberg Quinlan Rosner Research in early January 2002. Over 90% stated that in the aftermath of 9/11 environmental right-to-know laws should be strengthened or left the left the same. Yet when the question was reframed as do you agree with Bush or EPA removing information from public access to protect homeland security, 67% said they agreed.

IV. Developing A Call to Action

This research suggests three primary conclusions:

If we don't take action now, we may lose public support for openness. We must act decisively to elevate right-to-know. If we don't, the Bush administration will not only whittle away at public access, but undo decades of work to strengthen government transparency. The Bush administration has the terrorist trump card and is quite willing to play it.
We need to find a better way to frame right-to-know issues. While democratic values are important, the Greenberg research demonstrates they are not the strongest reason for supporting right-to-know. At least for environmental data, personal health and safety was paramount. The bottom line is that we need to find a way to talk about openness that resonates with the public and is not threatening. We need to "brand" right-to-know, if you will.
There are targets for opportunity. Although President Bush is very popular and has successfully increased government secrecy, there are opportunities for action. The January 2002 Greenberg research showed that corporations have a high negative image, which has only accelerated in the post-Enron environment. By targeting corporations, it may be possible to reinforce the Bush administration as the tool of big business.

We believe it is time to challenge the movement towards secrecy and to advance the public's right-to-know, especially in this Internet age. As a first step, we believe the public interest community should come together to decide whether this is a high enough priority to address the issue collectively. Assuming there is agreement, we would urge a three-step process that includes: (a) framing the message; (b) developing a legislative and public education campaign; and (c) issuing a call to action consistent with the campaign that is developed.

This initiative requires that we build new alliances, recognizing that the attack on right-to-know is not just about environmental concerns or restrictions on the news media or any other single group or issue. It will be important to continue -- and expand and strengthen -- the public interest coalition that is defending against right-to-know attacks. Depending on the outcome of this year's election, it may be even more important to emphasize defensive activities.

Whether on the defense or offense, it will be essential to figure out the best way to frame our message and make our voices heard. Framing the message needs to happen before the specifics of a campaign can be spelled out. Right-to-know and openness are ultimately a means of creating continuing economic and political pressure for change and accountability. Secrecy can be shown to be highly inefficient in protecting our hometowns in the aftermath of 9/11 as well as with regards to our national security. And, of course, most of us believe that transparency is a core liberty essential to our democratic fabric. Yet we have a lot to learn about how to convey this message to the public and how to "brand" right-to-know.

As we refine and develop our message, it will be important to expand our coalition of partners. It may be useful to develop a Statement of Principles that articulates basic philosophy for openness in the post-9/11 environment, accompanied by the dangers of secrecy. Given that there have been many Statements written over the past few years, it may be possible to utilize an existing one. In any case, this would likely not demand much time and could serve as a vehicle for getting many groups, including First Amendment advocates, librarians, environmental groups, labor, and other key constituencies -- possibility some with vastly differing ideologies -- to be part of this coalition.

Key coalition players will need to develop the elements of the campaign. We believe it should at least include a discussion of:

Legislative opportunities. For example, would we want to replicate a Florida referendum that would require any exemptions to openness laws must be passed by a two-thirds vote of each legislative house. Are there ways of advancing right-to-know at the federal level such as through e-government bills? Should there be issue specific campaigns, such as on environmental and health right-to-know?
Media exposure. What is the best way of elevating these issues -- editorials, op-eds, news stories? What is the key message that needs to be conveyed? Can we do a better job of systematically gathering and promoting success stories that demonstrate the benefits of public access to government information? Does it make sense to have paid media (e.g., signed statements from luminaries)?
Presidential and congressional campaigns. How do we inject right-to-know issues into the next debates over presidential and congressional elections? How do we increase the number of candidate surveys that ask about secrecy and right-to-know? Should there be an openness pledge that candidates make? Interestingly, these issues emerged in the Texas Senatorial race this year with the Republican candidate opposing the FOIA restrictions proposed on the bill to create a new homeland security department. We must find ways to insure this happens in 2004.

Finally, a key component is finding and employing the significant resources it will require to do this properly. Too much is at stake to let this opportunity pass us by.

Comments and reactions are welcome.