Government Secrecy Is Too Much Information Kept from the Public?

Researcher Published by CQ Press, a division of Congressional Quarterly Inc. CQ thecqresearcher.com Government Secrecy Is too much information kept from the public?

resident Bush says he believes in open government, but critics say his administration has gone to unusual lengths to control and limit access to information. Government restrictions on information increased Pdramatically after the Sept. 11, 2001, terrorist attacks. The administration says homeland security concerns justify clamping down on public access to information, but open-government advocates say the policies dampen public debate, diminish government account-

ability and actually hamper efforts to protect the United States. The remains of a soldier killed in Iraq arrive back in the United States. After resisting, the Defense Department finally released hundreds of Many of the secrecy disputes have spawned court fights, most of photos of such ceremonies in April 2005 but obscured the faces and insignias of honor guards. them won by the administration. Courts also have generally appeared uninterested in enforcing the federal Freedom of Informa- I tion Act, prompting some in Congress to try to strengthen the N 1966 law. Without it, they argue, such scandals as the abuse of THIS REPORT S detainees held by the United States at Baghdad’s Abu Ghraib THE ISSUES ...... 1007 I BACKGROUND ...... 1013 prison might never have come to light. D CHRONOLOGY ...... 1015 E CURRENT SITUATION ...... 1019

The CQ Researcher • Dec. 2, 2005 • www.thecqresearcher.com AT ISSUE ...... 1021 Volume 15, Number 42 • Pages 1005-1028 OUTLOOK ...... 1023 RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR BIBLIOGRAPHY ...... 1026 EXCELLENCE AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD THE NEXT STEP ...... 1027 GOVERNMENT SECRECY CQ Researcher

Dec. 2, 2005 THE ISSUES SIDEBARS AND GRAPHICS Volume 15, Number 42

• Should the government More ‘Secret’ Documents MANAGING EDITOR: Thomas J. Colin 1007 classify less information as 1008 Are Being Created secret? The federal government cre- ASSISTANT MANAGING EDITOR: Kathy Koch • Has the Bush adminis- ated 15.6 million secret docu- ASSOCIATE EDITOR: Kenneth Jost ments in 2004. tration misused govern- STAFF WRITERS: Marcia Clemmitt, Peter Katel, ment secrecy? FOIA Requests Doubled Pamela M. Prah • Should Congress make it 1009 Public requests for information CONTRIBUTING WRITERS: Rachel Cox, easier to obtain government hit a new high in 2004. Sarah Glazer, David Hosansky, records? Patrick Marshall, Tom Price Using the Freedom of DESIGN/PRODUCTION EDITOR: Olu B. Davis BACKGROUND 1012 Information Act Nine types of information are ASSISTANT EDITOR: Melissa J. Hipolit Competing Imperatives exempt from disclosure. 1013 As officials sought more secrecy, the public expect- 1015 Chronology ed more information. Key events since 1966. The Outing of CIA Agent Shifting Views 1016 Valerie Plame 1014 Despite open-government A Division of Critics say the administration Congressional Quarterly Inc. laws, access to information uses leaks to punish politi- was often incomplete. cal enemies. SENIOR VICE PRESIDENT/GENERAL MANAGER: John A. Jenkins Whistleblowers Silenced Increasing Secrecy DIRECTOR, LIBRARY PUBLISHING: Kathryn C. Suárez 1018 After the 9/11 terrorist at- 1020 by State Secrets Doctrine tacks, government ramped Federal employees fired DIRECTOR, EDITORIAL OPERATIONS: up secrecy. after criticizing the govern- Ann Davies ment can run afoul of the little-known doctrine. CONGRESSIONAL QUARTERLY INC. CHAIRMAN: Paul C. Tash CURRENT SITUATION At Issue 1021 Has the Bush administration VICE CHAIRMAN: Andrew P. Corty Court Battles misused government secrecy? PRESIDENT AND PUBLISHER: Robert W. Merry 1019 Open-government advocates are challenging restrictive Copyright © 2005 CQ Press, a division of Congres- information policies. FOR FURTHER RESEARCH sional Quarterly Inc. (CQ). CQ reserves all copyright and other rights herein, unless previously specified Information Leaks For More Information in writing. No part of this publication may be re- 1022 Secrecy is hampering the 1025 Organizations to contact. produced electronically or otherwise, without prior written permission. Unauthorized reproduction or debate over U.S. treatment transmission of CQ copyrighted material is a violation of detainees, critics say. Bibliography 1026 Selected sources used. of federal law carrying civil fines of up to $100,000. CQ Researcher (ISSN 1056-2036) is printed on acid- The Next Step OUTLOOK 1027 free paper. Published weekly, except March 25, July Additional articles. 1, July 8, Aug. 5, Aug. 12, Nov. 25, Dec. 23 and Dec. 30, by CQ Press, a division of Congressional Quarter- Culture of Openness? Citing The CQ Researcher 1023 ly Inc. Annual subscription rates for institutions start The administration shows 1027 Sample bibliography formats. no signs of retreating from at $625. For pricing, call 1-800-834-9020, ext. 1906. its restrictive policies. To purchase a CQ Researcher report in print or electronic format (PDF), visit www.cqpress.com or call 866-427-7737. A single report is $10. Bulk purchase discounts and electronic-rights licensing are also Cover: The remains of a soldier killed in Iraq arrive back in the United States. The Defense available. Periodicals postage paid at Washington, Department’s 2003 decision to bar the press from photographing such ceremonies has been D.C., and additional mailing offices. POSTMASTER: criticized as an effort to limit public focus on U.S. casualties in Iraq. Facing a lawsuit, the Send address changes to CQ Researcher, 1255 22nd Pentagon finally released hundreds of photos of such ceremonies in April 2005 but obscured St., N.W., Suite 400, Washington, DC 20037. the faces and insignias of honor guards. (Department of Defense)

1006 The CQ Researcher Government Secrecy BY KENNETH JOST

sponse to FOIA requests have become basic raw material for THE ISSUES countless news stories and in- he rumors surfaced in terest-group reports. 2003: Prisoners were As in the current ACLU case, T being held incom- FOIA-released materials often municado and shockingly provide ammunition for critics abused at U.S. prisons in Iraq of government policies and ac- and Guantánamo Bay, Cuba. tions. Perhaps partly because of Government secrecy kept the potential for such criticism, the lid on the mistreatment at government agencies often drag Abu Ghraib prison near Bagh- their feet in responding to FOIA dad until April 2004, when requests or take a broad view CBS News’ “60 Minutes II” of the act’s exemptions for broke the story — complete withholding documents. with dramatic photographs of Bureaucratic resistance to the snarling guard dogs, beatings law dates from its earliest days, and sexual humiliation. but journalists and watchdog

But insiders had long been via Getty Images groups say it has increased since concerned about the treatment President Bush took office in of detainees. Vice Admiral 2001. “This is not a good [time] Lowell E. Jacoby, head of the for FOIA compliance,” says Defense Intelligence Agency David Burnham, a former New (DIA), for example, had com- York Times reporter who Washington Post Washington plained that Department of An Iraqi detainee is hooded and handcuffed at Abu heads Syracuse University’s Defense (DoD) investigators Ghraib prison in Baghdad. In addition to scores of Transaction Records Action in Iraq had tried to silence photographs of abuses aired by CBS, the Pentagon Clearinghouse (TRAC). The or- reluctantly released interviews and other documents DIA agents who questioned about interrogation abuses at the facility. The American ganization uses the law to their interrogation techniques. Civil Liberties Union obtained the records after compile and distribute detailed And FBI e-mails showed that invoking the federal Freedom of Information Act. reports on federal law en- FBI experts had strongly ob- forcement. 2 jected to the harsh DoD techniques. systemic and widespread,” says ACLU In fact, open-government advocates Pressured to investigate, the Army’s lawyer Amrit Singh. “They call into say the Bush administration has adopt- inspector general in July 2004 blamed question the government’s failure to ed policies across the board that have the Abu Ghraib abuses on individual ser- hold accountable the senior officials made the past five years distinctively vicemembers rather than any systemwide responsible for these abuses.” difficult in getting access to govern- failure. Subsequent interviews, however, Singh’s organization obtained the doc- ment information. “They have been cast a more damning light on command uments only after a protracted legal bat- more secretive and more controlling responsibility for the abuses. “There was tle with the Pentagon that began in Oc- of information than probably most of no specific training on treatment of de- tober 2003, well before the Abu Ghraib the recent past administrations,” says tainees,” a platoon leader told Army in- scandal broke. 1 The ACLU lawyers had Pete Weitzel, a veteran journalist who vestigators. And an enlistee said that with- asked for Defense Department records now coordinates the Coalition of Jour- out training, interrogators ended up using pertaining to U.S. treatment of Iraqi de- nalists for Open Government. “All fed- techniques that “they literally remembered tainees, invoking the federal Freedom eral administrations tend to be some- from movies.” of Information Act (FOIA). what closed and secretive, but this one The interviews and other documents The landmark 1966 law requires fed- has been more so.” — reluctantly released by the Penta- eral agencies to make records available The new administration displayed its gon to the American Civil Liberties to anyone upon request unless they fall penchant for secrecy almost immediate- Union (ACLU) — “establish beyond within one of nine statutory exemptions. ly by putting a lid on information about any doubt that the abuse of detainees (See box, p. 1012.) Through the years, an energy task force headed by Vice held by the United States abroad was government documents released in re- President Dick Cheney. After the Sept.

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More ‘Secret’ Documents Are Being Created The federal government created 15.6 million secret documents in 2004, or 81 percent more than in 2000, the year before the terrorist attacks on Sept. 11, 2001 (graph at left). Meanwhile, the number of pages declassified has declined steadily since 2001 after rising dramatically in the 1990s (graph at right).

(millions) (millions) 20 Newly Classified Documents 250 Number of Pages Declassified

200 15

150 10 100

5 50

0 0 ’90 ’91 ’92 ’93 ’94 ’95 ’96 ’97 ’98 ’99 ’00 ’01 ’02 ’03 ’04 ’90 ’91 ’92 ’93 ’94 ’95 ’96 ’97 ’98 ’99 ’00 ’01 ’02 ’03 ’04

Source: “Secrecy Report Card 2005,” OpenTheGovernment.org

11, 2001, terrorist attacks, the adminis- Administration, reflect the increased Bush himself defended the admin- tration imposed an array of restrictions secrecy under Bush. The most recent istration’s information policies in re- on information about the government’s ISOO annual report shows that the num- marks to the American Society of News- response. Attorney General John Ashcroft ber of documents classified as secret or paper Editors in April 2005. “I’ve always followed in October 2001 by advising top secret reached an all-time high of believed in open government,” Bush federal agencies to make broader use of 15.6 million in 2004. Meanwhile, the told the editors, meeting in Washing- the FOIA’s exemptions to withhold ma- number of pages declassified each year ton. But he said there was also a “ten- terials requested under the law. has been falling continuously under Bush, sion” between disclosure and “jeopar- Information-policy disputes continued following an increase under President dizing the war on terror.” through Bush’s first term and now into Bill Clinton. (See graphs, above.) “I wish I could report that, you his second. The administration has cited “The data say explicitly that it’s got- know, all is well,” Bush continued. “It’s homeland security to justify various re- ten worse” under Bush, says Thomas not. It’s just not. It’s going to take awhile.” strictions on information that officials Blanton, executive director of the Na- He added, “And so long as, you know, claimed terrorists could use to devise tional Security Archive, a private ref- people can be endangered by leaks, new attacks. Most recently, Bush has erence center at The George Wash- we’ve just got to be real careful.” 4 come under sharp attack from Democ- ington University in Washington. “There Even as Bush was warning against rats in Congress for allegedly misleading has been massive secrecy and mas- leaks, however, a special federal pros- lawmakers about intelligence in the run- sively unnecessary secrecy.” ecutor was zeroing in on top White up to the Iraq war and blocking a Sen- But the administration denies accu- House officials as possible sources for ate investigation of whether pre-war in- sations of excessive secrecy whenever leaks in summer 2003, identifying the telligence was manipulated by the they arise. “The administration is proud wife of a prominent critic of the ad- administration. (See “At Issue,” p. 1021.) of its record of openness,” Frederick L. ministration’s Iraq policies as an under- Statistics released by the Information Jones II, a spokesman for the National cover Central Intelligence Agency (CIA) Security Oversight Office (ISOO), an arm Security Council, said after publication operative. The CIA leak investigation of the National Archives and Records of the ISOO statistics. 3 reached a critical stage in October 2005

1008 The CQ Researcher with the indictment of I. Lewis “Scoot- er” Libby, Cheney’s chief of staff, on FOIA Requests Have Doubled five counts of lying when he denied Public requests for information under the Freedom of Information disclosing the name of Valerie Plame Act (FOIA) have more than doubled over the past six years, hitting a Wilson, a CIA expert on weapons of mass destruction. Karl Rove, deputy new high in 2004 (graph at left). Federal resources devoted to White House chief of staff and Bush’s training personnel and processing FOIA requests, however, rose only key political adviser, was not indicted 17 percent over the same time period (graph at right). but was said to have discussed Plame — though not by name — with at least No. of FOIA Requests Total Cost of FOIA one reporter. (See story, p. 1016.) 5 As the debate over government se- (millions) ($ millions) 5 350 323 336 crecy continues, here are some of the 300 major questions being considered: 4.08 300 286 287 4 253 3.26 250 3 Should the government classify 2.42 200 2.17 2.18 less information as secret? 1.90 150 2 Shortly after World War II, the FBI 100 succeeded in cracking the code on 1 50 cables between the Soviet Union and 0 0 some 200 or so espionage agents in- 1999 2000 2001 2002 2003 2004 1999 2000 2001 2002 2003 2004 side the United States. Amazingly, however, information from the so-called Source: “Secrecy Report Card 2005,” Openthegovernment.org Venona transcripts never reached Pres- ident Harry S Truman. In fact, the CIA presidents since Dwight D. Eisenhower. makes decision-making easier when no did not declassify the information and Traditionally, three levels of classification one knows what you’re doing.” release it to the public until 1996. 6 are used for national security-related in- Despite bureaucrats’ inherent ten- In examining the Sept. 11 terrorist formation: classified (now rarely used), dencies toward overclassification, many attacks, congressional committees and secret and top secret. A commission head- experts say the Bush administration has the so-called 9/11 commission docu- ed by the late Sen. Daniel P. Moynihan, raised secrecy to new levels. The pol- mented analogous failures of informa- a New York Democrat and longtime crit- icy reflects the administration’s broad tion-sharing within and among execu- ic of excessive secrecy, found in 1997 view of executive power along with a tive branch agencies before the attacks. that an executive order issued by Pres- push to limit criticism or interference, CIA warnings about the al Qaeda ter- ident Bill Clinton designated 20 federal these experts say critically. “It’s an at- rorist group — dating from the mid- officials as authorized to classify materi- tempt to return to the imperial presi- 1990s on — received limited circula- als as “top secret” but that the power dency,” says Blanton. tion and less attention. Meanwhile, the eventually was expanded to more than Alane Kochems, a national security FBI either was not told or failed to fol- 1,300 “original classifiers.” 8 expert at the conservative Heritage Foun- low up on information tracking two of Without disputing the need to pro- dation in Washington, cites justifications the eventual hijackers from an al tect some diplomatic and military se- for the increase in classified information Qaeda meeting in Indonesia into the crets, critics say overclassification in- under the Bush administration but stops United States. 7 evitably results from “the iron law of short of a wholehearted defense. The The episodes more than 50 years bureaucracy,” as Blanton of the National government was justified in adopting new apart demonstrate the all but univer- Security Archive calls it. “Secrecy is the levels of secrecy immediately after 9/11, sally acknowledged truth that the gov- fundamental tool of a bureaucrat to pro- she says, because “we didn’t know what ernment classifies too much — way too tect turf, to protect power,” he explains. was going on with the terrorists.” much — information as secret. “It’s a John Pike, director of the Alexandria, Kochems also says secrecy is more problem that has persisted regardless of Va., think tank GlobalSecurity.org, says common because cooperation between which party was in charge at the time,” bureaucrats also overclassify because the government and the news media says ISOO Director William Leonard. “they’re more likely to get into trouble has diminished. Still, Kochems says Classification procedures derive from by underclasifying than by overclassify- the issue of overclassification is “prob- executive orders issued by successive ing.” In addition, he says, “It certainly ably a legitimate question to ask.”

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Beyond the traditional three-level clas- anyone else, it’s an agency head who But other, more innovative restric- sification system, the Bush administration sets the tone and tenor for how this par- tions were adopted in the immediate has spawned an increasing array of ad ticular agency approaches this subject.” aftermath of 9/11. For instance, the ad- hoc secrecy designations for unclassified Pike bluntly dismisses all the sug- ministration refused to release the names materials — categories like “sensitive but gestions. Is change likely? “Probably of hundreds of mostly Muslim foreign- unclassified” or “critical infrastructure in- not,” Pike replies without hesitation. ers rounded up shortly after the attacks formation.” OpentheGovernment.org lists “It’s probably hopeless.” and closed their deportation hearings. some 50 such designations in its 2005 As in the case of the immigration secrecy report card. Has the Bush administration crackdown, experts and interest groups “Government control of unclassified misused government secrecy? called many of the administration’s in- information has grown by leaps and Within his first weeks in office, vocations of national security to justi- bounds,” says Steven Aftergood, director President Bush created a special task fy secrecy unnecessary, unhelpful or of the Federation of American Scientists’ force of government officials to de- both. The Department of Health and Project on Government Secrecy. “It is velop a proposed national energy pol- Human Services, for example, warned turning into a bigger problem than over- icy. The task force, headed by Vice against publication of a study on how classification.” President Cheney, conducted meetings the nation’s milk supply could be con- As in the case of 9/11, the risks of and deliberations behind closed doors taminated by the botulism toxin, but excessive secrecy include bad policy- until unveiling its proposal in May 2001. the National Academy of Sciences making, according to Richard Gid Pow- Both the General Accounting Office published it anyway in July 2005. The ers, a professor of political science at (now called the Government Account- previous year, the Department of Home- the College of Staten Island. “Overuti- ability Office) (GAO) and two outside land Security tried to require employ- lization of secret information is a hin- interest groups went to court to obtain ees to sign agreements barring them drance to what makes good policy, which access to the task force’s records. But from sharing even unclassified infor- is free access to information,” he says. the legal fight — up to the Supreme mation with the public but backed Overclassification also makes it hard- Court and back down — ended in May down under pressure from unions rep- er to protect “real secrets,” Powers says. 2005 with a ruling upholding the ad- resenting department employees. “Before you can concentrate on keep- ministration’s decision to keep the task Other instances of secrecy have been ing important things secret, you have force proceedings and records closed viewed even more critically as overt news to identify what is really secret.” to public view. 9 management. Most notably, the admin- Despite the broad agreement on the The task force case was the first of istration’s 2003 decision to bar media problem, experts doubt their suggestions a seemingly continuous string of se- coverage of ceremonies for the return- for reform will be adopted. Rick Blum, crecy disputes generated by this ad- ing remains of soldiers killed in the Iraq director of OpentheGovernment.org, sug- ministration — typically with un- war — ostensibly to protect family mem- gests reducing the number of people apologetic defense of the restrictions bers’ privacy — has been widely criti- authorized to classify information as se- on release of information. “[They feel] cized as an effort to limit public focus cret. “If you can stop it at the source, they were given a mandate, that on U.S. casualties in the conflict. 11 then all the costs of storing and build- they’re carrying it out and that there The administration even drew criti- ing these secure facilities, all of the big isn’t a need for people to be scruti- cism with its largely unanticipated deci- system of secrecy that costs us billions nizing how, what and why,” says sion to allow and facilitate media cov- and billions of dollars can also be cut Meredith Fuchs, the National Security erage of the Iraq war by “embedding” down to size,” Blum says. Archive’s general counsel. 10 journalists with individual military units. Athan Theoharis, a history professor Many of the disputes seem some- Pentagon officials said the policy — a at Marquette University in Wisconsin and what unexceptional — for example, the contrast to the restrictions on coverage author of several books on the FBI, sug- administration’s refusal to disclose the in the first Persian Gulf War in 1991 — gests that Congress codify classification CIA’s 2004 National Intelligence Estimate was aimed at giving the public firsthand procedures and guidelines to regularize for Iraq, which was requested under the information about the war. Some jour- policy from one administration to an- FOIA by the National Security Archive. nalists applauded the policy, but others other. But, he acknowledges, “Congress The CIA’s National Intelligence Council saw it as likely to lead to more positive has been quite hesitant.” prepares the annual intelligence esti- stories by tying reporters more closely For his part, Leonard says the solu- mates, which are evaluations of world to the servicemembers they were cov- tion lies with “strong and effective over- hot spots based on input from all U.S. ering. 12 “Initially, there was a lot of de- sight at the agency-head level. More than intelligence agencies. bate,” the Heritage Foundation’s Kochems

1010 The CQ Researcher remarks. “That seems to newspaper, the Marine Corps have quieted down.” Times, in May 2005. Overall, many secre- Lowe says he might cy critics say the Bush have been able to write the administration has been story without the FOIA, but particularly aggressive in the documents — obtained restricting access to in- not from the Marines but formation, far more than from the Army — helped previous administrations lock it up. “It was undis- of either party. “Ab- putable,” Lowe explains. solutely,” says Philip “You had the evidence right Melanson, director of there in print.” 13 the policy studies pro- A few days before the gram at the University of story was to appear, the Ma- Massachusetts in Dart- rine Corps recalled the mouth. “The restrictive shipment of some 5,200 pro- attitude began even be- tective vests. Ironically, how- fore 9/11,” he says, not- ever, Lowe says the Corps ing that Cheney’s ener- also responded to the story gy task force was “a by deciding that specifica- domestic-policy initiative tions for body armor would that had nothing to do be exempted from the FOIA with national security.” law in the future — on na- Other experts and ad- tional security grounds. vocates, however, cau- Lowe’s experience illus- tion against singling out trates both the benefits and the Bush administration the pitfalls of the landmark for criticism. “It would be law. Since it took effect in wrong to see this in par- 1967, countless reporters Getty Images/Mario Tama tisan tones,” says Blum Anti-war activist Daniel Ellsberg, who leaked the Pentagon Papers and others have used the of Openthegovern- to The New York Times during the Vietnam War, is arrested while FOIA to ferret out infor- ment.org. “The patterns protesting against a possible war with Iraq outside the U.S. Mission mation ranging from histor- of secrecy go far beyond to the United Nations in New York City on Dec. 10, 2002. ical gossip to damning evi- any administration. The dence of government waste, judicial branch plays a part in this by “If at least Congress changed, then we fraud or abuse. But FOIA requesters giving increased deference to the exec- would have somebody in the govern- routinely find that use of the law is slow utive branch on secrecy. And Congress ment fighting for greater disclosure and and cumbersome, compliance often in- has to step up to the plate, too.” in a position to compel such disclosure,” complete and judicial review of agency In fact, the administration has won Aftergood says. “Right now, we don’t.” decisions unhelpful. almost all of the court battles over se- FOIA advocates say the difficulties crecy, including the dispute over the Should Congress make it easier to in using the law have increased under Cheney task force and the restrictions obtain government records under President Bush. They point to a con- on the coverage of the post-9/11 im- the Freedom of Information Act? troversial memorandum — issued by migration crackdown. On Capitol Hill, Reporter Christian Lowe got a hot tip Attorney General Ashcroft a month after some members of Congress have crit- in August 2004: Some of the body armor the 9/11 terror attacks — advising agen- icized the administration’s penchant for issued to Marines fighting in Iraq had cies to “carefully consider” possible ex- secrecy — Democrats most vocally but critical, life-threatening defects, and the emptions before releasing documents also some Republicans. But Aftergood Marine Corps knew of the flaws before under the act. The memo promised that of the Federation of American Scien- accepting the protective vests. But it the Justice Department would defend tists says Congress has generally failed took eight months — and a formal Free- the withholding of documents unless to challenge the administration direct- dom of Information Act request — be- the agencies’ decisions had no “sound ly and forthrightly. fore the story finally appeared in Lowe’s legal basis.” 14

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the inherent difficulties in getting Using the Freedom of Information Act agencies to comply with the law, says Rebecca Daugherty, director of the The Freedom of Information Act (FOIA), establishes a broad but Freedom of Information Service Cen- qualified right of access to any “records” held by a federal agency. ter at the Reporters Committee for Free- Similar laws are on the books in all the states. dom of the Press. “We’ve never seen Enacted in 1966, the FOIA allows anyone to request records the respect for FOIA as a law that without stating the reason. Agencies have a 20-day deadline for needs to be enforced,” she says. Sym- responding to a request, and requesters may sue in any federal pathy for the law has continued to court to challenge an agency’s decision to withhold materials. If recede in recent years, she adds, both successful, the requester can recover costs and attorneys’ fees. in the executive branch and in the The law exempts Congress, federal courts and the White House, as courts. well as the military during wartime. In addition, the act identifies the An additional difficulty, Daugherty following nine categories of materials that need not be made public: says, is lack of resources. FOIA offices in individual agencies are typically understaffed and underfunded •“Properly classified” in the interest of national defense or while the volume of requests under foreign policy. the law has been growing. “Without • Related solely to the agency’s “internal personnel rules and those resources, it’s always easier not practices.” to give out information than to give it out,” she says. • Specifically exempted from disclosure by separate statute. Congress has revisited the law •“Trade secrets” or other confidential commercial or financial many times since it was enacted. In information. the first major revision in 1974, law- • Inter- or intra-agency memorandums or letters not subject to makers made it easier to use. But since discovery in court. then, many of the changes have limited the scope of the law. Congress • Personnel, medical and similar files for which disclosure would did give FOIA requesters one major constitute a “clearly unwarranted invasion of personal privacy.” benefit in 1996, however, by extend- • Compiled for law enforcement purposes if disclosure could: ing the law to electronic records and requiring electronic delivery of docu- a) Interfere with law enforcement proceedings; ments when possible. b) Deprive a person of a fair trial or adjudication; Now, companion bills to make FOIA c) Constitute an unwarranted invasion of personal privacy; somewhat easier to use are pending d) Disclose the identity of a confidential source; in the House and the Senate, both sponsored by Republicans. “It’s a shame e) Disclose law enforcement techniques, procedures or guidelines; that conservatives aren’t involved in f) Endanger the life or physical safety of an individual. the fight for open government, be- • Reports prepared by or for use by agencies regulating financial cause to me it’s the most conservative institutions. of principles,” says Sen. John Cornyn, R-Texas, who is cosponsoring the Sen- • Geological and geophysical information and data concerning ate bill with Democrat Patrick J. Leahy wells, including maps. of Vermont. 15 Cornyn advocated for open gov- Source: T. Barton Carter, Marc A. Franklin and Jay B. Wright, The First ernment while serving as Texas attor- Amendment and the Fourth Estate: The Law of Mass Media (9th ed.), 2005. ney general before his election to the Senate in 2002. Rep. Lamar Smith, a Weitzel of the journalists’ coalition is that they are trying to control in- fellow Texas Republican and one-time notes that Ashcroft’s successor, Alber- formation more than any administra- newspaper reporter, is sponsoring the to Gonzales, has kept the memoran- tion since the start of the FOIA,” companion House bill. dum on the books. “Every sign, every Weitzel says. The legislation would enforce the memo that has come out in this area Ashcroft’s memorandum adds to current, 20-day deadline for responding

1012 The CQ Researcher to FOIA requests by time” publish a journal requiring agencies to of its proceedings (Art. I, set up hotline track- sec. 5, cl. 3), except for ing systems and al- “such parts as may in their lowing courts to judgment require secre- overturn agencies’ cy.” That provision has denials more easily if been taken to imply that deadlines were not either chamber may met. The bills would meet and deliberate in se- also make it some- cret session. 17 what easier to win In fact, both the Con- attorneys’ fees for tinental Congress and the going to court to en- Constitutional Conven- force FOIA requests via Getty Images tion met in secret. and would specifi- Though secret sessions are cally entitle freelance now rare, both chambers journalists to a waiv- of Congress made exten- er from an agency’s sive use of secrecy in research and copy- Post Washington their early years. The Sgt. Charles Graner appears poised to punch an Iraqi detainee at ing costs. Abu Ghraib prison as other prisoners lay bound and hooded. Photos House met frequently in Leahy also has showing mistreatment at the facility were first aired by executive session through proposed a sepa- CBS News’ “60 Minutes II.” Graner was the end of the War of rate measure — not sentenced to prison for his role in the abuses. 1812 but only five times supported by Cornyn since then. The Senate — that would repeal used secret sessions for the part of the 2002 homeland secu- all nominations and treaties until 1929; rity bill that allows companies to re- since then, it has met in secret 54 times, port security vulnerabilities as “criti- BACKGROUND usually on national security matters or cal infrastructure information” exempt during impeachment proceedings. 18 from the law. Leahy calls that provi- As early as the mid-19th century, the sion “the single greatest rollback in Competing Imperatives United States was professing a commit- FOIA history.” ment to openness as an instrument of Daugherty says the legislation ssues of government secrecy and foreign policy. In his book Secrecy: The “would definitely make some im- I openness produced few major con- American Experience, the late Sen. Moyni- provements,” while Blum of Openthe- flicts in early U.S. history. In the 20th han noted that the Department of State Government.org calls the measures century, however, the emergence of the began in the 1870s to compile corre- “a good first step.” Bush himself told United States as a major world power spondence and documents in the annual the newspaper editors in April that helped create a new impetus for gov- volume Foreign Relations of the United he wanted to work with Cornyn on ernment secrecy just as the advent of States. At the end of World War I, Presi- the issue. Still, the prospects for instantaneous communication was cre- dent Woodrow Wilson famously articu- passing the legislation in the current ating a desire for and expectation of lated this U.S. theme in the first of his Congress are widely viewed as close more information from and about gov- Fourteen Points: “Open covenants of to nil. ernment. The competing imperatives peace, openly arrived at.” 19 “History teaches us that it often have fueled disputes that have raged Yet, as Moynihan points out, by re- takes more than a couple of years to nearly continuously since the 1960s. 16 questing and signing into law the Es- get amendments to the Freedom of Two constitutional provisions require pionage Act of 1917 Wilson himself Information Act passed,” says Lucy a measure of government openness. helped create the 20th-century culture Dalglish, executive director of the Re- Congress is required to publish a “reg- of secrecy. The act, signed only three porters Committee for Freedom of the ular statement” of the government’s re- months after the U.S. entry into the war, Press. “They are not viewed as being ceipts and expenditures (Art. I, sec. 8, made it a crime to obtain or to dis- as urgent as other things Congress cl. 7). In addition, each house of Con- close national defense information to a considers.” gress must keep and “from time to foreign government “with the intent or

Available online: www.thecqresearcher.com Dec. 2, 2005 1013 GOVERNMENT SECRECY reason to believe” that the information led to major congressional probes in Almost from the start, the executive would be used to injure the United the early 1970s. Lawmakers eventually branch displayed marked recalcitrance States. The act remains on the books recommended that the executive in complying with the Freedom of In- today with several amendments, though branch curtail some of the practices and formation Act. “By and large, the agen- the most controversial addition — the that Congress should strengthen its over- cies resisted the law,” the University of speech-restrictive Sedition Act of 1918 sight and public accountability. Despite Massachusetts’ Melanson writes. 22 — was repealed in 1921. the reforms, both agencies continued By the early 1970s, discontent among Over time, a system for classifying to resist journalists’ and watchdog groups’ lawmakers and open-government ad- national security information evolved, efforts to use FOIA to examine their vocates had grown to the point that with periodic calls to tighten the rules actions, both past and present. 20 Congress began work on a major over- to prevent unauthorized disclosures. A more focused confrontation pro- haul of the act. The 1974 amendments, But there were also complaints about duced a significant victory for govern- enacted by a wide margin over Presi- overclassification, such as a 1956 report ment openness when the Supreme Court dent Gerald R. Ford’s veto, most sig- by a five-member Defense Department in 1971 rejected the Nixon administra- nificantly provided for judicial review committee. In consolidating the classi- tion’s efforts to block publication of the of agency decisions to withhold re- fication system the next year, howev- so-called Pentagon Papers, the once- quested records. It also narrowed the er, Defense Secretary Charles E. Wilson secret Defense Department study of the blanket law enforcement exemption to did nothing about the issue. In the same Vietnam War. Daniel Ellsberg, a former allow withholding documents only when year, the congressionally established Pentagon researcher turned anti-war disclosure would result in specific harms Commission on Government Security activist, leaked the report to The New — such as interference with ongoing proposed making it a crime for some- York Times and later to The Washing- enforcement proceedings or disclosure one outside or inside government to ton Post and other newspapers. Claim- of a confidential informant. The over- disclose classified information. The pro- ing a danger to national security, the haul also established a 10-day dead- posal died after journalists pointed out Justice Department went to federal court line for agencies to respond to FOIA it was tantamount to press censorship. to try to stop publication of articles requests and limited copying costs that Meanwhile, the growth of the mod- about the report. But in a 6-3 decision could be charged to requesters. 23 ern regulatory state led to procedures the high court said the government had Also in 1974 Congress passed a law and rules premised on a degree of open- failed to meet the “heavy burden” re- to take custody of President Nixon’s ness. The Federal Register Act, passed quired to justify press censorship. Years presidential papers and tape record- by Congress in 1935, mandated daily later, Erwin Griswold, the solicitor gen- ings after he resigned in the wake of publication of presidential proclama- eral who argued the case, comment- the Watergate scandal. Lawmakers fol- tions, executive orders and agency reg- ed, “In hindsight, it is clear to me that lowed four years later with the broad- ulations. A decade later, the Adminis- no harm was done by publication of er Presidential Records Act, which es- trative Procedure Act (APA) of 1946 the Pentagon Papers.” 21 tablished public ownership of all future required that agencies allow the pub- presidential records beginning with lic to participate in the rule-making the 1981 presidential term. Passed by process. Two decades after that, Con- Shifting Views a Democratic-controlled Congress and gress passed the FOIA, establishing the signed by Carter, the law provided public’s right to see agency records un- ongress strengthened the statutory that most presidential records were to less they were exempted by the statute. C framework for access to govern- become public property at the end of Privately dubious, President Lyndon B. ment records in the 1970s and over the a president’s tenure. However, a for- Johnson nonetheless signed the bill into next two decades periodically faulted the mer president could restrict access to law in 1966; it went into effect on July executive branch for access restrictions materials in some categories — in- 4, 1967. and overclassification. Democratic presi- cluding national defense, foreign pol- The civil rights and anti-war move- dents Jimmy Carter and Clinton professed icy and presidential appointments — ments of the 1960s and early ’70s trig- somewhat greater support for open gov- for up to 12 years. 24 gered major conflicts with two of the ernment than Republicans Ronald Rea- During his two terms in the 1980s, government’s most secretive agencies: gan and George H. W. Bush. Overall, Reagan was less friendly to open-access the CIA and the FBI. Disclosures that however, open-government advocates policies. He issued a new order on clas- the CIA had helped destabilize unfriendly said access to information and records sified information in 1982 — Executive governments and that both agencies had often continued to be slow, expensive Order 12356 — which ended the investigated domestic political groups and incomplete. Continued on p. 1016

1014 The CQ Researcher Chronology

November 2001 1960s-1970s 1990s Clinton adminis- Bush signs executive order on Congress allows public access tration loosens restrictions on ac- Nov. 1 allowing White House or to government information. cess to government information. former presidents to veto release of presidential papers; historians, 1966 1995 archivists file suit to invalidate. President Lyndon B. Johnson signs President Bill Clinton orders a 25- Freedom of Information Act year limit on secrecy classification December 2002 (FOIA); law takes effect in 1967. unless specific harm would result. Federal judge rejects effort by General Accounting Office to obtain energy 1971 1996 task force records. Supreme Court refuses to block Congress passes Electronic Freedom publication of Pentagon Papers. of Information Act, requiring agen- 2003 cies to make requested records Supreme Court in May rejects 1974 electronically available whenever news media challenge to closed Congress strengthens FOIA by set- possible. post-9/11 immigration hearings; ting deadlines for agencies to release federal appeals court in June re- information, providing for judicial re- 1997 fuses efforts to obtain names of view; also passes Privacy Act to give Commission on Protecting and Re- detainees under FOIA. . . . individuals right to see government ducing Government Secrecy, head- American Civil Liberties Union information about themselves. ed by Sen. Daniel P. Moynihan, D- files FOIA suit in October seek- N.Y., criticizes excessive secrecy, ing documents on treatment of 1978 proposes various reforms; legislation detainees at Cuba’s Guantánamo Congress passes Presidential fails to advance. Bay Naval Base and Abu Ghraib Records Act, providing that presi- prison in Iraq. dential papers be released to pub- • lic 12 years after end of adminis- 2004 trations; law takes effect in 1981. Federal judge in March dismisses 2000-Present historians’ challenge to Bush order • President George W. Bush on presidential records. . . . Bush greatly expands use of secrecy; in April affirms support for open sticks to policies despite wide- government to newspaper editors 1980s Reagan adminis- spread criticism. but cites need to prevent leaks. . . . tration limits information access. Supreme Court in June throws out January-May 2001 appeals court ruling to allow inter- 1982 Energy task force headed by Vice est groups to examine records of President Ronald Reagan orders President Dick Cheney meets in energy task force meetings with in- use of highest secrecy level for secret until its proposal is unveiled dustry executives. . . . New York classifying information and eliminates in May. federal judge criticizes Pentagon for requirement to declassify documents slow response on ACLU suit; docu- after 30 or 50 years. September-October 2001 ments released in December show After 9/11 terrorist attacks gov- FBI criticism of Defense Depart- 1986 ernment imposes tight secrecy on ment’s interrogation techniques. Congress passes and Reagan signs roundup of Muslim immigrants FOIA revision, somewhat broaden- and others. . . . Attorney General 2005 ing law enforcement exemption. John Ashcroft tells agencies to Federal judge in September rejects use FOIA exemptions to withhold National Security Archive suit to 1989 records if legally permitted. . . . obtain 2004 National Intelligence Supreme Court says agencies can Congress passes and Bush signs Estimate on Iraq. . . . ACLU wins withhold records requested under USA Patriot Act, which limits dis- ruling for release of more Abu FOIA if disclosure would not closure of anti-terror investiga- Ghraib pictures, but government serve “central purpose” of law. tions. to appeal.

Available online: www.thecqresearcher.com Dec. 2, 2005 1015 GOVERNMENT SECRECY

The Outing of Valerie Plame . . .

midst new fears about bioterrorism and germ war- of undercover agents’ identities. Democratic lawmakers and oth- fare, Vice President Dick Cheney convened a meet- ers accused the administration of revealing Plame’s identity as A ing of top advisers in December 2002 to debate political retaliation. After Attorney General John Ashcroft recused whether to resume widespread vaccination of Americans against himself, Deputy Attorney General James Comey named U.S. At- smallpox. torney Patrick Fitzgerald of Chicago as special counsel to inves- The impetus for the meeting came in part from recently re- tigate the leak. ceived intelligence — described a few days earlier in a story Fitzgerald quickly subpoenaed prominent journalists to iden- by New York Times reporter Judith Miller — that Iraq might tify the administration officials quoted as identifying Plame. have obtained “a particularly virulent form of smallpox” from For reasons still unexplained as of November 2005, Fitzger- a Russian lab. Miller attributed the information to “senior ad- ald did not subpoena syndicated columnist Robert Novak — ministration officials.” the first to publish Plame’s identity in July 2003. A few days Three years later, Newsweek magazine implied that Miller must later Cooper named Plame in a short item on Time’s Web have been helped on the story by none other than I. Lewis site. “Scooter” Libby, Cheney’s chief of staff and a determined hawk Some of the subpoenaed journalists agreed to testify under — both on Iraq and on germ-warfare issues. 1 some limitations, but Miller — who never wrote a story about Libby’s role as a behind-the-scenes source for the high-pro- Plame — and Cooper resisted testifying, claiming a First Amend- file Times reporter embarrassingly came to light in 2005 in the ment right to shield the identity of a confidential source. They politically charged investigation of a different leak: the identity appealed all the way to the Supreme Court. Cooper avoided of an undercover CIA operative married to a critic of the Bush going to jail for contempt of court by agreeing on July 6 to administration’s Iraq policies. Miller spent 85 days in jail shield- testify after receiving a waiver of confidentiality from his source ing Libby as a confidential source and later — with Libby’s — who turned out to be Karl Rove, deputy White House chief waiver of confidentiality — gave federal grand jury testimony of staff and Bush’s closest political adviser. used to indict him on five felony counts of lying, perjury and Saying she had no similar waiver, Miller stood by her re- obstruction of justice. 2 fusal to testify and was ordered jailed. She was released on Libby, who resigned immediately after the Oct. 28, 2005, Sept. 29 after obtaining a full and voluntary waiver of confi- indictment, was charged with lying to FBI agents and the dentiality from her source, whom she later identified as Libby. grand jury when he denied having divulged to Miller and With the immediate mystery solved, reporters, commenta- Time magazine’s Matt Cooper the identity of Valerie Plame tors and media-watchers worked overtime for the next few Wilson, a CIA expert on weapons of mass destruction (WMD). weeks analyzing the roles Libby and Rove played throughout Plame’s husband, former diplomat Joseph Wilson IV, had chal- the Bush administration as anonymous sources for news sto- lenged the administration’s prewar claim that Iraq had an on- ries. Rove was well known as an adviser and occasional ad- going WMD program. ministration spokesman, and his role as a secret source was After Wilson went public, news stories quoted unnamed ad- often obvious. Only after Libby’s indictment, however, did ministration officials identifying Plame as an undercover agent, news stories clarify that the low-profile Libby had also met which can be illegal under a 1982 law prohibiting the disclosure frequently with reporters. 3

Continued from p. 1014 The Freedom of Information Reform Act tional security,” assist in development 30- to-50-year limit on classification that of 1986, among other changes, broad- of weapons of mass destruction or iden- Carter had established. Reagan’s order ened the law-enforcement exemption tify confidential informants. The order also directed officials to classify infor- and made it more difficult for non- also established the Interagency Secu- mation at the highest secrecy level pos- media requesters to obtain fee waivers rity Classification Appeals Panel (ISCAP) sible; Carter had specified use of the for research and copying charges. 26 to hear appeals of agencies’ refusal to lowest level available. 25 Separately, Rea- During his eight years in the White declassify requested documents. Over gan began pushing in his first year in House in the 1990s Clinton rolled back time, the panel has overruled agencies office for restrictive changes in the FOIA. some of Reagan’s restrictions. Clinton’s well over half the time. 27 One modest change approved in 1984 Executive Order 12958 in 1995 made Clinton also signed into law the exempted some CIA files from the law. older secrets more accessible by al- milestone Electronic Freedom of In- A broader measure stalled but gained lowing declassification of documents formation Act Amendments of 1996, passage two years later as a late-added after 25 years unless disclosure would which required agencies to make amendment to a major anti-drug bill. “clearly and demonstrably damage na- records electronically available. The

1016 The CQ Researcher . . . Leaking Secrets to Punish Political Foes?

The indictment charges Whatever the final outcome that Libby went to some of the so-called Plamegate scan- lengths within government dal, a longtime open-govern- channels in May and June ment advocate says the case 2003 to find out about demonstrates the administra- Plame. He allegedly then tion’s inconsistent attitude to- discussed Plame in three ward secrecy. conversations with Miller “Most leak investigations are in June and July and with demanded by the White House,” Cooper on July 12 — all says Athan Theoharis, a pro- before the Novak column fessor of history at Marquette appeared on July 14. University in Wisconsin. “In this Libby, who pleaded case, it’s the White House that not guilty at an arraign- is leaking. For an administra- ment on Nov. 3, alleged- tion that is so committed to se-

ly told investigators and Getty Images (both) crecy, [it appears] secrecy is the grand jury that he I. Lewis “Scooter” Libby Karl Rove something that is fungible, and had picked up informa- in some cases it’s political.” tion about Plame from other journalists — including Tim Russert, NBC’s Washington bureau chief — and passed it 1 Evan Thomas, “Cheney’s Cheney,” Newsweek, Nov. 7, 2005. Thomas along to others as Washington-insider gossip. After the in- described the timing of Miller’s story shortly before the Cheney meeting as “probably no coincidence.” Miller’s story — headlined “C.I.A. Hunts dictment, Russert said he had denied Libby’s version of their Iraq Tie to Soviet Smallpox” — appeared on p. A18 of the Times’ print conversation to the grand jury. edition, Dec. 3, 2002. One of Libby’s lawyers, Joseph A. Tate, suggested that Libby 2 In addition to the Newsweek article, another comprehensive story that fo- may rely on a faulty-memory defense in the case. “Mr. Libby cuses on the media-related aspects of the case is Barton Gellman, “A Leak, Then a Deluge,” The Washington Post, Oct. 30, 2005, p. A1. A good time- testified to the best of his recollection on all occasions,” Tate line of the case appears with the story. 4 said on the day of the indictment. 3 See, for example, Glenn Kessler, “With Vice President, He Shaped Iraq Rove was not indicted but remains under investigation. Policy,” The Washington Post, Oct. 29, 2005, p. A1. 4 White House Press Secretary Scott McClelland had declared Quoted in Jim VandeHei, “Libby May Rely on Faulty-Memory Defense,” The Washington Post, Oct. 30, 2005, p. A14. earlier that Rove had not divulged Plame’s identity. Fitzger- 5 See Carol D. Leonnig and Jim VandeHei, “Another Grand Jury for Leak ald subsequently empaneled a new grand jury for the case Case,” The Washington Post, Nov. 19, 2005, p. A1; Jim VandeHeil and Carol on Nov. 18, after the belated disclosure that another ad- D. Leonnig, “Woodward Was Told of Plame More Than Two Years Ago,” The Washington Post, Nov. 16, 2005, p. A1. Woodward’s source came for- ministration official had disclosed Plame’s identity even ear- ward to Fitzgerald and then released Woodward from a pledge of confi- lier to Washington Post investigative reporter and author Bob dentiality to permit the reporter to testify before the grand jury but not to Woodward. 5 be publicly identified. law also increased from 10 days to 20 files on individuals named in Nixon’s information that sheds light on an agency’s the number of days within which an famous “enemies list.” 29 In one of the performance of its statutory duties.” In agency must respond to FOI requests most important rulings, the court in 1989 later decisions, the court invoked the — a change aimed at improving agen- ruled that “rap sheets” held by the FBI same “central purpose” test to further cir- cies’ response time by easing a dead- were exempt under the act’s privacy pro- cumscribe the law. 30 line that had proved unworkable. 28 vision even though the information on In the 1990s Congress re-entered the Meanwhile, the Supreme Court proved an individual’s arrests and convictions was debate over government secrecy by less than generous in interpreting the typically public record at the local or creating a joint executive-congression- FOIA. In various decisions in the 1980s, state level. The ruling in U.S. Department al commission to study the issue. Sen. the court had blocked use of the act to of Justice v. Reporters Committee for Free- Moynihan, who had pushed for its cre- obtain policy-related records held by out- dom of the Press said rap sheets could ation, headed the 12-member Com- side contractors, materials turned over to be withheld because their disclosure would mission on Protecting and Reducing the Library of Congress by outgoing Sec- not further the act’s “central purpose of Government Secrecy. The Moynihan retary of State Henry A. Kissinger and exposing to public scrutiny official in- commission’s report, issued in 1997,

Available online: www.thecqresearcher.com Dec. 2, 2005 1017 GOVERNMENT SECRECY included predictable downs and other en- criticism of excessive forcement actions initiated secrecy along with after the Sept. 11 terrorist recommendations for attacks. The government a law to govern clas- detained hundreds of most- sification procedures ly Muslim foreigners for and creation of a na- suspected immigration vi- tional declassification olations in the weeks after center. 31 Open-gov- the attacks, refused to iden- ernment advocates tify them and won an order called the recom- from the chief immigra- mendations useful but tion judge closing their de- modest. In any event, portation hearings. only two senators at- News organizations tended a committee challenged the secret im- hearing on the report migration proceedings in in May 1997, and a Getty Images/Joe Raedle separate cases — suc- Journalists who will be “embedded” in Marine units receive a briefing bill embodying the from Col. Ronald Bailey after arriving in Kuwait City in March 2003. cessfully in Michigan and recommendations More than 600 journalists were attached to military units to unsuccessfully in New Jer- went nowhere. 32 cover the expected possible war with Iraq. sey. But the Supreme Court’s refusal in May 2003 In the first fight, a federal judge in to hear the media’s appeal in the New Increasing Secrecy Washington in December 2002 reject- Jersey case effectively ended the battle ed on separation-of-powers grounds a with the secrecy policy upheld. 35 rom the earliest days of his first bid by the GAO to obtain access to Meanwhile, the federal appeals court F term in 2001, President Bush set a task force records. 33 in Washington in June 2003 similarly tone of secrecy and allowed Justice De- In the second fight, the Sierra Club, rejected an effort by the Center for Na- partment and other officials to impose the liberal environmental organization, tional Security Studies to use the FOIA ramped-up secrecy after the 9/11 ter- and Judicial Watch, a conservative to obtain a list of the names of the de- rorist attacks later that year. Four years watchdog group, argued for access to tainees. The court agreed with the ad- later, the administration’s policies con- information under the Federal Advi- ministration’s argument that releasing tinue to reflect what open-government sory Committee Act, which requires the names could give terrorists “a vir- advocates and a range of outside ob- open meetings by government poli- tual road map” to the government’s in- servers describe as unprecedented lev- cymaking committees with outside vestigation. 36 els of secrecy. Administration officials members. The federal appeals court The administration also included se- generally dispute the accusations and in Washington initially allowed the crecy provisions in its major post-9/11 — with several legal victories under groups’ limited discovery to try to show legislative proposal — the USA Patriot their belt — show no signs of changed that industry representatives served as Act — approved by Congress in Octo- attitudes at the White House or else- de facto members of the task force. ber 2001 barely a month after the ter- where in the executive branch. But the Supreme Court in June 2004 rorist attacks. Among other things, the The administration won two legal ordered the appeals court to recon- act gave the FBI authority to obtain sub- battles defending the secrecy of the sider the decision. And in May 2005 poenas for personal records from the Cheney energy task force against the the appeals court dismissed the groups’ secret Foreign Intelligence Surveillance backdrop of accusations of undue in- suit. “The president must be free to Act court in any terrorism-related in- fluence by energy industry representa- seek confidential information from vestigation; the section also prohibited tives in shaping its recommendations. many sources, both inside the gov- “any person” from disclosing any in- Administration officials said confiden- ernment and outside,” Judge A. Ray- formation about the FBI’s use of the tiality was both legal and necessary to mond Randolph wrote for the unan- subpoenas, known as “national securi- ensure candid advice for the president imous three-judge panel. 34 ty letters.” 37 and noted the similar secrecy adopted The administration proved similarly The ACLU challenged that provision by a health care task force headed by successful in defending its restrictions on and others in a still pending suit filed then-first lady Hillary Rodham Clinton. information about immigration crack- in federal court in Michigan in July 2003.

1018 The CQ Researcher In addition, the ACLU won lower- Kollar-Kotelly dismissed the suit as court on several fronts, but with only court rulings that struck down the na- moot, saying Reagan’s records had limited success. The ACLU is using the tional security letter provision in a New already been released. 42 Freedom of Information Act to obtain York case and lifted the ban on disclo- The access-restrictive policies adopt- thousands of pages of documents on sure of the receipt of a national securi- ed in Bush’s first year set the tone for U.S. treatment of detainees overseas. ty letter in a Connecticut case. The gov- similar disputes through the rest of The National Security Archive, how- ernment’s appeal of those decisions was Bush’s first term and into his second. ever, hit a brick wall in trying to get argued before the Second U.S. Circuit In one of the most significant moves, an edited version of the 2004 National Court of Appeals on Nov. 2, 2005. 38 Bush in March 2003 issued a revised Intelligence Estimate on Iraq. But the With the post-9/11 policies domi- directive on classification procedures archive hopes in a separate case that nating the news, Attorney General — Executive Order 13292 — that ex- a federal judge in Washington will re- Ashcroft’s 2001 memorandum advis- tended until 2006 the scheduled de- consider her decision upholding Bush’s ing agencies to be more cautious in classification of documents under Clin- executive order limiting release of pa- granting FOIA requests received lit- ton’s order. Bush’s order also eliminated pers of former presidents. tle attention and remains on the books, Clinton’s stipulation to classify docu- The ACLU suit has generated a con- despite subsequent criticisms from ments at the lowest appropriate level tinuous stream of interim reports and open-government advocates. 39 A Sep- and mandated secrecy for all infor- accompanying news stories since Oc- tember 2003 GAO study of federal mation furnished in confidence by for- tober 2004 — one year after the group’s FOIA compliance officers cast some eign governments. 43 first FOIA request and four months after doubt on the impact of the directive. Throughout, White House spokesper- the court action was filed.* In an ini- Nearly half of those responding — sons disputed accusations of excessive tial ruling in September 2004, U.S. Dis- 48 percent — said Ashcroft’s policy secrecy. “We have been forthcoming at trict Judge Alvin Hellerstein said the had had no effect on their agencies’ every turn, and we have always val- Pentagon had been “inattentive for many likelihood of making discretionary dis- ued the right and the need of the pub- months” to the ACLU’s requests. closures under the act. But 31 per- lic to have information about their gov- Among the most important of the cent said they had become less like- ernment,” White House spokeswoman early disclosures, documents released in ly to make discretionary disclosures, Anne Womack told The Boston Globe December 2004 showed that a special and the vast majority of those — in February 2002. 44 task force in Iraq tried to silence De- three out of four — cited Ashcroft’s Three years later, White House fense Intelligence Agency personnel directive as a major reason. 40 Deputy Press Secretary Dana Perino who observed abusive interrogations. The Bush received more attention and similarly defended the administration’s documents also showed that the FBI had more criticism with his unanticipat- policies. “We have done our best with- objected unsuccessfully to some of the ed decision on Nov. 1, 2001, to in the confines of the law to strike the questionable techniques used by mili- allow either the White House or for- right balance between transparency of tary interrogators on detainees held at mer presidents to block release of government activity and the protection the Guantánamo Bay Naval Base in Cuba. their presidential papers. 41 Bush is- of information when disclosure would More recently, the ACLU in October sued the new executive order short- be harmful,” Perino said. 45 2005 issued an analysis of detainee au- ly before former President Reagan’s topsy reports showing that at least eight papers were to become subject to captives had died as a result of abusive the Presidential Records Act — 12 interrogation techniques. years after he left office. Then-White CURRENT The ACLU suit came before the House counselor Gonzales said the damning photographs of mistreatment order — rescinding one Reagan had of Iraqi captives at the Abu Ghraib issued — would allow “an orderly SITUATION prison were obtained and broadcast by process” to implement the act. For- “60 Minutes II” on April 28, 2004. The mer President Clinton called the new airing of the photographs — taken by order unnecessary, however, and the Court Battles National Security Archive and the * Co-plaintiffs in the case are the Center for American Historical Association filed Constitutional Rights, Physicians for Human Rights, suit in federal court in Washington to pen-government advocates are Veterans for Common Sense and Veterans for try to invalidate it. In late March 2004, O contesting restrictive Bush ad- Peace. The New York Civil Liberties Union is however, U.S. District Judge Colleen ministration information policies in co-counsel in the case.

Available online: www.thecqresearcher.com Dec. 2, 2005 1019 GOVERNMENT SECRECY

Whistleblowers Silenced by State Secrets Doctrine n six months as a contract translator for the FBI, Sibel Edmonds the colleague’s husband, an Air Force major and a former U.S. came across what she thought were serious breaches of military attaché in the Turkish capital of Ankara. According to Ed- I security procedures related to counterintelligence cases. But monds, the visit appeared aimed at getting her to join Turkish- when she reported her suspicions through proper FBI chan- American lobbying groups and to befriend Turkish officials who nels, she was fired. were subjects of FBI scrutiny. She then filed a wrongful-termination lawsuit, but the govern- Edmonds suspected that the colleague might have improperly ment got the case thrown out of court by invoking a weapon that divulged information about the investigations. (The colleague de- can be especially powerful when used against whistleblowers: the nies any wrongdoing.) Edmonds reported her suspicions through state secret privilege. channels but was fired for her trouble in March 2002. Three years Edmonds is one of several whistleblowers who have recently later, the Justice Department inspector general’s office concluded borne the brunt of tough actions by the Bush administration to that the FBI had inadequately investigated Edmonds’ allegations, silence or sideline internal critics. For instance, Frank Terreri, head but that the allegations were “the most significant factor in the of the air marshals unit of the Federal Law Enforcement Officers FBI’s decision to terminate her services.” Association, was suspended in 2004 for criticizing the head of the By then, Edmonds had gone to court, claiming the FBI had Federal Air Marshal Service. Terreri has filed suit in federal court violated her rights by firing her in retaliation for her accusations. in Los Angeles contesting Department of Homeland Security rules Instead of answering the suit, Attorney General John Ashcroft limiting air marshals’ rights to criticize agency procedures. 1 invoked the state secret privilege to seek dismissal of the case. In Edmonds’ case, the government’s use of the little known In a mostly classified declaration, the government argued that state secret privilege could deny her any opportunity to con- Edmonds’ suit would necessarily reveal state secrets whose dis- test her firing, which the Justice Department’s own inspector closure would be harmful to U.S. national interests and that the general says resulted primarily from Edmonds’ unsuccessful ef- secrets could not be disentangled so as to allow the case to forts to pursue allegations of security breaches. proceed with some testimony classified. The state secret privilege is a little known legal weapon the U.S. District Judge Reggie Walton agreed with the government’s government can raise largely on its own say-so to prevent po- arguments and dismissed the suit in July 2004. Following a hear- tentially harmful disclosures in courts. The government says the ing closed to the public and news media, the U.S. Court of Ap- privilege is rarely invoked, but critics count at least 50 instances peals for the District of Columbia Circuit upheld Walton’s ruling on since the first clear judicial recognition of the privilege in 1953. 2 May 6, 2005. American Civil Liberties Union (ACLU) lawyers rep- In that case, the government invoked the state secret privilege to resenting Edmonds asked the Supreme Court to review the deci- block a suit by widows of airmen killed in the crash of a mili- sion, but the justices declined on Nov. 28 to hear the case. tary aircraft, claiming the suit would reveal information about se- Ann Beeson, associate legal director of the national ACLU, cret military equipment. More than 50 years later, however, it was says Edmonds’ case is one of many instances of retaliatory ac- revealed in 2004 that the accident reports included no military se- tion against whistleblowers who claim to have found embar- crets but attributed the accident to faulty maintenance. rassing flaws in national or homeland security policies. Edmonds, a Turkish-born naturalized U.S. citizen, said she “From firing whistleblowers to using special privileges to was moved by love of her adopted country after the Sept. 11, cover up mistakes, the government is taking extreme steps to 2001, terrorist attacks on the United States to put her multilin- shield itself from political embarrassment while gambling with gual knowledge to use as a contract translator for the FBI. 3 our safety,” she says. Her work, according to a detailed account of the case in Van- ity Fair magazine, entailed translating portions of wiretapped 1 Jerry Seper, “ACLU aims to lift gag rule on air marshals,” The Washington Times, Nov. 10, 2005, p. A12. For background see Charles S. Clark, “Whistleblowers,” conversations involving Turkish officials who she says were tar- CQ Researcher, Dec. 5, 1997, pp. 1057-1080. gets of counterintelligence investigations. 2 William Fisher, “Govt Puts ‘Security’ Defense to Frequent Use,” Inter-Press Edmonds told Vanity Fair Contributing Editor David Rose that Service, Aug. 15, 2005. 3 her troubles began soon after she started working for the FBI, Background drawn in part from David Rose, “An Inconvenient Patriot?” Vanity Fair, September 2005, p. 264. See also Rebecca Carr, “FBI Whistleblower when she received a surprise visit from a fellow translator and Appeals to Supreme Court,” Cox News Service, Aug. 5, 2005. servicemembers and showing Iraqi de- Despite the publication of the pho- the photographs could be withheld tainees in various degrading or sexu- tographs, the Pentagon has strongly re- under the FOIA’s privacy exemption. ally humiliating positions — touched sisted the ACLU’s FOIA requests to re- But Hellerstein said the photos could off worldwide criticism. President Bush lease all still or video images in its be “redacted” as the ACLU lawyers had voiced “disgust” at the practices de- possession depicting treatment of Abu suggested so detainees could not be picted, while members of Congress de- Ghraib detainees. In arguments before individually identified. manded a thorough investigation. 46 Hellerstein, government lawyers claimed Continued on p. 1022

1020 The CQ Researcher At Issue:

HasYes the Bush administration misused government secrecy?

RICK BLUM MARK TAPSCOTT DIRECTOR, OPENTHEGOVERNMENT.ORG DIRECTOR, HERITAGE FOUNDATION’S CENTER FOR MEDIA AND PUBLIC POLICY WRITTEN FOR THE CQ RESEARCHER, NOVEMBER, 2005 WRITTEN FOR THE CQ RESEARCHER, NOVEMBER, 2005 his administration has emboldened officials throughout the government to expand secrecy, undermining both the t never ceases to amaze me when critics lambaste Presi- public’s trust and its ability to hold our government ac- dent Bush for being too zealous about keeping informa- t tion out of the hands of terrorists like Osama bin Laden countable for decisions made in the name of all Americans. i The recent expansion of secrecy is well documented, al- — information that might be useful to those wanting to kill though abusing secrecy by those in power is nothing new. Americans. The Clinton administration, for example, claimed executive The critics complain: “There is too much secrecy in govern- privilege in an attempt to hide scandal and unsuccessfully ment. Bush is classifying too much. The public’s right to tried to craft a health-care plan in secret. know is being violated every day. The White House is en- But actions by top Bush administration officials have encour- couraging a culture of secrecy in government. Civil liberties aged federal agencies to expand secrecy. Even before coming are no longer safe in America.” Etc., etc., etc. into office, the administration met behind closed doors with in- There is truth to these criticisms, though less than extreme dustry leaders to craft an energy policy and has been fighting critics claim. But I must respectfully ask the critics: You ex- public scrutiny of those meetings ever since. Attorney General pected something different from Big Government? John Ashcroft instructed federal agencies in 2001 to withhold in- Bush’s critics forget that with Big Government always formation when in doubt, reversing the previous administration’s comes Big Secrecy. Sooner or later, those who seek less se- directive to yesrelease information whenever possible. crecy, less over-cautiousno classification and fewer intrusions on In other matters, the administration has used the cover of se- civil liberties must decide if those goals are more important crecy to avoid controversy and maintain public support for U.S. than maintaining the sprawling, intrusive, ever-growing mon- actions. It fought the release of photographs documenting shock- strosity we know as the federal government. ing prisoner abuses at Baghdad’s Abu Ghraib prison as well as Liberty and Big Government cannot both exist for long the return of flag-draped coffins of U.S. soldiers killed in among a people who mean to remain free. One or the other Afghanistan and Iraq. And the administration is more concerned will ultimately be the dominant fact of our political life. that information about the existence of controversial, secret U.S. Critics also forget that America is at war. It is a cliché to prison camps in Eastern Europe was leaked to The Washington say 9/11 “changed everything,” but it’s true. Our enemies are Post than it is about reports actually documenting abusive U.S. determined to kill millions of us and impose upon the sur- treatment of detainees or the government’s refusal to abide by vivors an Islamo-fascist dictatorship that would surely extin- international agreements on torture. More recently, U.S. officials guish individual liberty for centuries. proposed halving industry disclosures on releases of toxic Considering the porosity of our borders, the impossibility of chemicals. protecting all potential targets against every possible attack But focusing attention on the executive branch lets other and the insane willingness of legions of our enemies to blow branches of government off the hook too easily. The courts themselves up to slay many of us, it is amazing Bush has not have been exceedingly deferential to executive-branch claims sought far more restrictive access to public buildings and that protecting national security requires court cases to be events. kept secret. A court in Florida even ordered the case of a There is also considerable pressure within the law enforce- man detained in a terrorism-related investigation to be kept ment and intelligence communities for measures like a nation- completely off the public docket. al identity card or a domestic passport. Thankfully, Bush has And Congress manipulates openness to avoid scrutiny. In resisted such pressure. Similarly, there is support for an Ameri- this age of the Internet, only well-connected lobbyists can can Official Secrets Act to make it easier for government to read the text of bills as congressional committees vote on keep a tighter lid on what can and cannot be published. them. And the public is allowed to inspect reports on gifts Given Bush’s evident antipathy for the media, how long be- from lobbyists to senators and their staffs only by visiting fore he proposes such a measure? computer terminals in Senate offices. What is certain is that Bush’s successor will someday de- To reverse this trend, we need to strengthen policies that give mand like measures and more. And Big Government will be all too ready to oblige. the publicNo more democracy and less secrecy in government.

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Continued from p. 1020 case after lawyers for the archive point- letter to leaders of the House and Sen- After the hearing, the government ed out that they were attacking Bush’s ate Intelligence committees, Senate Ma- added another argument: that release of decision as contrary to the provision in jority Leader Bill Frist, R-Tenn., and the photographs could incite violence the Presidential Records Act that barred House Speaker J. Dennis Hastert, R-Ill., against U.S. servicemembers in Afghanistan former presidents from invoking execu- said the leak would “imperil our efforts and Iraq. Hellerstein also rejected that ar- tive privilege to withhold materials. to protect the American people and our gument. “Our nation does not surrender homeland from terrorist attacks.” 49 to blackmail,” he wrote near the end of The next day, however, Senate In- a 50-page opinion, filed on Sept. 29, Information Leaks telligence Committee Chairman Pat 2005. The government is now appeal- Roberts, R-Kan., put a damper on the ing the ruling. ong-sought information about the call for a congressional probe, suggest- “We believe the public has the right L government’s role in detaining top ing that Congress should defer to the to know the full truth about who is terrorist suspects in secret prisons over- Justice Department. In their letter, Frist responsible for the abuse,” ACLU at- seas is finally emerging — not through and Hastert had also asked for a Justice torney Singh says of the suit. “And so official releases or congressional investi- Department referral. The Post said the far, the government has not provided gations but through investigative stories CIA had already reported the disclosure the full truth.” by a Washington Post reporter. Some to the Justice Department, which was Meanwhile, the National Security lawmakers want the Justice Department depicted as a routine procedure after Archive is conceding defeat in its suit to investigate the leaks, but a leading publication of classified information. filed in October 2004 aimed at forcing secrecy critic says the episode illustrates The story appeared in the midst of the CIA to release portions of the Na- the effect of overclassification in limiting a pitched fight between the administra- tional Intelligence Council’s downbeat July public debate on critical policy issues. tion and senators in both parties over a 2003 assessment of the Iraq situation. 47 Post reporter Dana Priest wrote that proposal by Sen. John McCain, R-Ariz., In filing the suit, the archive’s lawyers the CIA had been “hiding and interro- to bar “cruel” or “inhumane” treatment acknowledged that the so-called Nation- gating some of its most important al of detainees by U.S. personnel, includ- al Intelligence Estimate included infor- Qaeda captives at a Soviet-era compound ing CIA operatives. The Senate approved mation properly classified and exempt- in Eastern Europe.” The story described the prohibition by a vote of 90-9 on ed from the FOIA. But the suit also noted the secret facility as one of a number of Oct. 9 as an amendment to the Defense that several officials — including Presi- so-called “black sites” used by the agency Department appropriations bill and at- dent Bush on Sept. 19, 2004 — had re- since the 9/11 terrorist attacks to house tached a similar provision to a Defense ferred generally to the assessment and and interrogate suspected terrorists away authorization bill on Nov. 4. contended that some parts of the docu- from public view, congressional over- The Bush administration says such ment could be “segregated” and released. sight or judicial intervention. 48 legislation is neither necessary nor ad- U.S. District Judge Rosemary Collyer The story — attributed to “U.S. and visable. The “United States doesn’t do flatly rejected the suit in a 16-page rul- foreign officials familiar with the arrange- torture,” Bush has declared. Neverthe- ing on Sept. 30, 2005. Refusing to ex- ment” — identified Afghanistan and Thai- less, Vice President Cheney was lobby- amine the document herself, Collyer land as two countries where such secret ing lawmakers hard to exempt the CIA said she agreed with the CIA’s infor- facilities had been maintained in the past. from coverage under the amendment, mation-review officer that there were The newspaper acceded to an adminis- and the White House has threatened to “no segregable portions that might tration request, however, not to name veto any bill containing the measure. 50 sensibly be released.” the Eastern European countries involved. The House-passed Defense spend- In a second suit, the archive has per- But Human Rights Watch said the next ing and authorization bills did not in- suaded Judge Kollar-Kotelly to reopen its day that it had used flight logs to track clude such a provision, leaving it up legal challenge to Bush’s November 2001 CIA-chartered aircraft in 2003 to airstrips to House-Senate conferees to hash out executive order on presidential papers. in two Eastern European countries: Poland the issue. However, Rep. John P. Murtha In dismissing the action in March 2004, and Romania. Officials in both countries of Pennsylvania, ranking Democrat on Kollar-Kotelly said the release of former denied any role in the secret prisons. the House Defense Appropriations Sub- President Reagan’s papers had rendered The week after the story appeared, committee, has vowed to call for a the archive’s main complaint moot while top congressional GOP leaders called “motion to instruct” conferees to in- its fear of delays in release of presiden- for a joint House-Senate investigation clude the Senate provision in the final tial papers in the future was too specu- into what they called an “egregious dis- bill — a vote he said he would win lative. The judge agreed to reopen the closure” of classified information. In a hands down — when the House names

1022 The CQ Researcher its conferees. “It’s pretty hard to vote duce unnecessary secrecy. The Pentagon for torture,” Murtha said. 51 has taken “positive steps” to try to train Whatever the legislative outcome, Af- OUTLOOK and educate classifiers to apply secrecy tergood of the Federation of American criteria with more care, Deputy Under Scientists says the debate over U.S. treat- Secretary of Defense for Counterintelli- ment of detainees overseas has been Culture of Openness? gence and Security Robert Rogalski told hampered by the secrecy surrounding the an ISOO-sponsored symposium in mid- practices. “There are all sorts of public- ith the American Colonies fight- October. “We are trying to change [the] policy issues that are not being ade- W ing for independence, the Con- culture.” quately debated because of restrictions tinental Congress considered secrecy so However, critics see little evidence on information,” Aftergood says. important that members faced expulsion of any reduction in overclassification. “Is torture permitted under any cir- for divulging any information about the And Leonard agrees with critics who cumstances? If not, why is the admin- proceedings. A century-and-a-half later, say the proliferation of new secrecy istration opposing the amendment to the need for wartime secrecy was fa- categories adds to the problems in get- prohibit torture by the CIA?” Aftergood mously captured in the World War II ting government information. “The clas- asks. “We cannot get straight answers warning, “Loose lips sink ships.” sification system has long-established to these questions. Instead, we have The Bush administration has waged rules, built-in mechanisms to challenge to rely on big newspaper exposés like the so-called war on terrorism with decisions and built-in limits to dura- the Post’s story.” secrecy foremost in officials’ minds. tion,” he explains. “None of those things Only two weeks after the CIA The administration has also gone to exist with respect to these widespread prison story, the Post got another leak great lengths to control information ‘sensitive but unclassified’ regimes that that provided a late postscript to the about domestic-policy debates. Open- seem to be cropping up left and right.” protracted fight to get information about government advocates say the policies Declassification, meanwhile, is un- the energy task force that Cheney had dampen public debate, diminish gov- derstandably a low priority in the mili- headed in early 2001. Quoting from a ernmental accountability and — all the tary or other national security agen- “White House document . . . obtained worse — hamper the country’s efforts cies straining to meet the demands of this week,” the newspaper reported to strengthen homeland security. the war on terror and the continuing on Nov. 16 that executives from four “Prior to 9/11, people tended to focus conflicts in Iraq and Afghanistan. But, major oil companies — Exxon Mobil, on the fact that unauthorized disclosures as Aftergood of the Federation of Amer- Conoco, Shell Oil and BP America — of information could be detrimental and ican Scientists emphasizes, continuing had met with task force aides in the could result in Americans’ losing their overclassification simply adds to the White House complex in 2001. lives,” says ISOO Director Leonard. “One backlog of materials to be considered The meetings between energy ex- of the great lessons of 9/11 is that the for declassifying at some later date. ecutives and the task force had long inappropriate hoarding of information At the same time, the main legal tool been suspected but had been denied could likewise be detrimental and result to combat government secrecy, the Free- by industry officials as recently as the in Americans losing their lives.” dom of Information Act, appears less previous week, when they testified be- The administration shows no signs and less effective in providing access, fore a joint House-Senate committee of retreating from its policy of restrict- say journalists and others. Bureaucrati- hearing on gasoline price hikes. 52 ing much homeland security-related in- cally, FOIA matters are unglamorous, Tom Fitton, president of the conser- formation, claiming the need to avoid low-priority work in most agencies. “No vative watchdog group Judicial Watch, giving terrorists a “roadmap” for future one ever grows up wanting to be an says the belated disclosure vindicates attacks. But National Security Archive FOI officer,” Daugherty, of the Free- the organization’s unsuccessful court fight Director Blanton says the lack of infor- dom of Information Service Center, to try to get information about the task mation increases the vulnerability to ter- says. She notes that after Michael Brown force’s meetings and procedures. “The rorist attacks. “The public has to be able was forced to resign as director of the courts told us we had to take at face to protect itself and be able to offer Federal Emergency Management Agency value the government’s assertion that the fixes,” Blanton says. “That’s the only (FEMA) due to the government’s bun- task force had no non-governmental way we’re going to be more secure.” gled response to Hurricane Katrina, he members,” Fitton says. The Post’s story With classification of government doc- was put to work as a temporary con- “would indicate that there was a high- uments at an all-time high, a top Pen- sultant handling FOI matters. 53 er level of participation by these insid- tagon official for information policy says Courts also appear to be losing in- ers than they admitted to.” the Pentagon recognizes the need to re- terest in enforcing the law, Daugherty

Available online: www.thecqresearcher.com Dec. 2, 2005 1023 GOVERNMENT SECRECY

says. “Judges are tired of FOI requests,” 6 See Daniel Patrick Moynihan, Secrecy: The plete summary of the bills, see Congressional Daugherty says. “They aren’t ruling in American Experience (1998), pp. 60-71. For Research Service, “Freedom of Information favor of requesters the way they used to.” a full account, see Robert Louis Benson and Act (FOIA) Amendments (109th Congress)” Critics say Congress could take some Michael Warner, Venona: Soviet Espionage and (updated June 28, 2005). 16 steps to bring government secrecy under the American Response (1996). For general background, see Moynihan, op. 7 cit., and Philip H. Melanson, Secrecy Wars: control. Aftergood suggests a law stipu- For background, see Kenneth Jost, “Re-examining 9/11,” CQ Researcher, June 4, 2004, National Security, Privacy, and the Public’s lating that materials be classified only if pp. 493-516. Right to Know (2001). disclosure would cause identifiable dam- 8 Report of the Commission on Protecting and 17 See Mildred Amer, “Secret Sessions of Con- age to national security. Blanton of the Reducing Government Secrecy (Moynihan com- gress: A Brief Historical Overview,” Congres- National Security Archive wants Congress mission), 1997. sional Research Service, updated October 2004. to give greater authority to ISCAP, the 9 The decision is In re Cheney, http://pacer.cadc.us- Some additional background also drawn from panel that hears appeals of declassifica- courts.gov/docs/common/opinions/200505/02- the report. tion refusals. Daugherty wants Congress 5354b.pdf. For coverage, see Carol D. Leonnig 18 Ibid. The CRS report does not include the to revise the Freedom of Information Act and Jim VandeHei, “Cheney Wins Court Ruling Senate’s most recent secret session, held on to overturn some of the restrictive court on Energy Panel Records,” The Washington Post, Nov. 1, 2005. See Charles Babington and Dafna rulings and would like for courts to nar- May 11, 2005, p. A1. Linzer, “Senate Democrats Force Closed Meet- 10 ing,” The Washington Post, Nov. 2, 2005, p. A1. row the use of the privacy exemption Quoted in David Nather, “A Rise in ‘State Secrets’,” CQ Weekly, July 18, 2005, p. 1958. 19 Moynihan, op. cit., p. 83. Wilson outlined to justify withholding information. Nather’s story catalogs other examples cited his 14 points for a post-World War I settle- Above all, Aftergood says open-gov- in this section. ment in an address to a joint session of Con- ernment advocates need to organize and 11 See Blaine Harden and Dana Milbank, “Pho- gress on Jan. 8, 1918. advocate more forcefully for measures to tos of Soldiers’ Coffins Revive Controversy,” 20 For background, see Athan G. Theoharis, reduce secrecy. “There is political oppo- The Washington Post, April 23, 2004, p. A10. “The Freedom of Information Act Versus the sition to reducing secrecy,” Aftergood told 12 See Josh Getlin, “Public Would Get a Closer FBI,” and James X. Dempsey, “The CIA and the ISOO symposium. “There are peo- Look at War,” Los Angeles Times, March 11, 2003, Secrecy,” both in Theoharis (ed.), A Culture ple who are very satisfied with the sta- p. A10. of Secrecy: The Government Versus the Peo- tus quo. It is necessary for people wor- 13 See Christian Lowe, “The Marines’ Flawed ple’s Right to Know (1998). 21 ried about the issue to take sides.” Body Armor,” Marine Corps Times, May 9, The case is New York Times Co. v. United 2005 (www.marinetimes.com). Informed of States, 403 U.S. 713 (1971). Griswold’s comment the imminent publication of the story, the quoted in Tony Mauro, Illustrated Great De- Marine Corps recalled the shipment of body cisions of the Supreme Court (2000). Notes vests in question. 22 Melanson, op. cit., p. 16. Some other back- 14 “Attorney General’s Memorandum for Heads ground drawn in part from Melanson’s account. 1 See http://action.aclu.org/torturefoia/. of All Federal Departments and Agencies Re- 23 See 1974 Congressional Quarterly Almanac, 2 See http://trac.syr.edu. garding the Freedom of Information Act,” pp. 805-806. 3 Quoted in Scott Shane, “Since 2001, Sharp Oct. 12, 2001. For text and later elaboration 24 See 1978 Congressional Quarterly Almanac, Increase in the Number of Documents Classi- go to www.usdoj.gov/oip/foiapost/2001foia- pp. 799-800. fied by the Government,” The New York Times, post19.htm. For a comprehensive history, see 25 For a summary of Reagan’s executive order, July 3, 2005, sec. 1, p. 14. “FOIA Update, 1979-2000,” Department of see FOIA Update, Vol. III, No. 3 (1982), www. 4 Quoted in David Westphal, “Bush Proclaims Justice, Office of Information and Privacy, usdoj.gov/oip/foia_updates/Vol_III_3/page6.htm. Belief in Open Government,” The Sacramento www.usdoj.gov/oip/foi-upd.htm. 26 For details, see “FOIA Reform Legislation Bee, April 15, 2005, p. A10. 15 Quoted in David Nather, “GOP Champi- Enacted,” FOIA Update, Vol. VII, No. 4 (1986), 5 For background, see Kenneth Jost, “Free- ons for Releasing Information,” CQ Weekly, www.usdoj.gov/oip/foia_updates/Vol_VII_4/p Press Disputes,” CQ Researcher, April 8, 2005, July 18, 2005, p. 1962. Some other informa- age1.htm. pp. 293-316. tion also drawn from the story. For a com- 27 For the text, see FOIA Update, Vol. XVI, No. 2 (1995), www.usdoj.gov/oip/foia_up- dates/Vol_XVI_2/page5.htm. About the Author 28 See 1996 Congressional Quarterly Almanac, pp. 5-33 to 5-34; “Congress Enacts FOIA Amend- Associate Editor Kenneth Jost graduated from Harvard ments,” FOIA Update, Vol. XVII, No. 4 (1996), College and Georgetown University Law Center. He is www.usdoj.gov/oip/foia_updates/Vol_XVII_4/ the author of the Supreme Court Yearbook and editor of page1.htm. The Supreme Court from A to Z (both CQ Press). He was 29 The decisions are Forsham v. Harris, 445 a member of the CQ Researcher team that won the 2002 U.S. 169 (1980); Kissinger v. Reporters Com- ABA Silver Gavel Award. His recent reports include “Death mittee for Freedom of the Press, 445 U.S. 136 Penalty,” “Right to Die” and “Supreme Court’s Future.” (1980); FBI v. Abramson, 456 U.S. 615 (1982). 30 The citation is 489 U.S. 749 (1989).

1024 The CQ Researcher 31 For coverage, see R. W. Apple Jr., “Gov- ernment Is Overzealous on Secrecy, Panel Advises,” The New York Times, March 5, 1997, FOR MORE INFORMATION p. A16; Eleanor Randolph, “Is U.S. Keeping American Civil Liberties Union, 125 Broad St., 18th floor; New York, NY Too Many Secrets?” Los Angeles Times, May 10004-2400; (212) 549-2500; 122 Maryland Ave., N.E., Washington, DC 20002; 17, 1997, p. A1. (202) 544-1681; www.aclu.org. Uses the Freedom of Information Act (FOIA) to 32 For a mixed review of the bill, see Fed- obtain documents on U.S. treatment of detainees overseas. eration of American Scientists, Government Bulletin, No. 68 (June 1997), www.fas.org/sgp/ Brechner Center for Freedom of Information, P.O. Box 118400, 3208 Weimer Hall, bulletin/sec68.html. University of Florida, Gainesville, FL 32611-8400; (352) 392-2273; http://brechner.org. 33 The decision is Walker v. Cheney, 230 Provides resources on media law topics and links to a variety of FOI organizations. F.Supp. 2d 51 (D.C. 2002). See Neely Tuck- Coalition of Journalists for Open Government, 1815 North Ft. Myer Drive, Suite er, “Suit Versus Cheney Is Dismissed,” The 900, Arlington, VA 22209; (703) 807-2100; www.cjog.org. Helps coordinate open- Washington Post, Dec. 10, 2002, p. A1. The government and FOIA activities by more than 30 member journalism organizations. GAO announced on Feb. 7, 2003, that it would not appeal the ruling. Federation of American Scientists, 1717 K St., N.W., Suite 209, Washington, DC 34 The decision is In re Cheney. 20036; (202) 546-3300; www.fas.org. Publishes Secrecy News, a newsletter detailing 35 The decision in the New Jersey case the release and withholding of information by the government and armed forces. is North Jersey Media Group v. Ashcroft, Heritage Foundation, 214 Massachusetts Ave., N.E., Washington, DC 20002-4999; 308 F.3d. 198 (CA3 2002). The Supreme (202) 546-4400; www.heritage.org. Conservative think tank that maintains the Center Court refused to hear the case on May for Media and Public Policy, which examines the public’s right to know. 27, 2003; the government declined to appeal the ruling in the Michigan case, say- Information Security Oversight Office, National Archives and Records Adminis- ing that the need for the closed hearings tration, 700 Pennsylvania Ave., N.W., Room 500, Washington, DC 20408; (202) had ended. 219-5250; www.archives.gov/isoo/. Publishes statistics on government secrecy. 36 The decision is Center for National Secu- National Security Archive, The George Washington University, Gelman Library, Suite rity Studies v. U.S. Dep’t of Justice, 331 F.3d 701, 2130 H St., N.W., Washington, DC 20037; (202) 994-7000; www.gwu.edu/~nsarchiv/. 918 (D.C. Cir. 2003). The Supreme Court re- Private reference center publishes declassified materials obtained through the FOIA. fused in January 2004 to hear the case. 37 For background, see Kenneth Jost, “Civil OpentheGovernment.org, 1742 Connecticut Ave., NW, Washington, DC 20009; Liberties Debates,” CQ Researcher, Oct. 24, (202) 234-8494; www.openthegovernment.org. Coalition of journalism, consumer 2003, pp. 871-894. and good-government organizations works to promote open-government policies. 38 The Michigan case is Muslim Community Association of Ann Arbor v. Ashcroft. The New Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100, Arlington, VA 22209; (703) 807-2100; www.rcfp.org. Supplies information on public York and Connecticut cases, with their appeals access houses the Freedom of Information Service Center. court docket numbers, are Doe v. Ashcroft, 04 Civ. 2614, and Doe v. Gonzales, 05 Civ. 1256. See Mark Hamblett, “2d Cir. Faults National 43 For the text of the order, see www.white- second-day story: Craig Whitlock, “U.S. Faces Security Letters,” National Law Journal, Nov. house.gov/news/releases/2003/03/20030325- Scrutiny Over Secret Prisons,” The Washington 7, 2005, p. 15. 11.html. For coverage, see Deb Reichman, Post, Nov. 3, 2005, p. A20. 39 See Gina Holland, “Ashcroft Urges Caution “Bush Delays Release of Classified Papers,” 49 Jonathan Weisman, “GOP Leaders Urge With FOIA Requests,” The Associated Press, The Associated Press, March 25, 2003. Probe in Prisons Leak,” The Washington Post, Oct. 16, 2001. 44 Quoted in Anne E. Kornblut, “Bush’s Stance Nov. 9, 2005, p. A1. For further developments, 40 U.S. General Accounting Office, “Freedom on Secrecy Draws a Number of Critics,” The see Weisman, “Senator Seeks to Defer Probe of Information Act: Agency Views on Boston Globe, Feb. 11, 2002, p. A3. of CIA Prison Leak,” The Washington Post, Changes Resulting from New Administration 45 Quoted in Nather, “A Rise in ‘State Se- Nov. 10, 2005, p. A4. Policy,” September 2003. crets,’ ” op. cit. 50 Anne Plummer, “Detainee Rights Remain 41 Presidential Records Act Executive Order, 46 For Bush’s statement and other early re- at Issue,” CQ Weekly, Nov. 21, 2005, p. 3116. Nov. 1, 2001, www.whitehouse.gov/news/reaction, see Thom Shanker and Jacques Stein- 51 Quoted in Anne Plummer, “Defense Ap- leases/2001/11/20011101-12.html. For cover- berg, “Bush Voices ‘Disgust’ at Abuse of Iraqi propriations: Negotiators Struggle With Detainee age, see Mike Allen and George Lardner Jr., Prisoners,” The New York Times, May 1, 2004, Abuse and Other Riders,” CQ Today, Nov. 3, “A Veto Over Presidential Papers,” The Wash- p. A1. 2005, p. 11. ington Post, Nov. 2, 2001, p. A1. 47 Documents in the suit are posted on the 52 Dana Milbank and Justin Blum, “Document 42 The suit is American Historical Associa- archive’s Web site: www.gwu.edu/~nsarchive. Says Oil Chiefs Met With Cheney Task Force,” tion v. National Archives and Record Ad- 48 Dana Priest, “CIA Holds Terror Suspects The Washington Post, Nov. 16, 2005, p. A1. ministration. For coverage, see Neil A. Lewis, in Secret Prisons,” The Washington Post, Nov. 53 For background, see Pamela Prah, “Disaster “Presidential Papers Suit Called Moot,” The 2, 2005. Reaction to the story is taken from Preparedness,” CQ Reseacher, Nov. 18, 2005, New York Times, April 1, 2004, p. A18. various news accounts, including the Post’s pp. 981-1004.

Available online: www.thecqresearcher.com Dec. 2, 2005 1025 Bibliography Selected Sources

Books Schmitt, Christopher H., and Edward T. Pound, “Keeping Secrets,” U.S. News & World Report, Dec. 22, 2003, p. 18. Melanson, Philip H., Secrecy Wars: National Security, The 5,000-word article traces the Bush administration’s pref- Privacy, and the Public’s Right to Know, Brassey’s, 2001. erence — from President Bush’s very first day in office — A professor of political science at the University of Massa- for “doing the public’s business out of the public eye.” chusetts in Dartmouth draws on his long experience using the Freedom of Information Act to advise researchers on how Shane, Scott, “Since 2001, Sharp Increase in the Number to request information using the act and strongly criticizes of Documents Classified by the Government,” The New agencies’ widespread delay and obstruction in responding to York Times, July 3, 2005, sec. 1, p. 14. FOIA requests. Includes chapter notes, appendix material. The story details the most recent statistics from the Informa- tion Security Oversight Office, showing a record 15.6 million Moynihan, Daniel Patrick, Secrecy: The American Ex- documents classified during the previous year — more than perience, Yale University Press, 1998. double the number in 2001. The late New York senator — who served for eight years on the Senate Select Committee on Intelligence — traces and cri- Thomas, Evan, “Cheney’s Cheney,” Newsweek, Nov. 7, 2005, tiques the growth of the “culture of secrecy” from the early 20th p. 36. century through and beyond the end of the Cold War. Includes The author provides a thorough summary of the CIA leak chapter notes and an introductory essay by Richard Gid Powers, investigation, focusing on I. Lewis “Scooter” Libby’s motivations professor of history at the College of Staten Island. behind the leak.

Theoharis, Athan G. (ed.), A Culture of Secrecy: The Gov- Reports and Studies ernment Versus the People’s Right to Know, University Press of Kansas, 1998. “Report of the Commission on Protecting and Reducing Various contributors detail the role of secrecy in such gov- Government Secrecy,” Commission on Protecting and ernment agencies as the CIA, FBI, National Security Agency Reducing Government Secrecy, 1997. and State Department. Includes chapter notes. Theoharis is Sen. Daniel P. Moynihan, D-NY, chairman of the 12-member a professor of history at Marquette University. commission, described secrecy as a “regulatory regime” com- parable to economic regulations but with “a far greater po- Articles tential for damage if it malfunctions.” He optimistically pre- dicted that “a cult of openness can, and ought to, evolve Carr, Rebecca, “Growing Government Secrecy in the within the federal government.” But legislation embodying Post-9/11 World,” Cox News Service, March 9, 2004. some of the commission’s recommendations never advanced. The story comprehensively documents the rise in government secrecy at the federal level following the terrorist at- “Secrecy Report Card 2005,” OpenTheGovernment.org, tacks of Sept. 11, 2001. A reporter in Cox’s Washington bu- September 2005 (www.openthegovernment.org). reau, Carr has written extensively on government information Government agencies are expanding secrecy in many areas, and secrecy policies. according to the watchdog group’s most recent annual com- pilation of statistics on classification, declassification, Free- Clymer, Adam, “Government Openness at Issue as Bush dom of Information Act expenditures and other signposts of Holds On to Records,” The New York Times, Jan. 3, 2003, information policy. p. A1. President Bush’s “penchant for secrecy” has been more ex- Richelson, Jeffrey, William Burr, and Thomas Blanton (eds.), tensive than widely understood, producing what many ex- Dubious Secrets: National Security Archive Electronic Brief- perts describe as “a sea change” in government openness. ing Book No. 90, posted May 21, 2003, updated May 3, 2004 (www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB90/index.htm). Nather, David, “A Rise in ‘State Secrets’,” CQ Weekly, July The report highlights what the Archive calls “highly ques- 18, 2005, p. 1958. tionable, sometimes silly, classification decisions by the nation- The comprehensive cover story concludes that the Bush al security bureaucracy.” An update lists among the “dubious administration’s “reluctance” to share information has become secrets” various details in a biography prepared by the Defense “the default position in the post-Sept. 11 world.” A sidebar Intelligence Agency about the former Chilean dictator Augusto describes pending proposals to revise the Freedom of In- Pinochet. formation Act.

1026 The CQ Researcher The Next Step: Additional Articles from Current Periodicals

CIA Leak Case Miller, Greg, “U.S. Lacks Reliable Data on Iran Arms,” Los Angeles Times, Nov. 27, 2004, p. A1. Manly, Lorne, and David Johnston, “Reporter Says He A lack of quality intelligence on Iran’s efforts to produce First Learned of C.I.A. Operative From Rove,” The New nuclear weapons is hindering U.S. efforts to convince other York Times, July 18, 2005, p. A1. nations to aggressively confront Iran. Time magazine reporter Matthew Cooper says Karl Rove, White House senior adviser, was the first person to tell him Pincus, Walter, and Peter Baker, “Data on Iraqi Arms that the wife of former Ambassador Joseph C. Wilson IV Flawed, Panel Says,” The Washington Post, April 1, 2005, worked at the CIA. p. A1. U.S. intelligence agencies were “dead wrong” in their assess- Schmitt, Richard B., “Who Talked? It Wasn’t the Special ment’s of Iraq’s weapons of mass destruction capabilities, said Prosecutor,” Los Angeles Times, Oct. 30, 2005, p. A1. a presidential commission investigating prewar intelligence cited Because Congress did not renew the independent counsel by the administration to justify the 2003 invasion of Iraq. law in 1999, the CIA leak case was investigated by a special prosecutor, providing less public access to his investigation than Whistleblowers would have been the case with an independent counsel. Burns, Robert, “Contract Officer’s Demotion Appears VandeHei, Jim, and Carol D. Leonnig, “Grand Jury In- Political, Dems Say,” The Houston Chronicle, Aug. 30, dicts Top Cheney Aid,” The Washington Post, Oct. 30, 2005, p. A5. 2005, p. A8. Congressional Democrats have asked Defense Secretary I. Lewis “Scooter” Libby, Vice President Cheney’s chief of staff, Donald H. Rumsfeld to investigate the removal of an Army resigned after being indicted in the CIA leak investigation on Corps of Engineers’ top procurement official who criticized charges of lying to federal investigators and obstructing justice. the awarding of a no-bid contract to Halliburton Co. — Vice President Dick Cheney’s former company — for work Freedom of Information Act (FOIA) in Iraq.

Associated Press, “Freedom of Information Restrictions Solomon, John, “Whistleblower Fights Ruling,” The Hous- Rising,” Los Angeles Times, March 20, 2005, p. A17. ton Chronicle, Dec. 25, 2004, p. A7. A review of Freedom of Information Act reports submit- An administrative judge of the U.S. Merit Systems Protec- ted to the Justice Department between 1998 and 2004 re- tion Board ruled that federal employees who are highly paid veals that government agencies have reduced the amount research and medical experts are not protected by the of information released to the public. Whistleblower Act, which protects federal workers who raise allegations of federal wrongdoing. Faler, Brian, “Openness Law May Get Muscle,” The Wash- ington Post, July 6, 2005, p. A15. Sens. Patrick J. Leahy, D-Vt., and John Cornyn, R-Tex., have CITING THE CQ RESEARCHER created legislative proposals to establish, for the first time, penal- Sample formats for citing these reports in a bibliography ties for agencies that ignore FOIA requests for information. include the ones listed below. Preferred styles and formats Lee, Christopher, “Secrecy Is Infectious: Bill Would vary, so please check with your instructor or professor. Shield Biomedical Research,” The Washington Post, Nov. 14, 2005, p. A19. MLA STYLE Proposed legislation to create an agency to research drugs Jost, Kenneth. “Rethinking the Death Penalty.” The CQ and vaccines to reduce the impact of a bioterror attack or Researcher 16 Nov. 2001: 945-68. pandemic would exempt that agency from the FOIA. APA STYLE Intelligence Jost, K. (2001, November 16). Rethinking the death penalty. Jehl, Douglas, “Bush’s Arms Intelligence Panel Works in The CQ Researcher, 11, 945-968. Secret,” The New York Times, Dec. 6, 2004, p. A15. CHICAGO STYLE President Bush’s intelligence commission, created to assess the state of U.S. intelligence on weapons proliferation, has Jost, Kenneth. “Rethinking the Death Penalty.” CQ Researcher, been deliberating behind closed doors and plans to contin- November 16, 2001, 945-968. ue in secret until it issues its final report.

Available online: www.thecqresearcher.com Dec. 2, 2005 1027 In-depth Reports on Issues in the News

Are you writing a paper? Need backup for a debate? Want to become an expert on an issue? For 80 years, students have turned to The CQ Researcher? for in-depth reporting on issues in the news. Reports on a full range of political and social issues are now available. Following is a selection of recent reports:

Civil Liberties Education Health/Safety Social Trends Right to Die, 5/05 Academic Freedom, 10/05 Disaster Preparedness, 11/05 Cosmetic Surgery, 4/05 Immigration Reform, 4/05 No Child Left Behind, 5/05 Birth-Control Debate, 6/05 Celebrity Culture, 3/05 Gays on Campus, 10/04 Gender and Learning, 5/05 Drug Safety, 3/05 Media Bias, 10/04 Marijuana Laws, 2/05 Crime/Law Energy/Transportation Prayer and Healing, 1/05 Terrorism/Defense Death Penalty Controversies, 9/05 SUV Debate, 5/03 Re-examining 9/11, 6/04 Methaphetamines, 7/05 International Affairs Identity Theft, 6/05 Environment Future of the European Union, 10/05 Youth Property Rights, 3/05 Saving the Oceans, 11/05 War in Iraq, 10/05 Bullying, 2/05 Marijuana Laws, 2/05 Endangered Species Act, 6/05 Global Jihad, 10/05 Teen Driving, 1/05 Supreme Court’s Future, 1/05 Alternative Energy, 2/05 Exporting Democracy, 4/05 Athletes and Drugs, 7/04 Upcoming Reports Federal Deficit, 12/9/05 Domestic Violence, 1/6/06 Global Warming, 1/27/06 Minimum Wage, 12/16/05 Avian Flu, 1/13/06 Minimum Wage, 2/3/06

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