Homefront Confidential
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September 2005 RCFP WHITE PAPER Homefront Confidential SIXTH EDITION How the War on Terrorism Affects Access to Information and the Public’s Right to Know Prepared by RCFP WHITE PAPER Homefront Confidential SIXTH EDITION How the War on Terrorism Affects Access to Information and the Public’s Right to Know Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know Sixth Edition September 2005 A project of The Reporters Committee for Freedom of the Press Editors: Lucy A. Dalglish Gregg P. Leslie Contributors: Rebecca Daugherty, Monica Dias, Ashley Gauthier, Kimberley Keyes, Jennifer LaFleur, Jeff Lemberg, Ryan Lozar, James McLaughlin, Mimi Moon, Kirsten Mitchell, Kirsten Murphy, Grant Penrod, Gil Shochat, Wendy Tannenbaum, Phillip Taylor, Sara Thacker Paula Canning, Kevin Capp, Kathleen Dunphy, Jane Elizabeth, Victor Gaberman, James Getz, Maria Gowen, Amanda Groover, Lolita Guevarra, Kristin Gunderson, Emily Harwood, Katrina Hull, Lois Lloyd, Jennifer Myers, Tejal Shah, Thomas Sullivan, April Thorn, Alba Lucero Villa, Corinna Zarek Major funding for previous editions of this report was provided by: The John S. and James L. Knight Foundation. Scripps Howard Foundation St. Petersburg Times Robert R. McCormick Tribune Foundation © 2005, 2004, 2003, 2002 The Reporters Committee for Freedom of the Press. All rights reserved. No part of this booklet may be reproduced in any form or by any means without the prior, written permission of the publisher. Additional copies of this report may be obtained from: The Reporters Committee for Freedom of the Press 1101 Wilson Blvd., Suite 1100 Arlington, VA 22209 (703) 807-2100 e-mail: [email protected] Homefront Confidential is also available on the Internet at: www.rcfp.org/homefrontconfidential Contents SEVERE Foreword 1 Key Threat levels and HIGH A chronology of events 2 color codes are based on those ELEVATED created by the GUARDED Department of Homeland Security LOW Threat Level Section HIGH High Risk Covering the war 16 To a Free Press HIGH High Risk Access to terrorism & immigration proceedings 29 To a Free Press GUARDED General Risk Domestic coverage 40 To a Free Press ELEVATED Significant Risk The USA PATRIOT Act and beyond 45 To a Free Press SEVERE Severe Risk The reporter’s privilege 51 To a Free Press SEVERE Severe Risk Freedom of Information 57 To a Free Press ELEVATED Significant Risk The rollback in state openness 71 To a Free Press Sources & citations 82 HOMEFRONT CONFIDENTIAL Foreword In the days immediately following September 11, the U.S. American citizens hopefully are less frightened than they were government embarked on a disturbing path of secrecy. The in September 2001, and some are more determined to maintain atmosphere of terror induced public officials to abandon this civil rights and liberties. Some citizens — but not enough — country’s culture of openness and opt for secrecy as a way of have started to object to the secret imprisonment of witnesses ensuring safety and security. and immigrants. They want details about just how much the At first, we hoped that the move toward secrecy would be USA PATRIOT Act affects their civil liberties. Americans are short lived. The actions would be viewed as temporary or questioning whether they were lied to when the Bush adminis- “emergency” measures. Unfortunately, that has not been the tration justified war with Iraq with claims about weapons of mass case. Led by secrecy-loving officials in the executive branch, destruction. And Congress has introduced legislation that would secrecy in the United States government is now the norm. create a federal “shield law” to allow reporters to protect the Over the past four years, the federal government has taken a identities of confidential sources in most situations. variety of actions designed to restrict information from reaching We live in a nation built on the concept of balance. When the the public, including: government, perhaps with the best of intentions, goes too far in • A directive to agency heads by former Attorney General its efforts to keep information from the public, it is up to the John Ashcroft that changes the interpretation of the federal public and the media to push back. Through a vibrant, informa- Freedom of Information Act to allow the agencies to deny access tion-based election process and through an independent judicia- more often to public records if a claim of invasion of privacy or ry, we as a society will come to a balance that hopefully will a claim of breach of national security can be alleged. protect our liberties for generations to come. • Secret imprisonment of more than 1,100 non-American Homefront Confidential includes a threat assessment to the citizens on alleged claims of immigration violations or as mate- public’s right to know based on the color-coded scheme used by rial witnesses. the Department of Homeland Security. Just as the government • Aggressive investigation of “leaks” of national security- assesses threats to the nation’s security, this report assesses how related information that has resulted in subpoenas of reporters government actions have affected the media’s ability to provide and citations of reporters for contempt of court in several federal information to the public. courts throughout the country. We believe the public’s right to know is severely threatened • Secret arrests and indictments of perhaps dozens of suspects in the areas of changes to freedom of information laws and access in the War on Terror. to terrorism and immigration proceedings. This report de- • New layers of security for government documents that scribes in detail why the public should be concerned about the make it virtually impossible to exercise oversight of government information it is not getting. operations. For daily updates on threats to the public’s right to know, log • New federal laws and regulations that override state open on to our weblog at www.rcfp.org/behindthehomefront, funded records laws. by the Robert R. McCormick Tribune Foundation. In our first Homefront Confidential White Paper in March The Reporters Committee owes special thanks to the John S. 2002, we argued that no one has demonstrated that an ignorant and James L. Knight Foundation for funding the first and third society is a safe society. Citizens are better able to protect editions of this project. Thanks also to our staff members who themselves and take action when they know the dangers they have contributed to this report since its first edition in 2001: face. That principle applies more than ever today. But in the four Gregg Leslie, Rebecca Daugherty, Kimberley Keyes, Kirsten B. years since September 11, an astonishing amount of information Mitchell, Grant Penrod, Ryan Lozar, James McLaughlin, Jeff has been taken away from the American people. Lemberg, Kirsten Murphy, Jennifer LaFleur, Sara Thacker, There has been modest progress in only one area. The Wendy Tannenbaum, Gil Shochat, Ashley Gauthier, Monica Pentagon created an elaborate “embedding” system to place Dias, Mimi Moon, Phillip Taylor, Amanda Groover, Thomas more than 700 journalists with U.S. military units during the Sullivan, Jennifer Myers, Tejal Shah, Alba Villa, Corinna Zarek, invasion of Iraq in 2003. Kristin Gunderson, Kevin Capp, Jane Elizabeth, Jim Getz, Kate Despite early optimism from legal experts, appellate courts Dunphy, April Thorn, Paula Canning, Katrina Hull, Emily have been very reluctant to weigh in on actions taken by federal Harwood, Lolita Guevarra, Victor Gaberman, Maria Gowen agencies. So far, the executive branch has had free reign in and Lois Lloyd. determining how much citizens will know about the War on Terror. Lucy A. Dalglish American citizens and lawmakers must speak up, or their Executive Director ideal of a free and open society will be a thing of the past. September 11, 2005 HOMEFRONT CONFIDENTIAL 1 A chronology of events SEPTEMBER 2001 The U.S. military buys exclusive rights to vate partnership involving corporate and non- satellite imagery of Afghanistan from Space governmental organizations. 11 - On the day of the attacks, reporters and Imaging, a Colorado-based company, even photographers take advantage of mostly open though the government’s own satellites reput- 17 - The Reporters Committee for Freedom access to document the destruction and the edly provide much greater resolution. In Feb- of the Press and others send a letter urging relief efforts. But some restrictions on news- ruary, the images again become available to Defense Secretary Donald Rumsfeld to acti- gathering follow as New York police officers the public. vate pool coverage, place reporters among begin restricting passage into the area that troops and pressure allies to grant visas to would be known as “Ground Zero,” and the Also, by this date, the Bureau of Transporta- American journalists covering the war in Af- Federal Aviation Administration tion Statistics has taken down ghanistan. shuts down the entire Ameri- from its Web site the National can airspace, leaving news air- Transportation Atlas Databases 18 - Federal Freedom of Information officers craft grounded for months. and the North American Trans- and specialists meet with co-directors of the portation Atlas, which environ- Justice Department’s Office of Information 14 - The FAA removes public mentalists had used to assess and Privacy to review the new Attorney Gen- information from its enforce- impact of transportation eral FOIA memo and to receive instructions on ment files, including informa- proposals. The Office of Pipe- using FOIA exemptions to withhold informa- tion on its Web site about line Safety has taken down the tion that agencies feel might disclose vulner- security violations. pipeline-mapping system. Over abilities to terrorists. the next few months, the 21 - Chief Immigration Judge Nuclear Regulatory Commis- Also, Defense Department employees are in- Michael Creppy issues a mem- sion, the Federal Energy Regu- structed to “exercise great caution in discuss- orandum ordering closure of all latory Commission, the U.S.