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Government SecrecyIs too much information kept from the public?

President 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

dramatically after the Sept. 11, 2001, terrorist attacks. The adminis-

tration 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.

Many of the secrecy disputes have spawned court fights, most of

them won by the administration. Courts also have generally ap-

peared uninterested in enforcing the federal Freedom of Informa-

tion Act, prompting some in Congress to try to strengthen the

1966 law. Without it, they argue, such scandals as the abuse of

detainees held by the United States at Baghdad’s Abu Ghraib

prison might never have come to light.

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THE ISSUES ....................1007

BACKGROUND ................1013

CHRONOLOGY ................1015

CURRENT SITUATION ........1019

AT ISSUE ........................1021

OUTLOOK ......................1023

BIBLIOGRAPHY ................1026

THE NEXT STEP ..............1027

THISREPORT

The remains of a soldier killed in Iraq arrive back inthe United States. After resisting, the Defense

Department finally released hundreds of photos of such ceremonies in April 2005 but

obscured the faces and insignias of honor guards.

CQResearcherPublished by CQ Press, a division of Congressional Quarterly Inc.

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The CQ Researcher • Dec. 2, 2005 • www.thecqresearcher.comVolume 15, Number 42 • Pages 1005-1028

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR

EXCELLENCE ◆ AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

1006 The CQ Researcher

THE ISSUES

1007 • Should the governmentclassify less information assecret?• Has the Bush adminis-tration misused govern-ment secrecy?• Should Congress make iteasier to obtain governmentrecords?

BACKGROUND

1013 Competing ImperativesAs officials sought moresecrecy, the public expect-ed more information.

1014 Shifting ViewsDespite open-governmentlaws, access to informationwas often incomplete.

1018 Increasing SecrecyAfter the 9/11 terrorist at-tacks, government rampedup secrecy.

CURRENT SITUATION

1019 Court BattlesOpen-government advocatesare challenging restrictiveinformation policies.

1022 Information LeaksSecrecy is hampering thedebate over U.S. treatmentof detainees, critics say.

OUTLOOK

1023 Culture of Openness?The administration showsno signs of retreating fromits restrictive policies.

SIDEBARS AND GRAPHICS

1008 More ‘Secret’ DocumentsAre Being CreatedThe federal government cre-ated 15.6 million secret docu-ments in 2004.

1009 FOIA Requests DoubledPublic requests for informationhit a new high in 2004.

1012 Using the Freedom of Information ActNine types of information areexempt from disclosure.

1015 ChronologyKey events since 1966.

1016 The Outing of CIA AgentValerie PlameCritics say the administrationuses leaks to punish politi-cal enemies.

1020 Whistleblowers Silencedby State Secrets DoctrineFederal employees firedafter criticizing the govern-ment can run afoul of thelittle-known doctrine.

1021 At IssueHas the Bush administrationmisused government secrecy?

FOR FURTHER RESEARCH

1025 For More InformationOrganizations to contact.

1026 BibliographySelected sources used.

1027 The Next StepAdditional articles.

1027 Citing The CQ ResearcherSample bibliography formats.

GOVERNMENT SECRECY

Cover: The remains of a soldier killed in Iraq arrive back in the United States. The DefenseDepartment’s 2003 decision to bar the press from photographing such ceremonies has beencriticized as an effort to limit public focus on U.S. casualties in Iraq. Facing a lawsuit, thePentagon finally released hundreds of photos of such ceremonies in April 2005 but obscuredthe faces and insignias of honor guards. (Department of Defense)

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Government Secrecy

THE ISSUEST he rumors surfaced in

2003: Prisoners werebeing held incom-

municado and shockinglyabused at U.S. prisons in Iraqand Guantánamo Bay, Cuba.

Government secrecy keptthe lid on the mistreatment atAbu Ghraib prison near Bagh-dad until April 2004, whenCBS News’ “60 Minutes II”broke the story — completewith dramatic photographs ofsnarling guard dogs, beatingsand sexual humiliation.

But insiders had long beenconcerned about the treatmentof detainees. Vice AdmiralLowell E. Jacoby, head of theDefense Intelligence Agency(DIA), for example, had com-plained that Department ofDefense (DoD) investigatorsin Iraq had tried to silenceDIA agents who questionedtheir interrogation techniques.And FBI e-mails showed thatFBI experts had strongly ob-jected to the harsh DoD techniques.

Pressured to investigate, the Army’sinspector general in July 2004 blamedthe Abu Ghraib abuses on individual ser-vicemembers rather than any systemwidefailure. Subsequent interviews, however,cast a more damning light on commandresponsibility for the abuses. “There wasno specific training on treatment of de-tainees,” a platoon leader told Army in-vestigators. And an enlistee said that with-out training, interrogators ended up usingtechniques that “they literally rememberedfrom movies.”

The interviews and other documents— reluctantly released by the Penta-gon to the American Civil LibertiesUnion (ACLU) — “establish beyondany doubt that the abuse of detaineesheld by the United States abroad was

systemic and widespread,” says ACLUlawyer Amrit Singh. “They call intoquestion the government’s failure tohold accountable the senior officialsresponsible for these abuses.”

Singh’s organization obtained the doc-uments only after a protracted legal bat-tle with the Pentagon that began in Oc-tober 2003, well before the Abu Ghraibscandal broke. 1 The ACLU lawyers hadasked for Defense Department recordspertaining to U.S. treatment of Iraqi de-tainees, invoking the federal Freedomof Information Act (FOIA).

The landmark 1966 law requires fed-eral agencies to make records availableto anyone upon request unless they fallwithin one of nine statutory exemptions.(See box, p. 1012.) Through the years,government documents released in re-

sponse to FOIA requests havebecome basic raw material forcountless news stories and in-terest-group reports.

As in the current ACLU case,FOIA-released materials oftenprovide ammunition for criticsof government policies and ac-tions. Perhaps partly because ofthe potential for such criticism,government agencies often dragtheir feet in responding to FOIArequests or take a broad viewof the act’s exemptions forwithholding documents.

Bureaucratic resistance to thelaw dates from its earliest days,but journalists and watchdoggroups say it has increased sincePresident Bush took office in2001. “This is not a good [time]for FOIA compliance,” saysDavid Burnham, a former NewYork Times reporter whoheads Syracuse University’sTransaction Records ActionClearinghouse (TRAC). The or-ganization uses the law tocompile and distribute detailedreports on federal law en-forcement. 2

In fact, open-government advocatessay the Bush administration has adopt-ed policies across the board that havemade the past five years distinctivelydifficult in getting access to govern-ment information. “They have beenmore secretive and more controllingof information than probably most ofthe recent past administrations,” saysPete Weitzel, a veteran journalist whonow coordinates the Coalition of Jour-nalists for Open Government. “All fed-eral administrations tend to be some-what closed and secretive, but this onehas been more so.”

The new administration displayed itspenchant for secrecy almost immediate-ly by putting a lid on information aboutan energy task force headed by VicePresident Dick Cheney. After the Sept.

BY KENNETH JOST

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An Iraqi detainee is hooded and handcuffed at AbuGhraib prison in Baghdad. In addition to scores ofphotographs of abuses aired by CBS, the Pentagon

reluctantly released interviews and other documentsabout interrogation abuses at the facility. The American

Civil Liberties Union obtained the records after invoking the federal Freedom of Information Act.


11, 2001, terrorist attacks, the adminis-tration imposed an array of restrictionson information about the government’sresponse. Attorney General John Ashcroftfollowed in October 2001 by advisingfederal agencies to make broader use ofthe FOIA’s exemptions to withhold ma-terials requested under the law.

Information-policy disputes continuedthrough Bush’s first term and now intohis second. The administration has citedhomeland security to justify various re-strictions on information that officialsclaimed terrorists could use to devisenew attacks. Most recently, Bush hascome under sharp attack from Democ-rats in Congress for allegedly misleadinglawmakers about intelligence in the run-up to the Iraq war and blocking a Sen-ate investigation of whether pre-war in-telligence was manipulated by theadministration. (See “At Issue,” p. 1021.)

Statistics released by the InformationSecurity Oversight Office (ISOO), an armof the National Archives and Records

Administration, reflect the increasedsecrecy under Bush. The most recentISOO annual report shows that the num-ber of documents classified as secret ortop secret reached an all-time high of15.6 million in 2004. Meanwhile, thenumber of pages declassified each yearhas been falling continuously under Bush,following an increase under PresidentBill Clinton. (See graphs, above.)

“The data say explicitly that it’s got-ten worse” under Bush, says ThomasBlanton, executive director of the Na-tional Security Archive, a private ref-erence center at The George Wash-ington University in Washington. “Therehas been massive secrecy and mas-sively unnecessary secrecy.”

But the administration denies accu-sations of excessive secrecy wheneverthey arise. “The administration is proudof its record of openness,” Frederick L.Jones II, a spokesman for the NationalSecurity Council, said after publicationof the ISOO statistics. 3

Bush himself defended the admin-istration’s information policies in re-marks to the American Society of News-paper Editors in April 2005. “I’ve alwaysbelieved in open government,” Bushtold the editors, meeting in Washing-ton. But he said there was also a “ten-sion” between disclosure and “jeopar-dizing the war on terror.”

“I wish I could report that, youknow, all is well,” Bush continued. “It’snot. It’s just not. It’s going to take awhile.”He added, “And so long as, you know,people can be endangered by leaks,we’ve just got to be real careful.” 4

Even as Bush was warning againstleaks, however, a special federal pros-ecutor was zeroing in on top WhiteHouse officials as possible sources forleaks in summer 2003, identifying thewife of a prominent critic of the ad-ministration’s Iraq policies as an under-cover Central Intelligence Agency (CIA)operative. The CIA leak investigationreached a critical stage in October 2005

GOVERNMENT SECRECY

More ‘Secret’ Documents Are Being Created

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

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).

Newly Classified Documents Number of Pages Declassified

0

50

100

150

200

250

’04’03’02’01’00’99’98’97’96’95’94’93’92’91’900

5

10

15

20

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

(millions) (millions)


with the indictment of I. Lewis “Scoot-er” Libby, Cheney’s chief of staff, onfive counts of lying when he denieddisclosing the name of Valerie PlameWilson, a CIA expert on weapons ofmass destruction. Karl Rove, deputyWhite House chief of staff and Bush’skey political adviser, was not indictedbut was said to have discussed Plame— though not by name — with at leastone reporter. (See story, p. 1016.) 5

As the debate over government se-crecy continues, here are some of themajor questions being considered:

Should the government classifyless information as secret?

Shortly after World War II, the FBIsucceeded in cracking the code oncables between the Soviet Union andsome 200 or so espionage agents in-side the United States. Amazingly, how-ever, information from the so-calledVenona transcripts never reached Pres-ident Harry S Truman. In fact, the CIAdid not declassify the information andrelease it to the public until 1996. 6

In examining the Sept. 11 terroristattacks, congressional committees andthe so-called 9/11 commission docu-mented analogous failures of informa-tion-sharing within and among execu-tive branch agencies before the attacks.CIA warnings about the al Qaeda ter-rorist group — dating from the mid-1990s on — received limited circula-tion and less attention. Meanwhile, theFBI either was not told or failed to fol-low up on information tracking two ofthe eventual hijackers from an alQaeda meeting in Indonesia into theUnited States. 7

The episodes more than 50 yearsapart demonstrate the all but univer-sally acknowledged truth that the gov-ernment classifies too much — way toomuch — information as secret. “It’s aproblem that has persisted regardless ofwhich party was in charge at the time,”says ISOO Director William Leonard.

Classification procedures derive fromexecutive orders issued by successive

presidents since Dwight D. Eisenhower.Traditionally, three levels of classificationare used for national security-related in-formation: classified (now rarely used),secret and top secret. A commission head-ed by the late Sen. Daniel P. Moynihan,a New York Democrat and longtime crit-ic of excessive secrecy, found in 1997that an executive order issued by Pres-ident Bill Clinton designated 20 federalofficials as authorized to classify materi-als as “top secret” but that the powereventually was expanded to more than1,300 “original classifiers.” 8

Without disputing the need to pro-tect some diplomatic and military se-crets, critics say overclassification in-evitably results from “the iron law ofbureaucracy,” as Blanton of the NationalSecurity Archive calls it. “Secrecy is thefundamental tool of a bureaucrat to pro-tect turf, to protect power,” he explains.

John Pike, director of the Alexandria,Va., think tank GlobalSecurity.org, saysbureaucrats also overclassify because“they’re more likely to get into troubleby underclasifying than by overclassify-ing.” In addition, he says, “It certainly

makes decision-making easier when noone knows what you’re doing.”

Despite bureaucrats’ inherent ten-dencies toward overclassification, manyexperts say the Bush administration hasraised secrecy to new levels. The pol-icy reflects the administration’s broadview of executive power along with apush to limit criticism or interference,these experts say critically. “It’s an at-tempt to return to the imperial presi-dency,” says Blanton.

Alane Kochems, a national securityexpert at the conservative Heritage Foun-dation in Washington, cites justificationsfor the increase in classified informationunder the Bush administration but stopsshort of a wholehearted defense. Thegovernment was justified in adopting newlevels of secrecy immediately after 9/11,she says, because “we didn’t know whatwas going on with the terrorists.”

Kochems also says secrecy is morecommon because cooperation betweenthe government and the news mediahas diminished. Still, Kochems saysthe issue of overclassification is “prob-ably a legitimate question to ask.”

FOIA Requests Have Doubled

Public requests for information under the Freedom of Information Act (FOIA) have more than doubled over the past six years, hitting a new high in 2004 (graph at left). Federal resources devoted to training personnel and processing FOIA requests, however, rose only 17 percent over the same time period (graph at right).

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

No. of FOIA Requests Total Cost of FOIA

0

1

2

3

4

5

2004200320022001200019990

50

100

150

200

250

300

350

200420032002200120001999

1.902.17 2.18

2.42

3.26

4.08 286253

287 300323 336

(millions) ($ millions)


Beyond the traditional three-level clas-sification system, the Bush administrationhas spawned an increasing array of adhoc secrecy designations for unclassifiedmaterials — categories like “sensitive butunclassified” or “critical infrastructure in-formation.” OpentheGovernment.org listssome 50 such designations in its 2005secrecy report card.

“Government control of unclassifiedinformation has grown by leaps andbounds,” says Steven Aftergood, directorof the Federation of American Scientists’Project on Government Secrecy. “It isturning into a bigger problem than over-classification.”

As in the case of 9/11, the risks ofexcessive secrecy include bad policy-making, according to Richard Gid Pow-ers, a professor of political science atthe College of Staten Island. “Overuti-lization of secret information is a hin-drance to what makes good policy, whichis free access to information,” he says.

Overclassification also makes it hard-er to protect “real secrets,” Powers says.“Before you can concentrate on keep-ing important things secret, you haveto identify what is really secret.”

Despite the broad agreement on theproblem, experts doubt their suggestionsfor reform will be adopted. Rick Blum,director of OpentheGovernment.org, sug-gests reducing the number of peopleauthorized to classify information as se-cret. “If you can stop it at the source,then all the costs of storing and build-ing these secure facilities, all of the bigsystem of secrecy that costs us billionsand billions of dollars can also be cutdown to size,” Blum says.

Athan Theoharis, a history professorat Marquette University in Wisconsin andauthor of several books on the FBI, sug-gests that Congress codify classificationprocedures and guidelines to regularizepolicy from one administration to an-other. But, he acknowledges, “Congresshas been quite hesitant.”

For his part, Leonard says the solu-tion lies with “strong and effective over-sight at the agency-head level. More than

anyone else, it’s an agency head whosets the tone and tenor for how this par-ticular agency approaches this subject.”

Pike bluntly dismisses all the sug-gestions. Is change likely? “Probablynot,” Pike replies without hesitation.“It’s probably hopeless.”

Has the Bush administrationmisused government secrecy?

Within his first weeks in office,President Bush created a special taskforce of government officials to de-velop a proposed national energy pol-icy. The task force, headed by VicePresident Cheney, conducted meetingsand deliberations behind closed doorsuntil unveiling its proposal in May 2001.

Both the General Accounting Office(now called the Government Account-ability Office) (GAO) and two outsideinterest groups went to court to obtainaccess to the task force’s records. Butthe legal fight — up to the SupremeCourt and back down — ended in May2005 with a ruling upholding the ad-ministration’s decision to keep the taskforce proceedings and records closedto public view. 9

The task force case was the first ofa seemingly continuous string of se-crecy disputes generated by this ad-ministration — typically with un-apologetic defense of the restrictionson release of information. “[They feel]they were given a mandate, thatthey’re carrying it out and that thereisn’t a need for people to be scruti-nizing how, what and why,” saysMeredith Fuchs, the National SecurityArchive’s general counsel. 10

Many of the disputes seem some-what unexceptional — for example, theadministration’s refusal to disclose theCIA’s 2004 National Intelligence Estimatefor Iraq, which was requested under theFOIA by the National Security Archive.The CIA’s National Intelligence Councilprepares the annual intelligence esti-mates, which are evaluations of worldhot spots based on input from all U.S.intelligence agencies.

But other, more innovative restric-tions were adopted in the immediateaftermath of 9/11. For instance, the ad-ministration refused to release the namesof hundreds of mostly Muslim foreign-ers rounded up shortly after the attacksand closed their deportation hearings.

As in the case of the immigrationcrackdown, experts and interest groupscalled many of the administration’s in-vocations of national security to justi-fy secrecy unnecessary, unhelpful orboth. The Department of Health andHuman Services, for example, warnedagainst publication of a study on howthe nation’s milk supply could be con-taminated by the botulism toxin, butthe National Academy of Sciencespublished it anyway in July 2005. Theprevious year, the Department of Home-land Security tried to require employ-ees to sign agreements barring themfrom sharing even unclassified infor-mation with the public but backeddown under pressure from unions rep-resenting department employees.

Other instances of secrecy have beenviewed even more critically as overt newsmanagement. Most notably, the admin-istration’s 2003 decision to bar mediacoverage of ceremonies for the return-ing remains of soldiers killed in the Iraqwar — ostensibly to protect family mem-bers’ privacy — has been widely criti-cized as an effort to limit public focuson U.S. casualties in the conflict. 11

The administration even drew criti-cism with its largely unanticipated deci-sion to allow and facilitate media cov-erage of the Iraq war by “embedding”journalists with individual military units.Pentagon officials said the policy — acontrast to the restrictions on coveragein the first Persian Gulf War in 1991 —was aimed at giving the public firsthandinformation about the war. Some jour-nalists applauded the policy, but otherssaw it as likely to lead to more positivestories by tying reporters more closelyto the servicemembers they were cov-ering. 12 “Initially, there was a lot of de-bate,” the Heritage Foundation’s Kochems

GOVERNMENT SECRECY


remarks. “That seems tohave quieted down.”

Overall, many secre-cy critics say the Bushadministration has beenparticularly aggressive inrestricting access to in-formation, far more thanprevious administrationsof either party. “Ab-solutely,” says PhilipMelanson, director ofthe policy studies pro-gram at the University ofMassachusetts in Dart-mouth. “The restrictiveattitude began even be-fore 9/11,” he says, not-ing that Cheney’s ener-gy task force was “adomestic-policy initiativethat had nothing to dowith national security.”

Other experts and ad-vocates, however, cau-tion against singling outthe Bush administrationfor criticism. “It would bewrong to see this in par-tisan tones,” says Blumof Openthegovern-ment.org. “The patternsof secrecy go far beyondany administration. Thejudicial branch plays a part in this bygiving increased deference to the exec-utive branch on secrecy. And Congresshas to step up to the plate, too.”

In fact, the administration has wonalmost all of the court battles over se-crecy, including the dispute over theCheney task force and the restrictionson the coverage of the post-9/11 im-migration crackdown. On Capitol Hill,some members of Congress have crit-icized the administration’s penchant forsecrecy — Democrats most vocally butalso some Republicans. But Aftergoodof the Federation of American Scien-tists says Congress has generally failedto challenge the administration direct-ly and forthrightly.

“If at least Congress changed, then wewould have somebody in the govern-ment fighting for greater disclosure andin a position to compel such disclosure,”Aftergood says. “Right now, we don’t.”

Should Congress make it easier toobtain government records underthe Freedom of Information Act?

Reporter Christian Lowe got a hot tipin August 2004: Some of the body armorissued to Marines fighting in Iraq hadcritical, life-threatening defects, and theMarine Corps knew of the flaws beforeaccepting the protective vests. But ittook eight months — and a formal Free-dom of Information Act request — be-fore the story finally appeared in Lowe’s

newspaper, the Marine CorpsTimes, in May 2005.

Lowe says he mighthave been able to write thestory without the FOIA, butthe documents — obtainednot from the Marines butfrom the Army — helpedlock it up. “It was undis-putable,” Lowe explains.“You had the evidence rightthere in print.” 13

A few days before thestory was to appear, the Ma-rine Corps recalled theshipment of some 5,200 pro-tective vests. Ironically, how-ever, Lowe says the Corpsalso responded to the storyby deciding that specifica-tions for body armor wouldbe exempted from the FOIAlaw in the future — on na-tional security grounds.

Lowe’s experience illus-trates both the benefits andthe pitfalls of the landmarklaw. Since it took effect in1967, countless reportersand others have used theFOIA to ferret out infor-mation ranging from histor-ical gossip to damning evi-dence of government waste,

fraud or abuse. But FOIA requestersroutinely find that use of the law is slowand cumbersome, compliance often in-complete and judicial review of agencydecisions unhelpful.

FOIA advocates say the difficultiesin using the law have increased underPresident Bush. They point to a con-troversial memorandum — issued byAttorney General Ashcroft a month afterthe 9/11 terror attacks — advising agen-cies to “carefully consider” possible ex-emptions before releasing documentsunder the act. The memo promised thatthe Justice Department would defendthe withholding of documents unlessthe agencies’ decisions had no “soundlegal basis.” 14

Anti-war activist Daniel Ellsberg, who leaked the Pentagon Papersto The New York Times during the Vietnam War, is arrested whileprotesting against a possible war with Iraq outside the U.S. Mission

to the United Nations in New York City on Dec. 10, 2002.

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Weitzel of the journalists’ coalitionnotes that Ashcroft’s successor, Alber-to Gonzales, has kept the memoran-dum on the books. “Every sign, everymemo that has come out in this area

is that they are trying to control in-formation more than any administra-tion since the start of the FOIA,”Weitzel says.

Ashcroft’s memorandum adds to

the inherent difficulties in gettingagencies to comply with the law, saysRebecca Daugherty, director of theFreedom of Information Service Cen-ter at the Reporters Committee for Free-dom of the Press. “We’ve never seenthe respect for FOIA as a law thatneeds to be enforced,” she says. Sym-pathy for the law has continued torecede in recent years, she adds, bothin the executive branch and in thecourts.

An additional difficulty, Daughertysays, is lack of resources. FOIA of-fices in individual agencies are typi-cally understaffed and underfundedwhile the volume of requests underthe law has been growing. “Withoutthose resources, it’s always easier notto give out information than to giveit out,” she says.

Congress has revisited the lawmany times since it was enacted. Inthe first major revision in 1974, law-makers made it easier to use. But sincethen, many of the changes have lim-ited the scope of the law. Congressdid give FOIA requesters one majorbenefit in 1996, however, by extend-ing the law to electronic records andrequiring electronic delivery of docu-ments when possible.

Now, companion bills to make FOIAsomewhat easier to use are pendingin the House and the Senate, bothsponsored by Republicans. “It’s a shamethat conservatives aren’t involved inthe fight for open government, be-cause to me it’s the most conservativeof principles,” says Sen. John Cornyn,R-Texas, who is cosponsoring the Sen-ate bill with Democrat Patrick J. Leahyof Vermont. 15

Cornyn advocated for open gov-ernment while serving as Texas attor-ney general before his election to theSenate in 2002. Rep. Lamar Smith, afellow Texas Republican and one-timenewspaper reporter, is sponsoring thecompanion House bill.

The legislation would enforce thecurrent, 20-day deadline for responding

GOVERNMENT SECRECY

Using the Freedom of Information Act

The Freedom of Information Act (FOIA), establishes a broad but qualified right of access to any “records” held by a federal agency. Similar laws are on the books in all the states.

Enacted in 1966, the FOIA allows anyone to request records without stating the reason. Agencies have a 20-day deadline for responding to a request, and requesters may sue in any federal court to challenge an agency’s decision to withhold materials. If successful, the requester can recover costs and attorneys’ fees.

The law exempts Congress, federal courts and the White House, as well as the military during wartime. In addition, the act identifies the following nine categories of materials that need not be made public:

Source: T. Barton Carter, Marc A. Franklin and Jay B. Wright, The First Amendment and the Fourth Estate: The Law of Mass Media (9th ed.), 2005.

• “Properly classified” in the interest of national defense or foreign policy.

• Related solely to the agency’s “internal personnel rules and practices.”

• Specifically exempted from disclosure by separate statute.

• “Trade secrets” or other confidential commercial or financial information.

• Inter- or intra-agency memorandums or letters not subject to discovery in court.

• Personnel, medical and similar files for which disclosure would constitute a “clearly unwarranted invasion of personal privacy.”

• Compiled for law enforcement purposes if disclosure could:a) Interfere with law enforcement proceedings;

b) Deprive a person of a fair trial or adjudication;

c) Constitute an unwarranted invasion of personal privacy;

d) Disclose the identity of a confidential source;

e) Disclose law enforcement techniques, procedures or guidelines;

f) Endanger the life or physical safety of an individual.

• Reports prepared by or for use by agencies regulating financial institutions.

• Geological and geophysical information and data concerning wells, including maps.


to FOIA requests byrequiring agencies toset up hotline track-ing systems and al-lowing courts tooverturn agencies’denials more easily ifdeadlines were notmet. The bills wouldalso make it some-what easier to winattorneys’ fees forgoing to court to en-force FOIA requestsand would specifi-cally entitle freelancejournalists to a waiv-er from an agency’sresearch and copy-ing costs.

Leahy also hasproposed a sepa-rate measure — notsupported by Cornyn— that would repealthe part of the 2002 homeland secu-rity bill that allows companies to re-port security vulnerabilities as “criti-cal infrastructure information” exemptfrom the law. Leahy calls that provi-sion “the single greatest rollback inFOIA history.”

Daugherty says the legislation“would definitely make some im-provements,” while Blum of Openthe-Government.org calls the measures“a good first step.” Bush himself toldthe newspaper editors in April thathe wanted to work with Cornyn onthe issue. Still, the prospects forpassing the legislation in the currentCongress are widely viewed as closeto nil.

“History teaches us that it oftentakes more than a couple of years toget amendments to the Freedom ofInformation Act passed,” says LucyDalglish, executive director of the Re-porters Committee for Freedom of thePress. “They are not viewed as beingas urgent as other things Congressconsiders.”

BACKGROUNDCompeting Imperatives

I ssues of government secrecy andopenness produced few major con-

flicts in early U.S. history. In the 20thcentury, however, the emergence of theUnited States as a major world powerhelped create a new impetus for gov-ernment secrecy just as the advent ofinstantaneous communication was cre-ating a desire for and expectation ofmore information from and about gov-ernment. The competing imperativeshave fueled disputes that have ragednearly continuously since the 1960s. 16

Two constitutional provisions requirea measure of government openness.Congress is required to publish a “reg-ular statement” of the government’s re-ceipts and expenditures (Art. I, sec. 8,cl. 7). In addition, each house of Con-gress must keep and “from time to

time” publish a journalof its proceedings (Art. I,sec. 5, cl. 3), except for“such parts as may in theirjudgment require secre-cy.” That provision hasbeen taken to imply thateither chamber maymeet and deliberate in se-cret session. 17

In fact, both the Con-tinental Congress and theConstitutional Conven-t ion met in secret .Though secret sessions arenow rare, both chambersof Congress made exten-sive use of secrecy intheir early years. TheHouse met frequently inexecutive session throughthe end of the War of1812 but only five timessince then. The Senateused secret sessions for

all nominations and treaties until 1929;since then, it has met in secret 54 times,usually on national security matters orduring impeachment proceedings. 18

As early as the mid-19th century, theUnited States was professing a commit-ment to openness as an instrument offoreign policy. In his book Secrecy: TheAmerican Experience, the late Sen. Moyni-han noted that the Department of Statebegan in the 1870s to compile corre-spondence and documents in the annualvolume Foreign Relations of the UnitedStates. At the end of World War I, Presi-dent Woodrow Wilson famously articu-lated this U.S. theme in the first of hisFourteen Points: “Open covenants ofpeace, openly arrived at.” 19

Yet, as Moynihan points out, by re-questing and signing into law the Es-pionage Act of 1917 Wilson himselfhelped create the 20th-century cultureof secrecy. The act, signed only threemonths after the U.S. entry into the war,made it a crime to obtain or to dis-close national defense information to aforeign government “with the intent or

Sgt. Charles Graner appears poised to punch an Iraqi detainee at Abu Ghraib prison as other prisoners lay bound and hooded. Photos

showing mistreatment at the facility were first aired by CBS News’ “60 Minutes II.” Graner was

sentenced to prison for his role in the abuses.

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reason to believe” that the informationwould be used to injure the UnitedStates. The act remains on the bookstoday with several amendments, thoughthe most controversial addition — thespeech-restrictive Sedition Act of 1918— was repealed in 1921.

Over time, a system for classifyingnational security information evolved,with periodic calls to tighten the rulesto prevent unauthorized disclosures.But there were also complaints aboutoverclassification, such as a 1956 reportby a five-member Defense Departmentcommittee. In consolidating the classi-fication system the next year, howev-er, Defense Secretary Charles E. Wilsondid nothing about the issue. In the sameyear, the congressionally establishedCommission on Government Securityproposed making it a crime for some-one outside or inside government todisclose classified information. The pro-posal died after journalists pointed outit was tantamount to press censorship.

Meanwhile, the growth of the mod-ern regulatory state led to proceduresand rules premised on a degree of open-ness. The Federal Register Act, passedby Congress in 1935, mandated dailypublication of presidential proclama-tions, executive orders and agency reg-ulations. A decade later, the Adminis-trative Procedure Act (APA) of 1946required that agencies allow the pub-lic to participate in the rule-makingprocess. Two decades after that, Con-gress passed the FOIA, establishing thepublic’s right to see agency records un-less they were exempted by the statute.Privately dubious, President Lyndon B.Johnson nonetheless signed the bill intolaw in 1966; it went into effect on July4, 1967.

The civil rights and anti-war move-ments of the 1960s and early ’70s trig-gered major conflicts with two of thegovernment’s most secretive agencies:the CIA and the FBI. Disclosures thatthe CIA had helped destabilize unfriendlygovernments and that both agencies hadinvestigated domestic political groups

led to major congressional probes inthe early 1970s. Lawmakers eventuallyrecommended that the executivebranch curtail some of the practices andthat Congress should strengthen its over-sight and public accountability. Despitethe reforms, both agencies continuedto resist journalists’ and watchdog groups’efforts to use FOIA to examine theiractions, both past and present. 20

A more focused confrontation pro-duced a significant victory for govern-ment openness when the Supreme Courtin 1971 rejected the Nixon administra-tion’s efforts to block publication of theso-called Pentagon Papers, the once-secret Defense Department study of theVietnam War. Daniel Ellsberg, a formerPentagon researcher turned anti-waractivist, leaked the report to The NewYork Times and later to The Washing-ton Post and other newspapers. Claim-ing a danger to national security, theJustice Department went to federal courtto try to stop publication of articlesabout the report. But in a 6-3 decisionthe high court said the government hadfailed to meet the “heavy burden” re-quired to justify press censorship. Yearslater, Erwin Griswold, the solicitor gen-eral who argued the case, comment-ed, “In hindsight, it is clear to me thatno harm was done by publication ofthe Pentagon Papers.” 21

Shifting Views

C ongress strengthened the statutoryframework for access to govern-

ment records in the 1970s and over thenext two decades periodically faulted theexecutive branch for access restrictionsand overclassification. Democratic presi-dents Jimmy Carter and Clinton professedsomewhat greater support for open gov-ernment than Republicans Ronald Rea-gan and George H. W. Bush. Overall,however, open-government advocatessaid access to information and recordsoften continued to be slow, expensiveand incomplete.

Almost from the start, the executivebranch displayed marked recalcitrancein complying with the Freedom of In-formation Act. “By and large, the agen-cies resisted the law,” the University ofMassachusetts’ Melanson writes. 22

By the early 1970s, discontent amonglawmakers and open-government ad-vocates had grown to the point thatCongress began work on a major over-haul of the act. The 1974 amendments,enacted by a wide margin over Presi-dent Gerald R. Ford’s veto, most sig-nificantly provided for judicial reviewof agency decisions to withhold re-quested records. It also narrowed theblanket law enforcement exemption toallow withholding documents only whendisclosure would result in specific harms— such as interference with ongoingenforcement proceedings or disclosureof a confidential informant. The over-haul also established a 10-day dead-line for agencies to respond to FOIArequests and limited copying costs thatcould be charged to requesters. 23

Also in 1974 Congress passed a lawto take custody of President Nixon’spresidential papers and tape record-ings after he resigned in the wake ofthe Watergate scandal. Lawmakers fol-lowed four years later with the broad-er Presidential Records Act, which es-tablished public ownership of all futurepresidential records beginning withthe 1981 presidential term. Passed bya Democratic-controlled Congress andsigned by Carter, the law providedthat most presidential records were tobecome public property at the end ofa president’s tenure. However, a for-mer president could restrict access tomaterials in some categories — in-cluding national defense, foreign pol-icy and presidential appointments —for up to 12 years. 24

During his two terms in the 1980s,Reagan was less friendly to open-accesspolicies. He issued a new order on clas-sified information in 1982 — ExecutiveOrder 12356 — which ended the

GOVERNMENT SECRECY

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Chronology1960s-1970sCongress allows public accessto government information.

1966President Lyndon B. Johnson signsFreedom of Information Act(FOIA); law takes effect in 1967.

1971Supreme Court refuses to blockpublication of Pentagon Papers.

1974Congress strengthens FOIA by set-ting deadlines for agencies to releaseinformation, providing for judicial re-view; also passes Privacy Act to giveindividuals right to see governmentinformation about themselves.

1978Congress passes PresidentialRecords Act, providing that presi-dential papers be released to pub-lic 12 years after end of adminis-trations; law takes effect in 1981.

•

1980s Reagan adminis-tration limits information access.

1982President Ronald Reagan ordersuse of highest secrecy level forclassifying information and eliminatesrequirement to declassify documentsafter 30 or 50 years.

1986Congress passes and Reagan signsFOIA revision, somewhat broaden-ing law enforcement exemption.

1989Supreme Court says agencies canwithhold records requested underFOIA if disclosure would notserve “central purpose” of law.

1990s Clinton adminis-tration loosens restrictions on ac-cess to government information.

1995President Bill Clinton orders a 25-year limit on secrecy classificationunless specific harm would result.

1996Congress passes Electronic Freedomof Information Act, requiring agen-cies to make requested recordselectronically available wheneverpossible.

1997Commission on Protecting and Re-ducing Government Secrecy, head-ed by Sen. Daniel P. Moynihan, D-N.Y., criticizes excessive secrecy,proposes various reforms; legislationfails to advance.

•

2000-PresentPresident George W. Bushgreatly expands use of secrecy;sticks to policies despite wide-spread criticism.

January-May 2001Energy task force headed by VicePresident Dick Cheney meets insecret until its proposal is unveiledin May.

September-October 2001After 9/11 terrorist attacks gov-ernment imposes tight secrecy onroundup of Muslim immigrantsand others. . . . Attorney GeneralJohn Ashcroft tells agencies touse FOIA exemptions to withholdrecords if legally permitted. . . .Congress passes and Bush signsUSA Patriot Act, which limits dis-closure of anti-terror investiga-tions.

November 2001Bush signs executive order onNov. 1 allowing White House orformer presidents to veto releaseof presidential papers; historians,archivists file suit to invalidate.

December 2002Federal judge rejects effort by GeneralAccounting Office to obtain energytask force records.

2003Supreme Court in May rejectsnews media challenge to closedpost-9/11 immigration hearings;federal appeals court in June re-fuses efforts to obtain names ofdetainees under FOIA. . . .American Civil Liberties Unionfiles FOIA suit in October seek-ing documents on treatment ofdetainees at Cuba’s GuantánamoBay Naval Base and Abu Ghraibprison in Iraq.

2004Federal judge in March dismisseshistorians’ challenge to Bush orderon presidential records. . . . Bushin April affirms support for opengovernment to newspaper editorsbut cites need to prevent leaks. . . .Supreme Court in June throws outappeals court ruling to allow inter-est groups to examine records ofenergy task force meetings with in-dustry executives. . . . New Yorkfederal judge criticizes Pentagon forslow response on ACLU suit; docu-ments released in December showFBI criticism of Defense Depart-ment’s interrogation techniques.

2005Federal judge in September rejectsNational Security Archive suit toobtain 2004 National IntelligenceEstimate on Iraq. . . . ACLU winsruling for release of more AbuGhraib pictures, but governmentto appeal.


30- to-50-year limit on classification thatCarter had established. Reagan’s orderalso directed officials to classify infor-mation at the highest secrecy level pos-sible; Carter had specified use of thelowest level available. 25 Separately, Rea-gan began pushing in his first year inoffice for restrictive changes in the FOIA.One modest change approved in 1984exempted some CIA files from the law.A broader measure stalled but gainedpassage two years later as a late-addedamendment to a major anti-drug bill.

The Freedom of Information Reform Actof 1986, among other changes, broad-ened the law-enforcement exemptionand made it more difficult for non-media requesters to obtain fee waiversfor research and copying charges. 26

During his eight years in the WhiteHouse in the 1990s Clinton rolled backsome of Reagan’s restrictions. Clinton’sExecutive Order 12958 in 1995 madeolder secrets more accessible by al-lowing declassification of documentsafter 25 years unless disclosure would“clearly and demonstrably damage na-

tional security,” assist in developmentof weapons of mass destruction or iden-tify confidential informants. The orderalso established the Interagency Secu-rity Classification Appeals Panel (ISCAP)to hear appeals of agencies’ refusal todeclassify requested documents. Overtime, the panel has overruled agencieswell over half the time. 27

Clinton also signed into law themilestone Electronic Freedom of In-formation Act Amendments of 1996,which required agencies to makerecords electronically available. The

GOVERNMENT SECRECY

Amidst new fears about bioterrorism and germ war-fare, Vice President Dick Cheney convened a meet-ing of top advisers in December 2002 to debate

whether to resume widespread vaccination of Americans againstsmallpox.

The impetus for the meeting came in part from recently re-ceived intelligence — described a few days earlier in a storyby New York Times reporter Judith Miller — that Iraq mighthave obtained “a particularly virulent form of smallpox” froma Russian lab. Miller attributed the information to “senior ad-ministration officials.”

Three years later, Newsweek magazine implied that Miller musthave been helped on the story by none other than I. Lewis“Scooter” Libby, Cheney’s chief of staff and a determined hawk— both on Iraq and on germ-warfare issues. 1

Libby’s role as a behind-the-scenes source for the high-pro-file Times reporter embarrassingly came to light in 2005 in thepolitically charged investigation of a different leak: the identityof an undercover CIA operative married to a critic of the Bushadministration’s Iraq policies. Miller spent 85 days in jail shield-ing Libby as a confidential source and later — with Libby’swaiver of confidentiality — gave federal grand jury testimonyused to indict him on five felony counts of lying, perjury andobstruction of justice. 2

Libby, who resigned immediately after the Oct. 28, 2005,indictment, was charged with lying to FBI agents and thegrand jury when he denied having divulged to Miller andTime magazine’s Matt Cooper the identity of Valerie PlameWilson, a CIA expert on weapons of mass destruction (WMD).Plame’s husband, former diplomat Joseph Wilson IV, had chal-lenged the administration’s prewar claim that Iraq had an on-going WMD program.

After Wilson went public, news stories quoted unnamed ad-ministration officials identifying Plame as an undercover agent,which can be illegal under a 1982 law prohibiting the disclosure

of undercover agents’ identities. Democratic lawmakers and oth-ers accused the administration of revealing Plame’s identity aspolitical retaliation. After Attorney General John Ashcroft recusedhimself, Deputy Attorney General James Comey named U.S. At-torney Patrick Fitzgerald of Chicago as special counsel to inves-tigate the leak.

Fitzgerald quickly subpoenaed prominent journalists to iden-tify the administration officials quoted as identifying Plame.For reasons still unexplained as of November 2005, Fitzger-ald did not subpoena syndicated columnist Robert Novak —the first to publish Plame’s identity in July 2003. A few dayslater Cooper named Plame in a short item on Time’s Website.

Some of the subpoenaed journalists agreed to testify undersome limitations, but Miller — who never wrote a story aboutPlame — and Cooper resisted testifying, claiming a First Amend-ment right to shield the identity of a confidential source. Theyappealed all the way to the Supreme Court. Cooper avoidedgoing to jail for contempt of court by agreeing on July 6 totestify after receiving a waiver of confidentiality from his source— who turned out to be Karl Rove, deputy White House chiefof staff and Bush’s closest political adviser.

Saying she had no similar waiver, Miller stood by her re-fusal to testify and was ordered jailed. She was released onSept. 29 after obtaining a full and voluntary waiver of confi-dentiality from her source, whom she later identified as Libby.

With the immediate mystery solved, reporters, commenta-tors and media-watchers worked overtime for the next fewweeks analyzing the roles Libby and Rove played throughoutthe Bush administration as anonymous sources for news sto-ries. Rove was well known as an adviser and occasional ad-ministration spokesman, and his role as a secret source wasoften obvious. Only after Libby’s indictment, however, didnews stories clarify that the low-profile Libby had also metfrequently with reporters. 3

The Outing of Valerie Plame . . .

Continued from p. 1014


law also increased from 10 days to 20the number of days within which anagency must respond to FOI requests— a change aimed at improving agen-cies’ response time by easing a dead-line that had proved unworkable. 28

Meanwhile, the Supreme Court provedless than generous in interpreting theFOIA. In various decisions in the 1980s,the court had blocked use of the act toobtain policy-related records held by out-side contractors, materials turned over tothe Library of Congress by outgoing Sec-retary of State Henry A. Kissinger and

files on individuals named in Nixon’s in-famous “enemies list.” 29 In one of themost important rulings, the court in 1989ruled that “rap sheets” held by the FBIwere exempt under the act’s privacy pro-vision even though the information onan individual’s arrests and convictions wastypically public record at the local orstate level. The ruling in U.S. Departmentof Justice v. Reporters Committee for Free-dom of the Press said rap sheets couldbe withheld because their disclosure wouldnot further the act’s “central purpose ofexposing to public scrutiny official in-

formation that sheds light on an agency’sperformance of its statutory duties.” Inlater decisions, the court invoked thesame “central purpose” test to further cir-cumscribe the law. 30

In the 1990s Congress re-entered thedebate over government secrecy bycreating a joint executive-congression-al commission to study the issue. Sen.Moynihan, who had pushed for its cre-ation, headed the 12-member Com-mission on Protecting and ReducingGovernment Secrecy. The Moynihancommission’s report, issued in 1997,

The indictment chargesthat Libby went to somelengths within governmentchannels in May and June2003 to find out aboutPlame. He allegedly thendiscussed Plame in threeconversations with Millerin June and July and withCooper on July 12 — allbefore the Novak columnappeared on July 14.

Libby, who pleadednot guilty at an arraign-ment on Nov. 3, alleged-ly told investigators andthe grand jury that hehad picked up informa-tion about Plame from other journalists — including TimRussert, NBC’s Washington bureau chief — and passed italong to others as Washington-insider gossip. After the in-dictment, Russert said he had denied Libby’s version of theirconversation to the grand jury.

One of Libby’s lawyers, Joseph A. Tate, suggested that Libbymay rely on a faulty-memory defense in the case. “Mr. Libbytestified to the best of his recollection on all occasions,” Tatesaid on the day of the indictment. 4

Rove was not indicted but remains under investigation.White House Press Secretary Scott McClelland had declaredearlier that Rove had not divulged Plame’s identity. Fitzger-ald subsequently empaneled a new grand jury for the caseon Nov. 18, after the belated disclosure that another ad-ministration official had disclosed Plame’s identity even ear-lier to Washington Post investigative reporter and author BobWoodward. 5

Whatever the final outcomeof the so-called Plamegate scan-dal, a longtime open-govern-ment advocate says the casedemonstrates the administra-tion’s inconsistent attitude to-ward secrecy.

“Most leak investigations aredemanded by the White House,”says Athan Theoharis, a pro-fessor of history at MarquetteUniversity in Wisconsin. “In thiscase, it’s the White House thatis leaking. For an administra-tion that is so committed to se-crecy, [it appears] secrecy issomething that is fungible, andin some cases it’s political.”

1 Evan Thomas, “Cheney’s Cheney,” Newsweek, Nov. 7, 2005. Thomasdescribed the timing of Miller’s story shortly before the Cheney meetingas “probably no coincidence.” Miller’s story — headlined “C.I.A. HuntsIraq Tie to Soviet Smallpox” — appeared on p. A18 of the Times’ printedition, Dec. 3, 2002.2 In addition to the Newsweek article, another comprehensive story that fo-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-line of the case appears with the story.3 See, for example, Glenn Kessler, “With Vice President, He Shaped IraqPolicy,” The Washington Post, Oct. 29, 2005, p. A1.4 Quoted in Jim VandeHei, “Libby May Rely on Faulty-Memory Defense,”The Washington Post, Oct. 30, 2005, p. A14.5 See Carol D. Leonnig and Jim VandeHei, “Another Grand Jury for LeakCase,” The Washington Post, Nov. 19, 2005, p. A1; Jim VandeHeil and CarolD. Leonnig, “Woodward Was Told of Plame More Than Two Years Ago,”The Washington Post, Nov. 16, 2005, p. A1. Woodward’s source came for-ward to Fitzgerald and then released Woodward from a pledge of confi-dentiality to permit the reporter to testify before the grand jury but not tobe publicly identified.

. . . Leaking Secrets to Punish Political Foes?

I. Lewis “Scooter” Libby Karl Rove

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included predictablecriticism of excessivesecrecy along withrecommendations fora law to govern clas-sification proceduresand creation of a na-tional declassificationcenter. 31 Open-gov-ernment advocatescalled the recom-mendations useful butmodest. In any event,only two senators at-tended a committeehearing on the reportin May 1997, and abill embodying therecommendationswent nowhere. 32

Increasing Secrecy

F rom the earliest days of his firstterm in 2001, President Bush set a

tone of secrecy and allowed Justice De-partment and other officials to imposeramped-up secrecy after the 9/11 ter-rorist attacks later that year. Four yearslater, the administration’s policies con-tinue to reflect what open-governmentadvocates and a range of outside ob-servers describe as unprecedented lev-els of secrecy. Administration officialsgenerally dispute the accusations and— with several legal victories undertheir belt — show no signs of changedattitudes at the White House or else-where in the executive branch.

The administration won two legalbattles defending the secrecy of theCheney energy task force against thebackdrop of accusations of undue in-fluence by energy industry representa-tives in shaping its recommendations.Administration officials said confiden-tiality was both legal and necessary toensure candid advice for the presidentand noted the similar secrecy adoptedby a health care task force headed bythen-first lady Hillary Rodham Clinton.

In the first fight, a federal judge inWashington in December 2002 reject-ed on separation-of-powers grounds abid by the GAO to obtain access totask force records. 33

In the second fight, the Sierra Club,the liberal environmental organization,and Judicial Watch, a conservativewatchdog group, argued for access toinformation under the Federal Advi-sory Committee Act, which requiresopen meetings by government poli-cymaking committees with outsidemembers. The federal appeals courtin Washington initially allowed thegroups’ limited discovery to try to showthat industry representatives served asde facto members of the task force.But the Supreme Court in June 2004ordered the appeals court to recon-sider the decision. And in May 2005the appeals court dismissed the groups’suit. “The president must be free toseek confidential information frommany sources, both inside the gov-ernment and outside,” Judge A. Ray-mond Randolph wrote for the unan-imous three-judge panel. 34

The administration proved similarlysuccessful in defending its restrictions oninformation about immigration crack-

downs and other en-forcement actions initiatedafter the Sept. 11 terroristattacks. The governmentdetained hundreds of most-ly Muslim foreigners forsuspected immigration vi-olations in the weeks afterthe attacks, refused to iden-tify them and won an orderfrom the chief immigra-tion judge closing their de-portation hearings.

News organizationschallenged the secret im-migration proceedings inseparate cases — suc-cessfully in Michigan andunsuccessfully in New Jer-sey. But the SupremeCourt’s refusal in May 2003

to hear the media’s appeal in the NewJersey case effectively ended the battlewith the secrecy policy upheld. 35

Meanwhile, the federal appeals courtin Washington in June 2003 similarlyrejected an effort by the Center for Na-tional Security Studies to use the FOIAto obtain a list of the names of the de-tainees. The court agreed with the ad-ministration’s argument that releasingthe names could give terrorists “a vir-tual road map” to the government’s in-vestigation. 36

The administration also included se-crecy provisions in its major post-9/11legislative proposal — the USA PatriotAct — approved by Congress in Octo-ber 2001 barely a month after the ter-rorist attacks. Among other things, theact gave the FBI authority to obtain sub-poenas for personal records from thesecret Foreign Intelligence SurveillanceAct court in any terrorism-related in-vestigation; the section also prohibited“any person” from disclosing any in-formation about the FBI’s use of thesubpoenas, known as “national securi-ty letters.” 37

The ACLU challenged that provisionand others in a still pending suit filedin federal court in Michigan in July 2003.

GOVERNMENT SECRECY

Journalists who will be “embedded” in Marine units receive a briefingfrom Col. Ronald Bailey after arriving in Kuwait City in March 2003.

More than 600 journalists were attached to military units to cover the expected possible war with Iraq.

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In addition, the ACLU won lower-court rulings that struck down the na-tional security letter provision in a NewYork case and lifted the ban on disclo-sure of the receipt of a national securi-ty letter in a Connecticut case. The gov-ernment’s appeal of those decisions wasargued before the Second U.S. CircuitCourt of Appeals on Nov. 2, 2005. 38

With the post-9/11 policies domi-nating the news, Attorney GeneralAshcroft’s 2001 memorandum advis-ing agencies to be more cautious ingranting FOIA requests received lit-tle attention and remains on the books,despite subsequent criticisms fromopen-government advocates. 39 A Sep-tember 2003 GAO study of federalFOIA compliance officers cast somedoubt on the impact of the directive.Nearly half of those responding —48 percent — said Ashcroft’s policyhad had no effect on their agencies’likelihood of making discretionary dis-closures under the act. But 31 per-cent said they had become less like-ly to make discretionary disclosures,and the vast majority of those —three out of four — cited Ashcroft’sdirective as a major reason. 40

Bush received more attention andmore criticism with his unanticipat-ed decision on Nov. 1, 2001, toallow either the White House or for-mer presidents to block release oftheir presidential papers. 41 Bush is-sued the new executive order short-ly before former President Reagan’spapers were to become subject tothe Presidential Records Act — 12years after he left office. Then-WhiteHouse counselor Gonzales said theorder — rescinding one Reagan hadissued — would allow “an orderlyprocess” to implement the act. For-mer President Clinton called the neworder unnecessary, however, and theNational Security Archive and theAmerican Historical Association filedsuit in federal court in Washington totry to invalidate it. In late March 2004,however, U.S. District Judge Colleen

Kollar-Kotelly dismissed the suit asmoot, saying Reagan’s records hadalready been released. 42

The access-restrictive policies adopt-ed in Bush’s first year set the tone forsimilar disputes through the rest ofBush’s first term and into his second.In one of the most significant moves,Bush in March 2003 issued a reviseddirective on classification procedures— Executive Order 13292 — that ex-tended until 2006 the scheduled de-classification of documents under Clin-ton’s order. Bush’s order also eliminatedClinton’s stipulation to classify docu-ments at the lowest appropriate leveland mandated secrecy for all infor-mation furnished in confidence by for-eign governments. 43

Throughout, White House spokesper-sons disputed accusations of excessivesecrecy. “We have been forthcoming atevery turn, and we have always val-ued the right and the need of the pub-lic to have information about their gov-ernment,” White House spokeswomanAnne Womack told The Boston Globein February 2002. 44

Three years later, White HouseDeputy Press Secretary Dana Perinosimilarly defended the administration’spolicies. “We have done our best with-in the confines of the law to strike theright balance between transparency ofgovernment activity and the protectionof information when disclosure wouldbe harmful,” Perino said. 45

CURRENTSITUATION

Court Battles

O pen-government advocates arecontesting restrictive Bush ad-

ministration information policies in

court on several fronts, but with onlylimited success. The ACLU is using theFreedom of Information Act to obtainthousands of pages of documents onU.S. treatment of detainees overseas.The National Security Archive, how-ever, hit a brick wall in trying to getan edited version of the 2004 NationalIntelligence Estimate on Iraq. But thearchive hopes in a separate case thata federal judge in Washington will re-consider her decision upholding Bush’sexecutive order limiting release of pa-pers of former presidents.

The ACLU suit has generated a con-tinuous stream of interim reports andaccompanying news stories since Oc-tober 2004 — one year after the group’sfirst FOIA request and four months afterthe court action was filed.* In an ini-tial ruling in September 2004, U.S. Dis-trict Judge Alvin Hellerstein said thePentagon had been “inattentive for manymonths” to the ACLU’s requests.

Among the most important of theearly disclosures, documents released inDecember 2004 showed that a specialtask force in Iraq tried to silence De-fense Intelligence Agency personnelwho observed abusive interrogations. Thedocuments also showed that the FBI hadobjected unsuccessfully to some of thequestionable techniques used by mili-tary interrogators on detainees held atthe Guantánamo Bay Naval Base in Cuba.More recently, the ACLU in October2005 issued an analysis of detainee au-topsy reports showing that at least eightcaptives had died as a result of abusiveinterrogation techniques.

The ACLU suit came before thedamning photographs of mistreatmentof Iraqi captives at the Abu Ghraibprison were obtained and broadcast by“60 Minutes II” on April 28, 2004. Theairing of the photographs — taken by

* Co-plaintiffs in the case are the Center forConstitutional Rights, Physicians for Human Rights,Veterans for Common Sense and Veterans forPeace. The New York Civil Liberties Union isco-counsel in the case.


GOVERNMENT SECRECY

servicemembers and showing Iraqi de-tainees in various degrading or sexu-ally humiliating positions — touchedoff worldwide criticism. President Bushvoiced “disgust” at the practices de-picted, while members of Congress de-manded a thorough investigation. 46

Despite the publication of the pho-tographs, the Pentagon has strongly re-sisted the ACLU’s FOIA requests to re-lease all still or video images in itspossession depicting treatment of AbuGhraib detainees. In arguments beforeHellerstein, government lawyers claimed

the photographs could be withheldunder the FOIA’s privacy exemption.But Hellerstein said the photos couldbe “redacted” as the ACLU lawyers hadsuggested so detainees could not beindividually identified.

Continued on p. 1022

I n six months as a contract translator for the FBI, Sibel Edmondscame across what she thought were serious breaches ofsecurity procedures related to counterintelligence cases. But

when she reported her suspicions through proper FBI chan-nels, she was fired.

She then filed a wrongful-termination lawsuit, but the govern-ment got the case thrown out of court by invoking a weapon thatcan be especially powerful when used against whistleblowers: thestate secret privilege.

Edmonds is one of several whistleblowers who have recentlyborne the brunt of tough actions by the Bush administration tosilence or sideline internal critics. For instance, Frank Terreri, headof the air marshals unit of the Federal Law Enforcement OfficersAssociation, was suspended in 2004 for criticizing the head of theFederal Air Marshal Service. Terreri has filed suit in federal courtin Los Angeles contesting Department of Homeland Security ruleslimiting air marshals’ rights to criticize agency procedures. 1

In Edmonds’ case, the government’s use of the little knownstate secret privilege could deny her any opportunity to con-test her firing, which the Justice Department’s own inspectorgeneral says resulted primarily from Edmonds’ unsuccessful ef-forts to pursue allegations of security breaches.

The state secret privilege is a little known legal weapon thegovernment can raise largely on its own say-so to prevent po-tentially harmful disclosures in courts. The government says theprivilege is rarely invoked, but critics count at least 50 instancessince the first clear judicial recognition of the privilege in 1953. 2

In that case, the government invoked the state secret privilege toblock a suit by widows of airmen killed in the crash of a mili-tary aircraft, claiming the suit would reveal information about se-cret military equipment. More than 50 years later, however, it wasrevealed in 2004 that the accident reports included no military se-crets but attributed the accident to faulty maintenance.

Edmonds, a Turkish-born naturalized U.S. citizen, said shewas moved by love of her adopted country after the Sept. 11,2001, terrorist attacks on the United States to put her multilin-gual knowledge to use as a contract translator for the FBI. 3

Her work, according to a detailed account of the case in Van-ity Fair magazine, entailed translating portions of wiretappedconversations involving Turkish officials who she says were tar-gets of counterintelligence investigations.

Edmonds told Vanity Fair Contributing Editor David Rose thather troubles began soon after she started working for the FBI,when she received a surprise visit from a fellow translator and

the colleague’s husband, an Air Force major and a former U.S.military attaché in the Turkish capital of Ankara. According to Ed-monds, the visit appeared aimed at getting her to join Turkish-American lobbying groups and to befriend Turkish officials whowere subjects of FBI scrutiny.

Edmonds suspected that the colleague might have improperlydivulged information about the investigations. (The colleague de-nies any wrongdoing.) Edmonds reported her suspicions throughchannels but was fired for her trouble in March 2002. Three yearslater, the Justice Department inspector general’s office concludedthat the FBI had inadequately investigated Edmonds’ allegations,but that the allegations were “the most significant factor in theFBI’s decision to terminate her services.”

By then, Edmonds had gone to court, claiming the FBI hadviolated her rights by firing her in retaliation for her accusations.Instead of answering the suit, Attorney General John Ashcroftinvoked the state secret privilege to seek dismissal of the case.In a mostly classified declaration, the government argued thatEdmonds’ suit would necessarily reveal state secrets whose dis-closure would be harmful to U.S. national interests and that thesecrets could not be disentangled so as to allow the case toproceed with some testimony classified.

U.S. District Judge Reggie Walton agreed with the government’sarguments and dismissed the suit in July 2004. Following a hear-ing closed to the public and news media, the U.S. Court of Ap-peals for the District of Columbia Circuit upheld Walton’s ruling onMay 6, 2005. American Civil Liberties Union (ACLU) lawyers rep-resenting Edmonds asked the Supreme Court to review the deci-sion, but the justices declined on Nov. 28 to hear the case.

Ann Beeson, associate legal director of the national ACLU,says Edmonds’ case is one of many instances of retaliatory ac-tion against whistleblowers who claim to have found embar-rassing flaws in national or homeland security policies.

“From firing whistleblowers to using special privileges tocover up mistakes, the government is taking extreme steps toshield itself from political embarrassment while gambling withour safety,” she says.

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,”CQ Researcher, Dec. 5, 1997, pp. 1057-1080.2 William Fisher, “Govt Puts ‘Security’ Defense to Frequent Use,” Inter-PressService, Aug. 15, 2005.3 Background drawn in part from David Rose, “An Inconvenient Patriot?”Vanity Fair, September 2005, p. 264. See also Rebecca Carr, “FBI WhistleblowerAppeals to Supreme Court,” Cox News Service, Aug. 5, 2005.

Whistleblowers Silenced by State Secrets Doctrine

no


At Issue:Has the Bush administration misused government secrecy?Yes

yesRICK BLUMDIRECTOR, OPENTHEGOVERNMENT.ORG

WRITTEN FOR THE CQ RESEARCHER, NOVEMBER, 2005

t his administration has emboldened officials throughout thegovernment to expand secrecy, undermining both thepublic’s trust and its ability to hold our government ac-

countable for decisions made in the name of all Americans.The recent expansion of secrecy is well documented, al-

though abusing secrecy by those in power is nothing new.The Clinton administration, for example, claimed executiveprivilege in an attempt to hide scandal and unsuccessfullytried to craft a health-care plan in secret.

But actions by top Bush administration officials have encour-aged federal agencies to expand secrecy. Even before cominginto office, the administration met behind closed doors with in-dustry leaders to craft an energy policy and has been fightingpublic scrutiny of those meetings ever since. Attorney GeneralJohn Ashcroft instructed federal agencies in 2001 to withhold in-formation when in doubt, reversing the previous administration’sdirective to release information whenever possible.

In other matters, the administration has used the cover of se-crecy to avoid controversy and maintain public support for U.S.actions. It fought the release of photographs documenting shock-ing prisoner abuses at Baghdad’s Abu Ghraib prison as well asthe return of flag-draped coffins of U.S. soldiers killed inAfghanistan and Iraq. And the administration is more concernedthat information about the existence of controversial, secret U.S.prison camps in Eastern Europe was leaked to The WashingtonPost than it is about reports actually documenting abusive U.S.treatment of detainees or the government’s refusal to abide byinternational agreements on torture. More recently, U.S. officialsproposed halving industry disclosures on releases of toxicchemicals.

But focusing attention on the executive branch lets otherbranches of government off the hook too easily. The courtshave been exceedingly deferential to executive-branch claimsthat protecting national security requires court cases to bekept secret. A court in Florida even ordered the case of aman detained in a terrorism-related investigation to be keptcompletely off the public docket.

And Congress manipulates openness to avoid scrutiny. Inthis age of the Internet, only well-connected lobbyists canread the text of bills as congressional committees vote onthem. And the public is allowed to inspect reports on giftsfrom lobbyists to senators and their staffs only by visitingcomputer terminals in Senate offices.

To reverse this trend, we need to strengthen policies that givethe public more democracy and less secrecy in government.No

MARK TAPSCOTTDIRECTOR, HERITAGE FOUNDATION’S CENTERFOR MEDIA AND PUBLIC POLICY

WRITTEN FOR THE CQ RESEARCHER, NOVEMBER, 2005

i t never ceases to amaze me when critics lambaste Presi-dent Bush for being too zealous about keeping informa-tion out of the hands of terrorists like Osama bin Laden

— information that might be useful to those wanting to killAmericans.

The critics complain: “There is too much secrecy in govern-ment. Bush is classifying too much. The public’s right toknow is being violated every day. The White House is en-couraging a culture of secrecy in government. Civil libertiesare no longer safe in America.” Etc., etc., etc.

There is truth to these criticisms, though less than extremecritics claim. But I must respectfully ask the critics: You ex-pected something different from Big Government?

Bush’s critics forget that with Big Government alwayscomes Big Secrecy. Sooner or later, those who seek less se-crecy, less over-cautious classification and fewer intrusions oncivil liberties must decide if those goals are more importantthan maintaining the sprawling, intrusive, ever-growing mon-strosity we know as the federal government.

Liberty and Big Government cannot both exist for longamong a people who mean to remain free. One or the otherwill ultimately be the dominant fact of our political life.

Critics also forget that America is at war. It is a cliché tosay 9/11 “changed everything,” but it’s true. Our enemies aredetermined to kill millions of us and impose upon the sur-vivors an Islamo-fascist dictatorship that would surely extin-guish individual liberty for centuries.

Considering the porosity of our borders, the impossibility ofprotecting all potential targets against every possible attackand the insane willingness of legions of our enemies to blowthemselves up to slay many of us, it is amazing Bush has notsought far more restrictive access to public buildings andevents.

There is also considerable pressure within the law enforce-ment and intelligence communities for measures like a nation-al identity card or a domestic passport. Thankfully, Bush hasresisted such pressure. Similarly, there is support for an Ameri-can Official Secrets Act to make it easier for government tokeep a tighter lid on what can and cannot be published.Given Bush’s evident antipathy for the media, how long be-fore he proposes such a measure?

What is certain is that Bush’s successor will someday de-mand like measures and more. And Big Government will beall too ready to oblige.


GOVERNMENT SECRECY

After the hearing, the governmentadded another argument: that release ofthe photographs could incite violenceagainst U.S. servicemembers in Afghanistanand Iraq. Hellerstein also rejected that ar-gument. “Our nation does not surrenderto blackmail,” he wrote near the end ofa 50-page opinion, filed on Sept. 29,2005. The government is now appeal-ing the ruling.

“We believe the public has the rightto know the full truth about who isresponsible for the abuse,” ACLU at-torney Singh says of the suit. “And sofar, the government has not providedthe full truth.”

Meanwhile, the National SecurityArchive is conceding defeat in its suitfiled in October 2004 aimed at forcingthe CIA to release portions of the Na-tional Intelligence Council’s downbeat July2003 assessment of the Iraq situation. 47

In filing the suit, the archive’s lawyersacknowledged that the so-called Nation-al Intelligence Estimate included infor-mation properly classified and exempt-ed from the FOIA. But the suit also notedthat several officials — including Presi-dent Bush on Sept. 19, 2004 — had re-ferred generally to the assessment andcontended that some parts of the docu-ment could be “segregated” and released.

U.S. District Judge Rosemary Collyerflatly rejected the suit in a 16-page rul-ing on Sept. 30, 2005. Refusing to ex-amine the document herself, Collyersaid she agreed with the CIA’s infor-mation-review officer that there were“no segregable portions that mightsensibly be released.”

In a second suit, the archive has per-suaded Judge Kollar-Kotelly to reopen itslegal challenge to Bush’s November 2001executive order on presidential papers.In dismissing the action in March 2004,Kollar-Kotelly said the release of formerPresident Reagan’s papers had renderedthe archive’s main complaint moot whileits fear of delays in release of presiden-tial papers in the future was too specu-lative. The judge agreed to reopen the

case after lawyers for the archive point-ed out that they were attacking Bush’sdecision as contrary to the provision inthe Presidential Records Act that barredformer presidents from invoking execu-tive privilege to withhold materials.

Information Leaks

L ong-sought information about thegovernment’s role in detaining top

terrorist suspects in secret prisons over-seas is finally emerging — not throughofficial releases or congressional investi-gations but through investigative storiesby a Washington Post reporter. Somelawmakers want the Justice Departmentto investigate the leaks, but a leadingsecrecy critic says the episode illustratesthe effect of overclassification in limitingpublic debate on critical policy issues.

Post reporter Dana Priest wrote thatthe CIA had been “hiding and interro-gating some of its most important alQaeda captives at a Soviet-era compoundin Eastern Europe.” The story describedthe secret facility as one of a number ofso-called “black sites” used by the agencysince the 9/11 terrorist attacks to houseand interrogate suspected terrorists awayfrom public view, congressional over-sight or judicial intervention. 48

The story — attributed to “U.S. andforeign officials familiar with the arrange-ment” — identified Afghanistan and Thai-land as two countries where such secretfacilities had been maintained in the past.The newspaper acceded to an adminis-tration request, however, not to namethe Eastern European countries involved.But Human Rights Watch said the nextday that it had used flight logs to trackCIA-chartered aircraft in 2003 to airstripsin two Eastern European countries: Polandand Romania. Officials in both countriesdenied any role in the secret prisons.

The week after the story appeared,top congressional GOP leaders calledfor a joint House-Senate investigationinto what they called an “egregious dis-closure” of classified information. In a

letter to leaders of the House and Sen-ate Intelligence committees, Senate Ma-jority Leader Bill Frist, R-Tenn., andHouse Speaker J. Dennis Hastert, R-Ill.,said the leak would “imperil our effortsto protect the American people and ourhomeland from terrorist attacks.” 49

The next day, however, Senate In-telligence Committee Chairman PatRoberts, R-Kan., put a damper on thecall for a congressional probe, suggest-ing that Congress should defer to theJustice Department. In their letter, Fristand Hastert had also asked for a JusticeDepartment referral. The Post said theCIA had already reported the disclosureto the Justice Department, which wasdepicted as a routine procedure afterpublication of classified information.

The story appeared in the midst ofa pitched fight between the administra-tion and senators in both parties over aproposal by Sen. John McCain, R-Ariz.,to bar “cruel” or “inhumane” treatmentof detainees by U.S. personnel, includ-ing CIA operatives. The Senate approvedthe prohibition by a vote of 90-9 onOct. 9 as an amendment to the DefenseDepartment appropriations bill and at-tached a similar provision to a Defenseauthorization bill on Nov. 4.

The Bush administration says suchlegislation is neither necessary nor ad-visable. The “United States doesn’t dotorture,” Bush has declared. Neverthe-less, Vice President Cheney was lobby-ing lawmakers hard to exempt the CIAfrom coverage under the amendment,and the White House has threatened toveto any bill containing the measure. 50

The House-passed Defense spend-ing and authorization bills did not in-clude such a provision, leaving it upto House-Senate conferees to hash outthe issue. However, Rep. John P. Murthaof Pennsylvania, ranking Democrat onthe House Defense Appropriations Sub-committee, has vowed to call for a“motion to instruct” conferees to in-clude the Senate provision in the finalbill — a vote he said he would winhands down — when the House names

Continued from p. 1020


its conferees. “It’s pretty hard to votefor torture,” Murtha said. 51

Whatever the legislative outcome, Af-tergood of the Federation of AmericanScientists says the debate over U.S. treat-ment of detainees overseas has beenhampered by the secrecy surrounding thepractices. “There are all sorts of public-policy issues that are not being ade-quately debated because of restrictionson information,” Aftergood says.

“Is torture permitted under any cir-cumstances? If not, why is the admin-istration opposing the amendment toprohibit torture by the CIA?” Aftergoodasks. “We cannot get straight answersto these questions. Instead, we haveto rely on big newspaper exposés likethe Post’s story.”

Only two weeks after the CIAprison story, the Post got another leakthat provided a late postscript to theprotracted fight to get information aboutthe energy task force that Cheney hadheaded in early 2001. Quoting from a“White House document . . . obtainedthis week,” the newspaper reportedon Nov. 16 that executives from fourmajor oil companies — Exxon Mobil,Conoco, Shell Oil and BP America —had met with task force aides in theWhite House complex in 2001.

The meetings between energy ex-ecutives and the task force had longbeen suspected but had been deniedby industry officials as recently as theprevious week, when they testified be-fore a joint House-Senate committeehearing on gasoline price hikes. 52

Tom Fitton, president of the conser-vative watchdog group Judicial Watch,says the belated disclosure vindicatesthe organization’s unsuccessful court fightto try to get information about the taskforce’s meetings and procedures. “Thecourts told us we had to take at facevalue the government’s assertion that thetask force had no non-governmentalmembers,” Fitton says. The Post’s story“would indicate that there was a high-er level of participation by these insid-ers than they admitted to.”

OUTLOOKCulture of Openness?

W ith the American Colonies fight-ing for independence, the Con-

tinental Congress considered secrecy soimportant that members faced expulsionfor divulging any information about theproceedings. A century-and-a-half later,the need for wartime secrecy was fa-mously captured in the World War IIwarning, “Loose lips sink ships.”

The Bush administration has wagedthe so-called war on terrorism withsecrecy foremost in officials’ minds.The administration has also gone togreat lengths to control informationabout domestic-policy debates. Open-government advocates say the policiesdampen public debate, diminish gov-ernmental accountability and — all theworse — hamper the country’s effortsto strengthen homeland security.

“Prior to 9/11, people tended to focuson the fact that unauthorized disclosuresof information could be detrimental andcould result in Americans’ losing theirlives,” says ISOO Director Leonard. “Oneof the great lessons of 9/11 is that theinappropriate hoarding of informationcould likewise be detrimental and resultin Americans losing their lives.”

The administration shows no signsof retreating from its policy of restrict-ing much homeland security-related in-formation, claiming the need to avoidgiving terrorists a “roadmap” for futureattacks. But National Security ArchiveDirector Blanton says the lack of infor-mation increases the vulnerability to ter-rorist attacks. “The public has to be ableto protect itself and be able to offerfixes,” Blanton says. “That’s the onlyway we’re going to be more secure.”

With classification of government doc-uments at an all-time high, a top Pen-tagon official for information policy saysthe Pentagon recognizes the need to re-

duce unnecessary secrecy. The Pentagonhas taken “positive steps” to try to trainand educate classifiers to apply secrecycriteria with more care, Deputy UnderSecretary of Defense for Counterintelli-gence and Security Robert Rogalski toldan ISOO-sponsored symposium in mid-October. “We are trying to change [the]culture.”

However, critics see little evidenceof any reduction in overclassification.And Leonard agrees with critics whosay the proliferation of new secrecycategories adds to the problems in get-ting government information. “The clas-sification system has long-establishedrules, built-in mechanisms to challengedecisions and built-in limits to dura-tion,” he explains. “None of those thingsexist with respect to these widespread‘sensitive but unclassified’ regimes thatseem to be cropping up left and right.”

Declassification, meanwhile, is un-derstandably a low priority in the mili-tary or other national security agen-cies straining to meet the demands ofthe war on terror and the continuingconflicts in Iraq and Afghanistan. But,as Aftergood of the Federation of Amer-ican Scientists emphasizes, continuingoverclassification simply adds to thebacklog of materials to be consideredfor declassifying at some later date.

At the same time, the main legal toolto combat government secrecy, the Free-dom of Information Act, appears lessand less effective in providing access,say journalists and others. Bureaucrati-cally, FOIA matters are unglamorous,low-priority work in most agencies. “Noone ever grows up wanting to be anFOI officer,” Daugherty, of the Free-dom of Information Service Center,says. She notes that after Michael Brownwas forced to resign as director of theFederal Emergency Management Agency(FEMA) due to the government’s bun-gled response to Hurricane Katrina, hewas put to work as a temporary con-sultant handling FOI matters. 53

Courts also appear to be losing in-terest in enforcing the law, Daugherty


GOVERNMENT SECRECY

says. “Judges are tired of FOI requests,”Daugherty says. “They aren’t ruling infavor of requesters the way they used to.”

Critics say Congress could take somesteps to bring government secrecy undercontrol. Aftergood suggests a law stipu-lating that materials be classified only ifdisclosure would cause identifiable dam-age to national security. Blanton of theNational Security Archive wants Congressto give greater authority to ISCAP, thepanel that hears appeals of declassifica-tion refusals. Daugherty wants Congressto revise the Freedom of Information Actto overturn some of the restrictive courtrulings and would like for courts to nar-row the use of the privacy exemptionto justify withholding information.

Above all, Aftergood says open-gov-ernment advocates need to organize andadvocate more forcefully for measures toreduce secrecy. “There is political oppo-sition to reducing secrecy,” Aftergood toldthe ISOO symposium. “There are peo-ple who are very satisfied with the sta-tus quo. It is necessary for people wor-ried about the issue to take sides.”

Notes1 See http://action.aclu.org/torturefoia/.2 See http://trac.syr.edu.3 Quoted in Scott Shane, “Since 2001, SharpIncrease in the Number of Documents Classi-fied by the Government,” The New York Times,July 3, 2005, sec. 1, p. 14.4 Quoted in David Westphal, “Bush ProclaimsBelief in Open Government,” The SacramentoBee, April 15, 2005, p. A10.5 For background, see Kenneth Jost, “Free-Press Disputes,” CQ Researcher, April 8, 2005,pp. 293-316.

6 See Daniel Patrick Moynihan, Secrecy: TheAmerican Experience (1998), pp. 60-71. Fora full account, see Robert Louis Benson andMichael Warner, Venona: Soviet Espionage andthe American Response (1996).7 For background, see Kenneth Jost, “Re-ex-amining 9/11,” CQ Researcher, June 4, 2004,pp. 493-516.8 Report of the Commission on Protecting andReducing Government Secrecy (Moynihan com-mission), 1997.9 The decision is In re Cheney, http://pacer.cadc.us-courts.gov/docs/common/opinions/200505/02-5354b.pdf. For coverage, see Carol D. Leonnigand Jim VandeHei, “Cheney Wins Court Rulingon Energy Panel Records,” The Washington Post,May 11, 2005, p. A1.10 Quoted in David Nather, “A Rise in ‘StateSecrets’,” CQ Weekly, July 18, 2005, p. 1958.Nather’s story catalogs other examples citedin this section.11 See Blaine Harden and Dana Milbank, “Pho-tos of Soldiers’ Coffins Revive Controversy,”The Washington Post, April 23, 2004, p. A10.12 See Josh Getlin, “Public Would Get a CloserLook at War,” Los Angeles Times, March 11, 2003,p. A10.13 See Christian Lowe, “The Marines’ FlawedBody Armor,” Marine Corps Times, May 9,2005 (www.marinetimes.com). Informed ofthe imminent publication of the story, theMarine Corps recalled the shipment of bodyvests in question.14 “Attorney General’s Memorandum for Headsof All Federal Departments and Agencies Re-garding the Freedom of Information Act,”Oct. 12, 2001. For text and later elaborationgo to www.usdoj.gov/oip/foiapost/2001foia-post19.htm. For a comprehensive history, see“FOIA Update, 1979-2000,” Department ofJustice, Office of Information and Privacy,www.usdoj.gov/oip/foi-upd.htm.15 Quoted in David Nather, “GOP Champi-ons for Releasing Information,” CQ Weekly,July 18, 2005, p. 1962. Some other informa-tion also drawn from the story. For a com-

plete summary of the bills, see CongressionalResearch Service, “Freedom of InformationAct (FOIA) Amendments (109th Congress)”(updated June 28, 2005).16 For general background, see Moynihan, op.cit., and Philip H. Melanson, Secrecy Wars:National Security, Privacy, and the Public’sRight to Know (2001).17 See Mildred Amer, “Secret Sessions of Con-gress: A Brief Historical Overview,” Congres-sional Research Service, updated October 2004.Some additional background also drawn fromthe report.18 Ibid. The CRS report does not include theSenate’s most recent secret session, held onNov. 1, 2005. See Charles Babington and DafnaLinzer, “Senate Democrats Force Closed Meet-ing,” The Washington Post, Nov. 2, 2005, p. A1.19 Moynihan, op. cit., p. 83. Wilson outlinedhis 14 points for a post-World War I settle-ment in an address to a joint session of Con-gress on Jan. 8, 1918.20 For background, see Athan G. Theoharis,“The Freedom of Information Act Versus theFBI,” and James X. Dempsey, “The CIA andSecrecy,” both in Theoharis (ed.), A Cultureof Secrecy: The Government Versus the Peo-ple’s Right to Know (1998).21 The case is New York Times Co. v. UnitedStates, 403 U.S. 713 (1971). Griswold’s commentquoted in Tony Mauro, Illustrated Great De-cisions of the Supreme Court (2000).22 Melanson, op. cit., p. 16. Some other back-ground drawn in part from Melanson’s account.23 See 1974 Congressional Quarterly Almanac,pp. 805-806.24 See 1978 Congressional Quarterly Almanac,pp. 799-800.25 For a summary of Reagan’s executive order,see FOIA Update, Vol. III, No. 3 (1982), www.usdoj.gov/oip/foia_updates/Vol_III_3/page6.htm.26 For details, see “FOIA Reform LegislationEnacted,” FOIA Update, Vol. VII, No. 4 (1986),www.usdoj.gov/oip/foia_updates/Vol_VII_4/page1.htm.27 For the text, see FOIA Update, Vol. XVI,No. 2 (1995), www.usdoj.gov/oip/foia_up-dates/Vol_XVI_2/page5.htm.28 See 1996 Congressional Quarterly Almanac,pp. 5-33 to 5-34; “Congress Enacts FOIA Amend-ments,” FOIA Update, Vol. XVII, No. 4 (1996),www.usdoj.gov/oip/foia_updates/Vol_XVII_4/page1.htm.29 The decisions are Forsham v. Harris, 445U.S. 169 (1980); Kissinger v. Reporters Com-mittee for Freedom of the Press, 445 U.S. 136(1980); FBI v. Abramson, 456 U.S. 615 (1982).30 The citation is 489 U.S. 749 (1989).

About the AuthorAssociate Editor Kenneth Jost graduated from HarvardCollege and Georgetown University Law Center. He isthe author of the Supreme Court Yearbook and editor ofThe Supreme Court from A to Z (both CQ Press). He wasa member of the CQ Researcher team that won the 2002ABA Silver Gavel Award. His recent reports include “DeathPenalty,” “Right to Die” and “Supreme Court’s Future.”


31 For coverage, see R. W. Apple Jr., “Gov-ernment Is Overzealous on Secrecy, PanelAdvises,” The New York Times, March 5, 1997,p. A16; Eleanor Randolph, “Is U.S. KeepingToo Many Secrets?” Los Angeles Times, May17, 1997, p. A1.32 For a mixed review of the bill, see Fed-eration of American Scientists, GovernmentBulletin, No. 68 (June 1997), www.fas.org/sgp/bulletin/sec68.html.33 The decision is Walker v. Cheney, 230F.Supp. 2d 51 (D.C. 2002). See Neely Tuck-er, “Suit Versus Cheney Is Dismissed,” TheWashington Post, Dec. 10, 2002, p. A1. TheGAO announced on Feb. 7, 2003, that itwould not appeal the ruling.34 The decision is In re Cheney.35 The decision in the New Jersey caseis North Jersey Media Group v. Ashcroft,308 F.3d. 198 (CA3 2002). The SupremeCourt refused to hear the case on May27, 2003; the government declined to ap-peal the ruling in the Michigan case, say-ing that the need for the closed hearingshad ended.36 The decision is Center for National Secu-rity Studies v. U.S. Dep’t of Justice, 331 F.3d918 (D.C. Cir. 2003). The Supreme Court re-fused in January 2004 to hear the case.37 For background, see Kenneth Jost, “CivilLiberties Debates,” CQ Researcher, Oct. 24,2003, pp. 871-894.38 The Michigan case is Muslim CommunityAssociation of Ann Arbor v. Ashcroft. The NewYork and Connecticut cases, with their appealscourt docket numbers, are Doe v. Ashcroft, 04Civ. 2614, and Doe v. Gonzales, 05 Civ. 1256.See Mark Hamblett, “2d Cir. Faults NationalSecurity Letters,” National Law Journal, Nov.7, 2005, p. 15.39 See Gina Holland, “Ashcroft Urges CautionWith FOIA Requests,” The Associated Press,Oct. 16, 2001.40 U.S. General Accounting Office, “Freedomof Information Act: Agency Views onChanges Resulting from New AdministrationPolicy,” September 2003.41 Presidential Records Act Executive Order,Nov. 1, 2001, www.whitehouse.gov/news/re-leases/2001/11/20011101-12.html. For cover-age, see Mike Allen and George Lardner Jr.,“A Veto Over Presidential Papers,” The Wash-ington Post, Nov. 2, 2001, p. A1.42 The suit is American Historical Associa-tion v. National Archives and Record Ad-ministration. For coverage, see Neil A. Lewis,“Presidential Papers Suit Called Moot,” TheNew York Times, April 1, 2004, p. A18.

43 For the text of the order, see www.white-house.gov/news/releases/2003/03/20030325-11.html. For coverage, see Deb Reichman,“Bush Delays Release of Classified Papers,”The Associated Press, March 25, 2003.44 Quoted in Anne E. Kornblut, “Bush’s Stanceon Secrecy Draws a Number of Critics,” TheBoston Globe, Feb. 11, 2002, p. A3.45 Quoted in Nather, “A Rise in ‘State Se-crets,’ ” op. cit.46 For Bush’s statement and other early re-action, see Thom Shanker and Jacques Stein-berg, “Bush Voices ‘Disgust’ at Abuse of IraqiPrisoners,” The New York Times, May 1, 2004,p. A1.47 Documents in the suit are posted on thearchive’s Web site: www.gwu.edu/~nsarchive.48 Dana Priest, “CIA Holds Terror Suspectsin Secret Prisons,” The Washington Post, Nov.2, 2005. Reaction to the story is taken fromvarious news accounts, including the Post’s

second-day story: Craig Whitlock, “U.S. FacesScrutiny Over Secret Prisons,” The WashingtonPost, Nov. 3, 2005, p. A20.49 Jonathan Weisman, “GOP Leaders UrgeProbe in Prisons Leak,” The Washington Post,Nov. 9, 2005, p. A1. For further developments,see Weisman, “Senator Seeks to Defer Probeof CIA Prison Leak,” The Washington Post,Nov. 10, 2005, p. A4.50 Anne Plummer, “Detainee Rights Remainat Issue,” CQ Weekly, Nov. 21, 2005, p. 3116.51 Quoted in Anne Plummer, “Defense Ap-propriations: Negotiators Struggle With DetaineeAbuse and Other Riders,” CQ Today, Nov. 3,2005, p. 11.52 Dana Milbank and Justin Blum, “DocumentSays Oil Chiefs Met With Cheney Task Force,”The Washington Post, Nov. 16, 2005, p. A1.53 For background, see Pamela Prah, “DisasterPreparedness,” CQ Reseacher, Nov. 18, 2005,pp. 981-1004.

FOR MORE INFORMATIONAmerican Civil Liberties Union, 125 Broad St., 18th floor; New York, NY10004-2400; (212) 549-2500; 122 Maryland Ave., N.E., Washington, DC 20002;(202) 544-1681; www.aclu.org. Uses the Freedom of Information Act (FOIA) toobtain documents on U.S. treatment of detainees overseas.

Brechner Center for Freedom of Information, P.O. Box 118400, 3208 Weimer Hall,University of Florida, Gainesville, FL 32611-8400; (352) 392-2273; http://brechner.org.Provides resources on media law topics and links to a variety of FOI organizations.

Coalition of Journalists for Open Government, 1815 North Ft. Myer Drive, Suite900, Arlington, VA 22209; (703) 807-2100; www.cjog.org. Helps coordinate open-government and FOIA activities by more than 30 member journalism organizations.

Federation of American Scientists, 1717 K St., N.W., Suite 209, Washington, DC20036; (202) 546-3300; www.fas.org. Publishes Secrecy News, a newsletter detailingthe release and withholding of information by the government and armed forces.

Heritage Foundation, 214 Massachusetts Ave., N.E., Washington, DC 20002-4999;(202) 546-4400; www.heritage.org. Conservative think tank that maintains the Centerfor Media and Public Policy, which examines the public’s right to know.

Information Security Oversight Office, National Archives and Records Adminis-tration, 700 Pennsylvania Ave., N.W., Room 500, Washington, DC 20408; (202)219-5250; www.archives.gov/isoo/. Publishes statistics on government secrecy.

National Security Archive, The George Washington University, Gelman Library, Suite701, 2130 H St., N.W., Washington, DC 20037; (202) 994-7000; www.gwu.edu/~nsarchiv/.Private reference center publishes declassified materials obtained through the FOIA.

OpentheGovernment.org, 1742 Connecticut Ave., NW, Washington, DC 20009;(202) 234-8494; www.openthegovernment.org. Coalition of journalism, consumerand good-government organizations works to promote open-government policies.

Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100,Arlington, VA 22209; (703) 807-2100; www.rcfp.org. Supplies information on publicaccess houses the Freedom of Information Service Center.

FOR MORE INFORMATION


Books

Melanson, Philip H., Secrecy Wars: National Security,Privacy, and the Public’s Right to Know, Brassey’s, 2001.A professor of political science at the University of Massa-

chusetts in Dartmouth draws on his long experience usingthe Freedom of Information Act to advise researchers on howto request information using the act and strongly criticizesagencies’ widespread delay and obstruction in responding toFOIA requests. Includes chapter notes, appendix material.

Moynihan, Daniel Patrick, Secrecy: The American Ex-perience, Yale University Press, 1998.The late New York senator — who served for eight years on

the Senate Select Committee on Intelligence — traces and cri-tiques the growth of the “culture of secrecy” from the early 20thcentury through and beyond the end of the Cold War. Includeschapter notes and an introductory essay by Richard Gid Powers,professor of history at the College of Staten Island.

Theoharis, Athan G. (ed.), A Culture of Secrecy: The Gov-ernment Versus the People’s Right to Know, UniversityPress of Kansas, 1998.Various contributors detail the role of secrecy in such gov-

ernment agencies as the CIA, FBI, National Security Agencyand State Department. Includes chapter notes. Theoharis isa professor of history at Marquette University.

Articles

Carr, Rebecca, “Growing Government Secrecy in thePost-9/11 World,” Cox News Service, March 9, 2004.The story comprehensively documents the rise in govern-

ment secrecy at the federal level following the terrorist at-tacks of Sept. 11, 2001. A reporter in Cox’s Washington bu-reau, Carr has written extensively on government informationand secrecy policies.

Clymer, Adam, “Government Openness at Issue as BushHolds On to Records,” The New York Times, Jan. 3, 2003,p. A1.President Bush’s “penchant for secrecy” has been more ex-

tensive than widely understood, producing what many ex-perts describe as “a sea change” in government openness.

Nather, David, “A Rise in ‘State Secrets’,” CQ Weekly, July18, 2005, p. 1958.The comprehensive cover story concludes that the Bush

administration’s “reluctance” to share information has become“the default position in the post-Sept. 11 world.” A sidebardescribes pending proposals to revise the Freedom of In-formation Act.

Schmitt, Christopher H., and Edward T. Pound, “KeepingSecrets,” U.S. News & World Report, Dec. 22, 2003, p. 18.The 5,000-word article traces the Bush administration’s pref-

erence — from President Bush’s very first day in office —for “doing the public’s business out of the public eye.”

Shane, Scott, “Since 2001, Sharp Increase in the Numberof Documents Classified by the Government,” The NewYork Times, July 3, 2005, sec. 1, p. 14.The story details the most recent statistics from the Informa-

tion Security Oversight Office, showing a record 15.6 milliondocuments classified during the previous year — more thandouble the number in 2001.

Thomas, Evan, “Cheney’s Cheney,” Newsweek, Nov. 7, 2005,p. 36.The author provides a thorough summary of the CIA leak

investigation, focusing on I. Lewis “Scooter” Libby’s motivationsbehind the leak.

Reports and Studies

“Report of the Commission on Protecting and ReducingGovernment Secrecy,” Commission on Protecting andReducing Government Secrecy, 1997.Sen. Daniel P. Moynihan, D-NY, chairman of the 12-member

commission, described secrecy as a “regulatory regime” com-parable to economic regulations but with “a far greater po-tential for damage if it malfunctions.” He optimistically pre-dicted that “a cult of openness can, and ought to, evolvewithin the federal government.” But legislation embodyingsome of the commission’s recommendations never advanced.

“Secrecy Report Card 2005,” OpenTheGovernment.org,September 2005 (www.openthegovernment.org).Government agencies are expanding secrecy in many areas,

according to the watchdog group’s most recent annual com-pilation of statistics on classification, declassification, Free-dom of Information Act expenditures and other signposts ofinformation policy.

Richelson, Jeffrey, William Burr, and Thomas Blanton (eds.),Dubious Secrets: National Security Archive Electronic Brief-ing Book No. 90, posted May 21, 2003, updated May 3, 2004(www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB90/index.htm).The report highlights what the Archive calls “highly ques-

tionable, sometimes silly, classification decisions by the nation-al security bureaucracy.” An update lists among the “dubioussecrets” various details in a biography prepared by the DefenseIntelligence Agency about the former Chilean dictator AugustoPinochet.

Selected Sources

Bibliography


CIA Leak Case

Manly, Lorne, and David Johnston, “Reporter Says HeFirst Learned of C.I.A. Operative From Rove,” The NewYork Times, July 18, 2005, p. A1.

Time magazine reporter Matthew Cooper says Karl Rove,White House senior adviser, was the first person to tell himthat the wife of former Ambassador Joseph C. Wilson IVworked at the CIA.

Schmitt, Richard B., “Who Talked? It Wasn’t the SpecialProsecutor,” Los Angeles Times, Oct. 30, 2005, p. A1.Because Congress did not renew the independent counsel

law in 1999, the CIA leak case was investigated by a specialprosecutor, providing less public access to his investigation thanwould have been the case with an independent counsel.

VandeHei, Jim, and Carol D. Leonnig, “Grand Jury In-dicts Top Cheney Aid,” The Washington Post, Oct. 30,2005, p. A8.I. Lewis “Scooter” Libby, Vice President Cheney’s chief of staff,

resigned after being indicted in the CIA leak investigation oncharges of lying to federal investigators and obstructing justice.

Freedom of Information Act (FOIA)

Associated Press, “Freedom of Information RestrictionsRising,” Los Angeles Times, March 20, 2005, p. A17.A review of Freedom of Information Act reports submit-

ted to the Justice Department between 1998 and 2004 re-veals that government agencies have reduced the amountof information released to the public.

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

created legislative proposals to establish, for the first time, penal-ties for agencies that ignore FOIA requests for information.

Lee, Christopher, “Secrecy Is Infectious: Bill WouldShield Biomedical Research,” The Washington Post, Nov.14, 2005, p. A19.Proposed legislation to create an agency to research drugs

and vaccines to reduce the impact of a bioterror attack orpandemic would exempt that agency from the FOIA.

Intelligence

Jehl, Douglas, “Bush’s Arms Intelligence Panel Works inSecret,” The New York Times, Dec. 6, 2004, p. A15.President Bush’s intelligence commission, created to assess

the state of U.S. intelligence on weapons proliferation, hasbeen deliberating behind closed doors and plans to contin-ue in secret until it issues its final report.

Miller, Greg, “U.S. Lacks Reliable Data on Iran Arms,”Los Angeles Times, Nov. 27, 2004, p. A1.A lack of quality intelligence on Iran’s efforts to produce

nuclear weapons is hindering U.S. efforts to convince othernations to aggressively confront Iran.

Pincus, Walter, and Peter Baker, “Data on Iraqi ArmsFlawed, Panel Says,” The Washington Post, April 1, 2005,p. A1.U.S. intelligence agencies were “dead wrong” in their assess-

ment’s of Iraq’s weapons of mass destruction capabilities, saida presidential commission investigating prewar intelligence citedby the administration to justify the 2003 invasion of Iraq.

Whistleblowers

Burns, Robert, “Contract Officer’s Demotion AppearsPolitical, Dems Say,” The Houston Chronicle, Aug. 30,2005, p. A5.Congressional Democrats have asked Defense Secretary

Donald H. Rumsfeld to investigate the removal of an ArmyCorps of Engineers’ top procurement official who criticizedthe awarding of a no-bid contract to Halliburton Co. —Vice President Dick Cheney’s former company — for workin Iraq.

Solomon, John, “Whistleblower Fights Ruling,” The Hous-ton Chronicle, Dec. 25, 2004, p. A7.An administrative judge of the U.S. Merit Systems Protec-

tion Board ruled that federal employees who are highly paidresearch and medical experts are not protected by theWhistleblower Act, which protects federal workers who raiseallegations of federal wrongdoing.

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MLA STYLEJost, Kenneth. “Rethinking the Death Penalty.” The CQ

Researcher 16 Nov. 2001: 945-68.

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Jost, K. (2001, November 16). Rethinking the death penalty.

The CQ Researcher, 11, 945-968.

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Jost, Kenneth. “Rethinking the Death Penalty.” CQ Researcher,

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