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Decisions Without Democracyby David Banisar
Preace by Bob Barr and John Podesta
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Government Secrecy:Decisions Without Democracy
BY DAVID BANISAR
OpenTheGovernment.org is a coalition o consumer and good government groups, environmentalists, journalists,
library groups, labor and others united to make the ederal government a more open place in order to make us saer,strengthen public trust in government, and support our democratic principles.
www.openthegovernment.org
OpenTheGovernment.org, 1742 Connecticut Avenue N.W., 3rd Floor, Washington D.C. 20009 202-332-OPEN (6736)
A project o the Fund or Constitutional Government.
All donations are tax-deductible to the maximum allowable by law.
People For the American Way Foundation is an energetic advocate or the values and institutions that sustain a
diverse democratic society, and which are threatened by the political rise o the religious right. PFAW Foundation
seeks to protect undamental rights and reedoms guaranteed under the Constitution, sustain an independent
judiciary and mobilize activists to support progressive causes.
www.paw.org
People For the American Way • 2000 M Street, NW,
Suite 400 • Washington, DC 20036Telephone: 202-467-4999 or 800-326-7329 • [email protected]
Donations to People For the American Way Foundation, a
nonproft 501(c)(3) organization, are tax deductible
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
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FOREWORD. 1
PREFACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
PREFACE.(1987.EDITION) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EXECUTIVE.SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.OPENNESS:.AN.AMERICAN.VALUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The.Benets.o.Openness 9
The.History.o.Openness.in.the.US 11
2.THE.DARKENING.CLOUD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
It’s.a.Secret:.Classied.and.Semiclassied.Inormation 13Classied inormation 13
The U.S. Executive Order on Classication 14Declassication 15
Now you see it, now you don’t: Secret Reclassications 16Watching the Watchers: Oversight o the classication system 16
Go Away: The State Secrets Privilege 17Keep away: It’s Sensitive (but not classied)! 18Propaganda and Dis-inormation 20
Closing.Doors 20
The Freedom rom Inormation Act: Limiting the FOIA 20Executive Privilege 22Closing the Courthouse Doors 25
Gagging.the.Insiders:.Public.Employees 26
Gag rules 26Plugging the Whistle 27Ocial Secrets?: The Espionage Act and other criminal statutes 28
Attacking the Messenger: the Media and Protection o Sources 29
3.OPPORTUNITIES.FOR.PUBLIC.ACCESS.AND.PARTICIPATION.IN.A.DIGITAL.AGE . . . . 3 1
Electronic.Government 31Access to government inormation online 31
E-Rulemaking 34
Challenges.o.Digital.Government.Inormation 34
Digital Divide 34Disappearing documents and web sites 35
Managing “Born Digital” Inormation 35
What.the.Public.Can.Do 36
Activism/ organizing 36
APPENDIX.–.LIST.OF.RELEVANT.LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
APPENDIX.–.RESOURCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
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1Government Secrecy: Decisions Without Democracy
Foreword
Excessive secrecy is the enemyo public accountability and democratic governance. Unortunately, it isbecoming standard operating procedure or many government ocials. Vice President Dick Cheney’s recentinsistence that his oce is not subject to secrecy regulations that apply to the executive branch is just the
latest evidence o a systematic campaign to keep inormation about government activities out o the handso the American public.
Freedoms o Inormation laws are grounded in the recognition that knowledge about the government’sactions is the necessary rst step in oversight and accountability. Most Americans recognize the need to
saeguard national security inormation rom improper public disclosures that would damage the nationalinterest. But national security has become a blanket excuse to withhold inormation rom the public as well
as rom Congress, especially in the atermath o the 9/11 terrorist attacks.
The National Security Archive has documented widespread agency mismanagement and obstruction whichlead to delays as long as 17 years in responding to public Freedom o Inormation Act requests. Only one inour agencies is complying with the Electronic Freedom o Inormation Act a decade ater it passed.
O course, the right to know is also undermined by the release o inormation that is inaccurate or mislead-
ing. At the ederal level, politics increasingly trumps sound science: reports on key environmental issues arealtered by political appointees; inormation about HIV/AIDS is manipulated to promote a particular ideologi-
cal viewpoint; and ederal employees are muzzled rom sharing their expertise.
The misuse o secrecy and the manipulation o science and other inormation undermine the public’s right to
know and the health o our democracy. And they threaten the health o the public as well: a re at a chemi-cal plant situated near a neighborhood could pose a serious threat to residents’ health, but it is dicult or
individuals to learn the most basic inormation about hazards to which their amilies may be exposed.
The preace to this report, written by Republican Robert Barr and Democrat John Podesta, reects that theimportance o the public’s right to know is not a partisan issue; it is a undamentally American issue.
Over the years, regardless o the political party in charge, our three organizations have challenged excessivegovernment secrecy and ofered ideas to protect the public’s right to know. For example, in 1987, People or
the American Way, OMB Watch, the Benton Foundation, and the Advocacy Institute launched a public edu-cation campaign to draw attention to the ways in which government was withholding inormation rom the
public. One element o that campaign was the publication by People or the American Way o GovernmentSecrecy: Decisions Without Democracy, a primer on secrecy that serves as the model or this publication.
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2 Government Secrecy: Decisions Without Democracy
OMB Watch and National Security Archive ollowed Government Secrecy with a retreat at the Blue Mountain
Center in New York in the early 1990s that established principles or advancing the public right to know thathave guided the public interest community or more than a decade.
But today the oundation o democratic accountability is being steadily eroded. At the same time thattechnology has given us new tools or linking government inormation in ways that could empower citizens,
policies and procedures at the ederal, state, and local levels serve as barriers to ullling the promise. Andpublic condence in the openness o the ederal government is shrinking, as documented in a recent poll by
the Association o Newspaper Editors.
Our three organizations are part o OpenTheGovernment.org, a broad-based coalition that brings together journalists, librarians, academics, individual citizens, advocacy groups, and proessional associations commit-ted to strengthening and protecting our right to know. This primer is just one step in engaging the public in
a campaign to make our government more transparent and accountable to the public. “We the people” mustexercise our rights to strengthen, i not preserve, democracy. We encourage you to get involved by visiting
the website (www.openthegovernment.org) to learn what you can do.
We want to thank David Banisar, the author o this publication, or his excellent work. Patrice McDermott,the director o the OpenTheGovernment.org, and Emily Feldman, the policy associate, shepherded the
process rom start to nish. They did a wonderul job. This project would have not started had not ConradMartin o the Fund or Constitutional Government suggested the idea. The Steering Committee or Open-
TheGovernment.org provided invaluable assistance in establishing the themes o this book: the expansive
and myriad secrecy we conront; and the opportunities that a more digital government presents to us orgreater participation, openness, and accountability. Special thanks goes to Elliot Mincberg while he was with
People or the American Way, Steve Atergood, Marge Baker, Mary Alice Baish, and Charles Davis who servedas a panel to provide the ongoing advice, guidance and review that led to this strong report.
Gary.D.Bass
Executive Director, OMB Watchand co-chair, OpenTheGovernment.org
Thomas.S.Blanton.Executive Director, National Security Archive
and co-chair, OpenTheGovernment.org
Ralph.G.Neas
President, People or the American Way
and partner, OpenTheGovernment.org
July 2007
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3Government Secrecy: Decisions Without Democracy
Prefaceby Bob Barr and John Podesta
Twenty years ago, People or The American Way published the rst “Government Secrecy” primer. At the
time, our ounding principles o openness and accountability were being strained under the decades-longCold War with the Soviet Union. Presidents o both parties repeatedly invoked security to justiy greater
secrecy, very oten in ways that did not reect legitimate security concerns but rather served what Arthur
Schlesinger, Jr. called in his preace “the Imperial Presidency.”
Today, we ace a new security threat, but the Imperial Presidency is back. In the atermath o the 9/11 terror-ist attacks, the current administration has laid claim to a dramatic expansion o executive power, sometimes
with congressional approval, as with the PATRIOT Act, and sometimes through legally dubious assertions, aswith the National Security Agency’s domestic surveillance program.
At the same time, the administration has routinely withheld inormation that should be made public, there-
by insulating itsel rom democratic accountability. As this primer documents, secrecy has been advancedin a myriad o ways, including excessive classication, brazen assertions o “executive privilege” and “statesecrets,” new control markings to restrict “sensitive but unclassied” inormation, and new limits on Freedom
o Inormation Act requests.
The government should, o course, keep certain kinds o inormation secret. Our laws recognize the need toprotect national security inormation, such as intelligence sources and military plans, or example, as well
as personally identiable data, such as inormation provided on tax returns. But the secrecy claims assertedby the administration go ar beyond what is contemplated by the law—and ar beyond what is healthy ordemocracy, which depends on an inormed citizenry.
Citizens deprived o relevant inormation cannot participate in their government’s decisions or hold their
leaders accountable. Without this check, government ocials are more likely to make decisions contraryto the public interest, abuse their authority, and engage in corrupt activities. In words that ring prophetic
today, James Madison warned in 1822, “A popular Government, without popular inormation, or the meanso acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”
The administration’s embrace o secrecy comes rustratingly at a time o great opportunity or government
openness. The Internet and other new inormation technologies make it ar easier and cheaper or govern-ment to disseminate inormation and interact with the public. Through government Websites, or example,citizens can now access the Congressional Record, track environmental pollution in their neighborhoods,
and comment on regulatory proposals. Instead o building on this oundation, however, the executivebranch is retrenching—in a host o cases, government inormation previously available through the Internethas been removed.
This primer by David Banisar on behal o OpenTheGovernment.org and People or the American Way clearly
documents the expansion o secrecy and the dangers posed to democracy. In doing so, it provides ammuni-tion to reclaim the open and balanced system o government set orth in our Constitution and Bill o Rights.
It is now up to all o us to make our voices heard.v
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Government Secrecy: Decisions Without Democracy
Secrecy is the bane of democracy because it is the enemy o accountability. The ramers o the AmericanConstitution designed a system o government intended to bring power and accountability into balance. Thesecrecy system, as it has been nurtured by the executive branch over the last orty years and with special zealover the last seven years, is the indispensable ally and instrument o the Imperial Presidency.
Now no one can question the right o the state to keep certain things secret. Weapons technology and deploy-
ment, diplomatic negotiations, intelligence methods and sources, and military contingency plans are amongthe areas where secrecy is entirely deensible. Secrecy is deensible too in certain domestic areas: personal data
given the government on the presumption it would be kept condential—tax returns, personnel investiga-tions and the like; and ocial decisions that, i prematurely disclosed, would lead to speculation in land or com-modities, preemptive buying, higher governmental costs and private enrichment.
But the contemporary state has extended the secrecy system ar beyond its legitimate bounds. In doing so, the
target is ar less to prevent the disclosure o inormation to enemy governments than to prevent the disclosureo inormation to the American Congress, press and people. For governments have discovered that secrecy is
a source o power and an ecient way o covering up the embarrassments, blunders, ollies and crimes o theruling regime.
When governments claim that a broad secrecy mandate is essential to protect national security, they mostlymean that it is essential to protect the political interests o the administration. The harm to national security
through breaches o secrecy is always exaggerated. The secrecy system has been breached since the beginningo the republic—rom the day in 1795 when Senator Mason o Virginia enraged President Washington by giv-
ing the secret text o Jay’s Treaty to the Philadelphia Aurora, or the day in 1844 when Senator Tappan o Ohioenraged President Tyler by giving the secret text o the treaty annexing Texas to the New York Evening Post. Noone has ever demonstrated that such leaks, or the publication o the Pentagon Papers either, harmed national
security. No one can doubt that these disclosures beneted the democratic process.
The republic has survived great crises—the War o 1812, the Civil War, the First and Second World War— with-out erecting the sufocating structure o secrecy the Reagan administration proposes today. One wonders what
greater crisis justies the extreme measures taken and contemplated by the Reagan administration since 1981. The consequences or American democracy o the cult o secrecy may be dire. For the secrecy system not only
saeguards the executive branch rom accountability or its incompetence and its venality. Worse, it emboldensthe state to undertake rash and mindless adventures, as the Iran-contra scandal sadly reminds us. “Thoughsecrecy in diplomacy is occasionally unavoidable,” wrote James Bryce, who was not only an acute student o
comparative government but also a distinguished diplomat, “it has its perils...Publicity may cause some losses,but may avert some misortunes.” Perhaps President Reagan will one day regret that the press had not exposed
Preface to the 1987 Editionby Arthur Schlesinger, Jr.
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Government Secrecy: Decisions Without Democracy
Acknowledgements
his secret intentions toward Iran in time to block his ill-considered policy, as President Kennedy regretted that
the New York Times had not played up its story on the exile invasion o Cuba. “I you had printed more aboutthe operation,” he told a Times editor, “you would have saved us rom a colossal mistake.”
Because the secrecy system is controlled by those on whom it bestows prestige and protection, it has longsince overridden its legitimate objectives. The religion o secrecy has become an all-purpose means by which
the American Presidency seeks to dissemble its purposes, bury its mistakes, manipulate its citizens and maxi-mize its power. This People For the American Way report by Steven L. Katz is a meticulous and dispassionate ac-
count o the growth and widening reach o the secrecy system and o the danger it poses to American democ-racy. It is not too late or Congress to bring the secrecy system under control and redress the balance between
presidential power and presidential accountability.
The issue is hardly new. “Executive secrecy,” John Taylor o Caroline, the philosopher o Jefersonian democracy,
wrote in 1814, “is one o the monarchial customs, plausibly deended, and certainly atal to republican govern-ment...How can national sel government exist without a knowledge o national afairs? or how can legislatures
be wise or independent, who legislate in the dark upon the recommendation o one man?”v
December 1987, New York
The Steering Committee or OpenTheGovernment.
org provided invaluable assistance in establishing thethemes o this book: the expansive and myriad secrecy
we conront; and the opportunities that a more digitalgovernment presents to us or greater participation, open-
ness, and accountability. A smaller editorial committee
provided ongoing advice, guidance and review that led to
this strong report. Recognition must also be given to the staf o OpenThe-
Government.org who shepherded the process and assisted
with the proo-reading and copy-editing.
OpenTheGovernment.org is most grateul or the generoussupport o the Angelina Fund, CS Fund, Educational Foun-
dation o America, HKH Foundation, Knight Foundation,
Open Society Institute, Philanthropic Venture Fund, andWarsh-Mott Legacy, which made this publication possible.
We would like to acknowledge our partners in
OpenTheGovernment.org, many o whom have labored
in these elds or many years and all o whom continueto work to push back secrecy and advance openness and
accountability in our government:
American Association o Law Libraries, AmericanBooksellers Foundation or Free Expression, American
Library Association, American Society o Newspaper
Editors, Association o American Publishers, Association ForCommunity Networking, Association o Research Libraries,
Bill o Rights Deense Committee, Caliornians Aware,Center or American Progress, Center or Democracy and
Technology, Center or National Security Studies, Center
or Progressive Reorm, The Center or Public Integrity,
Common Cause, Electronic Frontier Foundation, ElectronicPrivacy Inormation Center, EnviroJustice, Environmental
Deense, Essential Inormation, Federation o AmericanScientists, First Amendment Foundation, Florida First
Amendment Foundation, Free Expression Policy Project,
Friends Committee on National Legislation, Fund or
Constitutional Government, Good Jobs First, GovernmentAccountability Project, Humanist Society o New Mexico,Human Rights First, Illinois Community Technology
Coalition, Indiana Coalition or Open Government, Institute
or Deense and Disarmament Studies, James MadisonProject, League o Women Voters, Liberty Coalition,
Mine Saety and Health News, Minnesota Coalition onGovernment Inormation, National Coalition Against
Censorship, National Coalition or History, National
Committee Against Repressive Legislation, NationalFreedom o Inormation Coalition, National Security Archive,
National Security Whistleblowers Coalition, New JerseyWork Environment Council, Northern Caliornia Association
o Law Libraries, NPOTechs, OMB Watch, PEN American
Center, People For the American Way, Political ResearchAssociates, Positive Financial Advisors, Inc, Project On
Government Oversight, Public Employees or EnvironmentalResponsibility, ReadtheBill.org, ReclaimDemocracy.org,
Reporters Committee or Freedom o the Press, Society o American Archivists, Society o Proessional Journalists,
Southeastern American Association o Law Libraries,
Special Libraries Association, Sunlight Foundation, Taxpayers or Common Sense, Transactional Records
Access Clearinghouse, U.S. Public Interest Research Group,Washington Coalition or Open Government, Working
Group on Community Right-to-Know.
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7Government Secrecy: Decisions Without Democracy
Openness is an American value. It promotes democracy and good government. It reduces corruption andensures that rights are respected and protected. In the past six years, the basic principle o openness as theunderpinning o democracy has been serious undermined. The Administration has taken an extreme view o
the power o the presidency. In its view, its powers to operate are largely unchecked by the Congress, courts,states or the public.
Existing laws on openness have been undermined while secrecy is increased. The Administration has issued
executive orders placing limits on the Freedom o Inormation Act and Presidential Records Act, expandedthe power to classiy inormation or national security reasons, and created a whole range o new categorieso “sensitive” inormation. Classication o inormation has nearly doubled while eforts toward declassi-
cation have largely been stopped and many records were secretly reclassied. Thousands o records havedisappeared of o public web sites. The State Secrets privilege has been regularly invoked in shutting down
court challenges.
Congress and the public have been misled about important issues. Government decision-making leading upto and ollowing the invasion o Iraq has been rie with misinormation and secrecy. Key evidence relating to
the presence o chemical and biological weapons was misrepresented and key inormation withheld romCongress and the public. Once the initial invasion was over, inormation about contracts activities and coststhat shows millions o dollars have been lost in raud and mismanagement has been systematically hidden.
Records relating to abuses in prisons were classied. The photos o the caskets o dead soldiers, bringinghome the severity o the war, were prohibited rom being released.
The public health has been threatened. In 2006, the Environmental Protection Agency approved changes
limiting the collection o inormation about how much chemical waste they released into the environment.In 2004, the National Highway Trac Saety Administration restricted the amount o inormation on the
saety o automobiles that would be released to the public.
Dozens o whistleblowers who have revealed inormation about misconduct in ederal agencies have been
red, lost their security clearances or been transerred to lesser jobs. Scientists have aced new restrictionson their ability to speak to the press about scientic issues. Employees at NASA were censored rom speak-
ing about global warming. The EPA decreed that whistleblower protections under environmental laws nolonger applied to workers. Journalists have also been investigated and jailed or reusing to identiy thesources o their inormation.
At the same time, advances in digital technology have increased the amount o inormation and the speed
at which it is available. Federal laws, regulations and structures are available online. Inormation that was
Executive Summary
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8 Government Secrecy: Decisions Without Democracy
once dicult to obtain is now available at the click o a button.
The new digital technologies also ofer unprecedented opportunities or organizations and citizens toobtain and use inormation to monitor the government and afect government policy. E-government allows
or easier access to services and some governance such as rulemaking.
However, digital inormation is not a panacea. Problems continue with technology distribution and educa-tion to ensure that all persons have equal access to government inormation. Inormation can also disappear
in the blink o an eye. Thousands o pages were abruptly removed rom ederal web sites ollowing 9/11.Long term strategies or collecting, archiving and maintaining inormation are not yet ully developed.
It is now time or Congress to take charge. Oversight is needed to ensure that laws are enorced. Many needrevisions to replace the policies that have been put in place in the last six years with more openness. Others
need to be updated to recognize changes in law, society and technology in the past decade. v
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9Government Secrecy: Decisions Without Democracy
Liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge…and a desire to know; but besides this, they have
a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied
kind of knowledge, I mean, of the characters and conduct of their rulers.1
–JOHN ADAMS, 1765
The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers
may be concealed from them.2
–PATRICK HENRY, 1788
A popular Government, without popular information, or the means of acquiring it, is but a Pro-
logue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a
people who mean to be their own Governors, must arm themselves with the power which knowl-
edge gives.3
–JAMES MADISON, 1822
Openness: an American Value
1
American democracy is based, in the words o Thomas Jeferson, on government “deriving their
just powers rom the consent o the governed.” Ithas been long recognized that openness is essential
to ensuring that government is working on behal o its citizens. Individuals have the right to know,
either directly rom ocials, or through organiza-
tions, the media or their elected representatives,how government is operating to ensure it is on their
behal. The inormation held by the government isowned by the American people and only held in
trust or them by the government and its ocials.
Openness has many benets or both citizensand governments. It promotes trust and ecientgovernment, it reduces mismanagement and cor-
ruption, and it promotes rights, airness and therule o the law.
THE.BENEFITS.OF.OPENNESS
Openness.limits.misinormation.and.promotes.
awareness.and.trust.in.governmentGovernmentocials are less able to mislead the public or politi-
cal reasons i the system is open and inormationis widely available. As noted by President Nixon in1972, “Fundamental to our way o lie is the belie
that when inormation which properly belongs tothe public is systematically withheld by those in
power, the people soon become ignorant o theirown afairs, distrustul o those who manage them,
and---eventually---incapable o determining theirown destinies.”4 Public awareness o the inormationand reasons behind decisions can improve support
and reduce misunderstandings and dissatisaction. The public can also better participate in the process
when they have inormation about the activities o
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10 Government Secrecy: Decisions Without Democracy
the government. Condence in the government is
also improved i it is known that the decisions willbe predictable.
Openness.ghts.corruption.and.mismanage
ment As the uture President Woodrow Wilson said
in 1913, “Everybody knows that corruption thrivesin secret places, and avoids public places, and we
believe it a air presumption that secrecy meansimpropriety. So, our honest politicians and our
honorable corporation heads owe it to their reputa-tions to bring their activities out into the open.”5 Billions o dollars are spent every year by the ederal
government. Openness in public spending makes itpossible or representatives and citizens to moni-
tor their government actions and publicize poorspending. The public controversy over “The Bridge
to Nowhere” and other earmarks show that publicrebuke is oten more powerul than the Congres-
sional appropriations process. Billions misspent andwasted in Iraq and in the cleanup o Katrina havebeen revealed; armed with this knowledge, citizens
can demand meaningul reorms rom their govern-ment. Billions have been recovered by whistleblow-
ers in the past ten years.
Openness.prevents.abuses As Justice Louis
Brandeis said, “Sunlight is said to be the best o disinectants; electric light the most ecient
policeman.”6 Government ocials are less likely to
abuse their power i they believe the abuse wil beexposed. At a minimum, ocials will stop abuses,once they become public. The revelations o abuses
o detainees in Iraq and o domestic surveillance inthe U.S. show that the spotlight o public scrutiny
can orce changes when internal administrativeprocesses and Congressional oversight ail.
Openness.promotes.government.efciency
Openness allows government agencies to bettershare inormation and learn lessons. Sharing re-duces redundant eforts and allows better analy-
sis. Overspending and double spending can bereduced. The 9/11 Commission ound that the lack
o sharing among government agencies was one o the reasons the plot was able to succeed.
Openness.helps.individuals.protect.themselves
An open system o law allows individuals to knowtheir rights and responsibilities. Each year, millionso veterans access their records held by the ederal
government to help determine their disabilities.Local citizens and municipalities can better protect
themselves rom chemical hazards. Openness couldhave helped the dozens who have died in the ater-math o 9/11 due to respiratory problems around
the site o the World Trade Center.
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11Government Secrecy: Decisions Without Democracy
Openness.promotes.scientic.innovation.and.
development Inormation sharing between scien-tists and others allows or greater innovation. Manyo the most signicant technical developments in
the past thirty years, including the Internet, havecome out o open scientic research sponsored
by the government. These developments havesubstantially beneted the U.S. economically. Today,
many areas o new scientic development suchas genetics are based on government- sponsored
projects. Inormation sharing can also be a benetin protecting the national deense, as sharing canlead to aster breakthroughs in areas such as cures
or developments o immunizations or the u virusand other biological threats.
Openness.can.be.used.as.an.alternative.to.regu
lations Over hal o the release o toxic materials– millions o tons o pollutants – have been reduced
due to public availability o inormation on pollut-ants.7 Consumers are better able to make decisionson products when inormation, such as saety and
reliability, are made available.
Openness.improves.the.stability.o.marketsMil-lions o investors use the public lings o companiesto evaluate their nancial worthiness. Money can
then be invested in well-managed companies withinnovative ideas rather than only those with the
best public relations and slickest brochures. Themarkets can also act more airly. Better general ac-
cess to nancial inormation makes secret deals and
monopolies more dicult.
THE.HISTORY.OF.OPENNESS..
IN.THE.US.
As the initial statements show, many o the ound-ing athers recognized the power o inormationin promoting democracy. Along with a ree press,
government openness was seen as a necessity topromote trust.
Our system o government was not totally openoriginally and in many areas, such as oreign rela-tions, there was great secrecy imposed by the ex-ecutive branch. But there are many early examples
o the openness o activities on the ederal level.In 1813, Congress initiated the beginnings o the
Federal Depository Library Program by requiringcopies o its Journals to be sent to university and
state libraries. As ar back as 1816, the salaries o theemployees in ederal agencies were being pub-lished. Congress too opened its proceedings almost
rom the beginning and published them. In 1860,
it created the Government Printing Oce, whichopened the day o Abraham Lincoln’s inauguration.From the beginning, the judicial system was based
on the English principle that an open court wouldensure airness and limit abuses.
The states have been at the oreront o providing
inormation to citizens about their activities. Moststates have provided inormation about local and
police activities or over a century. In Wisconsin, thelegislature in 1849 adopted a law on the opennesso country records and meetings.8 In Louisiana, the
1940 Public Records Act set up the rst comprehen-sive system or the archiving and access to public
records. Today, the states are still at the oreront as“laboratories o democracy,” with many still trying
innovative new ideas to promote openness lateradopted by the ederal government.
The development o the ederal administrative statein the early 20th century led to a great concern
about the transparency and accountability o thenewly-created powerul ederal administrative
agencies. Within a short period o time, many largeagencies were created and issued thousands o pages o orders and regulations with little organiza-
tion. Even individuals working at the highest levelso government ound it dicult or impossible to
keep track o all o them. And or the regulatedpublic, this new body o “executive legislation” was
inaccessible and virtually hidden. 9
In 1935, a case10 that went to the Supreme Court
revealed that the section o a rule under which acompany was being prosecuted was omitted rom
the publication o the regulation. Soon thereater,the Congress enacted a law ordering the creation o
the Federal Register to publish all regulations in asystematic way.11
In 1946, the Administrative Procedures Act (APA),which was intended to regulate the activities o the
agencies, was adopted. The law provided or a lim-ited to right o access or those who were afected
by agencies’ decisions. A permissive provision in thelaw encouraged agencies to make more inormationabout their activities available. Most, however, took
a restrictive view and did not disclose inormation .
Starting in 1950s, Congress, led by CongressmanJohn Moss (D-CA), began investigating the right
o access and ound that agencies did not makemuch inormation available. A campaign led bymedia organizations resulted nally in the 1966
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12 Government Secrecy: Decisions Without Democracy
Freedom o Inormation Act (FOIA). For the past
40 years, this Act, subsequently amended severaltimes to enhance openness and supplemented withother laws, has stood as the pinnacle o openness
or the public.
It has been supplemented by laws such as: the Gov-ernment in the Sunshine Act to ensure that meet-
ings o ederal agencies headed by a collegial body,such as the Federal Communications Commission,
are open to the public and minutes or transcriptsare kept o the meetings; the Federal AdvisoryCommittee Act which ensures that committees that
advise the ederal government are composed airlyand hold open meetings; and the Privacy Act, which
allows individuals to obtain and correct their per-
sonal inormation in records held by ederal bodies.
As new technologies have made the provision
more easily available and increased demand bycitizens to know more, the trend toward more
openness has continued. In 1993, Congress en-acted a law to require that the Federal Register be
published in electronic orm. In 1996, the Congressadopted the Electronic Freedom o Inormation
Act to extend the FOIA to electronic records and toprovide or more use o electronic resources. Morerecently, eforts to improve electronic government
have increased both access to inormation andincreased participation.v
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13Government Secrecy: Decisions Without Democracy
The Darkening Cloud
2
Behind closed doors, there is no guarantee that the most basic of individual freedoms will be pre-
served. And as we enter the 21st Century, the great fear we have for our democracy is the envelop-
ing culture of government secrecy and the corresponding distrust of government that follows.12
–FORMER SENATOR DANIEL PATRICK MOYNIHAN 2000
In the past six years, the basic principle o open-ness as the underpinning o democracy has been
seriously undermined and distrust o government ison the rise.
The Administration has taken an extreme view o the power o the presidency. In its view, its powersto operate are largely unchecked by the Congress,courts, states, or the public. The number o se-
crets generated has substantially increased, whilerelease o inormation has declined. New categories
o semi-secret “sensitive” inormation prolieratewhile laws on access to inormation are under-
mined or ignored. Whistleblowers and journalistsare threatened with jail while billions o dollars aresquandered on secret contracts or incompetence.
Scientists are gagged while propaganda and misin-ormation are released rom the highest oces.
IT’S.A.SECRET:.CLASSIFIED.AND.
SEMI-CLASSIFIED.INFORMATION
Classied.inormation.
The system o protecting inormation or nationalsecurity reasons is out o control. Inormation is
classied at an astounding rate. On an average day
o the year, nearly 40,000 items (such as docu-ments, les, or videos) – 15 million in 2004 and
14.2 million in 2005 – are classied by governmentocials and private contractors. This number has
been increasing or the last ten years – up rom 3.5
million in 1995; it has substantially increased in thelast six years.
For every Tax Dollar Spent DeclassifyingOld Secrets, The Government Spends
$134 Creating and Securing Old Secrets
1 9 9 7
1 9 9 8
1 9 9 9
2 0 0 0
2 0 0 1
2 0 0 2
2 0 0 3
2 0 0 4
2 0 0 5
$150
$100
$50
$0
$134.09
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14 Government Secrecy: Decisions Without Democracy
Problems with the classication system have been
long recognized. In 1994, Congress approved thecreation o the Commission on Protecting andReducing Government Secrecy, chaired by Senator
Daniel Patrick Moynihan. The Commission issued adetailed report in 1997 that ound that the system
or classied inormation was severely broken:
The result today is a system which neither protectsnor releases national security inormation particu-
larly well. Substantial concerns exist with respectto both the ability o the classication system toprotect secrets efectively and the adequacy o the
procedures in place to make inormation availableto those outside the Government.13
The biggest problem is the prevalence o mis-clas-
sication and over-classication. It is estimated thatbetween 10 percent and 90 percent o all docu-
ments are over-classied. Lee Hamilton, the Vice-Chair o the 9/11 Commission said that 70 percento the classied inormation that he saw during the
Inquiry was “needlessly classied.” Reviews by theGovernment Accountability Oce have ound nu-
merous problems with the classication levels andmarkings employed in agencies.14
Even government ocials admit there are seriousproblems. Carol Haave, the Deputy Under-Secretary
o Deense, testied in a Congressional hearing in2004 that she believed that 50 percent o inorma-
tion was over-classied. At the same hearing, Wil-
liam Leonard, Director o the Inormation SecurityOversight Oce thought it was even higher. He
noted that over-classication was “disturbinglyincreasing, where inormation is being classied
that is clear, blatant violation o the order.”15 FormerCentral Intelligence Agency (CIA) Director (now Sec-
retary o Deense) Robert Gates testied to the 9/11Commission “We overclassiy very badly.”16
The.US.Executive.Order.on.Classication
The rules or classication o inormation or
national security reasons are set by the U.S. Execu-tive Order 12958 on Classied National Security
Inormation originally issued by President Clinton in1995 and amended by President Bush in 2003.17 TheOrder sets out procedures on the classication o
inormation including who can classiy, under whatstandards they can do so, or how long inorma-
tion can be classied, and a process or its eventualdeclassication and release. There are a limited
number o people who are authorized to create
classied inormation (around 4,000 total) and they
must mark each time why it is classied and or howlong it needs to be protected.
There are eight categories o inormation that areeligible or classication:
(a) military plans, weapons systems, or operations;
(b) oreign government inormation;(c) intelligence activities (including special activities),
intelligence sources or methods, or cryptology;(d) oreign relations or oreign activities o theUnited States, including condential sources;
(e) scientic, technological, or economic mattersrelating to the national security, which includes
deense against transnational terrorism;( ) United States Government programs or sae-
guarding nuclear materials or acilities;(g) vulnerabilities or capabilities o systems, installa-
tions, inrastructures, projects, plans, or protectionservices relating to the national security, whichincludes deense against transnational terrorism; or
(h) weapons o mass destruction.
Depending on the sensitivity o the inormation,there are three levels o classication:
• Top Secret - where unauthorized disclosure couldbe reasonably expected to cause exceptionally
grave damage to the national security.• Secret - where disclosure could be expected to
cause serious damage to the national security.
• Condential - disclosure could be expected tocause damage to the national security.
The E.O. prohibits the classication o inorma-
tion to “conceal violations o law, ineciency, oradministrative error, prevent embarrassment to a
person, organization or agency, retain competi-tion, or prevent or delay the release o inormationthat does not require protection in the interest
o national security inormation.” It also prohibitsthe classication o basic scientic inormation
not clearly related to national security. In practice,however, these prohibitions have oten been unsuc-
cessul, with inormation such as the report on theabuses rom the Abu Ghraib prison being classiedto prevent its release.18
The deault period or inormation to be classied is
ten years unless the person who issues the clas-sication can identiy an earlier date or event that
would cause it to be available sooner, or makes aspecic determination that it is sensitive to a laterdate. Since the adoption o the Clinton order, ap-
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1Government Secrecy: Decisions Without Democracy
proximately ty percent o all inormation is set or
declassication in 10 years or less.
Changes to the Order by President Bush
The 2003 Bush Amendment (E.O. 13292) let thestructure o the Clinton order mostly intact butsignicantly changed the presumptions about
classication. It removed the requirement that, i there were a signicant doubt about classication,
it should not be classied. Expert Harry Hammitdescribes it as a “when in doubt, classiy” standard.Other changes include:
• Set presumption that inormation in categories
“shall” be considered or classication rather than“may” be classied.
• Expanded categories to include Inormation inra-
structure, WMD, and terrorism.• Allowed or easier reclassication o inormation.
• Removed presumption o 10 years or classica-tion i no date can be determined.
• Eliminated requirement that each agency makeplans or declassication.
• Extended the deadline or automatic declassica-tion to December 2006.
• Allowed the CIA Director, unless overruled by
President, to block decisions by the InteragencySecurity Classication Appeals Panel (ISCAP) to
declassiy inormation.• Expanded protection o inormation provided by
oreign governments.
Declassication
The other, equally important, side o protectingclassied inormation is ensuring that it is declas-
sied and released once it is no longer sensitive. The Clinton Executive Order required, and the Bush
order retained the requirement, that all inorma-tion 25 years and older that has permanent histori-
cal value be automatically declassied, starting in
December 2006 (originally set or 2000), unless itis specically exempted and is subject to outsidereview. The Order created a new standard by plac-
ing the burden on the government agency to justiywhy the inormation should not be declassied,
rather than why it should be.
The result o the order was the massive systematicreview by agencies o their records. Between 1995and 2001, one billion pages were reviewed and de-
classied, 200 million pages in 1997 alone. Since thebeginning o the Bush Administration, that efort
signicantly declined, dropping below 30 millionpages in 2004 and 2005.
Limited eforts have also occurred to declassiyinormation in special areas where there was a com-
pelling interest. Congress enacted two specializedlaws on the access to les relating to the assassina-
tion o President John F Kennedy (ollowing themovie JFK),19 and to Nazi and Japanese war crimes20
held by government agencies, including the intel-ligence services. Both Acts created review boards
to collect and examine documents and decide ontheir release. Over our million pages were released,including thousands o previously classied records
under the JFK Act.21 Over eight million documentshave been released under the war crimes laws.
However, the Administration has also oten used se-
lective declassication or political means. PresidentBush secretly declassied sections o a NationalIntelligence Estimate that supported its claims o
weapons o mass destruction in Iraq. These wereleaked to reporters by the Oce o the Vice-Presi-
dent.22 The Attorney General went beore the 9/11Commission with what Senator Leahy called a
conveniently declassied memo to attack a Com-missioner. In 2004, Secretary o State Rice quotedrom a selectively declassied 2001 memo prepared
or the National Security Council by then-counter-
1 9 8 0
1 9 8 1
1 9 8 2
1 9 8 3
1 9 8 4
1 9 8 5
1 9 8 6
1 9 8 7
1 9 8 8
1 9 8 9
1 9 9 0
1 9 9 1
1 9 9 2
1 9 9 3
1 9 9 4
1 9 9 5
1 9 9 6
1 9 9 7
1 9 9 8
1 9 9 9
2 0 0 0
2 0 0 1
2 0 0 2
2 0 0 3
2 0 0 4
2 0 0 5
1512
9630
Official Classification Down Slightly as More Documents are Released
N e w l y C l a s s i f i e d D o c u m e n t s
( i n m i l l i o n s )
250200150100500
P a g e s D e c l a s s i f i e d
( i n m i l l i o n s )
New classi fied documents ( in millions) Number of pages declassified
Source: Information Security Oversight Office Compiled by OpenTheGovernment.org & National Security Archive
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1 Government Secrecy: Decisions Without Democracy
terrorism czar Richard Clarke.23 It has also used it to
stymie Congressional oversight o the Foreign Intel-ligence Surveillance Act and anti-terrorism policy.
A bill was introduced in the 109th Congress whichwould require notication to the Intelligence Com-
mittees when inormation was declassied.
24
In the110th Congress, the House Intelligence Committee
has already announced plans to investigate thepractice o selective declassication.25
Now.you.see.it,.now.you.don’t:..
Secret.Reclassications
As noted above, the Bush amendments to the
Clinton Executive Order make it easier to reclassiyinormation. Under the Clinton Order, inormationcould not be reclassied i it had been declassied
and released to the public. Now, inormation canbe reclassied i the head o the agency determines
that it is in the interest o national security, “theinormation may be reasonably recovered” and the
Director o the Inormation Security Oversight O-ce (ISOO) is notied.
In 2006, it was discovered that over ty-ve thou-sand pages o records were secretly reclassied at
the National Archives and the Presidential librariesunder an agreement with the CIA and other agen-
cies.26 Many were documents that had never beenclassied in the rst place or were already published
by the State Department. Some were over 60 yearsold, such as the Korean War era assessments by theCIA that China was not likely to intervene in Korea
two weeks beore China entered the war. An ISOOaudit o the les ound that over one third were
not even eligible or classication. It also ound a“signicant number o instances when records thatwere clearly inappropriate or continued classica-
tion were withdrawn rom public access.”27 The U.S.Archivist apologized or the secret agreements, stat-
ing “There can never be a classied aspect to ourmission. Classied agreements are the antithesis o
our reason or being.”28
The Administration is not the only party at ault
in promoting excessive secrecy. In 1998, Congressordered that the Department o Energy withdraw
rom public availability all o its recently declassieddocuments that might be related to the design o
nuclear weapons, to ensure that improper declas-sication did not take place.29 In all, the Departmentwithheld and reviewed over 200 million pages.
Only 6,640 pages containing classied inormation
were ound, mostly long-public material about the
previous locations o weapons that are no longersensitive. Many documents that were previouslypublic were withheld, such as a 1971 Congressional
brieng by Secretary o Deense Melvin Laird on Theatre Nuclear Forces and Strategic Forces, the
numbers o weapons and bombers in the 1960sand 1970s, and agreements with the Canadian gov-
ernment rom the 1960s.30 The review has cost $22million and delayed eforts by the DOE to continue
its declassication efort.
Watching.the.Watchers:.oversight.o.the.
classication.system
The Inormation Security Oversight Oce (ISOO)
An intelligent system o classication needs in-
dependent oversight to ensure that it is working.Under the Executive Order, the Inormation Security
Oversight Oce, a division o the National Archives,has general responsibility relating to the develop-
ment and oversight o protections on classica-tion and declassication o inormation. Its dutiesinclude:
• Implementing Directives, Instruction and
Regulations• Liaison, Inspections and General Oversight
• Statistical Collection, Analysis and Reporting
• Recommending Policy Changes
Each year, the ISOO collects statistics on the clas-sication and declassication o inormation the
previous year and presents a public document onthe amount o classication and its estimated costs.
The ISOO’s powers are limited, however. It auditsand makes recommendations on agencies clas-
sication practices; the agencies, however, are notrequired to ollow its guidelines and recommenda-
tions. This is why Senator Moynihan's Commissionon Protecting and Reducing Government Secrecy
recommended the creation o a National Declassi-cation Center.
Missing in Action: The Public Interest Declassifcation Board
In 2000, Congress approved the creation o the
Public Interest Declassication Board.31 The boardunctions are to:
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17Government Secrecy: Decisions Without Democracy
• Advise the President and other executive branchocials on classication and declassication
process;• Promote public access to a thorough, accurate,
and reliable documentary record o signicantU.S. national security decisions and signicantU.S. national security activities;
• Provide recommendations to the President ondeclassication o inormation o extraordinary
public interest; and• Review and make recommendations to the
President with respect to any Congressionalrequest on declassication o inormation.
The board was the only recommendation o theCommission on Protecting and Reducing Govern-
ment Secrecy that was adopted. To date, it has notbeen o much use. The board remained in a legal
vacuum or over ve years while the White Housedelayed appointing members and providing und-
ing or it. It was not until 2005 that the Presidentappointed members and it began to hold meetings.
Now that it is nally in place, the Board has alreadytaken a very limited view o its own powers. In Sep-
tember 2006, members o the Senate IntelligenceCommittee asked the Board to review two commit-tee reports on Iraq intelligence that had been clas-
sied by the Administration. The Chairman, L. BrittSnider, a ormer CIA Inspector General, responded
that it could not review the classied documents
unless it was asked to do so by the President. Itrecently announced that it plans to move ahead
unless it hears rom the President.
Go.Away:.The.State.Secrets.Privilege
Another justication invoked by the governmentto deny access to inormation is the claim that the
inormation is privileged as involving state secrets. The privilege was rst recognized by the Supreme
Court in a 1953 case where the widows and amilieso several civilians killed in the crash o an Air Force
airplane conducting experiments sued under theFederal Torts Claims Act.32
The sources o the privilege are nebulous. It hasbeen attributed to pre-constitutional powers, sepa-
ration o powers, executive privilege and others.33 Itsscope is not well dened. In many cases, it allows the
government to prevent courts rom even evaluatingthe inormation beore ruling on the merits. Somecourts treat it as absolute and dismiss cases as soon
as the privilege is invoked; others have rejected thatview and demanded access to the records to ensure
that they are actually state secrets.34
Over the years, the government has used this privi-lege controversially in many cases to shut down
lawsuits against it and prevent having to deendagainst them. A recent review o the cases in the Po-
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18 Government Secrecy: Decisions Without Democracy
litical Science Quarterly notes “At present, it is cost-
less or the president to assert a secrecy privilege:the overwhelming odds are that the assertion willbe successul, and even i unsuccessul, the process
o overturning claims o privilege is lengthy and theonly potential cost o excessive claims o national
security is in bad publicity.“35
Tom Blanton, Directoro the National Security Archive, is more direct in his
criticism: “State secrets privilege continues as a kindo the neutron bomb o whistleblower litigation. It
leaves no plaintif standing.”
In the past six years, the privilege has been invoked
over 20 times by the ederal government to endcourt cases. These include:
. .RENDITIONS Khaled El-Masri, a German citizen
who was taken by the CIA in Macedonia and sentto Aghanistan where he was tortured or six
months. El-Masri sued the CIA or an apology. Thecase was dismissed ater the court ruled that thestate secrets privilege was absolute. It was also
successully invoked in the case o Maher Arar,a Canadian on his way through New York back
to Canada, who was sent to Syria where he wastortured. His case was also dismissed.
. .ILLEGAL.SURVEILLANCE In separate casesbrought by the American Civil Liberties Union
(ACLU), Electronic Frontier Foundation and theCenter or Constitutional Rights on the warrant-
less surveillance by the National Security Agency,
the government has invoked the state secretsprivilege to demand that all o the cases be dis-
missed. In at least one case, the court has rejectedthe privilege.
. .WHISTLEBLOWERS The privilege has been used
to prevent ormer FBI translator Sibel Edmondsrom challenging in court her dismissal rom theFBI ater revealing numerous problems with the
translation division. The FBI’s Inspector Generalound that she was improperly terminated and
that her allegations were never properly investi-gated. She was also prevented rom testiying in a
civil suit brought by the amilies o victims o 9/11.
Keep.away:.It’s.Sensitive..
(but.not.classied)!
The growth in secrecy has not been limited justto classied inormation. In the past six years,there has been substantial growth in categories o
inormation designated as “sensitive” and thereore
restricted. Some o these categories have statutory
authorization but, or the most part, these designa-tions are made internally by each agency and haveno legal authority.
While categories designating inormation sensitive
have existed or at least thirty years in some ormor another, their use appears to have dramatically
expanded since March 2002 when White HouseChie o Staf Andrew Card issued a memorandum
to all agencies requiring review o their inorma-tion with an eye to protect “inormation that couldbe misused to harm the security o our nation and
the saety o our people,” and urged the agencies toview FOIA exemptions broadly.36 It is estimated that
there are now more than 100 diferent designationsor categories o sensitive inormation.
Some o the recent uses o sensitive inormation
include:
• The prosecution o a Miami-based Transportation
Security Administration (TSA) employee caughtstealing baggage was dropped and local police
ocials are not allowed rom publicly reportingon incidents in airports without permission o the TSA. 37
• The DC government was not allowed to seeinormation on trains that are allowed to travel
through the District carrying hazardous cargoes.• The Nuclear Regulatory Commission (NRC)
attempted to suppress a report by the National
Academy o Sciences that it did not agree with.• Federal Energy Regulatory Commission (FERC)
reused to share inormation about the saetyo a proposed Liquid Natural Gas plan with the
Connecticut Attorney General because it wasSensitive Energy Inormation.38
• Department o Homeland Security (DHS)cited it when it reused to name the new DHSombudsman.39
• The TSA withheld inormation about inormationcirculars that had been published in the 9/11
Commission report as sensitive, only releasingthem ater it was directly pointed that it was
published in the 9/11 Commission report.
Currently, there are no government-wide proce-
dures on how sensitive inormation is to be desig-nated, who can impose it, how it is to be reviewed
or release or its withholding appealed. A reportsponsored by the Department o Deense noted
in 2004 that the “status o sensitive inormationoutside o the present classication system ismurkier than ever ... Sensitive but unclassied data
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19Government Secrecy: Decisions Without Democracy
is increasingly dened by the eye o the beholder.
Lacking in denition, it is correspondingly lackingin policies and procedures or protecting (or notprotecting) it, and regarding how and by whom
it is generated and used."40 Representative HenryWaxman describes “sensitive” as, “a code word or
embarrassing to senior ocials”.
The lack o standards results in overuse o thedesignations and greater restrictions on inorma-
tion both or internal use and or public availability.A 2006 Government Accountability Oce reviewound over ty diferent categories o inorma-
tion designated as sensitive, ranging rom Sensi-tive Homeland Security Inormation, Sensitive but
Unclassied, Law Enorcement Sensitive, to ForOcial Use Only.41 The GAO ound that, in difer-
ent agencies, similar inormation was oten beingdesignated or control using diferent labels and
procedures. It also ound that ew agencies provid-ed adequate guidance, training or internal controls.
The GAO concluded that “the lack o such recom-
mended internal controls increases the risk that thedesignations will be misapplied. This could result
in either unnecessarily restricting materials thatcould be shared or inadvertently releasing materialsthat should be restricted.” Within departments such
as Justice, the GAO ound numerous proceduralproblems due to lack o ormal policies, inadequate
training, and poor oversight. In the FBI, any em-ployee or contractor could designate inormation as
sensitive even though the FBI had no guide and did
not provide adequate training.42
A 2006 review by the National Security Archive o 37 major agencies and components ound little
consistency across government agencies.43 Onlyeight o the agencies had legal authority to desig-
nate inormation as sensitive, while 24 were onlyollowing their own internal guidelines. Eleven hadno policy at all. Nearly one-third o the policies
allowed any employee to designate inormation assensitive, but they did not set policies on how the
markings could be removed, and only seven totalset restrictions on how they can be designated. The
review also ound that policies set ater 9/11 were“vague, open-ended or broadly applicable” com-pared with those beore.
Even though the designations oten have no ocial
standing, agencies are more restrictive in many cas-es with such inormation when it is requested under
FOIA.44 The National Security Archive ound thatat least hal o the agencies subject the inorma-tion to greater review and more restrictions when
requested under FOIA; only two made any attempts
at ensuring that the restrictions were balanced withthe public’s right to know.45
The designation is also being used to create deacto secret laws. The 2002 Homeland Security Act
allows the Department o Homeland Security todesignate dozens o categories o inormation as
sensitive. This includes DHS regulations that au-thorize requiring showing ID to get on a plane and
who can be searched. Republican CongresswomanHelen Chenoweth-Hage was reused access ontoa plane ater she demanded unsuccessully to be
shown the legal authorization or being searched.When asked why the regulations were not shown,
a TSA spokesman said “Because we don’t haveto ... That is called ‘sensitive security inormation.’
She’s not allowed to see it, nor is anyone else.”46 In another case involving the no-y list, a District
Court ound that the TSA used “rivolous claimso exemption” in designating the security policiesas sensitive.47
In December 2005, the White House issued a
memorandum ordering government-wide stan-dardization o “procedures and standards ordesignating, marking, and handling SBU inorma-
tion.”48 Agencies were required to conduct reviewso their procedures or sensitive inormation and
report to the Director o National Intelligence. Aninter-agency working group led by the DNI was due
to issue guidance by the end o 2006, but there are
reports that it has been delayed due to controversyamong agencies on which headings should be
kept. A report in June 2006 rom the DHS and DOJwas reported to be rejected by the White House
because it “lacked substance”.49
Congress has shown some recognition that sen-sitive inormation needs to be limited. In 2002,Congress required the President to come up
with a government-wide denition o homelandsecurity inormation.50 The standards were never
issued and might have been pre-empted by theDecember 2005 memorandum. In 2005 and 2006,
a number o House and Senate Committees heldhearings on Sensitive Security Inormation (SSI) and“Pseudo-classication.” In 2006, Congress approved
an amendment to the Department o HomelandSecurity Appropriations Act requiring that the DHS
amend its regulations to review SSI inormationwhen requested under FOIA, declassiy SSI or most
inormation that is over three years old unless theDHS secretary “identies a rational reason why theinormation must remain SSI,” and allow access to
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20 Government Secrecy: Decisions Without Democracy
SSI by parties to lawsuits who need to access or the
lawsuit, subject to restrictions on urther disclo-sure.51 These changes were not expected to makea substantive improvement to the overall problem,
though, because o the limitation o the stricturesto the DHS.
Propaganda.and.Disinormation
The dissemination o truthul inormation is essentialto allow or an inormed electorate and Congress.
This has also been systematically disregarded in thepast six years. The Administration has selectively re-leased inormation, actively deceived Congress and
the public, secretly hired journalists and released“news” videos and other similar activities.
Following 9/11, the White House instructed the EPA
to tell the public that the air around Ground Zerowas “sae,” even though the EPA had not conductedull testing. The EPA’s Oce o the Inspector General
issued a critical report in 2003, nding that theWhite House had “convinced EPA to add reassur-
ing statements and delete cautionary ones.”52 TheMount Sinai Medical Center ound that 70 percent
o ground zero responders had some orm o respi-ratory problem.53 At least 75 police and reghtershave been ound to have developed cancer and
several have died.54
The administration has also engaged in active de-
ception o Congress. When Congress was debatingthe cost o the changes to Medicare bill in 2004, itwas told by the Administration that the total wasgoing to be $395 billion. However, the Chie Actu-
ary o Health and Human Services (HHS) was awarethat the actual cost was over $720 billion and was
told not to inorm Congress o the actual cost. TheWhite House claimed that it has a constitutional
power to withhold inormation.55
Under ederal law, spending money or “publicity
or propaganda purposes” is prohibited.56 However,there has been a series o incidents where the
government has been paying or news articlesor inuencing journalists. In 2002, the Pentagon
proposed the creation o an Oce o StrategicInuence to inuence media outlets to avor theUnited States. It was widely reported that the oce
would engage in misinormation and planting o stories in oreign media and on the Internet. The
proposal was quickly killed of by the Pentagonollowing public outcry. However, in 2005, the
LA Times revealed that U.S. military was secretlypaying to have stories planted in the Iraqi press.57
The Education Department secretly paid conserva-
tive commentator Armstrong Williams $240,000to promote the No Child Let Behind Act. The HHSproduced videos that were intended to look like
news stories promoting changes to Medicare whichwere unknowingly run on 40 television stations. The
Governmental Accountability Oce ound that thiswas “covert propaganda” prohibited by law.
CLOSING.DOORS
The.Freedom.rom.Inormation.Act:..
Limiting.the.FOIA
The Freedom o Inormation Act (FOIA) is one o themost important pieces o legislation in ensuring thatinormation is available to the public.58 It has two
principal unctions. First, it requires that government
agencies publish inormation about their activities.Second, it gives a legal right to any person to requestinormation rom ederal government agencies. The
FOIA sets a presumption that all persons have a rightto know inormation about what the ederal govern-ment is doing and the government has a legal obliga-
tion to tell them, subject to a ew limited exemptions.Over 4 million requests were made in 2005 under the
FOIA and the vast majority (over 90 percent, mostlypersonal les) were responded to in ull.
The FOIA was signed by President Lyndon BainesJohnson on July 4, 1966 and went into efect in
June 1967 ater a teen year campaign by mediaand members o Congress to reduce secrecy in ed-
eral agencies. Prior to the FOIA coming into efect,agencies used a variety o diferent excuses, includ-
ing an obscure 1798 “Housekeeping Statute” and amisreading o the Administrative Procedures Act, todeny access to inormation. The FOIA was substan-
tially amended in 1974 over the veto o PresidentFord, in 1986, and in 1996 with the Electronic FOIA
(E-FOIA) amendments.
The FOIA only applies to agencies o the executivebranch o the ederal government such as the De-partment o Homeland Security, the Environmental
Protection Agency, the Department o Deense andthe Department o Health and Human Services. It
does not apply to the Congress, the ederal courts,oces directly under the President such as the
National Security Council, private contractors orstate government bodies.59 Any individual, withoutregard to interest, legal status or geographic loca-
tion, can request records rom the agencies.
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21Government Secrecy: Decisions Without Democracy
There are nine exemptions under the FOIA. They
are or:
• Classied inormation relating to the national
deense or oreign policy;• Internal personnel rules and practices o an
agency;• Inormation made secret by another statute;
• Condential trade and business secrets;• Internal and inter-agency communications;
• Personal inormation;• Law enorcement;• Financial institutions;
• Well and geologic inormation.
Most o these exemptions are discretionary (agen-cies may, but are neither required to release nor
withhold inormation requested). The presumptionoverall is or the release o inormation and agen-
cies can withhold it only i there is a good reason. The 1986 amendments to the law also allow agen-cies to reuse to conrm to existence o records
i the inormation would interere with a currentsecret criminal investigation, records about inor-
mants, and some classied and secret FBI intelli-gence or terrorism les.
A person denied inormation can rst appealinternally to the agency to reconsider. A lawsuit
can also be led in the ederal District court wherethe requestor resides or the U.S. District Court in
Washington, DC. Several hundred law suits are led
each year.
For ees purposes, requestors can be broken downinto three categories – commercial; educational or
noncommercial scientic and news media (includingpublic interest groups); and other. Commercial-use
requestors are required to pay or all search, reviewand duplication costs; news media and representa-tives o scientic or educational organizations are
required to pay or duplication o records o morethan 100 pages. Requestors who are not commercial,
news media, scientic or educational requesters arerequired to pay search costs or more than 2 hours
and duplication costs or more than 100 pages.
Attempts by agencies to use the ees as a barrier
have been increasing. The CIA in October 2005began demanding search ees rom public inter-
est groups and the news media i it determinedthat the inormation requested was not “important
enough news” to justiy a waiver.
E-FOIA
In 1996, the U.S. Congress adopted the ElectronicFOIA (E-FOIA) Act, the most signicant amend-
ment to the FOIA since 1974. The primary goal o the E-FOIA was to improve how agencies handledelectronic inormation related to FOIA requests.
This included a specic recognition that requestsor electronic inormation were to be treated in
the same way as requests or physical documents,and greater obligations or publishing inormation
online and accepting electronic requests.
However, the requirements have not been ully
implemented more than ten years ater the adop-tion o the Act. Many agencies still do not have
adequate web sites with Electronic Reading Roomsor accept electronic requests or inormation.
Problems
The chilling o FOIA in the Bush Administrationbegan nearly rom its outset. In October 2001, At-
torney General John Ashcrot issued a memo onFOIA that substantially undermined the presump-
tion o openness.60 The memo encouraged agenciesto limit disclosure o inormation, ordering them
to “careully consider” interests including nationalsecurity, business inormation, and personal privacybeore allowing the release o any inormation.
The agencies were told that the Justice Depart-ment would deend them in court except in the
most extreme cases. The DOJ then issued guidancesuggesting expanded views on exemptions such
as privacy and internal agency rules and practices. This substantially changed the presumption o theprevious order issued by Attorney General Reno.
That order created a presumption o openness andstated that the DOJ would only deend agencies i
a “oreseeable harm” existed, not i there were onlya substantial legal basis (the standard under the
2001 order).
Following the 2001 memo, studies have ound that
the number o exemptions cited expanded greatly. The use o the privacy exemption has been espe-
cially aggressive.
Delays - Waiting until kingdom come
One o the most signicant problems with theFOIA is the oten long delays that occur in agen-cies providing inormation to requestors. The FOIA
requires that agencies respond to requestors within20 working days. However, there are no set dead-
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22 Government Secrecy: Decisions Without Democracy
lines or actually making the inormation available,
rather the inormation must be provided “promptly”.In some cases, requestors can wait years or theinormation that they requested. A review by the
National Security Archive in 2006 ound that theoldest request was 17 years old. The GAO ound that
the backlog o agencies requests had also increasedrom 2002 to 2005 by 14 percent.61
In part, this is a resource issue. Many agencies have
not provided or enough resources to ensure thatrequests are responded to in a timely manner. Butagencies know that unless a lawsuit is led, they do
not have to respond in a timely manner and manyuse that as a means to deny access.
Oversight
Another signicant problem with the FOIA is thelack o a central authority to monitor and enorce
it. Many U.S. states such as Connecticut, Florida,Hawaii, and New York (and over orty other coun-
tries) have appointed a Commission or ombuds-man which has this task. The oce can also play a
proactive role in providing guidance and training toassist agencies.
The best the U.S. has is the FOI and Privacy Oce inthe Department o Justice. The DOJ provides guid-
ance to agencies but its actual authority is limitedto some administrative unctions on annual reports.
The Department also deends agencies who aresued but, under the Ashcrot memorandum, itsduty is to deend in nearly all cases.
Proposals or Improvements
In the past several years, Congress has again been
discussing improvement to the FOIA. Hearings wereheld and a number o bills were introduced and dis-
cussed by Committees in the House and the Senatein the 109th Congress.62
In December 2005, President Bush issued an execu-tive order requiring agencies to improve their admin-
istration o FOI.63 The order requires that each agencyestablish “citizen centered” policies that require that
requestors are treated “courteously and appropri-ately” and agencies operate in a “results-oriented”manner. Specically each Agency was required to:
• Designate a senior ocial as Chie FOIA Ocer
with overall power over agency compliance andimplementation;
• Conduct a review o FOI operations and drat a
plan or improvements including review o theuse o inormation technology and reducingbacklogs;
• Establish one or more FOIA Requester ServiceCenter(s);
• Designate a FOIA Public Liaison to work withrequestors.
It was widely suspected that the executive order
was issued to undermine Congressional eforts toadopt amendments to the FOI to improve opera-tions. Most o the requirements such as Chie FOI o-
cers and Liaisons were already in place, and it doesnot address problems such as the 2001 Ashcrot
memo that sets the deault at withholding inorma-tion rather than releasing it.
In October 2006, the Attorney General released the
rst report based on the implementation plans. Thereport presented a very rosy view o the ExecutiveOrder, calling it a “rst o its kind FOIA executive
order” and “the most signicant administrativedevelopment in its history” and lauding it as an
international standard. The order was describedas having “an immediate and widespread positiveefect on the operations o the ederal agencies”. It
recommended minor changes to the administra-tion including a meeting o Chie FOIA Ocers,
improvement o acknowledgement letters, a reviewo orms and better use o technology. A review o
the same reports by the National Security Archive
was much less cheery, saying that the review “ailsto provide an honest assessment o where agencies'
FOIA programs stand today.” The review noted thatmany agencies have still not implemented the 1996
E-FOIA amendments; many plans rely on uncer-tain unding; there is a lack o recognition o the
resources needed to resolve longstanding backlogproblems; and there is a lack o any cross-agencyauthority or FOI.64
In March 2007, the House passed the “Freedom o
Inormation Act Amendments o 2007” (H.R. 1309),and the “OPEN Government Act” (S. 849) was intro-
duced in the Senate. S. 849 has passed out o theJudiciary Committee and is awaiting oor time ordebate and a vote.
Executive.Privilege
Underlying many o the Administration’s claims ordenying inormation is the belie that the Adminis-
tration is not subject to most requests (even legal)
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23Government Secrecy: Decisions Without Democracy
or inormation because its release would violate
“executive privilege.” The administration has romthe beginning strongly worked to enhance itspowers in relation to the other branches o govern-
ment and the public. It has stated its belie that thePresidency should return to the (largely mythical)
unchecked powers that it held beore the Water-gate era. As Bush told a press conerence in 2002,
“I’m not going to let Congress erode the power o the Executive Branch.”65
The privilege comes rom the constitutional sepa-
ration o powers and is promoted to protect theadvice given to presidents. Scholar Mark Rozell de-
nes it as “the right o the president and high-levelexecutive branch ocers to withhold inormation
rom those who have compulsory power -- Con-gress and the courts (and thereore, ultimately,the public).”66
The claim was rst made in the administration o George Washington, but it was not recognized
by the courts until the 1950s. In cases such as theWatergate tapes and debates over the les o Presi-
dent Nixon, the Courts ound that it is limited anddiminishes over time.67
Hiding rom Congress
Starting in 2001, the Administration began usingexpansive claims o executive privilege to resist
Congressional inquiries into a variety o areas,including the Boston FBI’s misconduct in the 1960sthat resulted in an innocent man being imprisoned
or 30 years, Justice Department memorandums oncampaign nance prosecutions, and copies o the
President’s Daily Brie relating to perceived terrorthreats prior to 9/11. Ocials have claimed, under
executive privilege, that they are immune rom
testiying beore Congress and providing inorma-tion. Instances include the activities o White HouseCounsel Alberto Gonzales when he was nominated
or Attorney General, and Supreme Court nominee
John Roberts’ activities in the Justice Department.
The claim o executive privilege also has been used
to stymie investigations by Congressional ocers. The General Accounting Oce (now the Govern-ment Accountability Oce), the investigative arm
o the Congress, was asked to review the activitieso the 2001 task orce on energy policy chaired by
Vice-President Cheney, which had held a series o secret meetings. It was widely believed that these
included meetings with controversial compa-
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24 Government Secrecy: Decisions Without Democracy
nies such as Enron. The GAO was asked to obtain
inormation on the meetings, who participated andwhat was discussed. The Oce o the Vice-Presidentreused and in February 2002, or the rst time ever,
the GAO led suit to enorce its powers. The casewas dismissed in December 2002 ater the court
ound that, as there was no personal injury to theGAO, it could not bring the case. It chose not to ap-
peal the case.
In June 2007, the House Oversight and GovernmentReorm Committee released letters and other docu-mentation showing the Vice-President asserting that
his oce was not bound by Executive Order 13292on national security classication as it was not “an
entity in the Executive Branch.” This is an odd claimrom an ocial asserting Executive Privilege.
The 110th Congress has sent numerous requests
or documents to the White House, on such topicsas the White House’s involvement in the hiring andring procedures o the Justice Department and
the warrantless surveillance program rst revealedin late 2006. The White House is responding with
assertions o executive privilege, but the new Con-gress does not appear inclined to back down andaccept these claims without a ght.
Accessing Presidential Records
Executive privilege is also being used to justiy limit-ing access to the historical les o the past presi-
dents. In 1978, ollowing Watergate, the Congressenacted the Presidential Records Act.68 The Act setthe principle that presidential records are owned by
the public rather than private property o the presi-dent and are to be maintained and made public by
the National Archives. The law allows records to bekept sealed or 12 years and ollowing that period to
be made public subject to nearly all o the exemp-tions o the Freedom o Inormation Act. Under anExecutive Order issued by President Reagan, the
President and his predecessors were given 30 daysnotice when records were about to be released and
the Archives was required to identiy any recordsthat would afect executive privilege.69 The records
would then be released unless the President or the
previous president claimed privilege. Requestorscould challenge the decision in court.
In November 2001, President Bush issued an Execu-
tive Order that restricted access to these records.70 The new order revokes the Reagan order, and in
the words o the House Committee on GovernmentReorm, “converts the Act’s presumption o disclo-
sure into a presumption o non-disclosure.” Underthe new order:
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2Government Secrecy: Decisions Without Democracy
• The release o inormation must be rst approved
by both the current and previous president eveni privilege is not claimed.
• The current president can withhold documents
even i the previous one disagrees.• The current president must ollow the wishes o
the previous president to withhold “Absent com-pelling circumstances”. The Archivist must ollow
the wishes o the ormer president and deendthe withholding even i it is without merit.
• Persons who challenge the designation o execu-tive privilege must show a “demonstrated, specicneed" or the records.
• The ormer president can designate a riend orrelative who can claim the privilege even ater the
ormer president is dead.• Requests rom the public must be responded to
in 90 days but can be delayed indenitely.• The claim o executive privilege was extended to
the Vice-President.
The American Historical Association and other
groups led a lawsuit in 2002 challenging the orderas violating the law. The suit is still pending.71 Sev-
eral bills were introduced in the House and Senatein the 109th Congresses and gathered bi-partisansupport, but were not adopted.
In March 2007, the Presidential Records Act Amend-
ments o 2007 was introduced in both the House(H.R. 1255) and the Senate (S. 886). It passed the
House on March 14th and was passed out o the
Senate Homeland Security and Governmental A-airs Committee in June. It is awaiting a oor vote.
Closing.the.Courthouse.Doors
Americans have a long-held presumption that trialsare to be open. The Supreme Court has described
open courtrooms as “recognized as an indispens-able attribute o an Anglo-American trial” as arback in history as could be ound.72 However, the
same cloud o secrecy that has enveloped theexecutive branch has been advancing on the
judicial branch.
Since 9/11, inormation about cases has becomeincreasingly dicult to obtain. Individuals havebeen detained secretly, oten held or months on
immigration-related charges without any noticeto their amilies or being given a chance to obtain
legal representation, hearings have been closed,and lings and bries have been sealed.
In September 2001, Chie Immigration Judge
Michael Creppy (an employee o the JusticeDepartment, not an independent judge) issued amemorandum ordering that immigration hearings
in “special interest cases” be closed and prohibitingdisclosure o inormation about the cases to anyone
but employees and the person’s lawyers.73
Over 700people were designated as “special interest cases”
and o these 500 were deported.74
The closed hearings were challenged in severalcases. The U.S. Court o Appeals or the 6th Circuitound that the rules were unconstitutional, decree-
ing “Democracies die behind closed doors….Whengovernment begins closing doors, it selectively con-
trols inormation rightully belonging to the people.Selective inormation is misinormation.” 75 In the
3rd Circuit, however, the court ruled or closure o the hearings, nding that immigration cases did
not have a long history o openness; the court gave“great deerence to Executive expertise”.
The secrecy is not limited to immigration hearings,though. Court hearings relating to national security
or terrorism are also being regularly closed, andgag orders are being placed on lawyers to preventthem rom discussing what is happening to their
clients. Bries and decisions issued at the district andappeals level are classied or redacted without any
limits. In a case involving a challenge to the PATRIOTAct, the Justice Department even blacked out a
quote in an ACLU brie rom a 1972 U.S. Supreme
Court case that said, “The danger to political dissentis acute where the government attempts to act un-
der so vague a concept as the power to protect do-mestic security. Given the diculty o dening the
domestic security interest, the danger o abuse inacting to protect that interest becomes apparent.”76
Many cases are not even appearing on dockets.In 2005, People or the American Way led a FOIA
request with the Justice Department asking howmany cases have been completely closed. The DOJ
demanded that PFAW pay almost $400,000 andthen rejected the request as too burdensome, say-
ing that the practice was common and that it didnot keep track o the records. A DC Federal Courtordered the DOJ to conduct the searches.
Nor is the secrecy limited to national security
related cases. The Justice Department is currentlyattempting to close the hearings o the U.S. Court
o Federal Claims on whether the drug Thimerosalcauses autism. The HHS has requested that all theevidence be sealed and not be provided to the
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2 Government Secrecy: Decisions Without Democracy
amilies or the press.77 In a recent prosecution o
an employee o Coca-Cola, the prosecution rec-ommending using the procedures developed toprotect classied inormation against the deense.
GAGGING.THE.INSIDERS:..PUBLIC.EMPLOYEES.
As secrecy in the administration has become moresevere, the importance o whistleblowers has
grown. These insiders, oten government ocialswho are dismayed by the activities o their ellow
ocials, can be invaluable in revealing to the publicinormation essential to the public interest that
otherwise never would have seen the light o day.Some o the recent important stories they have
revealed include:
• The existence o the National Security Agency
policy o warrantless wiretapping o telephonecalls between the U.S. and oreign countries.
• Abuses at Abu Ghraib prison.• The existence o CIA rendition and torture
centers.• The substantial no-bid contracts given to
Halliburton and other deense contractors and
price gouging by the companies.
The number o times the administration has started
investigations into leaks has also substantially in-creased. A recent FOIA request by the New York Sunound that 94 investigations o leaks o classiedinormation were started between 2001 and 2006.
Gag.rules
In general, public employees have the same FirstAmendment rights o ree speech as other citi-
zens. However, these rights can be limited in somecircumstances to “promote the eciency o public
services”.78 This is especially true relating to classi-
ed inormation obtained while employed by thegovernment.79 The CIA and other agencies have thepower to review all materials that the employee or
ormer employee wish to publish and censor them.
There has been an increase in eforts to preventpublic employees, especially scientists, rom pre-
senting to the public inormation which challengesthe views o the administration, especially relating
to climate change.80 At NASA, a junior political ap-pointee with no scientic background81 ordered theDirector at the Goddard Institute or Space Studies
to not speak to conerences or the media. At theU.S. Geological Survey, scientists must obtain pre-
approval o all presentations, reports or other publicreleases o any material that has “ndings or data
that may be especially newsworthy, have an impact
on government policy, or contradict previous publicunderstanding”.82 The Department o State Inspec-
tor General ound, at the Bureau o InternationalInormational Programs, a “virtual censorship” o
speakers who were vetted.83
The designation o “sensitive” inormation (seeabove or discussion) is also being used to restrictemployees’ ability to disclose inormation o serious
public interest. Employees o Wackenhut Corpora-tion, which provides Transport Security Administra-
tion screeners, were required in April 2006 to signnon-disclosure agreements ater several publicly
revealed security problems at DHS headquarters.84 A ederal marshal was red in 2003 or releasing TSAplans to limit marshals on long distance ights. The
disclosure led to Congressional and public criticismand a reversal o the plan. In May 2004, the DHS
proposed requiring all 180,000 employees and con-tractors to sign an agreement85 to not disclose any
inormation designated as sensitive, including eveninormation that could be released under FOIA.
The employees would also be subject to random
searches as a condition o employment. This order
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27Government Secrecy: Decisions Without Democracy
was partially repealed in January 2005 ollowing
protests rom employee unions, Congress and civilliberties groups. The policy is still in orce, however,or contractors.
Plugging.the.WhistleAt the same time as the government is clamp-ing down on employees’ speech, there has been
a substantial increase in public recognition o the importance o whistleblowing. In 2002, Time
Magazine made three whistleblowers, including anFBI agent, their “Persons o the Year”. However, theprotections that are given to whistleblowers are
oten inadequate. Some common practices usedagainst whistleblowers, as noted by the Project on
Government Oversight (POGO), include:
• Taking away job duties so that the employee ismarginalized.
• Taking away an employee's national security
clearance so that he or she is efectively red.• Blacklisting an employee so that he or she is un-
able to nd gainul employment.• Conducting retaliatory investigations in order to
divert attention rom the waste, raud, or abusethe whistleblower is trying to expose.
• Questioning a whistleblower's mental health,
proessional competence, or honesty.• Setting the whistleblower up by giving
impossible assignments or seeking to entrap him
or her.• Reassigning an employee geographically so he or
she is unable to do the job.86
Whistleblower Protection Act
Federal whistleblower protection was rst ad-opted in 1978 in the Civil Service Reorm Act and
was extended in 1989 and 1994.87 The revised Act,now known as the Whistleblower Protection Act,
is intended to protect ederal employees rombeing punished when they make a disclosure o
inormation relating to violations o laws, rules orregulations, gross mismanagement, gross waste o unds, abuses o authority, or substantial dangers to
public health. Agencies are prohibited rom making“prohibited personnel practices,” such as discrimi-
nating on appointments, transers, promotions,pay or benets, or changes o duties, because anemployee has blown the whistle.
Under the Act, the Oce o Special Counsel (OSC)
was set up as an independent investigative agency
that takes complaints o “prohibited personnel
practices,” recommends corrective or disciplinaryaction, and brings cases or employees beore theMerit Systems Protection Board. The OSC can also
receive reports rom whistleblowers about illegal orunlawul activities. Employees who are punished or
whistleblowing can appeal to the Merit Systems Pro-tection Board and then to the U.S. Court o Appeals.
Most observers believe that the WPA has not worked
well at protecting public employees. Congressionalcommittees and the Government AccountabilityOce have conducted a number o investigations
into the efectiveness o the Whistleblower Protec-tion Act and have ound serious problems with the
protections and enorcement o the Act.88
The OSC has been a major impediment to whistle-blowers. It was criticized by the GAO in 2004 or
allowing a huge backlog o cases.89
During thebacklog, OSC only ound or the whistleblowerin our percent o the cases. Following the GAO
report, the OSC controversially “dumped” 1,000cases without review. When various staf members
complained, they were sent to oces ar away onshort notice or were orced to resign.90 Appeals havebeen less than efective as well. Since 1999, whistle-
blowers have won only two cases at the Board, andthe Court o Appeals has been widely criticized or
limiting rights even ater successive changes inthe legislation.91
In the 109th Congress, several bills to improve whis-tleblower protections were discussed and approved
in committees. However, nothing was enactedbeore the end o the session. Early in the 110th
Congress, the House passed the “Whistleblower Pro-tection Enhancement Act o 2007 (H.R. 985); it was
reerred to the Senate (S. 274) and passed out o theSenate Homeland Security and Governmental A-airs Committee in June. It is awaiting a oor vote.
National security whistleblowers
Even more problematic are the cases o whistle-blowers who wish to reveal classied inormation.
The 1999 Intelligence Community Whistleblower
Protection Act allows intelligence employees toreport misconduct by ocials to the House andSenate Intelligence Committees and the agency’s
Inspector General. It provides little protection,however, or the employees. Threats have increased
against whistleblowers who are revealing inorma-tion on mismanagement o agencies such as the
NSA and FBI and abuses by military contractors.92
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28 Government Secrecy: Decisions Without Democracy
First Amendment Protections
The right o a public employee to reveal abuseshas also been undermined in the courts. The U.S.
Supreme Court ruled in May 2006 that public em-ployees who make statements about abuses theydiscovered while working were not protected by
the Constitution.93
Ofcial.Secrets?.The.Espionage.Act.and.
other.criminal.statutes
The threat o jail or public employees and journal-ists who reveal inormation in the public interest is
the ultimate penalty. While repressive countries likeChina and Russia routinely imprison citizens and
journalists or disclosing embarrassing inormationthat the governments claim is classied, the United
States, with its strong protections o ree speech,does not have an Ocial Secrets Act.
The closest law is the Espionage Act adopted in191794. The Act prohibits the unauthorized disclosure
o classied deense inormation to enemy powerswith the intent to harm the United States. When the
law was being considered in 1917, the Congresson several occasions rejected eforts to includea broader prohibition on disclosure, expressing
concern over the restrictions on ree speech and thepossible misuse o the discretionary power given to
the President to determine what was classied.95 It
is generally accepted that this law does not apply tothe publication o state secrets by newspapers andthere has never been a prosecution o a newspaperin the history o the law.
In the nearly 90 years that the Act has been in place,
there have been only a ew cases under the law ornon-espionage-related incidents. In the Pentagon
Papers case, the government attempted to preventthe publication o a classied history o the VietnamWar that was leaked to the Congress and newspa-
pers.96 The Supreme Court reused to censor the pa-pers, nding that the government had not met the
heavy burden o justication – o “direct, immediateand irreparable damage to our Nation or its people”
in ordering the withholding. The case against DanielEllsberg, the source o the material, ailed due tothe illegal searches conducted against him. In 1988,
Samuel Morison, a navy intelligence analyst, wasconvicted and sentenced to two years in jail or
providing satellite photographs o Soviet installa-tions to Jane’s Deense Weekly, which he worked or
part time. He was pardoned by President Clinton inJanuary 2001.
In the past several years, the barriers to using thislaw have been broken down. In an unprecedentedprosecution, Steven Rosen and Keith Weissman,
staf members o the American Israel Public AfairsCommittee (AIPAC) are being tried under the Espio-
nage Act or receiving inormation rom a DeenseDepartment employee.97 Following the publica-
tion o stories on the National Security Agency’swarrantless wiretapping o telephone calls, At-
torney General Gonzales, Members o Congress,and a ew conservative commentators called orthe prosecution o the New York Times under the
Espionage Act.98 In December 2006, ederal pros-ecutors in New York City cited the Espionage Act
in demanding that the ACLU return all copies o aleaked memo on media policy on photographing
detainees designated as “Secret”. The subpoena wasdropped ollowing a court hearing where the judge
rejected the government’s bid to seal the hearingand expressed skepticism that the case was strongenough to go orward. The government subse-
quently declassied the document in ull.
Attempts have been made in recent years to adoptan Ocial Secrets Act. In 2000, the Senate Intelli-gence Committee included a provision in the Intel-
ligence Authorization Act that would have crimi-nalized any unauthorized disclosure (disclosure
by any person with authorized access to classiedinormation to any person not allowed to see it) o
inormation that the discloser could have reason to
believe might be classied. The penalty was threeyears in jail. The bill was widely criticized by the me-
dia and by Democratic Senators. In November 2000,President Bill Clinton vetoed the bill saying that
the “provision is overbroad and may unnecessarilychill legitimate activities that are at the heart o a
democracy.”99 In 2006, the bill was reintroduced inthe Senate by Senator Kit Bond (R-Mo) but gainedlittle support and was not voted on beore the end
o the 109th Congress.100
Not all ocials support such a new law. In 2002,Attorney General Ashcrot issued a report recom-
mending against adopting new statutes on crimi-nalizing disclosures nding that “current statutesprovide a legal basis to prosecute those who
engage in unauthorized disclosures, i they can beidentied” and called or strong procedures or the
identication o government employees who revealinormation.101
These current laws include laws on general thet. The thet statutes have been used controversially to
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29Government Secrecy: Decisions Without Democracy
penalize employees who leak inormation. In 2003,
a Drug Enorcement Agency employee was convict-ed and sentenced to one year in prison under theederal anti-thet statute or providing unclassied
inormation to the UK’s The Times newspaper onLord Ashcrot, the UK Conservative Party treasurer,
whose bank in Belize might have been involved inmoney laundering.102
Attacking.the.Messenger:.the.Media..
and.Protection.o.Sources
The media is a crucial partner in ensuring that
inormation rom insiders is publicized. However, inorder or many o these sources to come orward,
reporters must promise that their identities will notbe revealed, or ear o retaliation. As Justice PotterStewart once wrote, “When neither the reporter
nor his source can rely on the shield o conden-tiality against unrestrained use o the grand jury ’s
subpoena power, valuable inormation will not bepublished and the public dialogue will inevitably
be impoverished.”
The remedy or this situation is a legal recognition
that journalists and those who work with themhave a privilege similar to a doctor/patient or at-
torney/client, to not have to reveal the identitieso their sources, or provide unpublished works
and other inormation related the journalist’s work when they promise their sources that they will not
do so. This right was rst adopted by the MarylandGeneral Assembly in 1896. It is widely recognizedon the state level with 31 states and DC adopt-
ing specic “shield laws” to protect these sources.In nearly all the other states, the courts have
recognized a right based on common law or thestate constitution.103
There is no recognition o this right, however, at the
ederal level. The Supreme Court ruled in 1973 thatthere is no constitutional right o journalists to nottestiy beore a grand jury.104 The court was sharply
divided and, since then, many ederal courts haveound a limited privilege based on the diferent
opinions in the decision.
Until recently, attacks on journalists to orce themto reveal their sources or testiy in court proceed-
ings were relatively rare over the last 25 years.Under long-standing Attorney General’s Guidelines,ederal prosecutors required the permission o the
Attorney General. It could be sought and givenonly in cases where the inormation sought must
be essential to the investigation and not peripheral,nonessential or speculative. Reasonable attempts
to obtain the inormation rom alternative sourcesmust also be attempted.
In the last six years, there has been a boom o caseswhere prosecutors have demanded that journal-
ists disclose their sources or a variety o reasons. Inmany o the cases, there has been very little point
or orcing the disclosure except as a punitive as-sault on the reporters who published it.105
In the 109th Congress, a number o bi-partisan billswere introduced in the House and the Senate to
provide at least a qualied privilege. In May 2007,the “Free Flow o Inormation Act o 2007” was intro-
duced in both the House (H.R. 2102) and the Senate
(S. 1267).v
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The past teen years have seen signicant changesin how government agencies operate, due to thewidespread adoption o inormation and com-
munications technologies (ICTs) such as desktopcomputers and the Internet. They have improved
the way government works and opened new op-portunities or citizens to ollow and participate in
government activities. The technologies can alsosignicantly improve citizen access to governmentinormation. Inormation that once was dicult and
time-consuming to collect, analyze, and distributecan now be easily made available inexpensively to
anyone who wants it.
However, electronic government also creates newchallenges. These include ensuring that access is
available to everyone equally, and that the in-creased volume o inormation being created elec-tronically is going to be kept or uture generations
to be able to nd and use.
ELECTRONIC.GOVERNMENT.
For over a decade, electronic government (E-gov-
ernment) has held the promise o providing moreresponsive and ecient government. There are three
major components to E-government: E-inormation- the making o public inormation available electroni-
cally to the public; E-governance – the use o tech-nologies to acilitate consultations, voting and otherdemocratic activities; and E-services – the better
providing o government services using technologies.
The use o E-government has been steadily increas-ing as more Americans go online. A 2004 study
by the Pew Foundation ound that 77 percent o Internet users (97 million Americans) had used theInternet to obtain inormation rom or to contact
government agencies. Internet users are muchmore likely to contact government oces than non-
Internet users and report a higher level o successin their interaction with the government.106 Still,
the situation is not ideal; 46 percent o those whocontact the government through the Web reporteda problem.
The E-Government Act o 2002 sets a variety o
standards on electronic rulemaking, records man-agement, digital signatures, web sites standards
and other E-government initiatives. 107 The leadgovernment agency or electronic government
is the Oce o Management and Budget (OMB),which through the Oce o Inormation and Regu-latory Afairs, has long been involved in inormation
policy. The E-Government Act created an Oce o Electronic Government at OMB and also requires
the OMB to issue policies to organize inorma-tion to acilitate searching o inormation across
the government.108
Access.to.government.inormation.online
Inormation technologies can be extremely pow-erul at providing access to government inor-
mation online to acilitate the understanding o how government is working. Every Congressman,
Senator and Congressional Committee and ederalagency has a web site and many maintain multiplesites which provide extensive inormation about
their activities.
Opportunities for Public Access and Participationin a Digital Age
3
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32 Government Secrecy: Decisions Without Democracy
Much more needs to be done, though. Government
web sites are complex and oten sel-serving. Inor-mation appears and disappears. Many are ormat-ted in such a way that access to raw inormation or
analysis is limited. Public access advocates have askedor years or better management o the government’s
inormation, and now companies such as Google areasking agencies to design the databases to allow or
better indexing by their search engines.109
The ollowing are some examples o inormation
that is available to the public which is used to pro-mote oversight and accountability:
Legislation and regulations
For nearly 150 years, the Government Printing O-
ce has published and made available to the publicinormation such as the texts o laws, the FederalRegister, the Congressional Record and importantgovernment documents such as the report o the
9/11 Commission. The Federal Depository LibraryProgram places government documents in over
1200 libraries in all 50 states to ensure that citizenshave access to the documents.
Electronic publication has steadily increased accessto the inormation available. In 1993, Congress
enacted the Government Printing Oce Electronic
Inormation Enhancement Act to put an indexo documents, the Federal Register, Congressio-nal Record and other records online and act as a
depository online.110
It now maintains thousandso databases and government documents online,
available or ree. Millions o records are accessedeach month.
In 1995, the Library o Congress launched the THOMAS system to allow or citizens to easily and
reely obtain legislative inormation. The systemgives access to bills, committee and oor schedules,
votes on specic bills, hearings, reports and otherrelated inormation. It received over 150 million hits
in FY 2004.111
It is oten dicult or citizens to be able to efec-tively ollow what is going on in the governmentand Congress, however, and many areas where in-
ormation is still dicult to nd. There has alreadybeen some consideration in the 110th Congress
about making more inormation about lobbyists,campaign nancing and travel available. The OpenHouse Project is examining other areas such as
Congressional Research Service reports, Congres-sional Committee transcripts and votes, archiving
Congressional web sites, and making changes to
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33Government Secrecy: Decisions Without Democracy
bills available publicly in an understandable or-
mat.112 ReadtheBill.org is calling on the Congress toenact a “72 hours online rule” to ensure that all billsand conerence reports are available beore they
are voted on to give time or members o Congressand the public to review legislation beore it is
approved.
113
Electronic Budget Ino
In FY 2006, the total budget o the U.S. was 2.7
trillion dollars. According to the CRS, over 1 trilliondollars per year is given in the orm o contracts,grants or loans.114 Public accountability can reduce
money spent or rivolous or wasteul projects suchas the inamous Alaskan “Bridge to Nowhere,” or
lost though mismanagement and poor contract-ing in Iraq and ollowing Hurricane Katrina. The
U.S. has historically had a reasonably open processbut the complexity o procurement and spending,increased secrecy, and attempts to limit the powers
o agency Inspectors General have lessened that. The International Budget Project ranked the U.S.
as the sixth most open country in the world o 59countries, below France, the United Kingdom, New
Zealand, South Arica and Slovenia.115
One o the most innovative developments in the
past ve years in both access to inormation andelectronic government was the adoption o the
Federal Funding Accountability and TransparencyAct in 2006. The law was enacted with overwhelm-
ing bi-partisan support in the House and theSenate and by over 150 groups rom across thepolitical spectrum.
The Act requires that the OMB create a new online
database with a “searchable website” about organi-zations that receive contracts, grants or loans rom
the ederal government by January 2008. This is toexpand to include credit card transactions, sub-
contractors and subgrantees by January 2009. Theinormation will include a description o purpose o the spending, the amount, and the Congressional
district beneting.116 Any person or group will be
able to search to see who received money rom theederal government and or what purpose.
Concerns have already been expressed that theunderlying inormation may be unreliable. The OMBdatabase will use inormation rom the Federal
Procurement Data System (FPDS), Federal As-sistance Award Data System (FAADS), and Grants.
gov. The GAO in 2003 and 2005 expressed concernover the timeliness and accuracy o the FPDS117 and
ound similar problems with FAADS. There was also
concern over the General Services Administration
(GSA) initially blocking access to ederal contractingdata. Ater years o managing a database on ederalcontracts, called the Federal Procurement Database
System (FPDS), the GSA contracted out the respon-sibility. The GSA initially denied FOIA requests or
the data, claiming that, as the contractor also took over collecting the data, GSA did not have the da-
tabase anymore, and that, instead, the data wouldhave to be purchased rom the private contractor.
Eventually, GSA backed of this controversial posi-tion and began having the contractor provide rawdata to those requesting it, ree o charge 118
Corporate Activities
The ederal government also collects and dissemi-
nates inormation about activities o private corpo-rations in many areas including the environment,nancial records and consumer protection.
Environment
In 1986, ollowing the releases o deadly methyl
isocyanate gas in Bhopal, India killing thousands,and in Institute, West Virginia injuring hundreds, the
U.S. Congress enacted the Emergency Planning andCommunity Right to Know Act.
The law requires that companies provide inor-mation to state agencies and the Environmental
Protection Agency on toxic chemicals that they useor release into the environment. The EPA is required
to maintain a Toxic Release Inventory (TRI) andmake that inormation widely public using inorma-tion technology. The inormation is available online
and citizens can type in their zip code and obtaininormation about the releases in their areas.
The data has many users: civil society groups have
combined this data with other records to createcomprehensive search engines or use by citizensgroups;119 the EPA uses the data in developing regu-
lations; and even companies use it to determinewhere they should ocus their eforts on reducing
pollution. The TRI is considered to have successullyreduced the amount o toxic materials released in
the U.S. by nearly hal.120
As mentioned in the previous chapter, the EPA
decided in December 2006 to limit the useulnesso the TRI by raising the threshold o pollution that
is to be allowed beore the companies must notiythe public.
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34 Government Secrecy: Decisions Without Democracy
Finances
One o the earliest eforts to use ICTs to dissemi-nate inormation was the Security and Exchange
Commission’s Electronic Data Gathering, Analysis,and Retrieval (EDGAR) system.121 The system allowsinvestors and others to examine lings made by
public companies. It is also used by companiesto create extended databases and tools to assist
investors. Starting in the 1990’s, the system was putonline. The SEC reports that it was searched nearly
400 million times in FY 2005. In 2005, the SEC beganreleasing publicly its Staf Comment letters withoutrequiring a FOIA request.122
Consumer Inormation
Other important inormation that is collected and
is in some part made public includes the saety
o toys and consumer products, autos and ood.One o the rst ederal inormation laws was the1958 Automotive Inormation Disclosure Act whichrequired car companies to place price stickers on
new cars.123 On the other hand, the FCC in 2004overturned a ten-year-old policy and reused to
release inormation on how oten land line and cellphone companies have outages, claiming that the
release o the inormation would help terroristsand harm the companies.124
ERulemaking.One area where there has been signicant progress
is in the development o using ICTs to acilitatepublic participation in developing ederal rules
(e-rulemaking). Each year, 8,000 rules are created byederal agencies and departments. The standardsor rules are set by the Administrative Procedures
Act o 1946, which determines the process that theagency must ollow in developing regulations based
on the principles o inormation, participation, andaccountability.125 In a typical rulemaking, the agency
will publish a Notice o Proposed Rulemaking in the
Federal Register and solicit public comments or aset period. Ater the period, the agency will reviewthe submissions and publish a nal rule and re-sponse to the comments. The rule can be challenged
in court, i it is believed that the agency created itwithout justication or that it ailed to ollow the
requirements o the enabling legislation.
There has been a gradual move to holding rulemak-ings online. It is generally believed that Internetrulemakings allow people to more easily identiy
rulemakings that afect them and to participate.
The development o the rules themselves benetrom receiving input rom a wider ranger o partici-pants. The E-Government Act o 2002 requires that
agencies create “electronic dockets” and receivecomments via their websites on proposed rules.126
In 2003 the regulations.gov website which givesaccess to the rulemakings published in the Federal
Register was launched.
It is not clear whether e-rulemaking substantiallyimproves citizen participation. The new systemsoten duplicate the existing processes that do not
allow or much input into the process. In some cas-es, the lobby groups are the main beneciaries.127
Electronic submissions may also be treated lessseriously by ocials. The EPA decided in Decem-
ber 2006 to reduce the amount o inormation onchemicals released to the environment even ater
over 120,000 individuals, groups and state and localgovernments wrote letters opposing the proposalwhile only 34 supported it.128
E-participation
A more signicant step would be the urtherdevelopment o using electronic networks not
just to provide inormation, solicit comments orprovide services but to increase public participa-
tion in governance beyond rulemaking. These couldinclude holding online orums, running discussion
lists through electronic mail or blog-type orums. There have been limited eforts to use these toolsby ederal departments thus ar.
The use o such tools should not, o course, be
allowed to circumvent the Federal Records Act,the Presidential Records Act, the Federal Advisory
Committee Act or other accountability legislationand regulations.
CHALLENGES.OF.DIGITAL.
GOVERNMENT.INFORMATIONDigital.Divide
One barrier to e-government is adequate accessto computers and networks. While there is steadily
increasing use o the Internet, a signicant portiono the population still lacks access. The number o
adults with access to the Internet reached over 70percent in 2006, but only 42 percent had access to
high speed broadband.129 The level o access is sig-
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3Government Secrecy: Decisions Without Democracy
nicantly lower or those on limited incomes. Only
53 percent o those with household incomes under$30,000 per year had access.
Education or even willingness o individuals to useelectronic services, especially those rom older
generations, is also a serious problem. Only 32percent o those over 65 and only 40 percent o
adults with less than a high school education usethe Internet.130 Language may also be a problem.
There are also privacy and security concerns thatcut across demographics and may limit demand orsome services.
Digital-only access may also limit understanding.
There has been a growing move toward only pro-viding access in electronic orm. In 2006, the EPA
closed ve libraries including its main library at EPAheadquarters, and reduced the times at our oth-
ers. There is concern that many o the resources inthese libraries will not be converted to digital ormto maintain access and will disappear.131 It addition,
the expert help provided by proessional librariansmay also be limited. Also in 2006, the Library o
Congress also stopped collecting certain docu-ments such as dissertations in exchange or accessto a more limited commercial database.132
Thus, or the oreseeable uture, any government
inormation or services should ensure that all per-sons have equal and equitable access. The role o
libraries, particularly public libraries, is very impor-
tant here. According to a 2006 survey, nearly 100percent o all libraries in the U.S. provide some orm
o public Internet access, up rom on 20 percent inten years.133 The libraries are now oten taking on
the role o assisting people with using e-govern-ment sites. However, these libraries are unded
usually by state budgets and are under constantnancial pressures.
Disappearing.documents.and.web.sites.
While electronic dissemination o inormation can
acilitate the release and access to inormation, itcan also make the job o making it disappear easier.
Following 9/11, many agencies removed inorma-tion rom their web sites or blocked public access toinormation that was designated as “sensitive”.
These included:134
• The United States Geological Survey ordered
librarians to destroy a CD-ROM on water supplies.
• The Federal Aviation Administrative removed
inormation on enorcement actions.
• The Environmental Protection Agency removed
Risk Management Plans, chemical hazards,emergency contingency plans, and access to the
largest database o environmental inormation.
A review in 2004 by the Rand Corporation o inor-mation removed rom ederal web sites ound that
most o the inormation was o little use to terroristsand was widely available elsewhere. It also oundthat the possible dangers needed to be balanced
against the interests in pubic access such as inorm-ing people o potential dangers.135
In other cases, the government has been using
expanded excuses o commercial condentialityto justiy the removal o inormation. In 2006, the
Small Business Administration began pulling datarom the Central Contractor Registry on the size o revenue o small companies ater investigations
using the data showed that many o the businessesgiven government contracts under the program
were not eligible.136
Managing.“Born.Digital”.Inormation
Each year, billions o electronic documents are cre-ated in ederal agencies. More data than ever be-
ore is created or collected in email, databases and
other electronic systems. Websites are developed,updated and merged. Previously physical archivesare being converted to digital orm. Documentormats are increasing in number and complexity;
the National Archives has ound over 4,500 diferenttypes o les.137 Many diferent programs and difer-
ent systems are used to operate and manage them.
Determining what should be preserved and ensur-ing that it is maintained and indexed in a orm thatwill be useul both or agencies now and or uture
generations are crucial problems. The entire “liecycle” o the inormation, rom its creation to its
disposal or permanent archiving, must be ensured. This must be understood to include the ability to
access and use the data in its original ormat, or inother ways, over time.
Previously, letters and les were routinely keptbased on a long-standing understanding on how
to handle paper documents. But electronic docu-ments have changed that. Archival systems o
paper-based documents are designed to ensurethat the documents will last at least 100 years. In
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3 Government Secrecy: Decisions Without Democracy
comparison, it is estimated that the typical lie cycle
or the technologies – the ormats and systems onwhich the record or our government exists -- is nowonly 18 months. Management o these systems is
still evolving, with very little consistency govern-ment-wide and virtually no oversight within the
executive branch or rom Congress. The challengesare monumental and they do not decrease i and as
we ignore them. Popular Mechanics magazine hasdescribed this as a potential uture “Digital Ice Age”.
WHAT.THE.PUBLIC.CAN.DO
Activism/.organizing.
The role o the Internet as a tool to promote grass-roots democracy can be extremely powerul. Its
developments has come more rom private eforts
then rom government bodies. The web has allowednew groups such as MoveOn to better organize
citizens in ways that were not possible beore.
Many websites have emerged to assist citizens inbetter tracking the activities o government and
Congress. It is now possible to track new legisla-tion through GovTrack 138 or congressional travel139 or spending.140 Sites such as DocuTicker, beSpacic
and the Federation o American Scientists locateand publish government documents and related
reports on major issues.
Websites, blogs and Wikis are used by millions everyday to share, comment and advocate. The Federal
Funding Accountability and Transparency Act in
2006 was enacted due to citizen and public interestgroups rom a wide spectrum using the Internetto coordinate lobbying eforts to identiy which
Senators had placed secret holds on the law andpressure them to remove them. The use o networks
o plane spotters allowed journalists to be able totrack the ights o CIA aircrat used or “rendition” o
prisoners to secrets prisons.141
Video is now widely available outside o the main-stream media or ocial channels though servicessuch as YouTube and MySpace. The availably o
these video sites makes it easier or citizen journal-ists to show abuses. During the 2006 political cam-
paign, the video o Senator George Allen comment-ing on the race o his opponent’s campaign worker
seriously changed the tenor o the campaign andled to his deeat. The widely disseminated video o
an UCLA student being Tasered and other videoso the LAPD using pepper spray on suspects orcedthe police and FBI to address abuses.142
Beyond sharing inormation, though, the public
can join organizations and coalitions that promoteopenness and accountability. A partial list o suchorganizations is provided at the end o this report.
The public needs to hold the government’s eet to
the re – through letters and meetings, in publicorums, and at the ballot box.v
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37Government Secrecy: Decisions Without Democracy
Appendix.–.List.o.Relevant.Legislation.Atomic Energy Act o 1946
Classied Inormation Protection Act
Critical Inrastructure Inormation Act o 2002
Data Quality Act
E-Government Act o 2002
Espionage Act
The Federal Advisory Committee Act (FACA)
Emergency Planning & Community Right to Know Act
The Federal Funding Accountability and Transparency Act
Freedom o Inormation Act
Government in the Sunshine Act
Intelligence Community Whistleblower Protection Act
Intelligence Identities Protection Act
Invention Secrecy Act o 1951
Military Whistleblower Protection Act
National Security Act o 1947
Nazi War Crimes Disclosure Act o 1998 (PL 105-246)
NoFEAR Act o 2002
The President John F. Kennedy Assassination Records Collection Act o 1992
Presidential Records Act o 1978
Public Interest Declassication Act o 2000
Whistleblower Protection Act
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38 Government Secrecy: Decisions Without Democracy
Appendix..ResourcesBooks.and.Reports
Report o the Commission on Protecting and Reducing Government Secrecy, 1997
http://www.as.org/sgp/library/moynihan/index.html
Hammitt et al, Litigation under the Federal Open Government Laws 2004 (EPIC 2004)
Alasdair Roberts, Blacked Out: Government Secrecy in the Inormation Act (Cambridge University Press 2006)
Louis Fisher, In the Name o National Security: Unchecked Presidential Power and the Reynolds Case (Kansas
University Press 2006)
Patrice McDermott, Who Needs to Know? The State o Public Access to Federal Government Inormation(Bernan Press 2007)
David Banisar, Freedom o Inormation Around the World 2006, Privacy International.http://www.privacyinternational.org/oi/survey
Susan Maret, On Their Own Terms: A Lexicon with an Emphasis on Inormation-Related Terms Produced by
the U.S. Federal Government, October 2006.http://www.as.org/sgp/library/maret.pd
Secrecy Report Card 2006, OpenTheGovernment.org
http://www.openthegovernment.org/otg/SRC2006.pd
U.S. House Committee on Government Reorm. Citizen’s Guide on Using the Freedom o
Inormation Act (2005)http://www.as.org/sgp/oia/citizen.html
Newsletters
Access Reports. http://www.accessreports.com
Policy and News Updates. http://www.openthegovernment.org
Privacy Times. http://www.privacytimes.com
Secrecy News. http://www.as.org/blog/secrecy
The FOI Advocate. http://noic.org/advocate
Websites.o.FOI.related.Organizations.and.blogs
beSpacic. http://www.bespacic.com
The Brechner Center or Freedom o Inormation. http://brechner.org
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39Government Secrecy: Decisions Without Democracy
Coalition o Journalists or Open Government. http://www.cjog.netCryptome. http://www.cryptome.org
Electronic Frontier Foundation FLAG Project. http://www.ef.org/ag
Electronic Privacy Inormation Center Open Government Page. http://www.epic.org/open_gov
Federation o American Scientists Secrecy Project. http://www.as.org
The Freedom o Inormation Center. http://oi.missouri.edu
Government Accountability Project. http://www.whistleblower.org
The Memory Hole. http://www.thememoryhole.org
National Freedom o Inormation Coalition. http://noic.org
National Security Archive. http://www.gwu.edu/~nsaarchiv
OMB Watch. http://ombwatch.org
OpenTheGovernment.org http://www.openthegovernment.org
Project on Government Oversight. http://pogo.org
Public Citizen FOI Clearinghouse. http://www.citizen.org/litigation/ree_ino
The Reporters Committee or Freedom o the Press. http://www.rcp.org
The Right-to-Know Network (RTK NET). http://rtknet.org
Society o Proessional Journalists. http://spj.org/oi.asp
Sunlight Foundation http://www.sunlightoundation.comSunshine in Government Initiative. http://www.sunshineingovernment.org
Transactional Records Access Clearinghouse (TRAC). http://trac.syr.edu
Federal.Government.Sites
Department o Justice Oce o Inormation and Privacy. http://www.usdoj.gov/oip/oip.html
The Inormation Security Oversight Oce (ISOO). http://www.archives.gov/isoo
U.S. Government Portal. http://www.usa.gov
GPO Access. http://www.gpoaccess.gov
Thomas. http://thomas.loc.gov
PACER. http://pacer.psc.uscourts.gov
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40 Government Secrecy: Decisions Without Democracy
Endnotes.1 John Adams, A Dissertation on the Canon and Feudal Law, 1765. http://teachingamericanhistory.org/li-brary/index.asp?document=43
2 Patrick Henry, The Debates in the Convention o the Commonwealth o Virginia, on the Adoption o the
Federal Constitution, June 9, 1788.
3 Letter rom James Madison to W. T. Barry, Aug. 4, 1822, in The Complete James Madison (Harper and Broth-
ers, 1953). Cited in Wiggens, Freedom or Secrecy (Oxord University Press, 1956).
4 Executive Order 11652 - Classication and Declassication o National Security Inormation and Material,June 8, 1972.
5 Woodrow Wilson, The New Freedom: A Call For the Emancipation o the Generous Energies o a People1913
6 Louis D. Brandeis, “What Publicity Can Do,” Other People’s Money, p. 92 (1932). Quoted in Respectully
Quoted: A Dictionary o Quotations. 1989.7 See Gary Bass and Sean Moulton, The Public’s Right to Know: A Case Study rom the United States, in Cal-land and Tilley, The Right to Know, the Right to Live (ODAC, South Arica, 2002); OECD PRTR pages: http://www.oecd.org/env/prtr
8 Reporters Committee or Freedom o the Press, Open Government Guide:
Wisconsin, 5th Edition. http://www.rcp.org/ogg/index.php?op=browse&state=WI
9 The Oce o the Federal Register. “A Brie History Commemorating the 70th Anniversary o the Publicationo the First Issue o the Federal Register, March 14, 1936.” http://www.archives.gov/ederal-register/the-ed-eral-register/history.pd
10
Panama Rening Co. v. Ryan, 293 U.S. 388 (1935).
11 For a detailed review, see Lotte E. Feinberg, Mr. Justice Brandeis and the Creation o the Federal Register,
Public Administrative Review, Vol 61, No 3, May/June 2001.
12 United States Senators Daniel Patrick Moynihan and Ron Wyden, Secrecy in International and DomesticPolicy Making: The Case or More Sunshine, October 2000. http://www.as.org/sgp/library/wyden.html
13 Report o the Commission on Protecting and Reducing Government Secrecy, Sen Doc 105-2. 1997. http://www.as.org/sgp/library/moynihan/index.html
14 GAO, Managing Sensitive Inormation: DOJ Needs a More Complete Stang Strategy or Managing Clas-
sied Inormation and a Set o Internal Controls or Other Sensitive Inormation. GAO-07-83, October 2006;
GAO, Managing Sensitive Inormation: DOD Can More Efectively Reduce the Risk o Classication Errors,GAO-06-706.
15 Too Many Secrets: Overclassication as a Barrier to Critical Inormation Sharing, Hearing beore the Sub-
committee on National Security, Emerging Threats and International Relations, August 24, 2004.
16 Secrecy News, Volume 2003, Issue No. 45, May 27, 2003.
17 Executive Order 13292.
18 Secrecy News, FAS Project on Government Secrecy. Volume 2004, Issue No. 42, May 5, 2004.
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41Government Secrecy: Decisions Without Democracy
19 President John F. Kennedy Assassination Records Collection Act o 1992, PL 102-526.
20 Japanese Imperial Government Disclosure Act o 2000 December 6, 2000; Nazi War Crimes Disclosure Act.
PL 105-246.
21
Final Report o the Kennedy Assassination Records Review Board, 1998.22 Bush Ordered Declassication, Ocial Says, NY Times, April 10, 2006.
23 John Prados, “Declassixation,” The New Republic, April 21, 2004.
24 S. 2660.
25 U.S. House o Representatives, Permanent Select Committee on Intelligence, Oversight Plan or the 110th
Congress, February 7, 2007.
26 U.S. Reclassies Many Documents in Secret Review, NY Times, February 21, 2006; National Security Archive,Declassication in Reverse: The U.S. Intelligence Community’s Secret Historical Document Reclassication
Program, February 21, 2006, http://www.gwu.edu/~nsaarchiv/NSAEBB/NSAEBB179/index.htm
27 Inormation Security Oversight Oce, Audit o the Withdrawal o Records rom Public Access at the Na-
tional Archives and Records Administration or Classication Purposes, April 26, 2006. http://www.archives.gov/isoo/reports/2006-audit-report.html
28 Press Release National Archives Releases Second Declassied MOU, April 17, 2006.
29 The National Deense Authorization Act or Fiscal Year 1999, Public Law 105-261.
30 William Burr, How Many and Where Were the Nukes?”, National Security Archive Electronic Brieng Book No. 197, August 18, 2006. http://www.gwu.edu/~nsaarchiv/NSAEBB/NSAEBB197/index.htm
31 Title VII, FY 2001 Intelligence Authorization Act. It was amended in 2004 to hear appeals rom Congressio-nal committees on classication.
32 U.S. v Reynolds, 245 US 1 (1953).
33 See Chesney, Robert, “State Secrets and the Limits o National Security Litigation”. George Washington Law
Review, 2007 Available at SSRN: http://ssrn.com/abstract=946676
34 For a very detailed analysis, see Louis Fisher, In the Name o National Security: Unchecked Presidential
Power and the Reynolds Case, University Press o Kansas 2006.
35 William G. Weaver and Robert M. Pallitto, State Secrets and Executive Power: Political Science Quarterly, Vol120 No 1, 2005. p86.
36 Memo rom WH Chie o Staf Andrew Card on Action to Saeguard Inormation Regarding Weapons o Mass Destruction and Other Sensitive Documents Related to Homeland Security, March 19, 2002.
37 CRS “sensitive but Unclassied” Inormation and Other Controls: Policy and Options or Scientic and Tech-
nical Inormation, November 4, 2006. p35.
38 Ibid p58.
39 Ibid p64.
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42 Government Secrecy: Decisions Without Democracy
40 Jason Program Oce, MITRE, Horizontal Integration: Broader Access Models or Realizing InormationDominance”, December 2004. p5. http://www.as.org/irp/agency/dod/jason/classpol.pd
41 Government Accountability Oce, Inormation Sharing: The Federal Government Needs to Establish Poli-cies and Processes or Sharing Terrorism-Related and Sensitive but Unclassied Inormation, GAO-06-385,
March 2006.42 GAO, Managing Sensitive Inormation: DOJ Needs a More Complete Stang Strategy or Managing Classi-ed Inormation and a Set o Internal Controls or Other Sensitive Inormation. GAO-07-83, October 2006.
43 National Security Archive, Pseudo-Secrets: A Freedom o Inormation Audit o the U.S. Government’sPolicies on Sensitive Unclassied Inormation, March 2006. http://www.gwu.edu/~nsarchiv/NSAEBB/
NSAEBB183/press.htm
44 CRS “Sensitive but Unclassied” Inormation and Other Controls: Policy and Options or Scientic and Tech-nical Inormation, November 4, 2006.
45 NSA report ibid p. 21.
46 Steve Atergood, The Secrets o Flight, Slate, Nov. 18, 2004.
47 “No-Fly” Doesn’t Fly, GovExec.com, June 24, 2004.
48 White House, Memorandum or the Heads o Executive Departments and Agencies: Guidelines and Re-quirements in Support o the Inormation Sharing Environment, December 16, 2005.
49 CRS Ibid, p16.
50 The Homeland Security Act o 2002, PL 107-296 s 892.
51 Department o Homeland Security Appropriations Act, 2007, PL 109-295, s. 525
52 EPA Oce o Inspector General, EPA’s Response to the World Trade Center Collapse: Challenges, Successes,
and Areas or Improvement, Report No. 2003-P-00012. http://www.epa.gov/oig/reports/2003/wtc/toc.htm
53 EPA, NYC Blamed or 9/11 Health Problems, AP, September 8, 2006.
54 Death by Dust, The Village Voice, November 28, 2006.
55 See Fisher p23.
56 See GAO, Principles o Federal Appropriations Law: Third Edition: Volume I http://www.gao.gov/special.
pubs/3rdEditionVol1.pd
57 U.S. Military Covertly Pays to Run Stories in Iraqi Press, Los Angeles Times, November 30, 2005.
58 5 U.S.C. 552
59 Every state, the District o Columbia and most ederal territories have their own FOIA laws. See The Report-
ers Committee or Freedom o the Press, Open Government Guide. http://www.rcp.org/ogg/index.php
60 Attorney General’s October 12, 2001 Memorandum on the Freedom o Inormation Act. http://www.usdoj.gov/oip/011012.htm
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43Government Secrecy: Decisions Without Democracy
61 GAO, Inormation Management: Implementation o the Freedom o Inormation Act, May 11, 2005.
62 S. 394, OPEN Government Act approved by the Senate Judiciary Committee Sept 21, 2006; S 589, FasterFOIA Act o 2005, Approved by the Senate Judiciary Committee March 17, 2005, S. 1181, Approved by Sen-
ate June 24, 2005.
63
Executive Order 13,392, on improving Agency Disclosure o Inormation, December 15, 2005. http://www.whitehouse.gov/omb/memoranda/y2006/m06-04.pd
64 Letter rom National Security Archive to Attorney General Gonzales, October 19, 2006.
65 Secrecy News, Volume 2002, Issue No. 21, March 14, 2002.
66 Mark J. Rozell, Executive Privilege Revived?: Secrecy and Conict During the Bush Presidency, 52 Duke L. J.403 (2002).
67 US v. Nixon, 418 U.S. 563 (1974); Nixon v GSA, 433 U.S. 425 (1977).
68 Public Law 95-591, codied at 44 U.S.C. 2201-2207 .
69 Executive Order 126.
70 Executive Order 13233 o November 1, 2001 Further Implementation o the Presidential Records Act.http://www.as.org/irp/ofdocs/eo/eo-13233.htm
71 See National Security Archive Page. http://www.gwu.edu/~nsarchiv/news/20040430/index.htm
72 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
73 Memorandum rom Michael J. Creppy to Immigration Judges and Court Administrators on “Cases requir-ing special procedures”, Sept. 21, 2001. http://news.ndlaw.com/hdocs/docs/aclu/creppy092101memo.pd
74 Statement o Lily Fu Swenson Deputy Associate Attorney General Beore the House Judiciary Subcommit-tee on Immigration, Border Security and Claims, Concerning Immigration Removal Procedures Implemented
in the Atermath o the September 11th Attacks, June 30, 2005.
75 Detroit Free Press v. Ashcrot 303 F.3d 681 (August 26, 2002).
76 See The Memory Hole. Justice Department Censors Supreme Court Quote http://www.thememoryhole.org/eds/justice_redaction.htm
77 David Kirby, The Other Secret Bush Court?, The Hungton Post, Nov. 15, 2006.
78 Pickering v. Board o Education o Township High School District, 391 U.S. 563 (1968).
79 Snepp v United States, 444 U.S. 507 (1980).
80 Union o Concerned Scientists and Government Accountability Project, Atmosphere o Pressure: Political
Intererence in Federal Climate Science, February 2007.
81 The New Gag Rules, Science 17 February 2006: Vol. 311. no. 5763, p. 917.
82 New Publishing Rules Restrict Scientists, AP, December 2006.
83 United States Department o State and the Broadcasting Board o Governors Oce o Inspector General
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44 Government Secrecy: Decisions Without Democracy
Report o Inspection U.S. Speaker and Specialist Program Review Bureau o International Inormation Pro-
grams, Report Number ISP-C-06-52, September 2006. http://oig.state.gov/documents/organization/75589.pd
84 Yost, Guards Say Non-Disclosure Agreements Were Used to Hide Security Flaws at DHS, CQ HomelandSecurity – Industry & Contracting, April 19, 2006.
85 DHS Non-Disclosure Agreement. http://www.as.org/sgp/othergov/dhs-nda.pd
86 ibid. 82.
87 5 USC 2302; PL 95-454, 101-12.
88 Congressional Research Service, National Security Whistleblowers, December 30, 2005.
89 General Accounting Oce, U.S. Oce o Special Council, Strategy or Reducing Persistent Backlog o CasesShould be Provided to Congress GAO-04-36.
90 Joint POGO, PEER, GAP letter to members o Congress regarding U.S. Special Counsel, Scott Bloch’s retali-
ation against employees, January 10, 2005. http://www.pogo.org/p/government/gl-050101-whistleblower.html. See also PEER, Special Counsel Tags Interns to Close Out Whistleblower Cases; Staf Resignations LeaveAgency Short-Handed, March 9, 2005. http://www.commondreams.org/news2005/0309-07.htm
91 See Project on Government Oversight, Homeland and National Security Whistleblower Protections: The
Unnished Agenda, April 28, 2005.
92 ibid.88
93 Garcetti v. Ceballos, No 04-473. May 30, 200689.
94 18 USC 793 et sec.
95 Edgar and Schmidt, The Espionage Statutes and Publication o Deense Inormation, 73 Columbia L.R. 929(1973).
96 New York Times Co. v. United States, 403 U.S. 713, (1971).
97 See FAS page on Selected Judicial Branch Documents on Secrecy, Security, Intelligence and Freedom o
Inormation or bries and decisions on the case. http://www.as.org/sgp/jud/index.html
98 See e.g. Gabriel Schoeneld, Has the New York Times Violated the Espionage Act? Commentary, March
2006.
99 Statement by the President, November 4, 2000.
100 S. 3774. A bill to amend title 18, United States Code, to prohibit the unauthorized disclosure o classiedinormation; to the Committee on the Judiciary.
101 Attorney General’s Task Force Report on Unauthorized Disclosures o Classied Inormation, October 15,2002. Available at http://www.as.org/sgp/othergov/dojleaks.html
102 18 USC 641. See R. Robin McDonald, DEA Employee Gets Prison Term or Leaking to Reporter, Fulton
County Daily Report January 15, 2003; Dmitrieva, Stealing Inormation: Application o a Criminal Anti-ThetStatute to Leaks o Condential Government Inormation, 55 Florida Law Review, 1043 (2003).
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4Government Secrecy: Decisions Without Democracy
103 (CRS, Journalists’ Privilege to Withhold Inormation in Judicial and Other Proceedings: State Shield Stat-
utes, March 8, 2005. Available at http://www.as.org/sgp/crs/secrecy/RL32806.pd , Reporters Committeeor Freedom o the Press, The Reporter’s Privilege. http://www.rcp.org/privilege/index.htm. It should alsobe noted that the right o journalist’s condentiality has been adopted in over 80 countries and has been
recognized by the European Court o Human Rights and the Organisation o American States.).
104
Branzburg v. Hayes, 408 U.S. 665 (1972).105 RCFP, Special Report: Reporters and Federal Subpoenas As reporters acing contempt charges in a num-ber o ederal cases around the country, Congress is taking its rst serious look at a reporter’s shield law in
decades. Current as o: 11/29/06 http://www.rcp.org/shields_and_subpoenas.html
106 Pew Internet and American Lie, How Americans Get in Touch with Government, May 24, 2004.
107 E-Government Act o 2002, PL 107-347.
108 See OMB, Memorandum on Improving Public Access to and Dissemination o Government Inormation
and Using the Federal Enterprise Architecture Data Reerence Model, December 16, 2005.
109
Google seeks better access to government inormation, GovExec.com, October 25, 2006.
110 Government Printing Oce Electronic Inormation Enhancement Act o 1993, PL 103-40.
111 Annual Report o the Librarian o Congress, 2004.
112 http://www.theopenhouseproject.com
113 http://www.readthebill.org
114 See CRS, The Federal Funding Accountability and Transparency Act: Background, overview and Implemen-tation Issues, October 6, 2006.108.
115 The International Budget Project, Open Budget Initiative 2006.
116 For a detailed review o the legislation, see CRS, Ibid.
117 GAO letter to OMB Director Joshua Bolten on Reliability o Federal Procurement Data, December 30, 2003.http://www.gao.gov/new.items/d04295r.pd. GAO letter to OMB Director Joshua Bolten on Improvements
Needed to the Federal Procurement Data System-Next Generation, Sept. 27, 2005. http://www.gao.gov/new.items/d05960r.pd
118 Letter rom 11 non-project groups to GSA, August 9, 2004. http://www.pogo.org/p/government/gl-040801-oia.html
119 See the Right-to-Know-Network http://www.rtknet.org
120 See Gary Bass and Sean Moulton, The Public’s Right to Know: A Case Study rom the United States, in Cal-land and Tilley, The Right to Know, the Right to Live (ODAC, South Arica, 2002).
121 http://www.sec.gov/edgar.shtml
122 US Securities and Exchange Commission, SEC Staf to Publicly Release Comment Letters and Responses,
June 24, 2004.
123 Richard L Smith, The 1958 Automotive Inormation Disclosure Act: A Study o the Impact o Regulation,
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4 Government Secrecy: Decisions Without Democracy
Jnl o Industrial Economics, June 1980.
124 Christopher Stern, FCC Cuts Public Line To Phone Outage Data, The Washington Post, August 28, 2004.
125 RFF paper. p3
126
PL 107-116 (December 17, 2002).127 John M. De Figueiredo, E-Rulemaking: Bringing Data to Theory at the Federal Communications Commis-sion, 55 Duke L. J. 969 (2006).
128 See OMB Watch, Against the Public’s Will, December 2006. http://www.ombwatch.org/ino/TRICom-mentsReport.pd
129 Pew Internet and American Lie Project, Internet penetration and impact, April 2006.
130 Ibid, Pew report.
131 CRS, Restructuring EPA’s Libraries: Background and Issues or Congress, January 3, 2007.
132 Thomas Mann, What is Going on at the Library o Congress?, June 19, 2006.
133 Bertot et al, Public Libraries and the Internet 2006: Study Result and Findings, September 2006.
134 See OMB Watch, Access to Government Inormation Post September 11th,http://www.ombwatch.org/ar-ticle/articleview/213/1/1/; Reporters Committee or Freedom o the Press, Homeront Condential: How theWar on Terrorism Afects Access to Inormation and the Public’s Right to Know.
135 Mapping the Risks: Assessing the Homeland Security Implications o Publicly Available Geospatial Inor-
mation, Rand Corporation (2004). http:www.rand.org/pubs/monographs/2004/RAND_MG142.pd
136 Small Business, Miami Herald, Dec. 16, 2006.
137 The Digital Ice Age, Popular Mechanics, November 21 2006.
138 http://www.govtrack.us
139 http://www.opensecrets.org/travel/index.asp
140 http://www.edspending.org
141 How planespotters turned into the scourge o the CIA, The Guardian, December 10, 2005.
142 LA Times, A third incident, a new video, November 16, 2006.
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47Government Secrecy: Decisions Without Democracy
Credits.Page.8,.24,.32
Dwane Powell Editorial Cartoon ©2005 Dwane Powell. Printed originally in the Raleigh News-Observer. Reprinted with the permission o Dwane Powell and Creators Syndicate
Page.2
Frank and Ernest ©2005 Thaves. Used with the permission o the Thaves and the Cartoonist Group. Page.23
Matt Wuerker Editorial Cartoon ©2006 Matt Wuerker. Used with the permission o Matt Wuerker and theCartoonist Group.
Page.10
Nick Anderson Editorial Cartoon ©2005 Nick Anderson. Published originally in the Louisville Courier-Journal.Used with the permission o Nick Anderson and the Washington Post Writers Group in conjunction with theCartoonist Group.
Page.17
Signe Wilkinson Editorial Cartoon ©2006 Signe Wilkinson. Published originally in the Philadelphia DailyNews. Used with the permission o Signe Wilkinson and the Washington Post Writers Group in conjunction
with the Cartoonist Group.
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