 By Paul McMasters First Amendment Center March 14, 2005
In fact, there are billions of official secrets warehoused around the nation, but those massive stores are dwarfed by the mountains of unofficial secrets - government information that is not classified but that we aren't allowed to see anyway. More than 4,000 government employees have the power to wield the Top Secret stamp, but hundreds of thousands of others are not just authorized but encouraged to keep certain information from the public. The numbers alone are not a true measure of the danger of excessive government secrecy, whether classified or unclassified. The real threat lies in secrecy's often unrecognized impact on democratic discourse and decision-making, on public trust and, yes, on our own security. How does a nation that celebrates the idea of openness find itself shackled to a government information system that has a default setting of secrecy? Excessive government secrecy, after all, is a rather sharp rebuke to our democratic instincts because it too quickly accepts the rationale that to keep America's enemies at bay, we must keep America's citizens in the dark. The terrorist attacks of Sept. 11, 2001, triggered a legitimate and necessary examination of U.S. information policy. Government officials needed to make sure that vital information was not getting into the wrong hands. But that examination inevitably led to restrictions on access to government information that go far beyond the needs of security. Perhaps that was inevitable. Government officials have never been comfortable with too much public access to government information. The political impulse is to control information not share it. Indeed, the Bush Administration was moving aggressively to constrict the flow of government information to the public long before 9/11. One of its first information policy actions, for example, was to halt the release of tens of thousands of unclassified Reagan Administration documents, scheduled to be the first release of such records under the Presidential Records Act of 1978. Also early in the administration, the Justice Department began working on a revision of the Attorney General's implementation memorandum for the Freedom of Information Act, the 1966 law securing a right of access to executive branch information for Congress and the public. When finally issued in October 2001, the document sharply diminished the presumption of openness that had brought the law into being in the first place. During the past few years, the White House and federal agencies have rebuffed requests for information from Congress, public interest groups and the press about such crucial issues as meetings of the vice president's energy task force, detainees rounded up in the wake of 9/11, deportation hearings for detainees, implementation of the Patriot Act, weapons of mass destruction in Iraq, the FBI investigations into the anthrax poisonings and the Los Alamos spy case, and treatment of prisoners at Guantanamo and Abu Ghraib. Government Web sites have been taken down or revised for political reasons. Government publications and CD-ROMs have been recalled from public availability. Curbs have been placed on the flow of scientific and technical information. Protections for government whistle-blowers have been weakened. For their part, the courts have been unreliable in rebuking these assaults on open government. And for its part, Congress has generally sanctioned or ignored increased restrictions on access. It has been years since the responsible committees in either house conducted FOIA oversight hearings. Late in 2002, Congress quickly and overwhelming approved in the Homeland Security Act, one of the most potentially damaging blows to FOIA in its history. The new law exempted from FOIA so-called critical infrastructure information voluntarily submitted to the Department of Homeland Security by private businesses. The law criminalized the intentional disclosure of such information, immunized private businesses from civil liability for violations reported in their submissions, and neutralized state and local FOI laws concerning such material. Many open-government advocates are now looking to leadership from Sens. John Cornyn, R-Texas, Patrick Leahy, D-Vt., and Rep. Henry Waxman, D-Calif., to focus more attention on these issues. Meanwhile, the nation's capital fairly bristles with barriers to access. One of the most far-reaching changes in government information policy has been the emergence of a massive new withholding regime. This category of information is called "sensitive but unclassified" (or SBU), and it appears under many names and in many agencies. Just a few: sensitive homeland security information, sensitive security information, critical infrastructure information, protected critical infrastructure information, critical energy infrastructure information, for official use only, limited use only, law enforcement sensitive _ the list goes on. In a memo from the White House, government employees have been instructed to "safeguard" such material, which translates into withholding. The decision to safeguard material as SBU can be made at very low levels, based on broad definitions and complicated criteria. Government officials making such decisions have very few incentives for disclosure and strong incentives for withholding, including harsh penalties if their decisions are later questioned. The argument for all this secrecy, of course, is to make us safer. The irony is that excess secrecy can - and will - make us less safe. The more secretive a government, the more distant it becomes from its citizens and their wisdom, experience, enterprise, ingenuity and support. Further, when Americans are kept in the dark about the nation's vulnerabilities and what leaders are doing to address them, public pressure for quick, effective action fails to develop. In a breathtakingly short time, one of democracy's core principles, the "right to know" for the public, has devolved into a "need to know" for certain individuals and now threatens to become a "right to control" for government officials only. That creates a toxic environment for both fighting terror and protecting democracy. That won't change until Americans demand a more considered approach to government information policy and a return of their right to know.
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