Hockey great Wayne Gretzky was asked for his secret for excelling on the ice. Gretzky responded that while others skated to wherever the puck was at that moment, he always tried to skate to where the puck will be.
Most advocates for the public’s right to know have been skating to where the puck is; in fact, most of us probably feel like they’ve been hit by the puck. But a broad-based group of national organizations is forming a coalition to fight the increasingly closed doors of government and strengthen the public’s right to know. Instead of focusing only on the short-term attacks on freedom of information, the coalition is moving to the offense to strengthen government openness. In short, we are trying to skate to where the puck will be – and we need your help.
GETTING HIT BY THE PUCK:
A REVIEW OF THE BLEAK PICTURE
Concerns about terrorism, combined with a presidential administration that prefers secrecy, creates a challenging environment for promoting the right to know. Let’s briefly look at a sampling of the lowlights of the past few years.
• Ashcroft’s FOIA Policy. In March 2001, Attorney General John Ashcroft instructed federal agencies to withhold documents from the public whenever possible under the Freedom of Information Act (FOIA). The Ashcroft memo essentially reversed a policy that directed federal agencies to release documents whenever possible. A study by the National Security Archive found wide variation on the effect the memorandum has had on agencies. For some agencies, the memo represented a “sea change” in the way FOIA requests are handled. Almost certainly, the memo helps foster a culture of secrecy in our government agencies.
• Secret detentions. The federal government has detained individuals in this country for weeks and months without leveling charges or identifying the detainees. The Justice Department’s own Inspector General criticized the treatment of those detained, but without access to even the identities of detainees, the public – including the press – cannot independently witness detainees’ experiences and inform the public of detainees’ experiences.
• Secret meetings. The vice president has resisted disclosure of the identities of those individuals who participated in his Energy Policy Task Force – even after court prodding.
• Closing previously public meetings. Once the commission investigating the space shuttle Columbia tragedy was required to open its meetings to the public and make committee documents available to the public, NASA suddenly decided that board members should be compensated for their time, thereby bypassing the government-in-the-sunshine rules required under the Federal Advisory Committee Act.
• Shaping government reports. When the White House started rewriting the climate change section of an Environmental Protection Agency environmental report card, outgoing administrator Christie Todd Whitman took out the entire section rather than sacrifice the scientific integrity of the EPA’s report.
• Exemption envy. Amidst controversy over U.S. intelligence in the build-up to war in Iraq, the National Security Agency, the agency that gathers intelligence through the use of satellites and other technologies, sought a broad exemption from FOIA for the agency’s “operational files.” Both the House and Senate have passed some form of the exemption and will likely work out their differences in conference committee.
• Classifying too much information. The public release of a 900-page report from a congressional joint investigation into intelligences failures leading up to the Sept. 11, 2001, terrorist attacks was delayed for months while the administration considered which parts of the report to keep classified. Once finally released, the public version contained a 28-page section of redacted material that apparently was kept secret to protect a foreign country from embarrassment. Senators Bob Graham and Richard Shelby, a Democrat and Republican, respectively, reviewed the contents and criticized the administration for keeping too much information secret. And the government of Saudi Arabia, rumored to be the subject of much of the redacted section, publicly appealed to President Bush to declassify much of the 28 pages so the Saudi government could defend its reputation.
• Removing Web-based information. In the immediate aftermath of the attacks of Sept. 11, the Bush Administration ordered that thousands of documents and tremendous amounts of data be summarily removed from agency Web sites. It is no longer possible for families and communities to get data critical to protecting themselves ñ information such as pipeline maps (that show where they are and whether they have been inspected), themselves. Maps of pipelines showing enforcement histories, airport safety data, environmental data and even documents that are widely available on private sites today were removed from government sites and have not reappeared. All of this was done without policy direction or maintaining a record of what information is now restricted. In one case, the federal depository libraries were asked to destroy a CD-ROM with information about surface water resources such as lakes and dams. The FBI, at least in Arkansas, even followed up to verify that the CDs had been destroyed.
And that’s just the executive branch; neither the courts nor Congress is much better. A federal appeals court in Washington, D.C., recently ruled that the government is justified in withholding from the public the names of all detainees and their attorneys. More significant, perhaps, than the government’s denial of the request under the Freedom of Information Act (FOIA) was the great deference the court gave to the government’s claims that release of the names would harm national security. The courts also recently refused to revisit the Reynolds court decision, which has been used for roughly four decades to justify government secrecy in the name of protecting national security. The court was not swayed by new evidence suggesting the government refused to disclose documents only to protect aircraft manufacturers from liability rather than protect national security.
Congress also has taken action since Sept. 11 to expand the zone of secrecy around government. The USA Patriot Act, for example, makes it easier for the government to secretly spy on Americans and gag those who might be involved in an investigation. Among other things, the Homeland Security Act, the law that created the Department of Homeland Security, exempts from the Freedom of Information Act any “critical infrastructure information” that is “voluntarily” submitted to the Department of Homeland Security, opening a potential black hole. Moreover, such information would be exempt from use in civil liability cases and would preempt state openness laws. Thus, a company could “voluntarily” submit information to keep it from becoming public or from being used in a civil liability case. This same law also subjects millions of people to nondisclosure agreements if they want to view “sensitive homeland security information.” Without doubt, these new procedures will have a chilling effect on newsgathering.
LEARNING TO SKATE WHERE THE PUCK WILL BE
Clearly, it is time for those who believe in public access to try something different. We believe the first step is learning to work together. The journalism community seldom collaborates or works in coordination with others, and others who care about disclosure of government information seldom collaborate. Similarly, those working on national security concerns and freedom of information issues hardly ever deal with those working on domestic right-to-know initiatives. And when these players have in the past communicated, it was usually sparring over issues they disagree on. But that is now about to change.
Leaders from each of these communities have helped form a broad-based coalition to not only defend against the attacks on public access, but also to actively strengthen the public’s right to know. This is not to say that each of the players will agree on everything; nor is it to say that the wall of separation between the journalism community and advocates should drop. It is to say that on this one concern – making government more transparent – we all agree, and we can work collaboratively to skate to where the puck will be.
The coalition was formed by more than 30 national organizations representing a broad array of issues and interests, from journalism to environment and from libraries to other public interests. The coalition is led by a steering committee co-chaired by the National Security Archive and OMB Watch, and it includes AFL-CIO, American Association of Law Libraries, American Majority Institute, American Society of Newspaper Editors, Electronic Privacy Information Center, Environmental Defense, Federation of American Scientists, People For the American Way, Reporters Committee for Freedom of the Press and the Society of Professional Journalists.
Looking at the constituencies of the 30 organizing groups, the coalition already has a large base. But one objective of the coalition is to get many more people involved in public access issues. We must stop the right-to-know erosion. We also must be ready to demonstrate why we believe that secrecy does not equal security in the post-Sept. 11 environment. We believe disclosure of information will help to make our communities safer and lead to healthier families; disclosure ensures greater accountability of our governmental structures and institutions, and disclosure strengthens the democratic fabric of our society.
The new coalition functions through committees dealing with legislative and regulatory policy, state issues and communications. These committees are chaired or co-chaired by such organizations as diverse as the Freedom Forum and Common Cause. So what are these committees doing?
• Developing a rapid response system for defending against future attacks
• Helping to frame freedom of information issues so that the public understands the importance
• Publicizing through the media and other means the efforts to expand government secrecy
• Involving a broader constituency concerned about public access issues
• Advancing right to know policies at the state and federal level
A first objective involves improving communication among the groups and helping bring greater attention to the work already being done by each organization. Where overlaps and potential duplications of effort exist, these groups want to find ways of working together to strengthen the work each of us is doing. This communication coordination is needed not only for sharing of research, but to be more effective in responding to public policy issues. Another task we are beginning to tackle is to find new ways of talking about the public’s right to know in ways that resonate with the public. The shorthand phrases – such as “right to know” and “freedom of information” – are too ambiguous to resonate with a larger set of audiences. We must have language that can properly frame our issues and “brand” public access as American as motherhood baseball and apple pie.
CAN WE REALLY SKATE
TO WHERE THE PUCK WILL BE?
So what chance do we have of actually making a difference? By linking together already useful resources, such as from the Reporters Committee for Freedom of the Press and the Federation of American Scientists’ “Secrecy News,” we are all more informed. A new series of op-eds on freedom of information distributed by the Knight Ridder Tribune News Service (see www.krtdirect.com/public/FOI.htm) also is helping to make a difference.
Tying this public education with a coordinated advocacy system has already produced some results. The House of Representatives voted to repeal a portion of the USA Patriot Act that made it easier to secretly spy on U.S. soil. There was outrage expressed when a version of the Justice Department’s Patriot II was leaked – and it may be dead. Regulations implementing the critical infrastructure information and sensitive homeland security information provisions in the Homeland Security Act surely will be better with all of us commenting.
But we are only at the beginning. The national coalition is only a first step. We must build or strengthen the state infrastructure that addresses freedom of information issues. Our best opportunities for advancing right to know may very well be at the state level. We must also strengthen the organizations that litigate on these issues. Finally, we must ensure that there are adequate resources for the members of the national coalition and for the above-mentioned tasks.
In the end, the success of all our efforts will be measured in terms of our effect on national and state policy. Have we been able to stop the hemorrhaging expansion of secrecy? Have we been able to reframe the debate to put openness at the center of our strategy for security? Instead of debating the correct balance between an open society and the need to protect national security, a debate we will inevitably lose, we must redefine the security of our country in terms of protecting the very openness we are currently so willing to compromise.
Success also will be measured by whether you get involved. We need your participation. Contact Rick Blum to get more involved; he can be reached at blumr@ombwatch.org or 202/ 234-8494.
Gary D. Bass, Ph.D., is founder and executive director of OMB Watch, a nonprofit research and advocacy organization promoting government accountability and citizen participation in government decision-making. Rick Blum is director of freedom of information at OMB Watch and coordinator of the coalition discussed in the article.
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