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Open-government advocates see 'epidemic of official secrecy'

Analysis

By The Associated Press,
freedomforum.org staff

11.15.01

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WASHINGTON — The Bush administration, tight-lipped before the Sept. 11 terror attacks, has clammed up even more as it goes about hunting down those who would do America more harm.

In the process, advocates of government openness and civil liberties say the public's right to information and the freedoms of innocent people are being jeopardized.

Case in point: On Nov. 13, Bush signed an order to allow trials by military tribunals for noncitizens accused of terrorism. The reasoning was that cases can be handled with greater speed and secrecy there than in civilian courts.

"This is the manner the president thought would be the best way to bring justice to those people who are combatants," White House Press Secretary Ari Fleischer said. "These are not American citizens. They are combatants."

Past administrations also have worked to keep their business private, especially during wartime. Bush has said repeatedly that the United States is waging a war against international terror.

Civil liberties advocates say using military courts to try suspected terrorists, last seen in World War II, is further evidence that this administration is unwilling to abide by checks and balances central to American democracy.

A military trial of someone accused of terrorism would include lawyers, jurors and a judge, but similarities to a typical American courtroom would end there. Even supporters of the idea say it would mean fewer rights for the accused, a freer hand for the government and little or no oversight from other judges or the public.

Civil liberties defenders say the military terror tribunal sketched by the White House is just shy of a Star Chamber — ultrasecret and omnipotent.

"The government gets to decide first that you're guilty, then it puts you through the process to affirm that you're guilty," said Morton H. Halperin, a senior fellow at the Council on Foreign Relations. "I don't think constitutionally you can do that."

Bush gave emergency approval for a military tribunal this week should terrorism suspects be caught and charged in the wake of the Sept. 11 attacks. The White House says no American citizens would be brought before such a court. Osama bin Laden's al-Qaida terror network is the target.

"They don't deserve the same guarantees and safeguards that we use for an American citizen," Vice President Dick Cheney said yesterday. "They will have a fair trial under the procedures of the military tribunal."

Attorney General John Ashcroft said that the assaults were acts of war, and that a military commission is the appropriate place to try terrorists captured in Afghanistan or elsewhere. Foreigners living in America also could go before the court, which could sit in the United States or abroad.

"Foreign terrorists who commit war crimes against the United States in my judgment are not entitled to and do not deserve the protections of the American Constitution," Ashcroft said yesterday.

The White House framework for a military tribunal is based on tribunals used by the United States during more traditional wars. Many details, however, are unresolved.

A terrorist trial would not be on television, but would likely take place on a military base under heavy security, and the public might not even know about the trial until it was over, lawyers said.

The United States last used a military tribunal to try German saboteurs who sneaked ashore in New York and Florida in 1942. The trial was secret, and conviction and execution for six saboteurs was swift. The Supreme Court upheld the proceeding, but under terms that lawyers said might not protect the White House from a constitutional challenge now.

No one wants to give terrorists an edge, said Steven Aftergood of the Federation of American Scientists. Even Aftergood, who directs the group's efforts against government secrecy, deleted floor plans of nuclear-weapons storage sites from his group's Web site after the Sept. 11 attacks.

Still, he sees an "epidemic of official secrecy." No White House can arbitrarily withhold information and expect to maintain public confidence, he says.

"There's just a resistance to disclosure that has characterized this administration," even before Sept. 11, Aftergood said.

Historians, researchers and human and civil rights groups say there are many examples of government secrecy, some having broader implications for civil liberties:

  • The Justice Department won't disclose the identities or status of more than 1,100 people arrested or detained in the weeks since Sept. 11 and now says it no longer will release a running tally of those held.

  • Ashcroft defends the arrest-and-detention campaign. "The Justice Department of Robert F. Kennedy, it was said, would arrest a mobster for spitting on the sidewalk if it would help in the fight against organized crime," he said recently. "In the war on terror, it is the policy of this Department of Justice to be equally aggressive."

    Opponents of the policy have filed a Freedom of Information Act request asking the government to reveal information about those being detained. "The curtain of official silence prevents any democratic oversight of the government's response to the attacks," the request says.

  • The Justice Department is letting investigators eavesdrop on phone calls and read mail between some terrorist suspects and their defense lawyers. A rule introduced last month allows monitoring to take place when Ashcroft concludes there is "reasonable suspicion" that the communications are related to future terrorist acts.

    Lawyers stress the necessity to preserve the secrecy of conversations with clients. "This proposal is a terrifying nightmare for innocent people who are under suspicion by the attorney general," said Laura Murphy, director of the national office of the American Civil Liberties Union.

    Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., who has questioned the legality of trying alleged terrorists in military tribunals, thinks White House decision-makers are bypassing Congress. There is a "rising concern in Congress about this administration's preference for unilateralism" as it promotes policy changes, Leahy said.

  • The Pentagon has told defense contractors not to talk publicly about military business and has prohibited Defense Department acquisition officials from speaking with the press.

  • "Even innocuous industrial information can reveal much ... to the trained intelligence collector," a Pentagon memo to contractors said.

  • The White House, angry over leaks to the news media, wanted to shrink the pool of lawmakers privy to classified briefings. After an outcry and congressional assurances of greater discretion, Bush relented.

  • Government Web sites have been cleansed of sensitive military information about the whereabouts of aircraft carriers, Army chemical weapons stockpiles and nuclear power plants. Government maps of the nation's gas and oil pipelines have been removed.

  • So have data on the types of chemicals used in American communities — information families should be able to see, said Gary Bass, director of OMB Watch, an organization supporting greater access to government information.

    "I think what we need to do, post-Sept. 11, is find some commonsense balance that ensures security and at the same time doesn't undermine those democratic values we cherish," Bass said.

    Finding the proper balance between national security and openness is tough, he said. "But when it is hard to do, the public's right to know must prevail. We have gone the other way."

    Even before troops left for Afghanistan, the Bush administration was keeping the government's business close to the vest.

    Historians are criticizing a Bush executive order, in the works before Sept. 11, which they say could hold up the release of presidential papers from Ronald Reagan on.

    The White House refused to identify industry executives who met with Cheney and presidential aides when they were drafting an energy plan.

    Not every minute of Bush's and Cheney's days is a matter of "public purview," said Ari Fleischer, the White House spokesman.

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