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2002 FOI update: Government secrecy

By Steven Aftergood

03.18.02

The scope of government secrecy expanded dramatically in 2001. An affinity for official secrecy has now become a defining characteristic of the Bush administration.

Prior to Sept. 11

Even before Sept. 11, the administration displayed a new degree of resistance to the disclosure of official information on a surprising diversity of fronts:

• The vice president’s energy task force. The administration refused to comply with certain congressional requests for information about the conduct of the task force and rebuffed a General Accounting Office investigation into task force operations, leading to an unprecedented legal challenge filed by the GAO in February.

• Census Data. The administration rejected a request from Rep. Henry Waxman, D-Calif., and other members of the House Government Reform Committee last year for disclosure of adjusted census data collected in the 2000 census, even though similar data had been disclosed following the previous census. (In January, a court ordered the Administration to release the requested data.)

• Presidential records. In a likely violation of the law, the Bush Administration deferred release of Reagan Administration records subject to the 1978 Presidential Records Act, and imposed a new set of procedural obstacles on public access to such historical records from past administrations. A lawsuit challenging the new order is pending.

After Sept. 11

The terrorist attacks of Sept. 11 and the subsequent military operations in Afghanistan and elsewhere naturally reinforced this predisposition toward secrecy, while heightening security consciousness throughout the government. As early as Sept. 12, Defense Secretary Donald Rumsfeld was already warning that improper handling of classified information ("leaks") could compromise the war on terrorism.

Some of the post-Sept. 11 developments in secrecy and classification policy included these:

• In October, President Bush moved to limit classified congressional briefings to no more than eight members of Congress, citing the need to curtail leaks. While this policy was nominally rescinded within a few days, members complained that many of their classified briefings remained only minimally informative.

• The Justice Department imposed secrecy on the most basic information concerning the identity and status of hundreds of persons who had been detained in the course of its anti-terrorism investigations. The department yielded only partially in response to litigation from civil liberties groups.

• The president granted national security classification authority to the secretary of Health and Human Services for the first time, portending the integration of this domestic agency into the national security bureaucracy.

• The Pentagon withdrew from public access more than 6,000 previously declassified technical documents concerning biological and chemical weapons.

• The president rejected new congressional reporting requirements concerning the conduct of covert actions by the U.S. intelligence community and the establishment of highly classified special access programs in the Defense Department.

Though not specifically pertaining to classification, the Bush administration also: asserted executive privilege to block disclosure of certain Justice Department documents that had been requested by Congress; issued a new policy statement on implementation of the Freedom of Information Act that tends to encourage withholding of information; and removed hundreds or thousands of government Web pages from public access.

Some of these measures are clearly defensible. For example, scientists who have reviewed the withdrawn technical documents on biological and chemical weapons say that some of them do contain procedural details that could assist terrorists in the production of such weapons of mass destruction and should not be readily available in the public domain.

Other actions are knee-jerk responses without any security rationale (e.g., the wholesale removal of numerous innocuous Web sites).

Still others can only be understood as an attempt to establish a new conception of executive branch power, which maximizes the executive’s unilateral authority and minimizes independent oversight (e.g., limits on congressional briefings and classified reporting requirements, the assertion of executive privilege, etc.).

A new executive order

Behind the scenes, a working group was established last summer by the National Security Council to consider amendments to executive order 12958 on classification policy. That 1995 Clinton administration order established the most ambitious and productive declassification program ever adopted. It is now the target of agencies that would prefer to relax its demanding requirements.

At last report, eight agencies had proposed changes to 24 of the 34 sections of the Clinton order. Most of the changes were directed at the order’s declassification provisions, which mandated that most 25-year-old documents be automatically declassified (subject to a variety of exemptions).

Proposed changes to the order are rumored to include extending the 25-year period for declassification to some longer duration; modifying the order to permit reclassification of declassified documents under broader circumstances than currently allowed; and curtailing the authority of the Interagency Security Classification Appeals Panel to order the declassification of documents against the originating agency’s will.

In notable contrast to the Clinton administration, which in 1993 held a public hearing on its classification policies early in the executive order revision process and solicited public comments, the current deliberations have to date been conducted entirely behind closed doors.

A battle worth fighting

The Bush administration’s insistence on expanding the scope of official secrecy is a testament of sorts to the importance of government information and the value of public access. If public access to government information were inconsequential, there would be no reason to resist it so resolutely. But in fact, public information is the lifeblood of democratic politics and well worth fighting over.

Steven Aftergood is director of the Project on Government Secrecy at the Federation of American Scientists.