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Denial of access shushes the democratic dialogue

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

12.12.01

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This is an edited text of the keynote address Paul McMasters delivered at the annual symposium of the American Society of Access Professionals in Washington, D.C., on Dec. 10.

On Sept. 11, terror from the skies and hatred from afar brought to this nation human carnage and suffering of immeasurable dimensions. In addition to the grievous toll in death and injury, the attacks on the World Trade Center and the Pentagon dealt staggering blows to our financial institutions and economy, to our transportation and communications systems and to our political and military nerve centers.

Three months have passed and still our sense of security remains shaken. Our anger, our fear and our grief have evolved into a fierce and unifying determination to make sure nothing like this happens again.

As we seek ways to harness these powerful feelings for positive action, the challenge becomes how to do so without betraying the principles and values that define us as a free people living in an open society.

This two-day symposium revolves around one of those defining principles: our commitment to the idea that a democratic system is destined for decay unless there is a sharing of power between the governors and the governed. The primary means of sharing that power is the free and full flow of information from the government to the people and the people to the government.

In these times, however, our commitment to an open society is severely tested as we stumble toward what could turn into some sort of “information lockdown.” This hovering lockdown does not consist solely or even mostly of government information access policies and practices.

Rather, it represents a severe constriction of the general flow of information that sustains and enlivens a democratic society. It puts in jeopardy the kind of public discourse in which all Americans, leaders and citizens alike, are free to voice and examine all perspectives.

Portents of an information lockdown are seen in our reluctance in the past three months to fully welcome as participants in the national conversation scholars and students who may try out unpopular ideas; dissidents who may question national policies, past and present; TV comics and televangelists who wish to weigh in with reverent or irreverent comment; political leaders who may want more say in public policy; journalists who may ask discomforting questions.

As you know, all of these voices have been shushed in one way or the other in the weeks since Sept. 11.

These constrictions in the public discourse information flow are compounded when government acts to restrict access to information that is the distinguishing feature of the democratic dialog.

In times of national crisis, there are powerful impulses to shut down access to government information, and some of those impulses must be heeded. There, indeed, is some information too dangerous to set free in such times.

But we have come to look at ALL information — whether that information is benign, dangerous or even helpful — with new and troubling questions in our minds.

During the course of this symposium, you will be taking up and discussing many of the recent actions that constrict the flow of information. I don’t need to recite them in great detail, but here are just a few that point up the concerns.

The White House has warned Americans to be careful with what they say, advised network and newspaper executives to temper their coverage of Osama Bin Laden and Mullah Muhammad Omar, and severely reduced the number of members of Congress who can sit in on intelligence briefings.

President Bush has expanded authority to deny access to presidential papers, which raises grave concerns about how history will be written and current policies will be interpreted.

Attorney General John Ashcroft has issued a memorandum on federal agency compliance with the Freedom of Information Act that many feel sends the wrong message about the administration's commitment to access.

The Justice Department has not released basic information about the hundreds of people who have been detained as part of the war on terrorism.

Congress has taken up measures, such as the Cyber Security Information Act, that threaten to seriously enfeeble the FOIA.

The Defense Department has warned elected leaders to refrain from using information already public in informing and reassuring their constituents. It has delayed fully implementing agreements between the military and the media on coverage of military operations.

A number of federal agencies has shut down or dismantled portions of their Web sites.

Even state legislatures have taken up new measures to restrict public and press access to information.

There is no doubt we need to re-examine information policy in light of the events of Sept. 11. There is no doubt that some of these actions are warranted. Also, there is no doubt that some of these actions bear little relevance to the war on terrorism or that some of them had been pushed unsuccessfully long before Sept. 11. All of these actions, however, seek official and public sanction as part of the war on terrorism.

Ironically, while all of this has been going on, the government has sought broad authority to gather information about citizens and visitors to the United States, through wiretaps, monitoring of email, tracking of Web visits, and listening in on the conversations between detainees and their attorneys.

Thus, at the same time that government officials are demanding more information of Americans, Americans are being asked to demand less information from their government. This formulation puts in even greater imbalance the democratic power-sharing that information-sharing represents.

The greater that imbalance, the greater our vulnerability not just to attack from afar but from democratic decay within.

It is important that the participants in this symposium take note of the larger context in which these restrictions are imposed in order to make a more considered assessment.

It is a difficult assignment.

Most Americans are saying they trust their elected and appointed leaders as never before.

  • President Bush's approval rating soared from 35% to 90%, the highest in Gallup polling history.
  • Confidence in the government now stands at more than 60%, the highest rating since 1968.
  • And a majority of Americans tell pollsters they want less information, not more, in this time of crisis.

In such an environment, it's tough to make the case for more transparency in government practices and policies. But that argument should and must be made.

Usually, when those of us gathered in this room this morning think about government information policy, we focus on things like the national security or law enforcement implications, the tension between privacy and access, the cost and convenience of compliance, the aggravations of the chronic requesters, and the rudeness of the press.

Now, we are compelled to regard the larger context of information and the role it plays in our society and our system of government. We should begin by asking ourselves why we should care about these issues.

First, because it is the law. The Freedom of Information came into being on the heels of another national crisis — this one the Red Scare — when the dangers arising from the failure of the executive agencies to share information with Congress, the people and the press became more and more apparent.

Moreover, the Constitution demands that we care. What more does the First Amendment stand for than a free flow of information?

  • Freedom of speech devolves into mere prattle and noise if it is uninformed.
  • The press cannot perform its constitutional role as government watchdog without access to government information.
  • Freedom of association and the right to redress grievances have no claim to validity without maximum citizen access to government information.

We should care because policy-makers should keep uppermost in their minds that the consequences of their policies eventually must be submitted to the people in whose name they are enacted. These are the voters and taxpayers that are called on to provide the money, resources and support for those policies. More importantly, they are the ones from whose ranks come the sons and daughters who those policies put in harm's way.

Finally, we should care because the full and free flow of information plays a vital role in our personal and national security.

Events leading up the Sept. 11 provided a vivid illustration of that role.

We have built elaborate barriers into our democratic system to carry out what some say is government's primary goal: to protect national security. Those barriers include law enforcement and intelligence agencies, oversight agencies, oversight committees in Congress, the press, and the public itself.

Unfortunately, massive failures in this system left us horribly exposed:

  • Some agencies failed to adequately interpret information or share it in a timely manner.
  • Congressional oversight committees failed to ask tough questions or imagine deadly scenarios.
  • The press failed to cover or question the oversight committees or the agencies thoroughly.
  • And the public failed to demand or attend to information that would inconvenience or complicate their lives.

Sept. 11 catapulted us into a different kind of world and a different kind of war. As much as we may wish it were not so, terrorism is a battle of ideas, too. We cannot fight ideas with bullets and bombs alone. We must not enter that fray disarmed by ill-considered limits on information.

Information, it turns out, is not just power. It is not just the guarantor of informed public discourse and government accountability. It is not just the currency of a nation's conversation with itself.

The brute reality is that information is security.

The sooner and the more fully we acknowledge that reality, the more successfully we can make the case for a wiser information policy.

Americans, whether they want to or not, need to know when airport security is lethally porous. They need to know if and when and where we are vulnerable to biological or nuclear attack. Only when the public is fully informed about such vulnerabilities will there be sufficient pressure to move our leaders to act.

While we are being asked to take up the issues of just how we comply with the Freedom of Information Act and what new exemptions we need to write into the law, we must not neglect to pay attention to the larger role information in general and government information in particular plays in the life — and security — of a free and open society.

We must not accept without close questioning the presumption that keeping information from American citizens means that it is being kept from America’s enemies.

We must never let ourselves be lulled into the notion that the absence of information is the absence of danger. In fact, it is just the reverse.

The way we gather, process and share information spans a number of government and non-government institutions in our society and ultimately depends on how engaged the American public becomes in that enterprise.

What we know now, looking back on where we were and what we were not doing before Sept. 11 — and which in large measure we continue to do — is a stark warning that we accept the idea that information is a crucial element of our safety.

For an open society that properly prizes our information largess, Sept. 11 and the current climate of information phobia are sobering reminders of just how far short reality falls of that idea.

Unless the thoughtless restrictions on information are checked, the lifeblood of democracy slows to a trickle. Americans are demoted as full partners in their own governance. Maximum access to government information is paramount in the best of times. It is crucial in times of national crisis such as these.

It insures sound policies arrived at with maximum and informed input from the public. It insures informed government support. It sets an example for those who are our enemies. It sends a message to the world as well as all Americans that we will not forsake our freedoms and sense of who we are and what we aspire to because they have rained fire and hatred on our people and our land.

In times like these, we are tempted to defer to authority in the name of security and victory, to mistake panic for patriotism, and to look the other way as secrecy, censorship and self-censorship take the place of reasoned policy-making.

To surrender to such temptations is to compound the tragedies of Sept. 11.

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Related

ACLU sues N.J. counties for release of detainees' names
Lawsuit accuses officials of violating state's open-records laws by refusing to make public information on people jailed since Sept. 11 attacks.  01.23.02

Open-government advocates wary of states' records proposals
Civil libertarians worry efforts to increase security may hinder public's ability to monitor government.  02.06.02

Open-government advocates criticize Oklahoma records bill
Meanwhile, lawmakers in Missouri, Maryland consider proposals to restrict access to public records.  03.04.02

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