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War on terror spurs secrecy, experts say

By MARY JACOBY, Times Staff Writer
© St. Petersburg Times
published March 28, 2003

WASHINGTON -- Federal officials are using the war on terrorism and national security concerns to justify closing public records and proceedings, information policy experts say.

From secret immigration hearings for suspected terrorists to the Bush administration's narrow interpretation of the Freedom of Information Act, government is becoming less transparent, advocates for openness argue.

The public "can't be assured the government is operating properly if we can't see what it's doing," Sandra Baron, executive director of the Media Law Resource Center, said in an interview.

Baron and other experts in government information policy said they have seen a trend toward secrecy in the Bush administration, including:

-- President Bush's granting of new authority to three government agencies -- the Department of Agriculture, the Department of Health and Human Services and the Environmental Protection Agency -- to classify documents as secret.

-- Congress' exempting the new Department of Homeland Security from having to release information about "critical infrastructure," including privately operated power plants, bridges, dams, ports or chemical plants.

-- A Bush executive order giving an ex-president the right to delay indefinitely the release of records from his presidency that, under the Presidential Records Act of 1978, are available to be made public 12 years after he leaves office.

-- Vice President Dick Cheney's invocation of executive privilege to avoid releasing names of private-sector advisers on national energy policy. The General Accounting Office, the investigative arm of Congress, sued for the information but lost in federal court.

-- White House Chief of Staff Andrew Card's March 19, 2002, memo asking agencies to take down from public Web sites information that could help terrorists assemble weapons of mass destruction. Some scientists worry it could stymie research.

-- Attorney General John Ashcroft's Oct. 12, 2001, memo to federal agencies encouraging them to use any grounds possible to deny FOIA requests. The policy reversed former Attorney General Janet Reno's directive that agencies apply a liberal interpretation of FOIA when considering information requests.

-- A Sept. 21, 2001, memo from Chief Immigration Judge Michael Creppy mandating closure of immigration hearings for "special" cases involving terror suspects.

The administration argues that government cannot operate effectively if its internal deliberations are subject to disclosure. And given the new reality of terrorism, making too much information public can be dangerous, it says.

"We have carefully crafted our post-Sept. 11 policies to foster prevention while protecting the privacy and civil liberties of Americans. As I have often said, we at the department must think outside the box, but inside the Constitution," Ashcroft told the Senate Judiciary Committee this month.

But, he added: "Without security, there is no liberty."

Courts have upheld the government's right to detain indefinitely so-called "enemy combatants" captured during the war on terrorism. But the judiciary is split on whether the United States can hold immigration hearings of suspected terrorists in secret, and the American Civil Liberties Union has asked the U.S. Supreme Court to decide the issue.

The Homeland Security exemptions on FOIA, meanwhile, have angered Democrats who worry that private energy companies will hide evidence of pollution or public health threats.

Sen. Patrick Leahy, D-Vt., said the exemption shields all information, "no matter how tangential the content of that document may be to the actual security of a facility."

Leahy introduced a bill this month to reverse the provision. "The law effectively allows companies to hide information about public health and safety from the public simply by voluntarily submitting it" to Homeland Security, he said in a statement.

Some Republicans criticized secrecy policies, too. Rep. Stephen Horn, R-Calif., protested the executive order giving presidents the right to delay release of their official papers.

Historians had objected to a delay in the release of some 68,000 pages of documents from the Reagan administration. The documents were eventually made public last year.

And on March 19, Sen. Charles Grassley, R-Iowa, wrote the heads of the Federal Bureau of Investigation and the Bureau of Customs and Border Protection to protest the government's seizure of an unclassified FBI document from a FedEx package bound for an Associated Press reporter.

"A free and uncensored media play an important role in the checks and balances of our constitutional republic," Grassley wrote.

He called the seizure of the 8-year-old FBI lab report a potential violation of the First and Fourth Amendments.

Customs opened the package, from an AP reporter in the Philippines to a colleague in Washington, during a routine inspection in Indianapolis in September. Customs has the right to inspect packages from overseas.

Finding the FBI report, Customs contacted the bureau, which took control of the 1995 document, the contents of which were not classified and had been discussed in open court. Customs did not notify the AP of the seizure, the AP reported.

It appears "the government overstepped its bounds," Grassley wrote.

At a Freedom of Information conference earlier this month, the National Security Archive detailed how federal agencies have changed their policies on complying with the 1966 disclosure law since Ashcroft's new instructions.

The archive, an investigative research institute at George Washington University, found five of 33 agencies or departments had made significant changes. They include the Army, Air Force, Navy, Department of Interior and the Nuclear Regulatory Commission, the report said.

Eight other agencies took new but not as drastic measures to implement the policy, while some -- including U.S. Central Command in Tampa -- made no apparent effort to tighten release of information, the report found.

The findings showed that so far, there is uneven application of the new FOIA policy, archive executive director Tom Blanton said.

"It's hard to separate the Ashcroft memo out from all of the other factors pushing the government toward secrecy. And number one on that list is 9/11," Blanton said, referring to the 2001 terrorist attacks.

Blanton praised the administration for following through on a Clinton-era decision to declassify government records on repression in Argentina during its 1976-83 military dictatorship.

He also said Secretary of State Colin Powell's Feb. 5 address to the United Nations, which used declassified intelligence information to argue that Iraq had not disarmed, showed there can be benefits to disclosure.

"Secrets can be released if there's a larger public purpose," Blanton said. "But it's a balancing act."

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