die behind closed doors." --U.S. APPEALS COURT
JUDGE DAMON J. KEITH
12:01 p.m. on Jan. 20, 2001, as a bone-chilling
rain fell on Washington, George W. Bush took
the oath of office as the nation's 43rd president.
Later that afternoon, the business of governance
officially began. Like other chief executives
before him, Bush moved to unravel the efforts
of his predecessor. Bush's chief of staff,
Andrew Card, directed federal agencies to
freeze more than 300 pending regulations issued
by the administration of President Bill Clinton.
The regulations affected areas ranging from
health and safety to the environment and industry.
The delay, Card said, would "ensure that the
president's appointees have the opportunity
to review any new or pending regulations."
The process, as it turned out, expressly precluded
input from average citizens. Inviting such
comments, agency officials concluded, would
be "contrary to the public interest."
months later, a former U.S. Army Ranger named
Joseph McCormick found out just how hard it
was to get information from the new administration.
A resident of Floyd County, Va., in the heart
of the Blue Ridge Mountains, McCormick discovered
that two big energy companies planned to run
a high-volume natural gas pipeline through
the center of his community. He wanted to
help organize citizens by identifying residents
through whose property the 30-inch pipeline
would run. McCormick turned to Washington,
seeking a project map from federal regulators.
The answer? A pointed "no." Although such
information was "previously public," officials
of the Federal Energy Regulatory Commission
told McCormick, disclosing the route of the
new pipeline could provide a road map for
terrorists. McCormick was nonplused. Once
construction began, he says, the pipeline's
location would be obvious to anyone. "I understand
about security," the rangy, soft-spoken former
business executive says. "But there certainly
is a balance--it's about people's right to
use the information of an open society to
protect their rights."
the past three years, the Bush administration
has quietly but efficiently dropped a shroud
of secrecy across many critical operations
of the federal government--cloaking its own
affairs from scrutiny and removing from the
public domain important information on health,
safety, and environmental matters. The result
has been a reversal of a decades-long trend
of openness in government while making increasing
amounts of information unavailable to the
taxpayers who pay for its collection and analysis.
Bush administration officials often cite the
September 11 attacks as the reason for the
enhanced secrecy. But as the Inauguration
Day directive from Card indicates, the initiative
to wall off records and information previously
in the public domain began from Day 1. Steven
Garfinkel, a retired government lawyer and
expert on classified information, puts it
this way: "I think they have an overreliance
on the utility of secrecy. They don't seem
to realize secrecy is a two-edge sword that
cuts you as well as protects you." Even supporters
of the administration, many of whom agree
that security needed to be bolstered after
the attacks, say Bush and his inner circle
have been unusually assertive in their commitment
to increased government secrecy. "Tightly
controlling information, from the White House
on down, has been the hallmark of this administration,"
says Roger Pilon, vice president of legal
affairs for the Cato Institute.
and water. Some of the Bush administration's
initiatives have been well chronicled. Its
secret deportation of immigrants suspected
as terrorists, its refusal to name detainees
at the U.S. base at Guantanamo Bay, Cuba,
and the new surveillance powers granted under
the post-9/11 U.S.A. Patriot Act have all
been debated at length by the administration
and its critics. The clandestine workings
of an energy task force headed by Vice President
Dick Cheney have also been the subject of
litigation, now before the Supreme Court.
the administration's efforts to shield the
actions of, and the information obtained by,
the executive branch are far more extensive
than has been previously documented. A five-month
investigation by U.S. News detailed a series
of initiatives by administration officials
to effectively place large amounts of information
out of the reach of ordinary citizens. The
magazine's inquiry is based on a detailed
review of government reports and regulations,
federal agency Web sites, and legislation
pressed by the White House. U.S. News also
analyzed information from public interest
groups and others that monitor the administration's
activities, and interviewed more than 100
people, including many familiar with the new
secrecy initiatives. That information was
supplemented by a review of materials provided
in response to more than 200 Freedom of Information
Act requests filed by the magazine seeking
details of federal agencies' practices in
providing public access to government information.
business and consumer information is increasingly
being withheld from the public. The Bush administration
is denying access to auto and tire safety
information, for instance, that manufacturers
are required to provide under a new "early-warning"
system created following the Ford-Firestone
tire scandal four years ago. The U.S. Consumer
Product Safety Commission, meanwhile, is more
frequently withholding information that would
allow the public to scrutinize its product
safety findings and product recall actions.
administration initiatives have effectively
placed off limits critical health and safety
information potentially affecting millions
of Americans. The information includes data
on quality and vulnerability of drinking-water
supplies, potential chemical hazards in communities,
and safety of airline travel and other forms
of transportation. In Aberdeen, Md., families
who live near an Army weapons base are suing
the Army for details of toxic pollution fouling
the town's drinking-water supplies. Citing
security, the Army has refused to provide
information that could help residents locate
and track the pollution.
the well-publicized cases involving terrorism
suspects, the administration is aggressively
pursuing secrecy claims in the federal courts
in ways little understood--even by some in
the legal system. The administration is increasingly
invoking a "state secrets" privilege (box,
Page 24) that allows government lawyers to
request that civil and criminal cases be effectively
closed by asserting that national security
would be compromised if they proceed. It is
impossible to say how often government lawyers
have invoked the privilege. But William Weaver,
a professor at the University of Texas-El
Paso, who recently completed a study of the
historical use of the privilege, says the
Bush administration is asserting it "with
offhanded abandon." In one case, Weaver says,
the government invoked the privilege 245 times.
In another, involving allegations of racial
discrimination, the Central Intelligence Agency
demanded, and won, return of information it
had provided to a former employee's attorneys--only
to later disclose the very information that
it claimed would jeopardize national security.
administration policies have thwarted the
ability of Congress to exercise its constitutional
authority to monitor the executive branch
and, in some cases, even to obtain basic information
about its actions. One Republican lawmaker,
Rep. Dan Burton of Indiana, became so frustrated
with the White House's refusal to cooperate
in an investigation that he exclaimed, during
a hearing: "This is not a monarchy!" Some
see a fundamental transformation in the past
three years. "What has stunned us so much,"
says Gary Bass, executive director of OMB
Watch, a public interest group in Washington
that monitors government activities, "is how
rapidly we've moved from a principle of `right
to know' to one edging up to `need to know.'
White House declined repeated requests by
U.S.News to discuss the new secrecy initiatives
with the administration's top policy and legal
officials. Two Bush officials who did comment
defended the administration and rejected criticism
of what many call its "penchant for secrecy."
Dan Bartlett, the White House communications
director, says that besides the extraordinary
steps the president has taken to protect the
nation, Bush and other senior officials must
keep private advice given in areas such as
intelligence and policymaking, if that advice
is to remain candid. Overall, Bartlett says,
"the administration is open, and the process
in which this administration conducts its
business is as transparent as possible." There
is, he says, "great respect for the law, and
great respect for the American people knowing
how their government is operating."
says that some administration critics "such
as environmentalists . . . want to use [secrecy]
as a bogeyman." He adds: "For every series
of examples you could find where you could
make the claim of a `penchant for secrecy,'
I could probably come up with several that
demonstrate the transparency of our process."
Asked for examples, the communications director
are no precise statistics on how much government
information is rendered secret. One measure,
though, can be seen in a tally of how many
times officials classify records. In the first
two years of Bush's term, his administration
classified records some 44.5 million times,
or about the same number as in President Clinton's
last four years, according to the Information
Security Oversight Office, an arm of the National
Archives and Records Administration. But the
picture is more complicated than that. In
an executive order issued last March, Bush
made it easier to reclassify information that
had previously been declassified--allowing
executive-branch agencies to drop a cloak
of secrecy over reams of information, some
of which had been made available to the public.
and switch. In addition, under three other
little-noticed executive orders, Bush increased
the number of officials who can classify records
to include the secretary of agriculture, the
secretary of health and human services, and
the administrator of the Environmental Protection
Agency. Now, all three can label information
at the "secret" level, rendering it unavailable
for public review. Traditionally, classification
authority has resided in federal agencies
engaged in national security work. "We don't
know yet how frequently the authority is being
exercised," says Steven Aftergood, who publishes
an authoritative newsletter in Washington
on government secrecy. "But it is a sign of
the times that these purely domestic agencies
have been given national security classification
authority. It is another indication of how
our government is being transformed under
pressure of the perceived terrorist threat."
J. William Leonard, director of the information
oversight office, estimates that up to half
of what the government now classifies needn't
be. "You can't have an effective secrecy process,"
he cautions, "unless you're discerning in
how you use it."
the start, the Bush White House has resisted
efforts to disclose information about executive-branch
activities and decision making. The energy
task force headed by Cheney is just one example.
In May 2001, the task force produced a report
calling for increased oil and gas drilling,
including on public land. The Sierra Club
and another activist group, Judicial Watch,
sued to get access to task-force records,
saying that energy lobbyists unduly influenced
the group. Citing the Constitution's separation
of powers clause, the administration is arguing
that the courts can't compel Cheney to disclose
information about his advice to the president.
A federal judge ordered the administration
to produce the records, prompting an appeal
to the Supreme Court.
interests aren't alone in winning a friendly
hearing from the Bush administration. Auto
and tire manufacturers prevailed in persuading
the administration to limit disclosure requirements
stemming from one of the highest-profile corporate
scandals of recent years. Four years ago,
after news broke that failing Firestone tires
on Ford SUVs had caused hundreds of deaths
and many more accidents, Congress enacted
a new auto and tire safety law. A cornerstone
was a requirement that manufacturers submit
safety data to a government early-warning
system, which would provide clues to help
prevent another scandal. Lawmakers backing
the system wanted the data made available
to the public. After the legislation passed,
officials at the National Highway Traffic
Safety Administration said they didn't expect
to create any new categories of secrecy for
the information; they indicated that key data
would automatically be made public. That sparked
protests from automakers, tire manufacturers,
and others. After months of pressure, transportation
officials decided to make vital information
such as warranty claims, field reports from
dealers, and consumer complaints--all potentially
valuable sources of safety information--secret.
"It was more or less a bait and switch," says
Laura MacCleery, auto-safety counsel for Public
Citizen, a nonprofit consumer group. "You're
talking about information that will empower
consumers. The manufacturers are not going
to give that up easily."
out of jail free. Government officials, unsurprisingly,
don't see it that way. Lloyd Guerci, a Transportation
Department attorney involved in writing the
new regulations, declined to comment. But
Ray Tyson, a spokesman for the traffic safety
administration, denies the agency caved to
industry pressure: "We've listened to all
who have opinions and reached a compromise
that probably isn't satisfactory to anybody."
of the strongest opposition to making the
warning-system data public came from the Alliance
of Automobile Manufacturers. The organization,
whose membership comprises U.S. and international
carmakers, argued that releasing the information
would harm them competitively. The Bush administration
has close ties to the carmakers. Bush Chief
of Staff Card has been General Motors' top
lobbyist and head of a trade group of major
domestic automakers. Jacqueline Glassman,
NHTSA's chief counsel, is a former top lawyer
for DaimlerChrysler Corp. In the months before
the new regulations were released, industry
officials met several times with officials
from the White House's Office of Management
administration's commitment to increased secrecy
measures extends to the area of "critical
infrastructure information," or CII. In layman's
terms, this refers to transportation, communications,
energy, and other systems that make modern
society run. The Homeland Security Act allows
companies to make voluntary submissions of
information about critical infrastructure
to the Department of Homeland Security. The
idea is to encourage firms to share information
crucial to running and protecting those facilities.
But under the terms of the law, when a company
does this, the information is exempted from
public disclosure and cannot be used without
the submitting party's permission in any civil
proceeding, even a government enforcement
action. Some critics see this as a get-out-of-jail-free
card, allowing companies worried about potential
litigation or regulatory actions to place
troublesome information in a convenient "homeland
security" vault. "The sweep of it is amazing,"
says Beryl Howell, former general counsel
to the Senate Judiciary Committee. "Savvy
businesses will be able to mark every document
handed over [to] government officials as `CII'
to ensure their confidentiality." Companies
"wanted liability exemption long before 9/11,"
adds Patrice McDermott, a lobbyist for the
American Library Association, which has a
tradition of advocacy on right-to-know issues.
"Now, they've got it."
the administration's plan to implement the
Homeland Security Act, some businesses may
get even more protection. When Congress passed
the law, it said the antidisclosure provision
would apply only to information submitted
to the Department of Homeland Security. The
department recently proposed extending the
provision to cover information submitted to
any federal agency. A department spokesman
did not respond to requests for comment. Business
objections were also pivotal when the Environmental
Protection Agency recently backed off a plan
that would have required some companies to
disclose more about chemical stockpiles in
the administration's secrecy policies have
helped business, they have done little for
individuals worried about health and safety
issues. The residents of the small town of
Aberdeen, Md., can attest to that. On a chilly
fall evening, some 100 people gathered at
the Aberdeen firehouse to hear the latest
about a toxic substance called perchlorate.
An ingredient in rocket fuel, perchlorate
has entered the aquifer that feeds the town's
drinking-water wells. The culprit is the nearby
U.S. Army's Aberdeen Proving Ground, where
since World War I, all manner of weapons have
finger. After word of the perchlorate contamination
broke, a coalition of citizens began working
with the Army to try to attack the unseen
plume of pollution moving through the ground.
But earlier this year, the Army delivered
Aberdeen residents a sharp blow. It began
censoring maps to eliminate features like
street names and building locations--information
critical to understanding and tracking where
contamination might have occurred or where
environmental testing was being done.
reason? The information, the Army says, could
provide clues helpful to terrorists. Arlen
Crabb, the head of a citizens' group, doesn't
buy it. "It's an abuse of power," says Crabb,
a 20-year Army veteran, whose well lies just
a mile and a half from the base. His coalition
is suing the Army, citing health and safety
concerns. "We're not a bunch of radicals.
We've got to have the proof. The government
has to be transparent."
is but one example of the way enhanced security
measures increasingly conflict with the health
and safety concerns of ordinary Americans.
Two basics--drinking water and airline travel--help
illustrate the trend. A public health and
bioterrorism law enacted last year requires,
among other things, that operators of local
water systems study vulnerabilities to attack
or other disruptions and draw up plans to
address any weaknesses. Republicans and Democrats
praised the measure, pushed by the Bush administration,
as a prudent response to potential terrorist
attacks. But there's a catch. Residents are
precluded from obtaining most information
about any vulnerabilities.
wasn't always the case. In 1996, Congress
passed several amendments to the Clean Water
Act calling for "source water assessments"
to be made of water supply systems. The idea
was that the assessments, covering such things
as sources of contamination, would arm the
public with information necessary to push
for improvements. Today, the water assessments
are still being done, but some citizens' groups
say that because of Bush administration policy,
the release of information has been so restricted
that there is too little specific information
to act upon. Theyblame the Environmental Protection
Agency for urging states to limit information
provided to the public from the assessments.
As a result, the program has been fundamentally
reshaped from one that has made information
widely available to one that now forces citizens
to essentially operate on a need-to-know basis,
says Stephen Gasteyer, a Washington specialist
on water-quality issues. "People [are] being
overly zealous in their enforcement of safety
and security, and perhaps a little paranoid,"
he says. "So you're getting releases of information
so ambiguous that it's not terribly useful."
Cynthia Dougherty, director of EPA's groundwater
and drinking-water office, described her agency's
policy as laying out "minimal standards,"
so that states that had been intending to
more fully disclose information "had the opportunity
to decide to make a change."
Federal Aviation Administration has its own
security concerns, and supporters say it has
addressed them vigorously. In doing so, however,
the agency has also made it harder for Americans
to obtain the kind of safety information once
considered routine. The FAA has eliminated
online access to records on enforcement actions
taken against airlines, pilots, mechanics,
and others. That came shortly after the 9/11
attacks, when it was discovered that information
was available on things like breaches of airport
security, says Rebecca Trexler, an FAA spokeswoman.
Balancing such concerns isn't easy. But rather
than cut off access to just that information,
the agency pulled back all enforcement records.
The FAA has also backed away from providing
access to safety information voluntarily submitted
worrisome as the specter of terrorism is for
many Americans, many still grumble about being
kept in the dark unnecessarily. Under rules
the Transportation Security Administration
adopted last year--with no public notice or
comment--the traveling public no longer has
access to key government information on the
safety and security of all modes of transportation.
The sweeping restrictions go beyond protecting
details about security or screening systems
to include information on enforcement actions
or effectiveness of security measures. The
new TSA rules also establish a new, looser
standard for denying access to information:
Material can be withheld from the public,
the rules say, simply if it's "impractical"
to release it. The agency did not respond
to requests for comment.
same pattern can be seen in one federal agency
after another. As Joseph McCormick, the former
Army Ranger trying to learn more about the
pipeline planned for Virginia's Shenandoah
Valley, learned, the Federal Energy Regulatory
Commission now restricts even the most basic
information about such projects. The agency
says its approach is "balanced," adding that
security concerns amply justify the changes.
Bush administration is pressing the courts
to impose more secrecy, too. Jeffrey Sterling,
36, a former CIA operations officer, can testify
to that. Sterling, who is black, is suing
the CIA for discrimination. In September,
with his attorneys in the midst of preparing
important filings, a CIA security officer
paid them a visit, demanding return of documents
the agency had previously provided. A mistake
had been made, the officer explained, and
the records contained information that if
disclosed would gravely damage national security.
The officer warned that failure to comply
could lead to prison or loss of a security
clearance, according to the lawyers. Although
vital to Sterling's case, the lawyers reluctantly
gave up the records.
was so important? In a federal courtroom in
Alexandria, Va., a Justice Department attorney
recently explained that the records included
a pseudonym given to Sterling for an internal
CIA proceeding on his discrimination complaint.
In fact, the pseudonym, which Sterling never
used in an operation, had already been disclosed
through a clerical error. Mark Zaid, one of
Sterling's attorneys, says the pseudonym is
just a misdirection play by the CIA. The real
reason the agency demanded the files back,
he says, is that they included information
supporting Sterling's discrimination complaint.
Zaid says he has never encountered such heavy-handed
treatment from the CIA. "When they have an
administration that is willing to cater [to
secrecy], they go for it," he says, "because
they know they can get away with it." A CIA
spokesman declined comment.
this case, which is still pending, the administration
is invoking the "state secrets" privilege,
in which it asserts that a case can't proceed
normally without disclosing information harmful
to national security. The Justice Department
says it can't provide statistics on how often
it invokes the privilege. But Jonathan Turley,
a George Washington University law professor
active in national security matters, says:
"In the past, it was an unusual thing.The
Bush administration is faster on the trigger."
At the same time, the government is opening
up a related front. Last spring, the TSA effectively
shut down the case of Mohammed Ali Ahmed,
an Indian Muslim and naturalized citizen.
In September 2001, Ahmed and three of his
children were removed from an American Airlines
flight. Last year, Ahmed filed a civil rights
suit against the airline. But TSA head James
Loy intervened, saying that giving Ahmed information
about his family's removal would compromise
airline security. The government, in other
words, was asserting a claim to withhold the
very information Ahmed needed to pursue his
case, says his attorney, Wayne Krause, of
the Texas Civil Rights Project. "You're looking
at an almost unprecedented vehicle to suppress
information that is vital to the public and
the people who want to vindicate their rights,"
evidence of a different kind comes into play
through a little-noticed effect of the U.S.A.
Patriot Act. A key provision allows information
from surveillance approved for intelligence
gathering to be used to convict a defendant
in criminal court. But the government's application--which
states the case for the snooping--isn't available
for defendants to see, as in traditional law
enforcement surveillance cases. With government
agencies now hoarding all manner of secret
information, the growing stockpile represents
an opportunity for abusive leaks, critics
say. The new law takes note of that, by allowing
suits against the federal government. But
there's an important catch--in order to seek
redress, one must forfeit the right to a jury
trial. Instead, the action must be held before
a judge; judges, typically, are much more
conservative in awarding damages than are
Americans appreciate the need for increased
security. But with conflicts between safety
and civil rights increasing, the need for
an arbiter is acute--which is perhaps the
key reason why the vast new security powers
of many executive-branch agencies are so alarming
to citizens' groups and others. A diminished
role of congressional oversight is just one
area of fallout, but there are others. Some
took the threat of a subpoena from the independent
commission investigating the 9/11 attacks
to force the White House to turn over intelligence
reports. Even at that, family members of victims
complain, there were too many restrictions
on release of the information. In Congress,
the administration has rebuffed members on
a range of issues often unrelated to security
a huge military spending bill last year, Congress
directed President Bush to give it 30 days'
notice before initiating certain sensitive
defense programs. Bush signed the bill into
law but rejected the restraint and said he
would ignore the provision if he deemed it
contracts to rebuild Iraq, worth billions
of dollars, were awarded in secret. Bids were
limited to companies invited to participate,
and many had close ties to the White House.
Members of Congress later pressed for an open
public interest groups report that government
agencies are more readily denying Freedom
of Information Act requests--while also increasing
fees, something small-budget groups say they
can ill afford. The Sierra Club, for example,
has been thwarted in getting information on
problems at huge "factory farms" that pollute
rivers and groundwater. Says David Bookbinder,
senior attorney for the group: "What's different
about this administration is their willingness
to say, `We're going to keep everything secret
until we're forced to disclose it--no matter
what it is.'"
administration is undeterred by such complaints.
"I think what you've seen is a White House
that has valued openness," says Daniel Bryant,
assistant attorney general for legal policy,
and "that knows that openness with the public
facilitates confidence in government."
not the way Jim Kerrigan sees it. He operates
a small market-research firm in Sterling,
Va., outside Washington. For more than a decade,
he has forecast federal spending on information
technology. Three months after Bush took office,
the Office of Management and Budget issued
a memo telling government officials to no
longer make available such information so
as to "preserve the confidentiality of the
deliberations that led to the president's
a result, Kerrigan says, information began
to dry up. Requests were ignored. And the
data he did get came with so much information
censored out that they were barely usable.
The fees Kerrigan paid for a request, which
once topped out at $300, jumped to as much
as $6,500. "I can't afford that," he says.
"This administration's policy is to withhold
information as much as possible."
Dates: Secrecy and the Bush Administration
Day (1/20/01) Administration freezes Clinton-era
regulations, without allowing for public comment.
Attorney General John Ashcroft, reversing
Clinton policy, encourages agencies to deny
Freedom of Information Act requests if a "sound
legal basis" exists.
President Bush signs U.S.A. Patriot Act, expanding
law enforcement powers and government surveillance.
Congress's General Accounting Office sues
Vice President Dick Cheney for refusing to
disclose records of his energy task force;
the GAO eventually loses its case. A separate
private case is pending.
White House Chief of Staff Andrew Card directs
federal agencies to protect sensitive security
Bush signs Homeland Security Act. Its provisions
restrict public access to information filed
by companies about "critical infrastructure,"
among other matters.
Administration asks, in papers filed before
the Supreme Court, for significant narrowing
of the Freedom of Information Act.
Bush issues standards on classified material,
favoring secrecy and reversing provisions
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