Chapter 1: Open Government


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Chapter 1: Open Government

INTRODUCTION

This chapter examines the mantle of secrecy that has been steadily enveloping the executive branch in the wake of the September 11 attacks. It is not surprising that the administration has sought to enhance government secrecy in response to September 11. The attacks raised valid concerns that the very openness of American society may benefit those who seek to attack the United States and its people. Yet the balance between secrecy and transparency must be delicately struck. Open government is a value that goes to the very heart of what it means to be a democracy.

THE LEGAL BACKDROP

Although the Constitution makes no explicit reference to the principle of open government, the founding fathers made clear that transparency in government is a prerequisite to an effective democracy. As James Madison famously warned:

A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance; And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.[1]

Similarly, John Adams declared that “[l]iberty cannot be preserved without a general knowledge among the people.” [2]

Indeed, the need for openness and accountability is evident in the very framework of the federal government. The founding fathers sought to secure our liberty by diffusing power among three separate branches of government – the legislature, executive, and judiciary. But separation alone was not enough. Wary of power’s encroaching nature, the framers created an elaborate system of checks and balances to help police the constitutional boundaries.

For the system to work, however, each branch of government must be willing to share information about its activities. The system of checks and balances cannot survive unless each branch is able to monitor the activities of the other two. The American people, moreover, must have access to information about what all three branches are doing. Under the Constitution, it is the American people, who, as an informed electorate, provide the ultimate check against arbitrary government.[3]

THE REFUSAL TO SHARE INFORMATION
WITH CONGRESS AND WITH THE COURTS

In the past year, however, the executive branch has shown an increasing disregard for the importance of transparency to democratic government. The Bush administration has refused to share information not only with the public, but with Congress and with the federal courts. In many ways, this is not entirely unexpected. Even before September 11, disputes over the nature of executive privilege were commonplace when issues of national security were involved.

The administration’s new insistence on unrestrained autonomy, however, has upset the delicate system of checks and balances, painstakingly sown into the Constitution. In the words of West Virginia Senator Robert Byrd:

Shrouded in ambiguity and cloaked in deep secrecy, this administration continues to suddenly, and sometimes unexpectedly, drop its decisions upon the public and Congress, and expect obedient approval, without question, without debate, and without opposition. [4]

Congressional concern has been particularly acute as it relates to the withholding of information from members of congressional oversight committees. One recent dispute concerned the administration’s refusal to disclose documents on the allocation of the antiterrorism funds that Congress, itself, had authorized. Another was the demand for information on antiterrorism measures taken under the auspices of the USA PATRIOT Act - a statute Congress had passed, at the urging of the administration, in the immediate aftermath of September 11.

The administration’s refusal to share information has upset some of its staunchest supporters in Congress. There is growing bi-partisan concern that the congressional oversight function is being dangerously undermined. The chair of the Senate Judiciary Committee, Democratic Senator Patrick Leahy, observed, “I have never known an administration that is more difficult to get information from that the oversight committees are entitled to.”[5] He reported that Republican senators on the Committee had urged him to issue subpoenas to force the administration’s hand.[6] The chair of the House Judiciary Committee, Republican Representative James Sensenbrenner, expressed similar frustrations. He said that he “would start blowing a fuse” if the information his Committee had requested was not provided by early September. He told reporters, “I’ve never signed a subpoena in my five and a half years as chairman. I guess there’s a first time for everything.” [7]

The administration’s insistence on blanket secrecy has also perturbed members of the federal judiciary - particularly in relation to the government’s post September 11th detention practices. The secrecy surrounding these detentions is discussed extensively in chapters 3 and 4. In one such case, involving U.S. citizen Yasser Esam Hamdi, the judge balked at the government’s insistence that it need not share information with the court. After designating Hamdi as an enemy combatant (thereby denying him access to a lawyer), the government simply refused to provide documentary evidence to support the designation. The judge ruled that the government must provide more information, however, emphasizing that he “would be acting as little more than rubber stamp” if he accepted the “sparse facts” the government had provided.[8]

ROLLING BACK FEDERAL STATUTES ON OPEN GOVERMENT

As discussed earlier in this chapter, the Constitution relies upon the vigilance of an informed citizenry to provide the ultimate check against arbitrary government. To facilitate this, Congress passed the Freedom of Information Act[9] (FOIA) in 1966 – having been long concerned that a burgeoning federal bureaucracy was actively stymieing requests for information and covering up questionable government decision-making. In 1989, Congress struck another blow for government transparency, passing the Whistleblowers Protection Act[10] (WPA), a statute that enables federal employees to expose government wrong-doing by protecting them from retaliation. As explained below, the executive branch has sought to curtail the effects of these important statutes in the wake of September 11.

THE FREEDOM OF INFORMATION ACT

Background to FOIA

FOIA establishes that records in the possession of agencies and departments of the executive branch of the U.S. government must be accessible to the people. Before FOIA was enacted on July 4, 1966, the burden was on individual citizens to establish a right to examine these records. With the passage of FOIA, the burden of persuasion shifted from the individual to the government. Federal agencies were required to disclose any documents that had been requested unless they fell within nine limited statutory exemptions.[11] Furthermore, any decision to withhold a document could be challenged in federal court. As a result of FOIA, every federal agency, from the Department of Agriculture to NASA to the U.S. Postal Service, now has a designated FOIA officer to respond to the public’s right to access information.

Over the years, FOIA has been increasingly used as a tool to ensure government accountability. In fiscal year 2000, the latest year for which figures are available, federal departments and agencies received 2,235,201 FOIA requests – a 13 percent increase over fiscal year 1999, alone.[12] And indeed, since its enactment, FOIA has been responsible for the exposure of a great deal of important information, such as:

Reports showing that in the five years before a fatal Amtrak derailment in 2001, 1500 defects had been found on the tracks in Iowa alone;

Documents about a CIA program called MK-ULTRA that illegally conducted mind-control experiments on unwitting human subjects;

Reports showing that the Forest Service was spraying herbicides in the national forests;

Documents showing that elderly patients at a private Philadelphia nursing home had died while they were being used as subjects in a drug experiment; and

Reports showing that contamination from recycled uranium may have reached more than 100 federal plants, private factories and colleges.
The Attorney General’s FOIA Memorandum

On October 12, 2001, Attorney General John Ashcroft sent a memorandum to the heads of all federal departments and agencies setting out a new policy on FOIA requests.[13] The administration's new policy encourages the presumptive refusal of requests, through a restrictive interpretation of the Act.

Most significantly, Ashcroft’s memorandum changes the standard under which the government will defend an agency’s refusal to produce information pursuant to a FOIA request, whenever that denial is challenged in court. Previously, the Department of Justice would only defend an agency’s refusal to release information when it could be argued that releasing the information would result in “foreseeable harm.” Under the new standard, however, the Justice Department will defend an agency’s refusal to comply with a FOIA request so long as the decision rested on a “sound legal basis,” a much lower standard.

Furthermore, Ashcroft’s memorandum actively encourages federal agencies to fully consider all potential reasons for non-disclosure in making decisions under the Act. Although acknowledging the importance of government accountability, he emphasizes that he is equally concerned by other factors, including national security considerations, effective law enforcement, and the protection of sensitive business information. One of the most troubling aspects of the administration’s new FOIA policy, however, is that it covers all government information, most of which has absolutely no connection to national security or law enforcement.

By encouraging agencies to “consider the value” of keeping agency communications confidential and ensuring that in virtually all circumstances the government would oppose claims made by individual citizens, the Attorney General has effectively reversed FOIA’s presumption that citizens have a right to access government information. He has established a policy by which government information will presumptively remain secret, setting the clock back nearly forty years.

Ashcroft’s memorandum lies in sharp contrast with the assurances he offered the Senate during his 2001 confirmation process. In his confirmation testimony, he emphasized his commitment to upholding and enforcing FOIA:

Appropriate public access to governmental records is an important check on arbitrary government action. If I am fortunate enough to be confirmed as Attorney General, I will fully and faithfully enforce the Freedom of Information Act and ensure that the Department of Justice does the same. [14]

THE WHISTLEBLOWER PROTECTION ACT

Background to the Whistleblower Protection Act

The Whistleblower Protection Act (WPA) strengthened the rights of federal employees who challenge government betrayals of the public trust. The Act protects employees who expose government illegality, waste, fraud and other abuses from adverse employment action. Employees who believe they have been retaliated against can request an investigation by the Office of the General Counsel to vindicate their rights. The Act applies to most federal agencies, with the exception of intelligence agencies like the FBI and CIA.

President George H. Bush signed the WPA into law on April 10, 1989. The bill had passed both the Senate and House of Representatives unopposed. At the signing ceremony, the president emphasized the importance of shielding those who expose government misconduct:

[A] true whistleblower is a public servant of the highest order. And I share the determination of Congress that we do everything possible to ensure that these dedicated men and women should not be fired or rebuked or suffer financially for their honesty and good judgment.[15]

In the years since the WPA’s enactment, whistleblowers have alerted the public to much important information, including information critical to protecting public safety. Federal whistleblowers have disclosed information, for example, about the failure of the Nuclear Regulatory Commission to enforce public safety requirements at facilities under construction. Whistleblowers at one such facility in Ohio revealed that nuclear safety laws had been systematically violated at the plant. After intensive investigations, sparked by the whistleblowing disclosures, the project was cancelled and the owners converted the plant to a coal-fired facility that now is operating safely.[16]

Rolling Back Whistleblower Protections

In the debates over the creation of a new Department of Homeland Security (DHS), the Bush administration has insisted that the employees of the new department must be exempted from the protections of the WPA. The administration claims that the exemption is necessary to safeguard national security - arguing, in essence, that whistleblowers who reveal DHS incompetence or mismanagement might at the same time reveal sensitive security information.

The implications of excluding all DHS employees are enormous, however, and extend far beyond national security considerations. Under current proposals, the DHS could consolidate approximately 170,000 employees from all or part of 22 different federal agencies. Some of the functions of the agencies to be consolidated have nothing to do with national security. Accordingly, even under the administration’s arguments, it would make no sense to exempt all DHS employees, whatever their responsibilities, from the important protections of the WPA.

Furthermore, one of the primary rationales behind the creation of the DHS was the sense that past agency failings have unnecessarily compromised national security. Indeed, in the months after September 11, the news media was rife with stories of bureaucratic blunders – the most notorious example of which was the granting of student visas to two of the September 11th hijackers, six months after the attacks. Indeed, it seems that applying WPA protection to DHS employees is particularly important, given that they are uniquely positioned to uncover essential information about agency failings which might put our national security at risk.

These protections have never been more important. When FBI whistleblower Colleen Rowley told the Senate Judiciary Committee in June 2002 that the FBI is a bureaucracy rife with “risk aversion,” “roadblocks” to investigations and “endless, needless paperwork,” she hand-delivered copies of her memo to the Senate Select Intelligence Committee in order to ensure that her concerns were addressed.[17] Because FBI employees are excluded from the protections of the WPA, members of Congress extracted personal promises from FBI Director Robert Mueller to ensure that Agent Rowley would face no retaliation for coming forward.[18] Future whistleblowers obviously cannot count on such high-profile intervention, however. In order to encourage them to come forward, they must be explicitly protected under the WPA.

The Attorney General, meanwhile, is sending out a decidedly different message to federal employees. At a time when public attention is focused on understanding intelligence failures in order to take corrective action, he has created an interagency task force to review the criminal penalties for leaking classified information.[19] While the need to protect classified government information is in some ways more important than ever, efforts to prevent “leaks” should not undermine the narrow protections carved out for those brave and principled civil servants who risk their careers to expose government misconduct and incompetence.

--------------------------------------------------------------------------------

Endnotes


[1] Letter from James Madison to W. T. Barry (August 4, 1882), reprinted in 9 James Madison’s Writings 103 (Gaillard Hunt ed., 1910).
[2] John Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 1 Papers of John Adams 120 (M.J. Kine ed., 1977).
[3] The importance of open government is also set out in international agreements, such as the Helsinki Final Act of 1975, which confirms “the right of the individual to know and act upon his rights.…”
[4] Paul J. Nyden, “Byrd Challenges Bush’s Ideas on War,” West Virginia Gazette, June 29, 2002.
[5] Steve Chapman, “Excessive Secrecy in the War on Terror,” Chicago Tribune, August 18, 2002.
[6] Ibid.
[7] Steve Schultze, “Sensenbrenner Wants Answers on Act,” Journal Sentinel, August 19, 2002.
[8] “More Proof Needed on Taleban Fighter,” BBC News, August 17, 2002.
[9] 5 U.S.C. 552 (1966).
[10] 5 U.S.C. 2303.
[11] 5 U.S.C. 552(b).
[12] See Department of Justice, “Summary of Annual FOIA Reports for Fiscal Year 2000,” available at http://www.usdoj.gov/oip/foiapost/2002foiapost3.htm (accessed August 29, 2002).
[13] Memorandum from U.S. Attorney General, John Ashcroft, “Memorandum for Heads of All Federal Departments and Agencies” (October 12, 2001), available at http://www.usdoj.gov/04foia/011012.htm.
[14] Senator John Ashcroft, Written Responses to Questions During Confirmation Process, 2001.
[15] President George H. Bush, “Remarks on Signing the Whistleblower Protection Act of 1989,” April 10, 1989, available at http://bushlibrary.tamu.edu/papers/1989/89041001.html (accessed August 30, 2002).
[16] For a discussion of this case, see “The Whistleblower Protection Act,” Interview by Issues of Democracy with Thomas Devine, Legal Director of the Government Accountability Project, August 30, 2000, available at http://usinfo.state.gov/journals/itdhr/0800/ijde/devine.htm (accessed August 29, 2002).
[17] See “FBI Whistleblower Describes Roadblocks,” CNN.com, June 6, 2002, available at http://www.cnn.com/2002/ALLPOLITICS/06/06/terror.lapses (accessed August 26, 2002); P. Mitchell Prothero, “FBI Agent Slams HQ Bureaucracy,” Washington Times, June 6, 2002.
[18] See “Whistleblower Testifies,” ABCNEWS.com, June 6, 2002, available at http://abcnews.go.com/sections/us/DailyNews/senatehearing020606.html (accessed September 3, 2002); Senator Chuck Grassley, “Grassley Conducts Oversight of FBI's Operations Prior to September 11,” June 6, 2002, available at http://grassley.senate.gov/releases/2002/p02r6-6a.htm (accessed September 3, 2002).
[19] See Department of Justice, “Attorney General Ashcroft Announces Interagency Task Force to Review Ways to Combat Leaks of Classified Information,” December 4, 2001, available at http://www.usdoj.gov/opa/pr/2001/December/01_ag_649.htm (accessed August 29, 2002).



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