Freedom of Information Under Attack

Asking the tough questions required of “watchdog journalism” is especially difficult in a national crisis atmosphere of fear, paranoia and patriotism. In the months since the September 11 terrorist attacks, we have been painfully reminded of Senator Hiram Johnson’s famous 1917 observation that “The first casualty when war comes is truth.” Trauma from the worst civilian loss of life on American soil and the resultant “war on terrorism” without borders have all contributed to an historic assault on openness and the public’s access to information by government officials at all levels.

We are talking about a tectonic shift from past decades in how our Freedom of Information laws and commonly held principles of openness and government accountability are administered and adhered to by those in power. And the long-time, much-abused preclusion to the public’s right to know, national security, now has been broadened with a new political euphemism, “homeland security.” Emblematic of this shift is the situation in which the Bush White House, after creating the Office of Homeland Security and appointing former Pennsylvania Governor Tom Ridge as its director, for months forbade him to testify before Congress or talk extensively with the news media. More broadly, within six months of the September 11 attacks, in no fewer than 300 separate instances, federal, state and local officials have restricted access to government records by executive order or proposed new laws to sharply curtail their availability, according to the National Conference of State Legislatures. Unfortunately, in the context of actual information and candor from the U.S. government about its armed conflicts, for decades now we have come to expect very little. After the military and public relations debacle in Vietnam, the Pentagon and various Presidents have “tried to hide the true face of war by controlling the images of the conflict,” as Jacqueline Sharkey found in the 1992 Center for Public Integrity report, “Under Fire: U.S. Military Restrictions on the Media From Grenada to the Persian Gulf.” The major architect of the infamous Persian Gulf media restrictions, then-Secretary of Defense Richard Cheney, is now the vanishing vice president who frequently works from an undisclosed location.

Against this backdrop, then, severely limiting reporters’ access to the field of action in Afghanistan was hardly surprising. The Reporters Committee for Freedom of the Press noted in its March white paper, “Homefront Confidential,” that “In effect, most American broadcasters and newspaper reporters scratched out [Afghanistan war] coverage from Pentagon briefings, a rare interview on a U.S. aircraft carrier or a humanitarian aid airlift, or from carefully selected military videos or from leaks…. The truth is, the American media’s vantage point for the war has never been at the front lines with American troops.”

Along the way there has been no shortage of substantively misleading statements by White House and Pentagon officials. Indeed, when they announced the creation, and days later the public demise, of a new Department of Defense Office of Strategic Influence which would occasionally release disinformation for battlefield advantage, to most journalists the hilarious irony was the sheer redundancy of it all. Why did they need a new office for that?

Skewed and distorted war coverage regrettably but undeniably has become an accepted, cynical tradition. More remarkable are the new restrictions to basic constitutional freedoms and rights. For example, since September 11 government officials have detained hundreds of people for months without releasing the most basic information about them. And, in language that George Orwell would have grudgingly admired, we were told that the extraordinary news blackout was actually an act of compassion done to protect the civil liberties of the unaccused incarcerated. Attorney General John Ashcroft said, “It would be a violation of the privacy rights of individuals for me to create some kind of list.”

U.S. immigration proceedings, usually open to the public, have been closed. President George W. Bush signed a military order authorizing that suspected terrorists can be tried in military tribunals instead of regular courts, and it is unclear what limitations might be placed on the news media in covering them. The USA Patriot Act, passed just six weeks after the terrorist attacks, gives federal authorities more power to access e-mail and telephone communications. And, as the Reporters Committee has observed, this new federal eavesdropping could potentially pick up conversations not only of terrorists, but also journalists.

In a March Washington Post report, eerily reminiscent of the 1962 thriller “Seven Days in May,” it was first disclosed that President Bush secretly had dispatched roughly 100 senior civilian officials from every Cabinet department and some independent agencies in a “shadow government” to live and work at two secret, fortified locations outside Washington. Bush reportedly implemented and maintained this classified “Continuity of Operations Plan” for half a year without notifying Congress or the American people. Initiated in the first chaotic hours of September 11, the shadow government and its rotating “bunker duty” had become an undisclosed, “indefinite precaution.”

Bush acknowledged setting up the secret operation, which he said he had “an obligation as the President” to do…. This is serious business. I still take the threats that we receive from Al Qaeda killers and terrorists very seriously.” Not informing Congress at all about something so significant for an extended period of time was very reminiscent of the secret and illegal Iran-Contra fiasco in the 1980’s, which happened on George Herbert Walker Bush’s watch as vice president. And, later, in his last days as President, he effectively shut down the criminal prosecution process by pardoning some of the Reagan administration officials allegedly involved.

It is in this almost surreal atmosphere that Attorney General Ashcroft issued a chilling memorandum about America’s penultimate sunshine law, the Freedom of Information Act. In it, he revoked earlier openness directives by former Attorney General Janet Reno and advised federal officials that “when you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”

Just three weeks later, with no fanfare or announcement, President Bush signed Executive Order 13233, sharply restricting public access to the papers of former presidents. The Bush order overrides the post-Watergate, 1978 Presidential Records Act, guaranteeing that a president’s papers must be made available to the public 12 years after he leaves office. Now George W. Bush can personally decide when the White House documents of Ronald Reagan and his father will be made public. The Executive Order has provoked not only widespread, bipartisan outrage, but also remedial legislation and broadly supported litigation to block its implementation. As Steven L. Hensen, the president of the Society of American Archivists, wrote in a Washington Post editorial, “the order effectively blocks access to information that enables Americans to hold our presidents accountable for their actions…for such access to be curtailed or nullified by an executive process not subject to public or legislative review or scrutiny violates the principles upon which our nation was founded.”

The generally unspoken reality is that the war on terrorism has given the Bush administration phenomenal cover to do what all political appointees attempt to do—withhold inconvenient information from the public. Indeed, we saw signs of a robust appetite in all the president’s men and women for such cold-blooded political expedience long before September 11. In his last hours as governor of Texas, George W. Bush had his official records packed up and shipped off to his father’s presidential library at Texas A&M University, thereby removing them from the usual custody of the Texas State Library and Archives and the strong Texas public information law. The Texas attorney general recently ruled that these gubernatorial papers can remain at his father’s library but they would be open to the public, as state documents.

The intransigent refusal of Vice President Cheney to release basic information about the meetings he and other administration officials held on government time and property to formulate federal energy policies has resulted in an unprecedented lawsuit against the Bush administration brought by the normally polite and patient General Accounting Office, headed by the U.S. comptroller general, David Walker. Walker vs. Cheney is the most significant, high-level showdown between Congress and a White House since Watergate. Two-thirds of the American people believe the President has not been truthful on the subject of Enron and the full extent of his relationship with major energy and other campaign contributors.

With all of the aggressive obfuscation and preemptive, self-serving policy decisions when it comes to the public’s right to know, I have a gnawing, unavoidable sense that the current occupants of 1600 Pennsylvania Avenue are obsessed with secrecy in an almost Nixonian way. They are certainly more hostile than usual to the concept of openness, accountability and the work journalists attempt to do every day. How else do you describe the Justice Department secretly subpoenaing Associated Press reporter John Solomon’s telephone records to attempt to learn the identity of a confidential source, many weeks before September 11? The Reporters Committee found that “the Justice Department did not negotiate with Solomon or his employer, did not say why the reporter’s phone records were essential to a criminal investigation, and did not explain why the information could not be obtained any other way.” What else other than directed hostility would explain Marines locking reporters and photographers in a warehouse to prevent them from covering American troops killed or injured north of Kandahar, Afghanistan on December 6?

There are simply a growing number of unacceptable incursions into the commonly held, always contentious but respectful space between government and the Fourth Estate in the world’s oldest democracy. The American people deserve much better, of course. Yet little will change for journalists unless Americans understand what rights they are losing and demand that these restrictions be lifted so they can be fully informed.

Charles Lewis is the founder and executive director of the Center for Public Integrity, a nonprofit, nonpartisan research organization that investigates issues related to public service and ethics.