Closing the books: open government after 9/11 - information collected from private industry could be kept secret from public under spcial privilege of Department of Homeland Security

Reason, Oct, 2002 by Jeffrey Benner

WHEN THE BUSH administration drew up draft legislation to create a new Department of Homeland Security, it included a special privilege for the Office of Information Analysis and Infrastructure Protection, a key branch of the new agency. Information submitted voluntarily to the office about the security of computer systems, power plants, transportation infrastructure, banks, telecommunications, and any other facilities deemed critical to the U.S. economy would receive a blanket exemption from the Freedom of Information Act (FOIA). As a result, reams of information the government collects from private industry--and from state and local governments--would be kept secret from the public.

Some kind of FOIA exemption will almost certainly become law. The House approved its version of homeland security legislation on July 26. The bill included the broad exemption the administration requested, with some minor changes. The committee marking up the Senate's version of the bill has approved a more limited exemption than the House, setting the stage for a battle over the breadth of the measure in joint committee. Congress has vowed to have a homeland security bill on the president's desk in time for the anniversary of the attack.

Regardless of the exemption's final scope, it will be only the latest offensive in the Bush administration's sustained assault on transparency in government. The trend dates from the second month of Bush's term, when he blocked the scheduled release of presidential and vice presidential records from the Reagan administration. But it has accelerated dramatically since the terrorist attacks last fall. In an October 12, 2001, memo to all federal agencies, Attorney General John Ashcroft instructed government officials to withhold any information requested under FOIA if there is any "sound legal basis" for doing so. (The previous standard for denying a FOIA request, adopted in 1993, instructed agencies to withhold only information that could cause "foreseeable harm.") Ashcroft promised that the Department of Justice would defend any agency that withholds information under his new criterion. The impact of the new standard is hard to measure, but watchdog groups worry it has turned foot dragging and noncooperation o n FOIA requests into official policy.

In March, White House Chief of Staff Andrew Card reiterated the message in another all-agency memo. Card reminded departments to safeguard any information, no matter how old, that could be helpful in the development of weapons of mass destruction, "as well as other information that could be misused to harm the security of our Nation and the safety of our people." Guidelines issued with the memo instructed all departments to apply the new standard even to unclassified information that might be "sensitive," a term left undefined.

Such a vague and sweeping directive to withhold information has watchdog groups from all shades of the political spectrum up in arms. Most of these groups, interested in preserving integrity and good practice in government, rely heavily on FOIA requests to uncover government waste and misconduct.

"The whole posture of the administration has been to resist disclosure and discourage public access," says Steven Aftergood, who tracks government secrecy for the Federation of American Scientists, a D.C.-based nonprofit that advocates nuclear disarmament. Using FOIA requests as his primary tool, Aftergood has toiled for years to learn the real size of the U.S. intelligence budget. "I understand the need for increased secrecy in narrowly defined areas, like production of biological weapons, for example," he says. "But what is happening is that a blanket is being thrown over all kinds of things that have nothing to do with terrorism."

As examples, Aftergood cites Vice President Dick Cheney's refusal to release details of his meetings with energy industry executives and the removal of unclassified data from governmentWeb sites--including the entire library of technical reports from the national labs in Los Alamos, New Mexico.

In April the Electronic Privacy and Information Center (EPIC), a nonprofit civil liberties group, filed suit against the new Office of Homeland Security after it refused to respond to a FOIA request for information on proposals to create a national identification card. The Department of Justice will defend the decision in court. The DOJ is also fighting a FOIA suit Aftergood has filed against the CIA: The spy agency has refused to disclose the total U.S. intelligence budget for 1947 and 1948, citing national security concerns.

If the Ashcroft and Card memos threaten the ethic of transparency, critics contend that the proposed FOIA exemption for the new infrastructure protection office is a full-scale assault on the public's right to know what their government is up to.

"This concerns me deeply as a conservative Republican," says Mark Tapscott, director of the Heritage Foundation's Center for Media and Public Policy. "This is so broad it amounts to an exemption without end. Information about any company that could even tangentially identify itself with the war on terrorism could conceivably be put behind closed doors."