CPR Perspective: Secrecy
Secrecy in Government: 'Democracy Dies Behind Closed Doors'
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The Issue |
In the wake of the Watergate scandals, Congress strengthened the Freedom of Information Act (FOIA) to compel government to operate openly, with full disclosure of the basis for its decisions to the public and the media. Congress passed a number of other open government laws as well, including the Federal Advisory Committee Act, the Presidential Records Act, the Sunshine Act and the Privacy Act, all animated by the powerful idea that if government officials know that the details of a decision-making process will be disclosed, they are more likely to act in the public interest.
While these statutes mandate openness, they are implemented with exemptions prohibiting disclosure of documents that reveal:
- "confidential business information";
- the internal "deliberative process" of government agencies before they make final decisions; and
- information that would compromise national security.
These exemptions give a good deal of discretion to agencies. Administrations have varied in the degree of openness they have fostered. The Clinton Administration directed agencies and departments to take an expansive view of the Act’s disclosure requirements and to withhold records only when disclosure would cause an identifiable harm to government interests. But President George W. Bush reversed that policy, and his Administration has made it a high priority to clamp down on the flow of government information to the public.
Soon after being sworn in, Attorney General John Ashcroft issued a memorandum urging agencies and departments to be creative and expansive in keeping information secret, promising to provide a legal defense for all such efforts that were challenged in court. As a result, the withholding of information under the FOIA has increased dramatically, along with FOIA litigation to challenge novel exemption claims. The Bush Administration also issued an Executive Order on Presidential Records, rendering the Act’s guarantee that Presidential records would be made public 12 years after a president leaves office an empty promise. The Executive Order grants former Presidents, Vice Presidents, and their “representatives” veto power over any release of materials simply by claiming executive privilege, regardless of the merits of the claim. Only with the “authorization” of a former President or Vice President does the Bush Order permit the disclosure of any presidential or vice presidential records. Historians, library groups and others have challenged the Bush Executive Order in court.
As an opening salvo, the Bush Administration provoked high-stakes battles with both Congress and public interest groups by refusing to make public the most basic information about an industry-dominated energy policy task force convened by Vice President Richard Cheney. Not only did the White House refuse to disclose the content of the positions advocated by various special interest groups, it refused even to name the business executives who met with the Vice President to help him formulate the Administration’s policy. Those decisions were successfully challenged in court by public interest groups, and the Administration was ordered to turn over many documents.
The Administration has also thumbed its nose at Congress by refusing to honor requests for the year 2000 adjusted census data, despite statutory requirements giving the two Congressional oversight committees the right to demand those records. Litigation again ensued, with the government losing the first round.
The tragic events of September 11, 2001 dramatically accelerated the Bush Administration’s anti-openness drive, resulting in a series of decisions to pull information that could “provide a road map for terrorists” off the Worldwide Web and away from public access. And some agencies—most notably the Federal Energy Regulatory Commission—have undertaken rulemakings to justify withholding broad categories of formerly available information. A March 2002 Memo by White House Chief of Staff Andrew Card further encourages government secrecy by directing agencies to review policies to ensure withholding of “sensitive but unclassified” information, without giving guidance on what “sensitive” means. The Defense Department has acknowledged that it removed more than 6,000 items from its website based on Card’s directive.
Congress has not been immune from the post-September 11 secrecy drive. In November 2002, Congress passed legislation to establish a Department of Homeland Security. Buried in the midst of hundreds of pages of text were a series of provisions prohibiting the disclosure of “critical infrastructure information” that is provided to the government “voluntarily” (that is, without being subject to a subpoena or other formal government request) by the private sector. This information, often referred to as “CII,” is defined so broadly as to include virtually any aspect of physical facilities or cyber systems that could conceivably give terrorists or other criminals ideas about how to cause harm not just to the nation’s security, but to its economy.
The scope of this new law is breathtaking. Once the information is stamped “confidential” by its private sector submitters, no government official reviews the validity of the designation. Improper disclosure of CII by federal officials can trigger criminal penalties. The “information”—as opposed to the documents that are actually handed over to the government—cannot be used in any civil action in any court by any person. Thus, merely by submitting the information without being asked for it, companies can achieve immunity from civil liability for claims documented by the information. The new federal law announces the intent to preempt contrary provisions in state and local laws, although the constitutionality of that issue may be litigated.
A wide range of interest groups participated in the debate over these new provisions, which were also enthusiastically endorsed by the Department of Justice on behalf of the White House. A large coalition of industry groups supported it, including not just information technology companies, but also trade associations whose members include leading players in the heavy manufacturing sector. The legislation was opposed by an equally diverse coalition consisting of conservative think tanks like the Heritage Foundation, the American Civil Liberties Union, the American Library Association, national environmental groups, Common Cause, and professional association representing reporters and editors.
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What’s At Stake? |
Opponents of the legislation argued that it would allow industry unfettered power to cover up mistakes, misdeeds, and vulnerabilities simply by stamping documents confidential and turning them over to the government in the name of national security. In effect, this privilege would make it impossible to enforce a wide range of laws, from occupational health and safety statutes, to federal environmental laws, to the Internal Revenue Code, because the information proving violations could not be disclosed in court. Public interest advocates also noted that the protections for CII in the new law gave it more protection than information that is actually classified by the government because in the latter case, an official must make an independent decision regarding the information’s status, and then take steps to make sure classified information is kept confidential—a process that is subject to judicial review.
The Administration and its industry supporters characterized such objections as “paranoid” and asserted that the legislation would not fundamentally change prior practice. They said that in light of the dangers posed by giving terrorists access to information they could use to attack the United States, the rules on open government had to be changed.
Federal Circuit Court Judge Damon Keith, writing in the context of a recent Freedom of Information Act case, reminded us that “democracy dies behind closed doors.” This eloquent phrase encompasses both the foreseen and unforeseen implications of efforts to cut back on open government in the name of the war on terrorism.
Open government is a cornerstone of the American political system, and has helped us keep our democracy strong. Openness is crucial because it is the best and, in many circumstances, the only way to ensure accountability for decisions made by the government or private parties that could affect public welfare. The homeland security law passed by Congress and signed by the President allows companies and government agencies to keep their mistakes and malfeasance secret. Thus, if a company is aware of a problem with its software or its physical plant that could expose the public to great danger, it can make the information secret whether or not it ever fixes the problem. Efforts after the fact to hold the company accountable, even for gross negligence, might be blocked, because no one could present the information to a court.
Obviously, putting information that truly constitutes a “road map for terrorists” on the Worldwide Web would not be a smart thing to do. The question is how to discourage such activities without compromising the open society that makes the United States such an attractive target for terrorists in the first place. The FOIA and related open government laws, as implemented over the last three decades, contain ample protection for sensitive information, whether disclosure would compromise national security or could harm commercial interests. And, of course, there is no evidence that Osama Bin Laden and his ilk have ever used these statutes to obtain information; indeed, the very idea borders on the ludicrous.
The new secrecy law invites companies to assess the risks of their industrial practices, submit “risk management” audits to the government, and achieve immunity, as a practical matter, from any further repercussions. Companies in blatant violation of environmental, worker safety, or civil rights laws could hide evidence of their wrong-doing in this manner. Even if some bureaucrat mustered the courage to challenge such scams, risking criminal charges for disclosing “secrets” to “terrorists,” at the very least court battles over the implications of the new law would drag on for years, making efforts to hold companies accountable prohibitively expensive.
Consider the two following scenarios. Suppose a refinery was having problems maintaining the integrity of tanks used to store dangerous and high flammable solvents. The refinery reported the slow leaks to the government because the leaks might have made the refinery especially vulnerable to terrorist attacks. But suppose that as a result of the leaks, there is a massive spill of highly toxic solvents, causing injury to the residents of the surrounding area. Without question, the corporation would use the new critical infrastructure law to block any inquiry into what it knew about the leaking tanks and when it knew it, leaving those injured by the spill without a remedy.
Or suppose that, worried about public exposure of an Enron-type scheme to establish dubious investment accounts, a corporation tells the new Department of Homeland Security that its entire computer system is vulnerable to attack over the Internet, and turns in the details of how its software operates. Unless an agency has a crystal ball and has subpoenaed the information so that it is already available to the government, the corporation could then use the new critical infrastructure law to block any further scrutiny, not just within the government but in any federal or state civil court. In a face-saving gesture, authors of the legislation specified that criminal conduct coming to light as a result of the voluntary submissions could still be punished. But employeescheated by the company’s squandering of their pension funds would be out-of-luck.
The most reliable deterrent to the inappropriate disclosure of sensitive information is a process that compels the government to make a thoughtful decision about whether it qualifies for the protections already well developed in law. Imposing criminal penalties on disclosures that are retrospectively determined to be improper, and allowing industry free rein to choose what information to keep secret is a drastic change in policy, turning the clock back to the pre-Watergate era. The new law creates a safe harbor for the most egregious wrongdoing, encouraging companies to gain amnesty for bad practices by invoking the supposed terrorist threat.
Some congressional leaders have pledged to revisit the terms of the Homeland Security Act, fine-tuning the law to reflect better public policy during the next session, which begins in January 2003. CPR urges a reexamination of the secrecy provisions of the Act pertaining to critical infrastructure as a top priority for that review.
