Freedom of Information Under Attack

By Charles Lewis

The Center for Public Integrity

Charles Lewis Download print-res jpg of this photo.

In the two and a half years since the September 11th terrorist attacks, there has been an historic assault on the public's access to information by government officials. Asking the tough questions required of “watchdog journalism” is especially difficult in a national-crisis atmosphere of fear, paranoia, and patriotism, but in this post-9/11 climate we have been painfully reminded of the famous observation widely attributed to Senator Hiram Johnson, a California Republican first elected in 1916: “The first casualty when war comes,” he declared, “is truth.”

Indeed, trauma from the worst civilian loss of life on American soil and the resultant “war on terrorism” without borders have contributed to a tectonic shift in how our Freedom of Information laws and commonly held principles of openness and government accountability are administered and adhered to by those at all levels of power. By way of example, consider one chilling statistic compiled by the National Conference of State Legislatures: Within six months of the September 11th attacks, federal, state, and local officials restricted access to government records by executive order or proposed new laws to sharply curtail their public availability in no fewer than 300 separate instances.

But for decades now, we have regrettably come to expect very little from the U.S. government in the way of candor and actual information about its armed conflicts. As Jacqueline Sharkey found in the 1992 Center for Public Integrity report, Under Fire: US Military Restrictions on the Media from Grenada to the Persian Gulf, 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.” The major architect of the infamous Persian Gulf media restrictions, then-Secretary of Defense Richard Cheney, is now the vice president whose whereabouts are often a mystery.

As reporters can testify, there has been no shortage of substantively misleading statements by White House and Pentagon officials. Indeed, when Secretary of Defense Donald Rumsfeld announced the demise of the fledgling Office of Strategic Influence, founded for such purposes as releasing disinformation for battlefield advantage, the hilarious irony for most journalists 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 rights and freedoms. For example, government officials have detained hundreds of people since September 11th without releasing the most basic information about them. 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. 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 for Freedom of the Press has observed, the new federal eavesdropping could potentially pick up the conversations of journalists along with those of terrorists.

In March 2002, in a story eerily reminiscent of the 1962 thriller Seven Days in May, the Washington Post disclosed that President Bush had secretly dispatched about a hundred senior civilian officials from every Cabinet department and some independent agencies 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, this shadow government, with its rotating “bunker duty,” became an undisclosed, “indefinite precaution.”

It was on the heels of this secret operation that Attorney General Ashcroft issued a chilling memorandum about America's penultimate sunshine law, the Freedom of Information Act. Ashcroft revoked earlier openness directives by his predecessor, Janet Reno, advising federal officials that the government would henceforth offer legal cover for agencies coming down on the side of nondisclosure. “When you carefully consider FOIA requests and decide to withhold records, in whole or in part,” he wrote, “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." In other words, Justice would bow out of litigation only if its participation might subsequently imperil the government’s ability to withhold other information.

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 later 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 resulted in an unprecedented lawsuit against the Bush administration brought by the normally polite and patient General Accounting Office, headed by Comptroller General David Walker. The GAO’s attempt to pry loose information from Cheney, setting up what promised to be the most significant, high-level showdown between Congress and a White House since Watergate, was ultimately derailed after a federal judge appointed by George W. Bush ruled that the GAO had no legal standing to sue the vice president. But no such legal roadblocks were placed before Judicial Watch and the Sierra Club, which convinced a federal court to order the release of energy task force files. The Supreme Court is expected to hear arguments on the matter in April.

With all of the aggressive obfuscation and preemptive, self-serving policy decisions regarding 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 that journalists attempt to do. After all, in its attempt to learn the identity of a confidential source, the Justice Department secretly subpoenaed the telephone records of Associated Press reporter John Solomon many weeks before September 11. The Reporters Committee for Freedom of the Press 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.”

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 founder and executive director of the Center for Public Integrity. Katy Lewis of the Center contributed research. A version of this commentary first appeared in the Summer 2002 issue of Nieman Reports.

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