Lucy Dalglish, 2004
Sreenath Sreenivasan, 2006
The dean of students at the Columbia University Journalism School explored “Information in the New Age.”
Patrice McDermott, 2009
executive director, OpenTheGovernment.org
Lucy Dalglish ...
I’m here to tell you something I hope you have already figured out. These are very
scary times for
anyone who cares about open government, the First Amendment and the public’s right to know.
In the days immediately following Sept. 11, 2001, the United States government
embarked on an almost
unprecedented path of secrecy. The atmosphere of terror induced public officials
to abandon this country’s culture
of openness and opt for secrecy as a way of ensuring public safety and national
Veteran journalists knew at the time that they were having trouble getting
stories. But immediately after 9-11,
journalists were timid. Television journalists, in particular, were concerned
about not appearing to be too critical of
government officials. And the public certainly didn’t seem to care that the journalists didn’t really know what was
going on. The public just wanted to feel safe.
Ironically, it was the foreign media that jumped first onto the secrecy story.
For a few weeks after 9-11, I was
besieged with phone calls from foreign journalists wanting interviews. They
asked, Why is the American media
swallowing without question everything the U.S. government is handing out? Isn’t the American media supposed to
be free and independent? What did I think about the American media being the
mouthpiece for George W. Bush?
And, most disturbing: Ah ha! Where’s your precious First Amendment now?
By the time the American media became appropriately more skeptical a few months
later, government leaders had
taken actions that made it dramatically more difficult for the media to do its
job. And when journalists can’t do their
jobs, the voting public does not have the information it needs to make decisions
in this democracy.
You in this room know better than anyone that the press doesn’t operate in a vacuum. It doesn’t have the First
Amendment-protected rights to collect and disseminate information just because
it can, or just to sell advertising. It
collects information and disseminates it because of its crucial role in our
democracy. The media collects
information and gives it to the public, which hopefully uses it to make
decisions about who is going to govern us
and about how we are going to live as a community. As an old Society of
Professional Journalists Project
Watchdog ad campaign once asked: “If the Press Didn’t Tell You, Who Would?”
The administration of President George W. Bush announced a variety of actions
after 9-11 designed to restrict
information from reaching the public, including:
Action 1: A directive to executive agency heads by Attorney General John Ashcroft that
changes the interpretation
of the federal Freedom of Information Act to allow the agencies to deny access
more often to public records. They
can do this by asserting a claim of invasion of privacy or if a breach of
national security can be alleged. Instead of
encouraging discretionary disclosure, as had been the norm under Janet Reno, the
new Justice Department said
that if you can devise a reason to withhold a record, we will back you up.
At first, the Justice Department assured us that this shift was merely a “change in tone.” But now we have evidence
that less information is getting out. FOIA lawyers from several agencies have
told me that records that have always
been released are no longer leaving the agencies. And a report issued by the
Government Accounting Office last
summer says that more than 30 percent of government FOIA officers say they’re giving out less information under
the Ashcroft directive than they did when Janet Reno was attorney general.
We also have some new vocabulary words promulgated by the Justice Department,
including the concepts of
“sensitive but unclassified” and “safeguarding.” In other words, this information is not classified, but it won’t be
given to just anyone. Certainly not to the media.
Action 2: There’s a strong likelihood that alleged terrorists who are non-citizens will be
prosecuted in Cuba by
military tribunals, which haven’t been used in this country since the 1940s. What we don’t know is how open these
proceedings will be to the media and the public. Access to Guantanamo Bay has
been drastically restricted over
the past two years.
Action 3: This is probably the most outrageous single action. More than 1,200
non-American citizens have been
secretly imprisoned on alleged claims of immigration violations or as material
witnesses. More than 750 of these
men have been secretly kicked out of the country.
Action 4: Web sites for government agencies that were created largely in response to the
Freedom of Information
Act amendments of 1996 were taken down after 9-11. Many have not been fully
Action 5: During the military engagement in Afghanistan, the Defense Department ignored
a 1992 agreement
between the media and the Pentagon that provided for pool coverage of military
Action 6: President Bush signed an Executive Order governing the release of Ronald
Reagan’s White House
records that circumvents the Presidential Records Act and illegally limits
access to records.
Action 7: Numerous journalists and newsrooms have been subpoenaed to provide testimony
in legal actions
related to 9-11.
Action 8: Over the last several months, the prosecution of Zacarias Moussaoui has been
conducted mostly in
secret. Judge Leonie Brinkema truly has her hands full with this guy, but the
government has filed nearly every
document under seal. We’ve been moderately successful in persuading the judge that the U.S. Attorney has
overzealous in efforts to seal records and close the courtroom for pre-trial
Action 9: More than 40 men have apparently been arrested and indicted in secret. And
some have already pled
guilty. In secret.
Action 10: There recently was a case before the Supreme Court in which there is no public
record of how it got
there. This is completely unprecedented in American history.
Some of these secrecy initiatives, such as the FOIA directive from the attorney
general and the Executive Order on
presidential papers, probably would have happened even without 9-11. This is a
presidential administration that
places an extremely high value on secrecy. Other actions, such as the secrecy
imposed on immigration and
criminal courts, would have been unthinkable before 9-11. The secrecy is
appalling. It reminds me of Latin America
30 years ago.
Somewhere along the line, the administration and Congress were able to convince
themselves and some
members of the public that secrecy equals safety. I just don’t buy it. No one has demonstrated that an ignorant
society is a safe society.
It is understandable and sensible that some information must be kept secret
during wartime because it could pose
a direct threat to American military forces or tip off a terrorist that he is
under investigation. But as a rule, citizens
are better able to protect themselves and take action when they know the dangers
they face. Even in the face of
In the last two years or so, calmer heads have prevailed in some areas.
• More online information is becoming available from some government agencies.
• Under the draft rules, it appears that any military tribunals will be conducted
publicly, although the UCMJ has
open-court rules that are much less protective of First Amendment rights than
civilian court systems. And we’re
hearing rumblings that the Pentagon wants to keep them closed.
• The National Archives has released most of the remaining Reagan presidential
• More than 600 journalists from all over the world were embedded with combat
troops during the war in Iraq.
Questions remain, however, about whether the public was well-served by that
I’d like to describe for you some problematic legislation that is posing real
hazards to the public’s right to know.
USA Patriot Act
This incredibly complicated legislation, passed just weeks after 9-11,
dramatically changes the way government
agencies share information with each other. At least that’s what we were told was the impetus for the law.
As far as journalists and the public are concerned, however, there are
substantial civil liberties issues that got very
short shrift during the limited debate on this law.
Government investigators now can go to the super-secret Foreign Intelligence
Surveillance Court to get warrants to
seize “any tangible thing” from libraries and bookstores if they make a showing that the information might
relevant to a terrorism investigation. There need not be a showing that a crime
has been committed. That is a very
low threshold. We also have been told by the attorney general that Section 215
of the Patriot Act may be
interpreted to apply to newsrooms. So reporters who have interviewed someone
linked to terrorism may find their
notes and computers seized despite a 1980 law, the Privacy Protection Act, that
provides for a very high level of
proof and probable cause before a newsroom can be searched in connection with a
criminal case. And, on top of
that, the newsroom would be gagged from reporting that it has been searched.
Just the other day, the American Civil Liberties Union announced that it had
filed a lawsuit challenging a different
section of the Patriot Act. But the suit had to be filed in secret because that’s what the act calls for. When the
complaint was released, it was heavily redacted — the ACLU had to let the government edit the complaint before it
New regulations released by the Federal Energy Regulatory Commission allow the
government to refuse to
release some critical infrastructure information to anyone who does not have a “need” to know it. So the only way
you can find out if there’s a problem with, say, a pipeline in your community is to go to the custodian of
records, demonstrate that you have a “legitimate” need to see the information, and sign an agreement that says
you won’t share the information with ANYONE. Now journalists, especially those who write
about science and the
environment, use this information every day. Next time there’s a leak in the Koch or Williams Brothers pipelines,
you may not be able to run a map for your readers and viewers.