Keeping Secrets by Christopher H. Schmitt and Edward T. Pound

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U.S. News & World Report
Friday 12 December 2003

Keeping Secrets
By Christopher H. Schmitt and Edward T. Pound

The Bush administration is doing the public's business out of the public eye. Here's how--and why
"Democracies die behind closed doors."
--U.S. Appeals Court Judge Damon J. Keith

At 12:01 p.m. on Jan. 20, 2001, as a bone-chilling rain fell on Washington, George W. Bush took the oath of office as the nation's 43rd president. Later that afternoon, the business of governance officially began. Like other chief executives before him, Bush moved to unravel the efforts of his predecessor. Bush's chief of staff, Andrew Card, directed federal agencies to freeze more than 300 pending regulations issued by the administration of President Bill Clinton. The regulations affected areas ranging from health and safety to the environment and industry. The delay, Card said, would "ensure that the president's appointees have the opportunity to review any new or pending regulations." The process, as it turned out, expressly precluded input from average citizens. Inviting such comments, agency officials concluded, would be "contrary to the public interest."

     Ten months later, a former U.S. Army Ranger named Joseph McCormick found out just how hard it was to get information from the new administration. A resident of Floyd County, Va., in the heart of the Blue Ridge Mountains, McCormick discovered that two big energy companies planned to run a high-volume natural gas pipeline through the center of his community. He wanted to help organize citizens by identifying residents through whose property the 30-inch pipeline would run. McCormick turned to Washington, seeking a project map from federal regulators. The answer? A pointed "no." Although such information was "previously public," officials of the Federal Energy Regulatory Commission told McCormick, disclosing the route of the new pipeline could provide a road map for terrorists. McCormick was nonplused. Once construction began, he says, the pipeline's location would be obvious to anyone. "I understand about security," the rangy, soft-spoken former business executive says. "But there certainly is a balance--it's about people's right to use the information of an open society to protect their rights."

     For the past three years, the Bush administration has quietly but efficiently dropped a shroud of secrecy across many critical operations of the federal government--cloaking its own affairs from scrutiny and removing from the public domain important information on health, safety, and environmental matters. The result has been a reversal of a decades-long trend of openness in government while making increasing amounts of information unavailable to the taxpayers who pay for its collection and analysis. Bush administration officials often cite the September 11 attacks as the reason for the enhanced secrecy. But as the Inauguration Day directive from Card indicates, the initiative to wall off records and information previously in the public domain began from Day 1. Steven Garfinkel, a retired government lawyer and expert on classified information, puts it this way: "I think they have an overreliance on the utility of secrecy. They don't seem to realize secrecy is a two-edge sword that cuts you as well as protects you." Even supporters of the administration, many of whom agree that security needed to be bolstered after the attacks, say Bush and his inner circle have been unusually assertive in their commitment to increased government secrecy. "Tightly controlling information, from the White House on down, has been the hallmark of this administration," says Roger Pilon, vice president of legal affairs for the Cato Institute.

Air and water

     Some of the Bush administration's initiatives have been well chronicled. Its secret deportation of immigrants suspected as terrorists, its refusal to name detainees at the U.S. base at Guantanamo Bay, Cuba, and the new surveillance powers granted under the post-9/11 U.S.A. Patriot Act have all been debated at length by the administration and its critics. The clandestine workings of an energy task force headed by Vice President Dick Cheney have also been the subject of litigation, now before the Supreme Court.

     But the administration's efforts to shield the actions of, and the information obtained by, the executive branch are far more extensive than has been previously documented. A five-month investigation by U.S. News detailed a series of initiatives by administration officials to effectively place large amounts of information out of the reach of ordinary citizens. The magazine's inquiry is based on a detailed review of government reports and regulations, federal agency Web sites, and legislation pressed by the White House. U.S. News also analyzed information from public interest groups and others that monitor the administration's activities, and interviewed more than 100 people, including many familiar with the new secrecy initiatives. That information was supplemented by a review of materials provided in response to more than 200 Freedom of Information Act requests filed by the magazine seeking details of federal agencies' practices in providing public access to government information.

The principal findings:

     Important business and consumer information is increasingly being withheld from the public. The Bush administration is denying access to auto and tire safety information, for instance, that manufacturers are required to provide under a new "early-warning" system created following the Ford-Firestone tire scandal four years ago. The U.S. Consumer Product Safety Commission, meanwhile, is more frequently withholding information that would allow the public to scrutinize its product safety findings and product recall actions.

     New administration initiatives have effectively placed off limits critical health and safety information potentially affecting millions of Americans. The information includes data on quality and vulnerability of drinking-water supplies, potential chemical hazards in communities, and safety of airline travel and other forms of transportation. In Aberdeen, Md., families who live near an Army weapons base are suing the Army for details of toxic pollution fouling the town's drinking-water supplies. Citing security, the Army has refused to provide information that could help residents locate and track the pollution.

     Beyond the well-publicized cases involving terrorism suspects, the administration is aggressively pursuing secrecy claims in the federal courts in ways little understood--even by some in the legal system. The administration is increasingly invoking a "state secrets" privilege (box, Page 24) that allows government lawyers to request that civil and criminal cases be effectively closed by asserting that national security would be compromised if they proceed. It is impossible to say how often government lawyers have invoked the privilege. But William Weaver, a professor at the University of Texas-El Paso, who recently completed a study of the historical use of the privilege, says the Bush administration is asserting it "with offhanded abandon." In one case, Weaver says, the government invoked the privilege 245 times. In another, involving allegations of racial discrimination, the Central Intelligence Agency demanded, and won, return of information it had provided to a former employee's attorneys--only to later disclose the very information that it claimed would jeopardize national security.

     New administration policies have thwarted the ability of Congress to exercise its constitutional authority to monitor the executive branch and, in some cases, even to obtain basic information about its actions. One Republican lawmaker, Rep. Dan Burton of Indiana, became so frustrated with the White House's refusal to cooperate in an investigation that he exclaimed, during a hearing: "This is not a monarchy!" Some see a fundamental transformation in the past three years. "What has stunned us so much," says Gary Bass, executive director of OMB Watch, a public interest group in Washington that monitors government activities, "is how rapidly we've moved from a principle of 'right to know' to one edging up to 'need to know.' "

     The White House declined repeated requests by U.S. News to discuss the new secrecy initiatives with the administration's top policy and legal officials. Two Bush officials who did comment defended the administration and rejected criticism of what many call its "penchant for secrecy." Dan Bartlett, the White House communications director, says that besides the extraordinary steps the president has taken to protect the nation, Bush and other senior officials must keep private advice given in areas such as intelligence and policymaking, if that advice is to remain candid. Overall, Bartlett says, "the administration is open, and the process in which this administration conducts its business is as transparent as possible." There is, he says, "great respect for the law, and great respect for the American people knowing how their government is operating."

     Bartlett says that some administration critics "such as environmentalists . . . want to use [secrecy] as a bogeyman." He adds: "For every series of examples you could find where you could make the claim of a 'penchant for secrecy,' I could probably come up with several that demonstrate the transparency of our process." Asked for examples, the communications director offered none.

     There are no precise statistics on how much government information is rendered secret. One measure, though, can be seen in a tally of how many times officials classify records. In the first two years of Bush's term, his administration classified records some 44.5 million times, or about the same number as in President Clinton's last four years, according to the Information Security Oversight Office, an arm of the National Archives and Records Administration. But the picture is more complicated than that. In an executive order issued last March, Bush made it easier to reclassify information that had previously been declassified--allowing executive-branch agencies to drop a cloak of secrecy over reams of information, some of which had been made available to the public.

Bait and switch

     In addition, under three other little-noticed executive orders, Bush increased the number of officials who can classify records to include the secretary of agriculture, the secretary of health and human services, and the administrator of the Environmental Protection Agency. Now, all three can label information at the "secret" level, rendering it unavailable for public review. Traditionally, classification authority has resided in federal agencies engaged in national security work. "We don't know yet how frequently the authority is being exercised," says Steven Aftergood, who publishes an authoritative newsletter in Washington on government secrecy. "But it is a sign of the times that these purely domestic agencies have been given national security classification authority. It is another indication of how our government is being transformed under pressure of the perceived terrorist threat." J. William Leonard, director of the information oversight office, estimates that up to half of what the government now classifies needn't be. "You can't have an effective secrecy process," he cautions, "unless you're discerning in how you use it."

     From the start, the Bush White House has resisted efforts to disclose information about executive-branch activities and decision making. The energy task force headed by Cheney is just one example. In May 2001, the task force produced a report calling for increased oil and gas drilling, including on public land. The Sierra Club and another activist group, Judicial Watch, sued to get access to task-force records, saying that energy lobbyists unduly influenced the group. Citing the Constitution's separation of powers clause, the administration is arguing that the courts can't compel Cheney to disclose information about his advice to the president. A federal judge ordered the administration to produce the records, prompting an appeal to the Supreme Court.

     Energy interests aren't alone in winning a friendly hearing from the Bush administration. Auto and tire manufacturers prevailed in persuading the administration to limit disclosure requirements stemming from one of the highest-profile corporate scandals of recent years. Four years ago, after news broke that failing Firestone tires on Ford SUVs had caused hundreds of deaths and many more accidents, Congress enacted a new auto and tire safety law. A cornerstone was a requirement that manufacturers submit safety data to a government early-warning system, which would provide clues to help prevent another scandal. Lawmakers backing the system wanted the data made available to the public. After the legislation passed, officials at the National Highway Traffic Safety Administration said they didn't expect to create any new categories of secrecy for the information; they indicated that key data would automatically be made public. That sparked protests from automakers, tire manufacturers, and others. After months of pressure, transportation officials decided to make vital information such as warranty claims, field reports from dealers, and consumer complaints--all potentially valuable sources of safety information--secret. "It was more or less a bait and switch," says Laura MacCleery, auto-safety counsel for Public Citizen, a nonprofit consumer group. "You're talking about information that will empower consumers. The manufacturers are not going to give that up easily."

Get out of jail free

     Government officials, unsurprisingly, don't see it that way. Lloyd Guerci, a Transportation Department attorney involved in writing the new regulations, declined to comment. But Ray Tyson, a spokesman for the traffic safety administration, denies the agency caved to industry pressure: "We've listened to all who have opinions and reached a compromise that probably isn't satisfactory to anybody."

     Some of the strongest opposition to making the warning-system data public came from the Alliance of Automobile Manufacturers. The organization, whose membership comprises U.S. and international carmakers, argued that releasing the information would harm them competitively. The Bush administration has close ties to the carmakers. Bush Chief of Staff Card has been General Motors' top lobbyist and head of a trade group of major domestic automakers. Jacqueline Glassman, NHTSA's chief counsel, is a former top lawyer for DaimlerChrysler Corp. In the months before the new regulations were released, industry officials met several times with officials from the White House's Office of Management and Budget.

     The administration's commitment to increased secrecy measures extends to the area of "critical infrastructure information," or CII. In layman's terms, this refers to transportation, communications, energy, and other systems that make modern society run. The Homeland Security Act allows companies to make voluntary submissions of information about critical infrastructure to the Department of Homeland Security. The idea is to encourage firms to share information crucial to running and protecting those facilities. But under the terms of the law, when a company does this, the information is exempted from public disclosure and cannot be used without the submitting party's permission in any civil proceeding, even a government enforcement action. Some critics see this as a get-out-of-jail-free card, allowing companies worried about potential litigation or regulatory actions to place troublesome information in a convenient "homeland security" vault. "The sweep of it is amazing," says Beryl Howell, former general counsel to the Senate Judiciary Committee. "Savvy businesses will be able to mark every document handed over [to] government officials as 'CII' to ensure their confidentiality." Companies "wanted liability exemption long before 9/11," adds Patrice McDermott, a lobbyist for the American Library Association, which has a tradition of advocacy on right-to-know issues. "Now, they've got it."

     Under the administration's plan to implement the Homeland Security Act, some businesses may get even more protection. When Congress passed the law, it said the antidisclosure provision would apply only to information submitted to the Department of Homeland Security. The department recently proposed extending the provision to cover information submitted to any federal agency. A department spokesman did not respond to requests for comment. Business objections were also pivotal when the Environmental Protection Agency recently backed off a plan that would have required some companies to disclose more about chemical stockpiles in communities.

     If the administration's secrecy policies have helped business, they have done little for individuals worried about health and safety issues. The residents of the small town of Aberdeen, Md., can attest to that. On a chilly fall evening, some 100 people gathered at the Aberdeen firehouse to hear the latest about a toxic substance called perchlorate. An ingredient in rocket fuel, perchlorate has entered the aquifer that feeds the town's drinking-water wells. The culprit is the nearby U.S. Army's Aberdeen Proving Ground, where since World War I, all manner of weapons have been tested.

Trigger finger

     After word of the perchlorate contamination broke, a coalition of citizens began working with the Army to try to attack the unseen plume of pollution moving through the ground. But earlier this year, the Army delivered Aberdeen residents a sharp blow. It began censoring maps to eliminate features like street names and building locations--information critical to understanding and tracking where contamination might have occurred or where environmental testing was being done.

     The reason? The information, the Army says, could provide clues helpful to terrorists. Arlen Crabb, the head of a citizens' group, doesn't buy it. "It's an abuse of power," says Crabb, a 20-year Army veteran, whose well lies just a mile and a half from the base. His coalition is suing the Army, citing health and safety concerns. "We're not a bunch of radicals. We've got to have the proof. The government has to be transparent."

     Aberdeen is but one example of the way enhanced security measures increasingly conflict with the health and safety concerns of ordinary Americans. Two basics--drinking water and airline travel--help illustrate the trend. A public health and bioterrorism law enacted last year requires, among other things, that operators of local water systems study vulnerabilities to attack or other disruptions and draw up plans to address any weaknesses. Republicans and Democrats praised the measure, pushed by the Bush administration, as a prudent response to potential terrorist attacks. But there's a catch. Residents are precluded from obtaining most information about any vulnerabilities.

     This wasn't always the case. In 1996, Congress passed several amendments to the Clean Water Act calling for "source water assessments" to be made of water supply systems. The idea was that the assessments, covering such things as sources of contamination, would arm the public with information necessary to push for improvements. Today, the water assessments are still being done, but some citizens' groups say that because of Bush administration policy, the release of information has been so restricted that there is too little specific information to act upon. They blame the Environmental Protection Agency for urging states to limit information provided to the public from the assessments. As a result, the program has been fundamentally reshaped from one that has made information widely available to one that now forces citizens to essentially operate on a need-to-know basis, says Stephen Gasteyer, a Washington specialist on water-quality issues. "People [are] being overly zealous in their enforcement of safety and security, and perhaps a little paranoid," he says. "So you're getting releases of information so ambiguous that it's not terribly useful." Cynthia Dougherty, director of EPA's groundwater and drinking-water office, described her agency's policy as laying out "minimal standards," so that states that had been intending to more fully disclose information "had the opportunity to decide to make a change."

     The Federal Aviation Administration has its own security concerns, and supporters say it has addressed them vigorously. In doing so, however, the agency has also made it harder for Americans to obtain the kind of safety information once considered routine. The FAA has eliminated online access to records on enforcement actions taken against airlines, pilots, mechanics, and others. That came shortly after the 9/11 attacks, when it was discovered that information was available on things like breaches of airport security, says Rebecca Trexler, an FAA spokeswoman. Balancing such concerns isn't easy. But rather than cut off access to just that information, the agency pulled back all enforcement records. The FAA has also backed away from providing access to safety information voluntarily submitted by airlines.

     As worrisome as the specter of terrorism is for many Americans, many still grumble about being kept in the dark unnecessarily. Under rules the Transportation Security Administration adopted last year--with no public notice or comment--the traveling public no longer has access to key government information on the safety and security of all modes of transportation. The sweeping restrictions go beyond protecting details about security or screening systems to include information on enforcement actions or effectiveness of security measures. The new TSA rules also establish a new, looser standard for denying access to information: Material can be withheld from the public, the rules say, simply if it's "impractical" to release it. The agency did not respond to requests for comment.

     This same pattern can be seen in one federal agency after another. As Joseph McCormick, the former Army Ranger trying to learn more about the pipeline planned for Virginia's Shenandoah Valley, learned, the Federal Energy Regulatory Commission now restricts even the most basic information about such projects. The agency says its approach is "balanced," adding that security concerns amply justify the changes.

     The Bush administration is pressing the courts to impose more secrecy, too. Jeffrey Sterling, 36, a former CIA operations officer, can testify to that. Sterling, who is black, is suing the CIA for discrimination. In September, with his attorneys in the midst of preparing important filings, a CIA security officer paid them a visit, demanding return of documents the agency had previously provided. A mistake had been made, the officer explained, and the records contained information that if disclosed would gravely damage national security. The officer warned that failure to comply could lead to prison or loss of a security clearance, according to the lawyers. Although vital to Sterling's case, the lawyers reluctantly gave up the records.

     What was so important? In a federal courtroom in Alexandria, Va., a Justice Department attorney recently explained that the records included a pseudonym given to Sterling for an internal CIA proceeding on his discrimination complaint. In fact, the pseudonym, which Sterling never used in an operation, had already been disclosed through a clerical error. Mark Zaid, one of Sterling's attorneys, says the pseudonym is just a misdirection play by the CIA. The real reason the agency demanded the files back, he says, is that they included information supporting Sterling's discrimination complaint. Zaid says he has never encountered such heavy-handed treatment from the CIA. "When they have an administration that is willing to cater [to secrecy], they go for it," he says, "because they know they can get away with it." A CIA spokesman declined comment.

     In this case, which is still pending, the administration is invoking the "state secrets" privilege, in which it asserts that a case can't proceed normally without disclosing information harmful to national security. The Justice Department says it can't provide statistics on how often it invokes the privilege. But Jonathan Turley, a George Washington University law professor active in national security matters, says: "In the past, it was an unusual thing. The Bush administration is faster on the trigger."

Surveillance

     At the same time, the government is opening up a related front. Last spring, the TSA effectively shut down the case of Mohammed Ali Ahmed, an Indian Muslim and naturalized citizen. In September 2001, Ahmed and three of his children were removed from an American Airlines flight. Last year, Ahmed filed a civil rights suit against the airline. But TSA head James Loy intervened, saying that giving Ahmed information about his family's removal would compromise airline security. The government, in other words, was asserting a claim to withhold the very information Ahmed needed to pursue his case, says his attorney, Wayne Krause, of the Texas Civil Rights Project. "You're looking at an almost unprecedented vehicle to suppress information that is vital to the public and the people who want to vindicate their rights," Krause says.

     Secret evidence of a different kind comes into play through a little-noticed effect of the U.S.A. Patriot Act. A key provision allows information from surveillance approved for intelligence gathering to be used to convict a defendant in criminal court. But the government's application--which states the case for the snooping--isn't available for defendants to see, as in traditional law enforcement surveillance cases. With government agencies now hoarding all manner of secret information, the growing stockpile represents an opportunity for abusive leaks, critics say. The new law takes note of that, by allowing suits against the federal government. But there's an important catch--in order to seek redress, one must forfeit the right to a jury trial. Instead, the action must be held before a judge; judges, typically, are much more conservative in awarding damages than are juries.

     Most Americans appreciate the need for increased security. But with conflicts between safety and civil rights increasing, the need for an arbiter is acute--which is perhaps the key reason why the vast new security powers of many executive-branch agencies are so alarming to citizens' groups and others. A diminished role of congressional oversight is just one area of fallout, but there are others. Some examples:

     It took the threat of a subpoena from the independent commission investigating the 9/11 attacks to force the White House to turn over intelligence reports. Even at that, family members of victims complain, there were too many restrictions on release of the information. In Congress, the administration has rebuffed members on a range of issues often unrelated to security concerns.

     In a huge military spending bill last year, Congress directed President Bush to give it 30 days' notice before initiating certain sensitive defense programs. Bush signed the bill into law but rejected the restraint and said he would ignore the provision if he deemed it necessary.

     Initial contracts to rebuild Iraq, worth billions of dollars, were awarded in secret. Bids were limited to companies invited to participate, and many had close ties to the White House. Members of Congress later pressed for an open bidding process.

     Many public interest groups report that government agencies are more readily denying Freedom of Information Act requests--while also increasing fees, something small-budget groups say they can ill afford. The Sierra Club, for example, has been thwarted in getting information on problems at huge "factory farms" that pollute rivers and groundwater. Says David Bookbinder, senior attorney for the group: "What's different about this administration is their willingness to say, 'We're going to keep everything secret until we're forced to disclose it--no matter what it is.' "

     The administration is undeterred by such complaints. "I think what you've seen is a White House that has valued openness," says Daniel Bryant, assistant attorney general for legal policy, and "that knows that openness with the public facilitates confidence in government."

     That's not the way Jim Kerrigan sees it. He operates a small market-research firm in Sterling, Va., outside Washington. For more than a decade, he has forecast federal spending on information technology. Three months after Bush took office, the Office of Management and Budget issued a memo telling government officials to no longer make available such information so as to "preserve the confidentiality of the deliberations that led to the president's budget decisions."

     As a result, Kerrigan says, information began to dry up. Requests were ignored. And the data he did get came with so much information censored out that they were barely usable. The fees Kerrigan paid for a request, which once topped out at $300, jumped to as much as $6,500. "I can't afford that," he says. "This administration's policy is to withhold information as much as possible."

Key Dates: Secrecy and the Bush Administration:

Inauguration Day (1/20/01) Administration freezes Clinton-era regulations, without allowing for public comment.

10/12/01 Attorney General John Ashcroft, reversing Clinton policy, encourages agencies to deny Freedom of Information Act requests if a "sound legal basis" exists.

10/26/01 President Bush signs U.S.A. Patriot Act, expanding law enforcement powers and government surveillance.

2/22/02 Congress's General Accounting Office sues Vice President Dick Cheney for refusing to disclose records of his energy task force; the GAO eventually loses its case. A separate private case is pending.

3/19/02 White House Chief of Staff Andrew Card directs federal agencies to protect sensitive security information.

11/25/02 Bush signs Homeland Security Act. Its provisions restrict public access to information filed by companies about "critical infrastructure," among other matters.

01/3/03 Administration asks, in papers filed before the Supreme Court, for significant narrowing of the Freedom of Information Act.

3/25/03 Bush issues standards on classified material, favoring secrecy and reversing provisions on openness.