FALL 2006 NEWSLETTER
GEORGIA FOI ACCESS
GEORGIA FIRST AMENDMENT FOUNDATION

Finding non-traditional ways to track government secrecy;
how 17 percent of Pentagon spending is for ‘black’ weapons systems, and the federal government employs 3,959 ‘original classifiers’

By Tom Bennett

Its annual "Secrecy report card" goes well beyond exposing the agencies that are shorting reporters on crime data, or going into executive session at the drop of a hat. This latest report is out this month, covering ills of 2005. Here are some of the sobering findings:

-- The federal government "closed the lid on 106 patents, and this brings to 4,915 the number that are kept under ‘secrecy orders.’"

-- For every $1 the federal government spent in 2005 releasing old secrets, it spent $134 creating new ones.

-- "Black" programs accounted for 17 percent of FY 2006 Department of Defense acquisition budgets of $135.5 billion requested in 2005.

-- The Bush administration has invoked the "state secrets" privilege 22 times since 2001.

-- President Bush has issued at least 132 signing statements challenging provisions of the laws before him; and

-- There are 3,959 "original classifiers" in the federal government.  These persons "have the authority to create a new memo, analysis, or report and classify the information as either ‘top secret,’ ‘secret’ or ‘confidential.’"

Patrice McDermott was, in our opinion, the most effective American Library Association spokeswoman and unremitting enemy of censorship. Now she is taking on the establishment inside the Beltway as director of openthegovernment.org This site is one of the ones finding non-traditional aspects of secrecy to track, for example the White House’s pell-mell invoking of the "state secrets" privilege, and the darkly secretive work of the Federal Intelligence Surveillance Court. We asked McDermott, doesn’t that prove how FOI advocacy has changed since the 2001 terrorist attacks?

"I think the answer here is 'yes’ and ‘no,’" McDermott replied.  "Certainly, on the FISA Court orders, September 11th is the main impetus for the increase -- and for our knowledge of the increase. By the latter, I mean that the civil liberties and access communities’ awareness of and demand for increased accountability about that Court (and other DOJ activities) were heightened by the attacks.

"On the 'state secrets' privilege claims, it is, of course, unlikely that there would have been as many terrorism cases. So, in that sense, Sept 11th changed the landscape. But this Administration came into office determined to ‘reclaim’ executive office ‘inherent powers,’ so I think we would have seen similar efforts -- and we have seen similar efforts in the non-national security arena -- with or without Sept. 11th.

"Open government advocacy is more of a struggle in recent years and Sept. 11th is part of the reason but not the whole reason. After all, the ‘(Attorney General John) Ashcroft Memorandum’ and the accompanying memos reviving ‘sensitive but unclassified’ were in the works well before Sept. 11th. But the attacks certainly ramped up the levels of bureaucratic caution and gave cover to agencies that were disinclined to be open."  We asked: So that the web site’s work can be picked up by others, why not run them in HTML?

"We have posted the Secrecy Report Card in PDF format to preserve its integrity," McDermott replied. "But we should certainly explore the HTML option for it and other publications.

"We then asked this question: You were the most effective critic of censorship I encountered. Now for the new coalition, you're working on FOI Access. Is that where your heart really lies?

"Thank you. I think the two areas are actually overlapping -- particularly where it is the government involved," McDermott replied. "When the government is engaged in suppression, whether of speech or information, the ability of the public to be engaged in and contribute to the life -- political, religious, artistic, etc -- of an open society is diminished. I have spent more years of my career on the openness/access to government issues and it is where I think my greatest effectiveness lies. With this Administration particularly, I think the work that OpenTheGovernment.org is engaged in promotes a number of our First Amendment liberties -- speech, press, assembly, redress of grievances -- so neither my heart or my head is divided."

The openthegovernment.org report doesn’t name any state closure laws or specific trends in them. It does show how Associated Press released a study during American Society of Newspapers Editors’ "Sunshine Week" of 2006. This describes how governors have signed 1,023 new state laws dealing with public access to government since 2001. According to the coalition report, there are 616 new laws restricting access, 284 loosened it, and 123 "had neither a neutral or mixed effect."

The sweeping changes that are occurring in rapid fashion, and creating more secrecy in Washington, show how if ever there was a time in U.S. history to dig your way out of the burrow and go back to work on freedom of information access, this is it.

Tom Bennett writes about access issues for Georgia FOI Access.