Decisions Without Democracy
by David Banisar
Preface by Bob Barr and John Podesta

Government Secrecy:
Decisions Without Democracy
BY DAVID BANISAR

People For the American Way Foundation is an energetic advocate for the values and institutions that sustain a
diverse democratic society, and which are threatened by the political rise of the religious right. PFAW Foundation
seeks to protect fundamental rights and freedoms guaranteed under the Constitution, sustain an independent
judiciary and mobilize activists to support progressive causes.
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Telephone: 202-467-4999 or 800-326-7329 • pfaw@pfaw.org
Donations to People For the American Way Foundation, a
nonprofit 501(c)(3) organization, are tax deductible

OpenTheGovernment.org is a coalition of consumer and good government groups, environmentalists, journalists,
library groups, labor and others united to make the federal government a more open place in order to make us safer,
strengthen public trust in government, and support our democratic principles.
 
www.openthegovernment.org  
OpenTheGovernment.org, 1742 Connecticut Avenue N.W., 3rd Floor, Washington D.C. 20009  202-332-OPEN (6736)
A project of the Fund for Constitutional Government.
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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License

FOREWORD. .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 1
PREFACE	 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3
PREFACE (1987 EDITION) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5
EXECUTIVE SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7
1. OPENNESS: AN AMERICAN VALUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9
	
	

The Benefits of Openness	
The History of Openness in the U.S.	

9
11

2. THE DARKENING CLOUD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
	
It’s a Secret: Classified and Semi-classified Information	
		
Classified information	
		
The U.S. Executive Order on Classification	
		
Declassification	
		
Now you see it, now you don’t: Secret Reclassifications	
		
Watching the Watchers: Oversight of the classification system	
		
Go Away: The State Secrets Privilege	
		
Keep away: It’s Sensitive (but not classified)!	
		
Propaganda and Dis-information	

13
13
14
15
16
16
17
18
20

	
Closing Doors	
		
The Freedom from Information Act: Limiting the FOIA	
		
Executive Privilege	
		
Closing the Courthouse Doors	

20
20
22
25

	
Gagging the Insiders: Public Employees	
		
Gag rules	
		
Plugging the Whistle	
		
Official Secrets?: The Espionage Act and other criminal statutes	
		
Attacking the Messenger: the Media and Protection of Sources	

26
26
27
28
29

3. OPPORTUNITIES FOR PUBLIC ACCESS AND PARTICIPATION IN A DIGITAL AGE. . . . 31
	
Electronic Government	
		
Access to government information online	
		
E-Rulemaking	

31
31
34

	
Challenges of Digital Government Information	
		
Digital Divide	
		
Disappearing documents and web sites	
		
Managing “Born Digital” Information	

34
34
35
35

	
What the Public Can Do	
		
Activism/ organizing	

36
36

APPENDIX – LIST OF RELEVANT LEGISLATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
APPENDIX – RESOURCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Government Secrecy: Decisions Without Democracy



Foreword
Excessive secrecy is the enemy of public accountability and democratic governance. Unfortunately, it is
becoming standard operating procedure for many government officials. Vice President Dick Cheney’s recent
insistence that his office is not subject to secrecy regulations that apply to the executive branch is just the
latest evidence of a systematic campaign to keep information about government activities out of the hands
of the American public.
Freedoms of Information laws are grounded in the recognition that knowledge about the government’s
actions is the necessary first step in oversight and accountability. Most Americans recognize the need to
safeguard national security information from improper public disclosures that would damage the national
interest. But national security has become a blanket excuse to withhold information from the public as well
as from Congress, especially in the aftermath of the 9/11 terrorist attacks.
The National Security Archive has documented widespread agency mismanagement and obstruction which
lead to delays as long as 17 years in responding to public Freedom of Information Act requests. Only one in
four agencies is complying with the Electronic Freedom of Information Act a decade after it passed.
Of course, the right to know is also undermined by the release of information that is inaccurate or misleading. At the federal level, politics increasingly trumps sound science: reports on key environmental issues are
altered by political appointees; information about HIV/AIDS is manipulated to promote a particular ideological viewpoint; and federal employees are muzzled from sharing their expertise.
The misuse of secrecy and the manipulation of science and other information undermine the public’s right to
know and the health of our democracy. And they threaten the health of the public as well: a fire at a chemical plant situated near a neighborhood could pose a serious threat to residents’ health, but it is difficult for
individuals to learn the most basic information about hazards to which their families may be exposed.
The preface to this report, written by Republican Robert Barr and Democrat John Podesta, reflects that the
importance of the public’s right to know is not a partisan issue; it is a fundamentally American issue.
Over the years, regardless of the political party in charge, our three organizations have challenged excessive
government secrecy and offered ideas to protect the public’s right to know. For example, in 1987, People for
the American Way, OMB Watch, the Benton Foundation, and the Advocacy Institute launched a public education campaign to draw attention to the ways in which government was withholding information from the
public. One element of that campaign was the publication by People for the American Way of Government
Secrecy: Decisions Without Democracy, a primer on secrecy that serves as the model for this publication.



Government Secrecy: Decisions Without Democracy

OMB Watch and National Security Archive followed Government Secrecy with a retreat at the Blue Mountain
Center in New York in the early 1990s that established principles for advancing the public right to know that
have guided the public interest community for more than a decade.
But today the foundation of democratic accountability is being steadily eroded. At the same time that
technology has given us new tools for linking government information in ways that could empower citizens,
policies and procedures at the federal, state, and local levels serve as barriers to fulfilling the promise. And
public confidence in the openness of the federal government is shrinking, as documented in a recent poll by
the Association of Newspaper Editors.
Our three organizations are part of OpenTheGovernment.org, a broad-based coalition that brings together
journalists, librarians, academics, individual citizens, advocacy groups, and professional associations committed to strengthening and protecting our right to know. This primer is just one step in engaging the public in
a campaign to make our government more transparent and accountable to the public. “We the people” must
exercise our rights to strengthen, if not preserve, democracy. We encourage you to get involved by visiting
the website (www.openthegovernment.org) to learn what you can do.
We want to thank David Banisar, the author of this publication, for his excellent work. Patrice McDermott,
the director of the OpenTheGovernment.org, and Emily Feldman, the policy associate, shepherded the
process from start to finish. They did a wonderful job. This project would have not started had not Conrad
Martin of the Fund for Constitutional Government suggested the idea. The Steering Committee for OpenTheGovernment.org provided invaluable assistance in establishing the themes of this book: the expansive
and myriad secrecy we confront; and the opportunities that a more digital government presents to us for
greater participation, openness, and accountability. Special thanks goes to Elliot Mincberg while he was with
People for the American Way, Steve Aftergood, Marge Baker, Mary Alice Baish, and Charles Davis who served
as a panel to provide the ongoing advice, guidance and review that led to this strong report.
Gary D. Bass
Executive Director, OMB Watch
and co-chair, OpenTheGovernment.org
Thomas S. Blanton
Executive Director, National Security Archive
and co-chair, OpenTheGovernment.org
Ralph G. Neas
President, People for the American Way
and partner, OpenTheGovernment.org
July 2007

Government Secrecy: Decisions Without Democracy



Preface
by Bob Barr and John Podesta

Twenty years ago, People for The American Way published the first “Government Secrecy” primer. At the
time, our founding principles of openness and accountability were being strained under the decades-long
Cold War with the Soviet Union. Presidents of both parties repeatedly invoked security to justify greater
secrecy, very often in ways that did not reflect legitimate security concerns but rather served what Arthur
Schlesinger, Jr. called in his preface “the Imperial Presidency.”
Today, we face a new security threat, but the Imperial Presidency is back. In the aftermath of the 9/11 terrorist attacks, the current administration has laid claim to a dramatic expansion of executive power, sometimes
with congressional approval, as with the PATRIOT Act, and sometimes through legally dubious assertions, as
with the National Security Agency’s domestic surveillance program.
At the same time, the administration has routinely withheld information that should be made public, thereby insulating itself from democratic accountability. As this primer documents, secrecy has been advanced
in a myriad of ways, including excessive classification, brazen assertions of “executive privilege” and “state
secrets,” new control markings to restrict “sensitive but unclassified” information, and new limits on Freedom
of Information Act requests.
The government should, of course, keep certain kinds of information secret. Our laws recognize the need to
protect national security information, such as intelligence sources and military plans, for example, as well
as personally identifiable data, such as information provided on tax returns. But the secrecy claims asserted
by the administration go far beyond what is contemplated by the law—and far beyond what is healthy for
democracy, which depends on an informed citizenry.
Citizens deprived of relevant information cannot participate in their government’s decisions or hold their
leaders accountable. Without this check, government officials are more likely to make decisions contrary
to the public interest, abuse their authority, and engage in corrupt activities. In words that ring prophetic
today, James Madison warned in 1822, “A popular Government, without popular information, or the means
of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”
The administration’s embrace of secrecy comes frustratingly at a time of great opportunity for government
openness. The Internet and other new information technologies make it far easier and cheaper for government to disseminate information and interact with the public. Through government Websites, for example,
citizens can now access the Congressional Record, track environmental pollution in their neighborhoods,
and comment on regulatory proposals. Instead of building on this foundation, however, the executive
branch is retrenching—in a host of cases, government information previously available through the Internet
has been removed.
This primer by David Banisar on behalf of OpenTheGovernment.org and People for the American Way clearly
documents the expansion of secrecy and the dangers posed to democracy. In doing so, it provides ammunition to reclaim the open and balanced system of government set forth in our Constitution and Bill of Rights.
It is now up to all of us to make our voices heard. v

Government Secrecy: Decisions Without Democracy



Preface to the 1987 Edition
by Arthur Schlesinger, Jr.

Secrecy is the bane of democracy because it is the enemy of accountability. The framers of the American
Constitution designed a system of government intended to bring power and accountability into balance. The
secrecy system, as it has been nurtured by the executive branch over the last forty years and with special zeal
over the last seven years, is the indispensable ally and instrument of the Imperial Presidency.
Now no one can question the right of the state to keep certain things secret. Weapons technology and deployment, diplomatic negotiations, intelligence methods and sources, and military contingency plans are among
the areas where secrecy is entirely defensible. Secrecy is defensible too in certain domestic areas: personal data
given the government on the presumption it would be kept confidential—tax returns, personnel investigations and the like; and official decisions that, if prematurely disclosed, would lead to speculation in land or commodities, preemptive buying, higher governmental costs and private enrichment.
But the contemporary state has extended the secrecy system far beyond its legitimate bounds. In doing so, the
target is far less to prevent the disclosure of information to enemy governments than to prevent the disclosure
of information to the American Congress, press and people. For governments have discovered that secrecy is
a source of power and an efficient way of covering up the embarrassments, blunders, follies and crimes of the
ruling regime.
When governments claim that a broad secrecy mandate is essential to protect national security, they mostly
mean that it is essential to protect the political interests of the administration. The harm to national security
through breaches of secrecy is always exaggerated. The secrecy system has been breached since the beginning
of the republic—from the day in 1795 when Senator Mason of Virginia enraged President Washington by giving the secret text of Jay’s Treaty to the Philadelphia Aurora, or the day in 1844 when Senator Tappan of Ohio
enraged President Tyler by giving the secret text of the treaty annexing Texas to the New York Evening Post. No
one has ever demonstrated that such leaks, or the publication of the Pentagon Papers either, harmed national
security. No one can doubt that these disclosures benefited the democratic process.
The republic has survived great crises—the War of 1812, the Civil War, the First and Second World War— without erecting the suffocating structure of secrecy the Reagan administration proposes today. One wonders what
greater crisis justifies the extreme measures taken and contemplated by the Reagan administration since 1981.
The consequences for American democracy of the cult of secrecy may be dire. For the secrecy system not only
safeguards the executive branch from accountability for its incompetence and its venality. Worse, it emboldens
the state to undertake rash and mindless adventures, as the Iran-contra scandal sadly reminds us. “Though
secrecy in diplomacy is occasionally unavoidable,” wrote James Bryce, who was not only an acute student of
comparative government but also a distinguished diplomat, “it has its perils...Publicity may cause some losses,
but may avert some misfortunes.” Perhaps President Reagan will one day regret that the press had not exposed



Government Secrecy: Decisions Without Democracy

his secret intentions toward Iran in time to block his ill-considered policy, as President Kennedy regretted that
the New York Times had not played up its story on the exile invasion of Cuba. “If you had printed more about
the operation,” he told a Times editor, “you would have saved us from a colossal mistake.”
Because the secrecy system is controlled by those on whom it bestows prestige and protection, it has long
since overridden its legitimate objectives. The religion of secrecy has become an all-purpose means by which
the American Presidency seeks to dissemble its purposes, bury its mistakes, manipulate its citizens and maximize its power. This People For the American Way report by Steven L. Katz is a meticulous and dispassionate account of the growth and widening reach of the secrecy system and of the danger it poses to American democracy. It is not too late for Congress to bring the secrecy system under control and redress the balance between
presidential power and presidential accountability.
The issue is hardly new. “Executive secrecy,” John Taylor of Caroline, the philosopher of Jeffersonian democracy,
wrote in 1814, “is one of the monarchial customs, plausibly defended, and certainly fatal to republican government...How can national self government exist without a knowledge of national affairs? or how can legislatures
be wise or independent, who legislate in the dark upon the recommendation of one man?” v
December 1987, New York

Acknowledgements
The Steering Committee for OpenTheGovernment.
org provided invaluable assistance in establishing the
themes of this book: the expansive and myriad secrecy
we confront; and the opportunities that a more digital
government presents to us for greater participation, openness, and accountability. A smaller editorial committee
provided ongoing advice, guidance and review that led to
this strong report.
	
Recognition must also be given to the staff of OpenTheGovernment.org who shepherded the process and assisted
with the proof-reading and copy-editing.
OpenTheGovernment.org is most grateful for the generous
support of the Angelina Fund, CS Fund, Educational Foundation of America, HKH Foundation, Knight Foundation,
Open Society Institute, Philanthropic Venture Fund, and
Warsh-Mott Legacy, which made this publication possible.
We would like to acknowledge our partners in
OpenTheGovernment.org, many of whom have labored
in these fields for many years and all of whom continue
to work to push back secrecy and advance openness and
accountability in our government:
American Association of Law Libraries, American
Booksellers Foundation for Free Expression, American
Library Association, American Society of Newspaper
Editors, Association of American Publishers, Association For
Community Networking, Association of Research Libraries,
Bill of Rights Defense Committee, Californians Aware,
Center for American Progress, Center for Democracy and
Technology, Center for National Security Studies, Center

for Progressive Reform, The Center for Public Integrity,
Common Cause, Electronic Frontier Foundation, Electronic
Privacy Information Center, EnviroJustice, Environmental
Defense, Essential Information, Federation of American
Scientists, First Amendment Foundation, Florida First
Amendment Foundation, Free Expression Policy Project,
Friends Committee on National Legislation, Fund for
Constitutional Government, Good Jobs First, Government
Accountability Project, Humanist Society of New Mexico,
Human Rights First, Illinois Community Technology
Coalition, Indiana Coalition for Open Government, Institute
for Defense and Disarmament Studies, James Madison
Project, League of Women Voters, Liberty Coalition,
Mine Safety and Health News, Minnesota Coalition on
Government Information, National Coalition Against
Censorship, National Coalition for History, National
Committee Against Repressive Legislation, National
Freedom of Information Coalition, National Security Archive,
National Security Whistleblowers Coalition, New Jersey
Work Environment Council, Northern California Association
of Law Libraries, NPOTechs, OMB Watch, PEN American
Center, People For the American Way, Political Research
Associates, Positive Financial Advisors, Inc, Project On
Government Oversight, Public Employees for Environmental
Responsibility, ReadtheBill.org, ReclaimDemocracy.org,
Reporters Committee for Freedom of the Press, Society of
American Archivists, Society of Professional Journalists,
Southeastern American Association of Law Libraries,
Special Libraries Association, Sunlight Foundation,
Taxpayers for Common Sense, Transactional Records
Access Clearinghouse, U.S. Public Interest Research Group,
Washington Coalition for Open Government, Working
Group on Community Right-to-Know.

Government Secrecy: Decisions Without Democracy



Executive Summary
Openness is an American value. It promotes democracy and good government. It reduces corruption and
ensures that rights are respected and protected. In the past six years, the basic principle of openness as the
underpinning of democracy has been serious undermined. The Administration has taken an extreme view of
the power of the presidency. In its view, its powers to operate are largely unchecked by the Congress, courts,
states or the public.
Existing laws on openness have been undermined while secrecy is increased. The Administration has issued
executive orders placing limits on the Freedom of Information Act and Presidential Records Act, expanded
the power to classify information for national security reasons, and created a whole range of new categories
of “sensitive” information. Classification of information has nearly doubled while efforts toward declassification have largely been stopped and many records were secretly reclassified. Thousands of records have
disappeared off of public web sites. The State Secrets privilege has been regularly invoked in shutting down
court challenges.
Congress and the public have been misled about important issues. Government decision-making leading up
to and following the invasion of Iraq has been rife with misinformation and secrecy. Key evidence relating to
the presence of chemical and biological weapons was misrepresented and key information withheld from
Congress and the public. Once the initial invasion was over, information about contracts activities and costs
that shows millions of dollars have been lost in fraud and mismanagement has been systematically hidden.
Records relating to abuses in prisons were classified. The photos of the caskets of dead soldiers, bringing
home the severity of the war, were prohibited from being released.
The public health has been threatened. In 2006, the Environmental Protection Agency approved changes
limiting the collection of information about how much chemical waste they released into the environment.
In 2004, the National Highway Traffic Safety Administration restricted the amount of information on the
safety of automobiles that would be released to the public.
Dozens of whistleblowers who have revealed information about misconduct in federal agencies have been
fired, lost their security clearances or been transferred to lesser jobs. Scientists have faced new restrictions
on their ability to speak to the press about scientific issues. Employees at NASA were censored from speaking about global warming. The EPA decreed that whistleblower protections under environmental laws no
longer applied to workers. Journalists have also been investigated and jailed for refusing to identify the
sources of their information.
At the same time, advances in digital technology have increased the amount of information and the speed
at which it is available. Federal laws, regulations and structures are available online. Information that was



Government Secrecy: Decisions Without Democracy

once difficult to obtain is now available at the click of a button.
The new digital technologies also offer unprecedented opportunities for organizations and citizens to
obtain and use information to monitor the government and affect government policy. E-government allows
for easier access to services and some governance such as rulemaking.
However, digital information is not a panacea. Problems continue with technology distribution and education to ensure that all persons have equal access to government information. Information can also disappear
in the blink of an eye. Thousands of pages were abruptly removed from federal web sites following 9/11.
Long term strategies for collecting, archiving and maintaining information are not yet fully developed.
It is now time for Congress to take charge. Oversight is needed to ensure that laws are enforced. Many need
revisions to replace the policies that have been put in place in the last six years with more openness. Others
need to be updated to recognize changes in law, society and technology in the past decade. v

Government Secrecy: Decisions Without Democracy



1
Openness: an American Value
Liberty cannot be preserved without a general knowledge among the people, who have a right,
from the frame of their nature, to knowledge…and a desire to know; but besides this, they have
a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied
kind of knowledge, I mean, of the characters and conduct of their rulers.1
	
–JOHN ADAMS, 1765
The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers
may be concealed from them. 2
	
–PATRICK HENRY, 1788
A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a
people who mean to be their own Governors, must arm themselves with the power which knowledge gives.3
	
–JAMES MADISON, 1822

American democracy is based, in the words of
Thomas Jefferson, on government “deriving their
just powers from the consent of the governed.” It
has been long recognized that openness is essential
to ensuring that government is working on behalf
of its citizens. Individuals have the right to know,
either directly from officials, or through organizations, the media or their elected representatives,
how government is operating to ensure it is on their
behalf. The information held by the government is
owned by the American people and only held in
trust for them by the government and its officials.
Openness has many benefits for both citizens
and governments. It promotes trust and efficient
government, it reduces mismanagement and corruption, and it promotes rights, fairness and the
rule of the law.

The Benefits of Openness
Openness limits misinformation and promotes
awareness and trust in government. Government
officials are less able to mislead the public for political reasons if the system is open and information
is widely available. As noted by President Nixon in
1972, “Fundamental to our way of life is the belief
that when information which properly belongs to
the public is systematically withheld by those in
power, the people soon become ignorant of their
own affairs, distrustful of those who manage them,
and---eventually---incapable of determining their
own destinies.”4 Public awareness of the information
and reasons behind decisions can improve support
and reduce misunderstandings and dissatisfaction.
The public can also better participate in the process
when they have information about the activities of

10

Government Secrecy: Decisions Without Democracy

the government. Confidence in the government is
also improved if it is known that the decisions will
be predictable.
Openness fights corruption and mismanagement. As the future President Woodrow Wilson said
in 1913, “Everybody knows that corruption thrives
in secret places, and avoids public places, and we
believe it a fair presumption that secrecy means
impropriety. So, our honest politicians and our
honorable corporation heads owe it to their reputations to bring their activities out into the open.”5
Billions of dollars are spent every year by the federal
government. Openness in public spending makes it
possible for representatives and citizens to monitor their government actions and publicize poor
spending. The public controversy over “The Bridge
to Nowhere” and other earmarks show that public
rebuke is often more powerful than the Congressional appropriations process. Billions misspent and
wasted in Iraq and in the cleanup of Katrina have
been revealed; armed with this knowledge, citizens
can demand meaningful reforms from their government. Billions have been recovered by whistleblowers in the past ten years.
Openness prevents abuses. As Justice Louis
Brandeis said, “Sunlight is said to be the best of
disinfectants; electric light the most efficient

policeman.”6 Government officials are less likely to
abuse their power if they believe the abuse wil be
exposed. At a minimum, officials will stop abuses,
once they become public. The revelations of abuses
of detainees in Iraq and of domestic surveillance in
the U.S. show that the spotlight of public scrutiny
can force changes when internal administrative
processes and Congressional oversight fail.
Openness promotes government efficiency.
Openness allows government agencies to better
share information and learn lessons. Sharing reduces redundant efforts and allows better analysis. Overspending and double spending can be
reduced. The 9/11 Commission found that the lack
of sharing among government agencies was one of
the reasons the plot was able to succeed.
Openness helps individuals protect themselves.
An open system of law allows individuals to know
their rights and responsibilities. Each year, millions
of veterans access their records held by the federal
government to help determine their disabilities.
Local citizens and municipalities can better protect
themselves from chemical hazards. Openness could
have helped the dozens who have died in the aftermath of 9/11 due to respiratory problems around
the site of the World Trade Center.

Government Secrecy: Decisions Without Democracy

Openness promotes scientific innovation and
development. Information sharing between scientists and others allows for greater innovation. Many
of the most significant technical developments in
the past thirty years, including the Internet, have
come out of open scientific research sponsored
by the government. These developments have
substantially benefited the U.S. economically. Today,
many areas of new scientific development such
as genetics are based on government- sponsored
projects. Information sharing can also be a benefit
in protecting the national defense, as sharing can
lead to faster breakthroughs in areas such as cures
or developments of immunizations for the flu virus
and other biological threats.
Openness can be used as an alternative to regulations. Over half of the release of toxic materials
– millions of tons of pollutants – have been reduced
due to public availability of information on pollutants.7 Consumers are better able to make decisions
on products when information, such as safety and
reliability, are made available.
Openness improves the stability of markets. Millions of investors use the public filings of companies
to evaluate their financial worthiness. Money can
then be invested in well-managed companies with
innovative ideas rather than only those with the
best public relations and slickest brochures. The
markets can also act more fairly. Better general access to financial information makes secret deals and
monopolies more difficult.

The History of Openness .
in the U.S. 
As the initial statements show, many of the founding fathers recognized the power of information
in promoting democracy. Along with a free press,
government openness was seen as a necessity to
promote trust.
Our system of government was not totally open
originally and in many areas, such as foreign relations, there was great secrecy imposed by the executive branch. But there are many early examples
of the openness of activities on the federal level.
In 1813, Congress initiated the beginnings of the
Federal Depository Library Program by requiring
copies of its Journals to be sent to university and
state libraries. As far back as 1816, the salaries of the
employees in federal agencies were being published. Congress too opened its proceedings almost

11

from the beginning and published them. In 1860,
it created the Government Printing Office, which
opened the day of Abraham Lincoln’s inauguration.
From the beginning, the judicial system was based
on the English principle that an open court would
ensure fairness and limit abuses.
The states have been at the forefront of providing
information to citizens about their activities. Most
states have provided information about local and
police activities for over a century. In Wisconsin, the
legislature in 1849 adopted a law on the openness
of country records and meetings.8 In Louisiana, the
1940 Public Records Act set up the first comprehensive system for the archiving and access to public
records. Today, the states are still at the forefront as
“laboratories of democracy,” with many still trying
innovative new ideas to promote openness later
adopted by the federal government.
The development of the federal administrative state
in the early 20th century led to a great concern
about the transparency and accountability of the
newly-created powerful federal administrative
agencies. Within a short period of time, many large
agencies were created and issued thousands of
pages of orders and regulations with little organization. Even individuals working at the highest levels
of government found it difficult or impossible to
keep track of all of them. And for the regulated
public, this new body of “executive legislation” was
inaccessible and virtually hidden. 9
In 1935, a case10 that went to the Supreme Court
revealed that the section of a rule under which a
company was being prosecuted was omitted from
the publication of the regulation. Soon thereafter,
the Congress enacted a law ordering the creation of
the Federal Register to publish all regulations in a
systematic way.11
In 1946, the Administrative Procedures Act (APA),
which was intended to regulate the activities of the
agencies, was adopted. The law provided for a limited to right of access for those who were affected
by agencies’ decisions. A permissive provision in the
law encouraged agencies to make more information
about their activities available. Most, however, took
a restrictive view and did not disclose information.
Starting in 1950s, Congress, led by Congressman
John Moss (D-CA), began investigating the right
of access and found that agencies did not make
much information available. A campaign led by
media organizations resulted finally in the 1966

12

Government Secrecy: Decisions Without Democracy

Freedom of Information Act (FOIA). For the past
40 years, this Act, subsequently amended several
times to enhance openness and supplemented with
other laws, has stood as the pinnacle of openness
for the public.
It has been supplemented by laws such as: the Government in the Sunshine Act to ensure that meetings of federal agencies headed by a collegial body,
such as the Federal Communications Commission,
are open to the public and minutes or transcripts
are kept of the meetings; the Federal Advisory
Committee Act which ensures that committees that
advise the federal government are composed fairly
and hold open meetings; and the Privacy Act, which

allows individuals to obtain and correct their personal information in records held by federal bodies.
As new technologies have made the provision
more easily available and increased demand by
citizens to know more, the trend toward more
openness has continued. In 1993, Congress enacted a law to require that the Federal Register be
published in electronic form. In 1996, the Congress
adopted the Electronic Freedom of Information
Act to extend the FOIA to electronic records and to
provide for more use of electronic resources. More
recently, efforts to improve electronic government
have increased both access to information and
increased participation. v

13

Government Secrecy: Decisions Without Democracy

2
The Darkening Cloud
Behind closed doors, there is no guarantee that the most basic of individual freedoms will be preserved. And as we enter the 21st Century, the great fear we have for our democracy is the enveloping culture of government secrecy and the corresponding distrust of government that follows.12
	

–FORMER SENATOR DANIEL PATRICK MOYNIHAN 2000

In the past six years, the basic principle of openness as the underpinning of democracy has been
seriously undermined and distrust of government is
on the rise.
The Administration has taken an extreme view of
the power of the presidency. In its view, its powers
to operate are largely unchecked by the Congress,
courts, states, or the public. The number of secrets generated has substantially increased, while
release of information has declined. New categories
of semi-secret “sensitive” information proliferate
while laws on access to information are undermined or ignored. Whistleblowers and journalists
are threatened with jail while billions of dollars are
squandered on secret contracts or incompetence.
Scientists are gagged while propaganda and misinformation are released from the highest offices.

It’s a Secret: Classified and 
Semi-classified Information

of the year, nearly 40,000 items (such as documents, files, or videos) – 15 million in 2004 and
14.2 million in 2005 – are classified by government
officials and private contractors. This number has
been increasing for the last ten years – up from 3.5
million in 1995; it has substantially increased in the
last six years.

For every Tax Dollar Spent Declassifying
Old Secrets, The Government Spends
$134 Creating and Securing Old Secrets
$150

$134.09

$100

$50

Classified information

2005

2004

2003

2002

2001

2000

1999

1998

$0
1997

The system of protecting information for national
security reasons is out of control. Information is
classified at an astounding rate. On an average day

14

Government Secrecy: Decisions Without Democracy

Problems with the classification system have been
long recognized. In 1994, Congress approved the
creation of the Commission on Protecting and
Reducing Government Secrecy, chaired by Senator
Daniel Patrick Moynihan. The Commission issued a
detailed report in 1997 that found that the system
for classified information was severely broken:
The result today is a system which neither protects
nor releases national security information particularly well. Substantial concerns exist with respect
to both the ability of the classification system to
protect secrets effectively and the adequacy of the
procedures in place to make information available
to those outside the Government.13
The biggest problem is the prevalence of mis-classification and over-classification. It is estimated that
between 10 percent and 90 percent of all documents are over-classified. Lee Hamilton, the ViceChair of the 9/11 Commission said that 70 percent
of the classified information that he saw during the
Inquiry was “needlessly classified.” Reviews by the
Government Accountability Office have found numerous problems with the classification levels and
markings employed in agencies.14
Even government officials admit there are serious
problems. Carol Haave, the Deputy Under-Secretary
of Defense, testified in a Congressional hearing in
2004 that she believed that 50 percent of information was over-classified. At the same hearing, William Leonard, Director of the Information Security
Oversight Office thought it was even higher. He
noted that over-classification was “disturbingly
increasing, where information is being classified
that is clear, blatant violation of the order.”15 Former
Central Intelligence Agency (CIA) Director (now Secretary of Defense) Robert Gates testified to the 9/11
Commission “We overclassify very badly.”16

The U.S. Executive Order on Classification
The rules for classification of information for
national security reasons are set by the U.S. Executive Order 12958 on Classified National Security
Information originally issued by President Clinton in
1995 and amended by President Bush in 2003.17 The
Order sets out procedures on the classification of
information including who can classify, under what
standards they can do so, for how long information can be classified, and a process for its eventual
declassification and release. There are a limited
number of people who are authorized to create

classified information (around 4,000 total) and they
must mark each time why it is classified and for how
long it needs to be protected.
There are eight categories of information that are
eligible for classification:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities),
intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the
United States, including confidential sources;
(e) scientific, technological, or economic matters
relating to the national security, which includes
defense against transnational terrorism;
(f ) United States Government programs for safeguarding nuclear materials or facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection
services relating to the national security, which
includes defense against transnational terrorism; or
(h) weapons of mass destruction.
Depending on the sensitivity of the information,
there are three levels of classification:
•		Top Secret - where unauthorized disclosure could
be reasonably expected to cause exceptionally
grave damage to the national security.
•		Secret - where disclosure could be expected to
cause serious damage to the national security.
•		Confidential - disclosure could be expected to
cause damage to the national security.
The E.O. prohibits the classification of information to “conceal violations of law, inefficiency, or
administrative error, prevent embarrassment to a
person, organization or agency, retain competition, or prevent or delay the release of information
that does not require protection in the interest
of national security information.” It also prohibits
the classification of basic scientific information
not clearly related to national security. In practice,
however, these prohibitions have often been unsuccessful, with information such as the report on the
abuses from the Abu Ghraib prison being classified
to prevent its release.18
The default period for information to be classified is
ten years unless the person who issues the classification can identify an earlier date or event that
would cause it to be available sooner, or makes a
specific determination that it is sensitive to a later
date. Since the adoption of the Clinton order, ap-

Government Secrecy: Decisions Without Democracy

Changes to the Order by President Bush
The 2003 Bush Amendment (E.O. 13292) left the
structure of the Clinton order mostly intact but
significantly changed the presumptions about
classification. It removed the requirement that, if
there were a significant doubt about classification,
it should not be classified. Expert Harry Hammit
describes it as a “when in doubt, classify” standard.
Other changes include:
•		Set presumption that information in categories
“shall” be considered for classification rather than
“may” be classified.
•		Expanded categories to include Information infrastructure, WMD, and terrorism.
•		Allowed for easier reclassification of information.
•		Removed presumption of 10 years for classification if no date can be determined.
•		Eliminated requirement that each agency make
plans for declassification.
•		Extended the deadline for automatic declassification to December 2006.
•		Allowed the CIA Director, unless overruled by
President, to block decisions by the Interagency
Security Classification Appeals Panel (ISCAP) to
declassify information.
•		Expanded protection of information provided by
foreign governments.

Declassification

The result of the order was the massive systematic
review by agencies of their records. Between 1995
and 2001, one billion pages were reviewed and declassified, 200 million pages in 1997 alone. Since the
beginning of the Bush Administration, that effort
significantly declined, dropping below 30 million
pages in 2004 and 2005.
Limited efforts have also occurred to declassify
information in special areas where there was a compelling interest. Congress enacted two specialized
laws on the access to files relating to the assassination of President John F Kennedy (following the
movie JFK),19 and to Nazi and Japanese war crimes20
held by government agencies, including the intelligence services. Both Acts created review boards
to collect and examine documents and decide on
their release. Over four million pages were released,
including thousands of previously classified records
under the JFK Act.21 Over eight million documents
have been released under the war crimes laws.
However, the Administration has also often used selective declassification for political means. President
Bush secretly declassified sections of a National
Intelligence Estimate that supported its claims of
weapons of mass destruction in Iraq. These were
leaked to reporters by the Office of the Vice-President.22 The Attorney General went before the 9/11
Commission with what Senator Leahy called a
conveniently declassified memo to attack a Commissioner. In 2004, Secretary of State Rice quoted
from a selectively declassified 2001 memo prepared
for the National Security Council by then-counter-

Official Classification Down Slightly as More Documents are Released
15
12
9
6
3
0

New classified documents (in millions)

Number of pages declassified

1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005

Newly Classified Documents
(in millions)

The other, equally important, side of protecting
classified information is ensuring that it is declassified and released once it is no longer sensitive.
The Clinton Executive Order required, and the Bush
order retained the requirement, that all information 25 years and older that has permanent histori-

cal value be automatically declassified, starting in
December 2006 (originally set for 2000), unless it
is specifically exempted and is subject to outside
review. The Order created a new standard by placing the burden on the government agency to justify
why the information should not be declassified,
rather than why it should be.

Source: Information Security Oversight Office Compiled by OpenTheGovernment.org & National Security Archive

250
200
150
100
50
0

Pages Declassified (in millions)

proximately fifty percent of all information is set for
declassification in 10 years or less.

15

16

Government Secrecy: Decisions Without Democracy

terrorism czar Richard Clarke.23 It has also used it to
stymie Congressional oversight of the Foreign Intelligence Surveillance Act and anti-terrorism policy.
A bill was introduced in the 109th Congress which
would require notification to the Intelligence Committees when information was declassified.24 In the
110th Congress, the House Intelligence Committee
has already announced plans to investigate the
practice of selective declassification.25

Now you see it, now you don’t: .
Secret Reclassifications
As noted above, the Bush amendments to the
Clinton Executive Order make it easier to reclassify
information. Under the Clinton Order, information
could not be reclassified if it had been declassified
and released to the public. Now, information can
be reclassified if the head of the agency determines
that it is in the interest of national security, “the
information may be reasonably recovered” and the
Director of the Information Security Oversight Office (ISOO) is notified.
In 2006, it was discovered that over fifty-five thousand pages of records were secretly reclassified at
the National Archives and the Presidential libraries
under an agreement with the CIA and other agencies.26 Many were documents that had never been
classified in the first place or were already published
by the State Department. Some were over 60 years
old, such as the Korean War era assessments by the
CIA that China was not likely to intervene in Korea
two weeks before China entered the war. An ISOO
audit of the files found that over one third were
not even eligible for classification. It also found a
“significant number of instances when records that
were clearly inappropriate for continued classification were withdrawn from public access.”27 The U.S.
Archivist apologized for the secret agreements, stating “There can never be a classified aspect to our
mission. Classified agreements are the antithesis of
our reason for being.”28
The Administration is not the only party at fault
in promoting excessive secrecy. In 1998, Congress
ordered that the Department of Energy withdraw
from public availability all of its recently declassified
documents that might be related to the design of
nuclear weapons, to ensure that improper declassification did not take place.29 In all, the Department
withheld and reviewed over 200 million pages.
Only 6,640 pages containing classified information

were found, mostly long-public material about the
previous locations of weapons that are no longer
sensitive. Many documents that were previously
public were withheld, such as a 1971 Congressional
briefing by Secretary of Defense Melvin Laird on
Theatre Nuclear Forces and Strategic Forces, the
numbers of weapons and bombers in the 1960s
and 1970s, and agreements with the Canadian government from the 1960s.30 The review has cost $22
million and delayed efforts by the DOE to continue
its declassification effort.

Watching the Watchers: oversight of the
classification system

The Information Security Oversight Office (ISOO)
An intelligent system of classification needs independent oversight to ensure that it is working.
Under the Executive Order, the Information Security
Oversight Office, a division of the National Archives,
has general responsibility relating to the development and oversight of protections on classification and declassification of information. Its duties
include:
•		Implementing Directives, Instruction and
Regulations
•		Liaison, Inspections and General Oversight
•		Statistical Collection, Analysis and Reporting
•		Recommending Policy Changes
Each year, the ISOO collects statistics on the classification and declassification of information the
previous year and presents a public document on
the amount of classification and its estimated costs.
The ISOO’s powers are limited, however. It audits
and makes recommendations on agencies classification practices; the agencies, however, are not
required to follow its guidelines and recommendations. This is why Senator Moynihan's Commission
on Protecting and Reducing Government Secrecy
recommended the creation of a National Declassification Center.

Missing in Action: The Public Interest
Declassification Board
In 2000, Congress approved the creation of the
Public Interest Declassification Board.31 The board
functions are to:

Government Secrecy: Decisions Without Democracy

•		Advise the President and other executive branch
officials on classification and declassification
process;
•		Promote public access to a thorough, accurate,
and reliable documentary record of significant
U.S. national security decisions and significant
U.S. national security activities;
•		Provide recommendations to the President on
declassification of information of extraordinary
public interest; and
•		Review and make recommendations to the
President with respect to any Congressional
request on declassification of information.
The board was the only recommendation of the
Commission on Protecting and Reducing Government Secrecy that was adopted. To date, it has not
been of much use. The board remained in a legal
vacuum for over five years while the White House
delayed appointing members and providing funding for it. It was not until 2005 that the President
appointed members and it began to hold meetings.
Now that it is finally in place, the Board has already
taken a very limited view of its own powers. In September 2006, members of the Senate Intelligence
Committee asked the Board to review two committee reports on Iraq intelligence that had been classified by the Administration. The Chairman, L. Britt
Snider, a former CIA Inspector General, responded
that it could not review the classified documents

17

unless it was asked to do so by the President. It
recently announced that it plans to move ahead
unless it hears from the President.

Go Away: The State Secrets Privilege
Another justification invoked by the government
to deny access to information is the claim that the
information is privileged as involving state secrets.
The privilege was first recognized by the Supreme
Court in a 1953 case where the widows and families
of several civilians killed in the crash of an Air Force
airplane conducting experiments sued under the
Federal Torts Claims Act.32
The sources of the privilege are nebulous. It has
been attributed to pre-constitutional powers, separation of powers, executive privilege and others.33 Its
scope is not well defined. In many cases, it allows the
government to prevent courts from even evaluating
the information before ruling on the merits. Some
courts treat it as absolute and dismiss cases as soon
as the privilege is invoked; others have rejected that
view and demanded access to the records to ensure
that they are actually state secrets.34
Over the years, the government has used this privilege controversially in many cases to shut down
lawsuits against it and prevent having to defend
against them. A recent review of the cases in the Po-

18

Government Secrecy: Decisions Without Democracy

litical Science Quarterly notes “At present, it is costless for the president to assert a secrecy privilege:
the overwhelming odds are that the assertion will
be successful, and even if unsuccessful, the process
of overturning claims of privilege is lengthy and the
only potential cost of excessive claims of national
security is in bad publicity.“35 Tom Blanton, Director
of the National Security Archive, is more direct in his
criticism: “State secrets privilege continues as a kind
of the neutron bomb of whistleblower litigation. It
leaves no plaintiff standing.”
In the past six years, the privilege has been invoked
over 20 times by the federal government to end
court cases. These include:
		RENDITIONS. Khaled El-Masri, a German citizen
who was taken by the CIA in Macedonia and sent
to Afghanistan where he was tortured for six
months. El-Masri sued the CIA for an apology. The
case was dismissed after the court ruled that the
state secrets privilege was absolute. It was also
successfully invoked in the case of Maher Arar,
a Canadian on his way through New York back
to Canada, who was sent to Syria where he was
tortured. His case was also dismissed.
		ILLEGAL SURVEILLANCE. In separate cases
brought by the American Civil Liberties Union
(ACLU), Electronic Frontier Foundation and the
Center for Constitutional Rights on the warrantless surveillance by the National Security Agency,
the government has invoked the state secrets
privilege to demand that all of the cases be dismissed. In at least one case, the court has rejected
the privilege.
		WHISTLEBLOWERS. The privilege has been used
to prevent former FBI translator Sibel Edmonds
from challenging in court her dismissal from the
FBI after revealing numerous problems with the
translation division. The FBI’s Inspector General
found that she was improperly terminated and
that her allegations were never properly investigated. She was also prevented from testifying in a
civil suit brought by the families of victims of 9/11.

Keep away: It’s Sensitive .
(but not classified)!
The growth in secrecy has not been limited just
to classified information. In the past six years,
there has been substantial growth in categories of
information designated as “sensitive” and therefore

restricted. Some of these categories have statutory
authorization but, for the most part, these designations are made internally by each agency and have
no legal authority.
While categories designating information sensitive
have existed for at least thirty years in some form
or another, their use appears to have dramatically
expanded since March 2002 when White House
Chief of Staff Andrew Card issued a memorandum
to all agencies requiring review of their information with an eye to protect “information that could
be misused to harm the security of our nation and
the safety of our people,” and urged the agencies to
view FOIA exemptions broadly.36 It is estimated that
there are now more than 100 different designations
for categories of sensitive information.
Some of the recent uses of sensitive information
include:
•		The prosecution of a Miami-based Transportation
Security Administration (TSA) employee caught
stealing baggage was dropped and local police
officials are not allowed from publicly reporting
on incidents in airports without permission of
the TSA. 37
•		The DC government was not allowed to see
information on trains that are allowed to travel
through the District carrying hazardous cargoes.
•		The Nuclear Regulatory Commission (NRC)
attempted to suppress a report by the National
Academy of Sciences that it did not agree with.
•		Federal Energy Regulatory Commission (FERC)
refused to share information about the safety
of a proposed Liquid Natural Gas plan with the
Connecticut Attorney General because it was
Sensitive Energy Information.38
•		Department of Homeland Security (DHS)
cited it when it refused to name the new DHS
ombudsman.39
•		The TSA withheld information about information
circulars that had been published in the 9/11
Commission report as sensitive, only releasing
them after it was directly pointed that it was
published in the 9/11 Commission report.
Currently, there are no government-wide procedures on how sensitive information is to be designated, who can impose it, how it is to be reviewed
for release or its withholding appealed. A report
sponsored by the Department of Defense noted
in 2004 that the “status of sensitive information
outside of the present classification system is
murkier than ever ... Sensitive but unclassified data

Government Secrecy: Decisions Without Democracy

is increasingly defined by the eye of the beholder.
Lacking in definition, it is correspondingly lacking
in policies and procedures for protecting (or not
protecting) it, and regarding how and by whom
it is generated and used."40 Representative Henry
Waxman describes “sensitive” as, “a code word for
embarrassing to senior officials”.
The lack of standards results in overuse of the
designations and greater restrictions on information both for internal use and for public availability.
A 2006 Government Accountability Office review
found over fifty different categories of information designated as sensitive, ranging from Sensitive Homeland Security Information, Sensitive but
Unclassified, Law Enforcement Sensitive, to For
Official Use Only.41 The GAO found that, in different agencies, similar information was often being
designated for control using different labels and
procedures. It also found that few agencies provided adequate guidance, training or internal controls.
The GAO concluded that “the lack of such recommended internal controls increases the risk that the
designations will be misapplied. This could result
in either unnecessarily restricting materials that
could be shared or inadvertently releasing materials
that should be restricted.” Within departments such
as Justice, the GAO found numerous procedural
problems due to lack of formal policies, inadequate
training, and poor oversight. In the FBI, any employee or contractor could designate information as
sensitive even though the FBI had no guide and did
not provide adequate training.42
A 2006 review by the National Security Archive of
37 major agencies and components found little
consistency across government agencies.43 Only
eight of the agencies had legal authority to designate information as sensitive, while 24 were only
following their own internal guidelines. Eleven had
no policy at all. Nearly one-third of the policies
allowed any employee to designate information as
sensitive, but they did not set policies on how the
markings could be removed, and only seven total
set restrictions on how they can be designated. The
review also found that policies set after 9/11 were
“vague, open-ended or broadly applicable” compared with those before.
Even though the designations often have no official
standing, agencies are more restrictive in many cases with such information when it is requested under
FOIA.44 The National Security Archive found that
at least half of the agencies subject the information to greater review and more restrictions when

19

requested under FOIA; only two made any attempts
at ensuring that the restrictions were balanced with
the public’s right to know.45
The designation is also being used to create de
facto secret laws. The 2002 Homeland Security Act
allows the Department of Homeland Security to
designate dozens of categories of information as
sensitive. This includes DHS regulations that authorize requiring showing ID to get on a plane and
who can be searched. Republican Congresswoman
Helen Chenoweth-Hage was refused access onto
a plane after she demanded unsuccessfully to be
shown the legal authorization for being searched.
When asked why the regulations were not shown,
a TSA spokesman said “Because we don’t have
to ... That is called ‘sensitive security information.’
She’s not allowed to see it, nor is anyone else.”46
In another case involving the no-fly list, a District
Court found that the TSA used “frivolous claims
of exemption” in designating the security policies
as sensitive.47
In December 2005, the White House issued a
memorandum ordering government-wide standardization of “procedures and standards for
designating, marking, and handling SBU information.”48 Agencies were required to conduct reviews
of their procedures for sensitive information and
report to the Director of National Intelligence. An
inter-agency working group led by the DNI was due
to issue guidance by the end of 2006, but there are
reports that it has been delayed due to controversy
among agencies on which headings should be
kept. A report in June 2006 from the DHS and DOJ
was reported to be rejected by the White House
because it “lacked substance”.49
Congress has shown some recognition that sensitive information needs to be limited. In 2002,
Congress required the President to come up
with a government-wide definition of homeland
security information.50 The standards were never
issued and might have been pre-empted by the
December 2005 memorandum. In 2005 and 2006,
a number of House and Senate Committees held
hearings on Sensitive Security Information (SSI) and
“Pseudo-classification.” In 2006, Congress approved
an amendment to the Department of Homeland
Security Appropriations Act requiring that the DHS
amend its regulations to review SSI information
when requested under FOIA, declassify SSI for most
information that is over three years old unless the
DHS secretary “identifies a rational reason why the
information must remain SSI,” and allow access to

20

Government Secrecy: Decisions Without Democracy

SSI by parties to lawsuits who need to access for the
lawsuit, subject to restrictions on further disclosure.51 These changes were not expected to make
a substantive improvement to the overall problem,
though, because of the limitation of the strictures
to the DHS.

Propaganda and Dis-information
The dissemination of truthful information is essential
to allow for an informed electorate and Congress.
This has also been systematically disregarded in the
past six years. The Administration has selectively released information, actively deceived Congress and
the public, secretly hired journalists and released
“news” videos and other similar activities.
Following 9/11, the White House instructed the EPA
to tell the public that the air around Ground Zero
was “safe,” even though the EPA had not conducted
full testing. The EPA’s Office of the Inspector General
issued a critical report in 2003, finding that the
White House had “convinced EPA to add reassuring statements and delete cautionary ones.”52 The
Mount Sinai Medical Center found that 70 percent
of ground zero responders had some form of respiratory problem.53 At least 75 police and firefighters
have been found to have developed cancer and
several have died.54
The administration has also engaged in active deception of Congress. When Congress was debating
the cost of the changes to Medicare bill in 2004, it
was told by the Administration that the total was
going to be $395 billion. However, the Chief Actuary of Health and Human Services (HHS) was aware
that the actual cost was over $720 billion and was
told not to inform Congress of the actual cost. The
White House claimed that it has a constitutional
power to withhold information.55
Under federal law, spending money for “publicity
or propaganda purposes” is prohibited.56 However,
there has been a series of incidents where the
government has been paying for news articles
or influencing journalists. In 2002, the Pentagon
proposed the creation of an Office of Strategic
Influence to influence media outlets to favor the
United States. It was widely reported that the office
would engage in misinformation and planting of
stories in foreign media and on the Internet. The
proposal was quickly killed off by the Pentagon
following public outcry. However, in 2005, the
LA Times revealed that U.S. military was secretly
paying to have stories planted in the Iraqi press.57

The Education Department secretly paid conservative commentator Armstrong Williams $240,000
to promote the No Child Left Behind Act. The HHS
produced videos that were intended to look like
news stories promoting changes to Medicare which
were unknowingly run on 40 television stations. The
Governmental Accountability Office found that this
was “covert propaganda” prohibited by law.

Closing Doors
The Freedom from Information Act: .
Limiting the FOIA
The Freedom of Information Act (FOIA) is one of the
most important pieces of legislation in ensuring that
information is available to the public.58 It has two
principal functions. First, it requires that government
agencies publish information about their activities.
Second, it gives a legal right to any person to request
information from federal government agencies. The
FOIA sets a presumption that all persons have a right
to know information about what the federal government is doing and the government has a legal obligation to tell them, subject to a few limited exemptions.
Over 4 million requests were made in 2005 under the
FOIA and the vast majority (over 90 percent, mostly
personal files) were responded to in full.
The FOIA was signed by President Lyndon Baines
Johnson on July 4, 1966 and went into effect in
June 1967 after a fifteen year campaign by media
and members of Congress to reduce secrecy in federal agencies. Prior to the FOIA coming into effect,
agencies used a variety of different excuses, including an obscure 1798 “Housekeeping Statute” and a
misreading of the Administrative Procedures Act, to
deny access to information. The FOIA was substantially amended in 1974 over the veto of President
Ford, in 1986, and in 1996 with the Electronic FOIA
(E-FOIA) amendments.
The FOIA only applies to agencies of the executive
branch of the federal government such as the Department of Homeland Security, the Environmental
Protection Agency, the Department of Defense and
the Department of Health and Human Services. It
does not apply to the Congress, the federal courts,
offices directly under the President such as the
National Security Council, private contractors or
state government bodies.59 Any individual, without
regard to interest, legal status or geographic location, can request records from the agencies.

Government Secrecy: Decisions Without Democracy

There are nine exemptions under the FOIA. They
are for:
•		Classified information relating to the national
defense or foreign policy;
•		Internal personnel rules and practices of an
agency;
•		Information made secret by another statute;
•		Confidential trade and business secrets;
•		Internal and inter-agency communications;
•		Personal information;
•		Law enforcement;
•		Financial institutions;
•		Well and geologic information.
Most of these exemptions are discretionary (agencies may, but are neither required to release nor
withhold information requested). The presumption
overall is for the release of information and agencies can withhold it only if there is a good reason.
The 1986 amendments to the law also allow agencies to refuse to confirm to existence of records
if the information would interfere with a current
secret criminal investigation, records about informants, and some classified and secret FBI intelligence or terrorism files.
A person denied information can first appeal
internally to the agency to reconsider. A lawsuit
can also be filed in the federal District court where
the requestor resides or the U.S. District Court in
Washington, DC. Several hundred law suits are filed
each year.
For fees purposes, requestors can be broken down
into three categories – commercial; educational or
noncommercial scientific and news media (including
public interest groups); and other. Commercial-use
requestors are required to pay for all search, review
and duplication costs; news media and representatives of scientific or educational organizations are
required to pay for duplication of records of more
than 100 pages. Requestors who are not commercial,
news media, scientific or educational requesters are
required to pay search costs for more than 2 hours
and duplication costs for more than 100 pages.
Attempts by agencies to use the fees as a barrier
have been increasing. The CIA in October 2005
began demanding search fees from public interest groups and the news media if it determined
that the information requested was not “important
enough news” to justify a waiver.

21

E-FOIA
In 1996, the U.S. Congress adopted the Electronic
FOIA (E-FOIA) Act, the most significant amendment to the FOIA since 1974. The primary goal of
the E-FOIA was to improve how agencies handled
electronic information related to FOIA requests.
This included a specific recognition that requests
for electronic information were to be treated in
the same way as requests for physical documents,
and greater obligations for publishing information
online and accepting electronic requests.
However, the requirements have not been fully
implemented more than ten years after the adoption of the Act. Many agencies still do not have
adequate web sites with Electronic Reading Rooms
or accept electronic requests for information.

Problems
The chilling of FOIA in the Bush Administration
began nearly from its outset. In October 2001, Attorney General John Ashcroft issued a memo on
FOIA that substantially undermined the presumption of openness.60 The memo encouraged agencies
to limit disclosure of information, ordering them
to “carefully consider” interests including national
security, business information, and personal privacy
before allowing the release of any information.
The agencies were told that the Justice Department would defend them in court except in the
most extreme cases. The DOJ then issued guidance
suggesting expanded views on exemptions such
as privacy and internal agency rules and practices.
This substantially changed the presumption of the
previous order issued by Attorney General Reno.
That order created a presumption of openness and
stated that the DOJ would only defend agencies if
a “foreseeable harm” existed, not if there were only
a substantial legal basis (the standard under the
2001 order).
Following the 2001 memo, studies have found that
the number of exemptions cited expanded greatly.
The use of the privacy exemption has been especially aggressive.

Delays - Waiting until kingdom come
One of the most significant problems with the
FOIA is the often long delays that occur in agencies providing information to requestors. The FOIA
requires that agencies respond to requestors within
20 working days. However, there are no set dead-

22

Government Secrecy: Decisions Without Democracy

lines for actually making the information available,
rather the information must be provided “promptly”.
In some cases, requestors can wait years for the
information that they requested. A review by the
National Security Archive in 2006 found that the
oldest request was 17 years old. The GAO found that
the backlog of agencies requests had also increased
from 2002 to 2005 by 14 percent.61

•		Conduct a review of FOI operations and draft a
plan for improvements including review of the
use of information technology and reducing
backlogs;
•		Establish one or more FOIA Requester Service
Center(s);
•		Designate a FOIA Public Liaison to work with
requestors.

In part, this is a resource issue. Many agencies have
not provided for enough resources to ensure that
requests are responded to in a timely manner. But
agencies know that unless a lawsuit is filed, they do
not have to respond in a timely manner and many
use that as a means to deny access.

It was widely suspected that the executive order
was issued to undermine Congressional efforts to
adopt amendments to the FOI to improve operations. Most of the requirements such as Chief FOI officers and Liaisons were already in place, and it does
not address problems such as the 2001 Ashcroft
memo that sets the default at withholding information rather than releasing it.

Oversight
Another significant problem with the FOIA is the
lack of a central authority to monitor and enforce
it. Many U.S. states such as Connecticut, Florida,
Hawaii, and New York (and over forty other countries) have appointed a Commission or ombudsman which has this task. The office can also play a
proactive role in providing guidance and training to
assist agencies.
The best the U.S. has is the FOI and Privacy Office in
the Department of Justice. The DOJ provides guidance to agencies but its actual authority is limited
to some administrative functions on annual reports.
The Department also defends agencies who are
sued but, under the Ashcroft memorandum, its
duty is to defend in nearly all cases.

Proposals for Improvements
In the past several years, Congress has again been
discussing improvement to the FOIA. Hearings were
held and a number of bills were introduced and discussed by Committees in the House and the Senate
in the 109th Congress.62
In December 2005, President Bush issued an executive order requiring agencies to improve their administration of FOI.63 The order requires that each agency
establish “citizen centered” policies that require that
requestors are treated “courteously and appropriately” and agencies operate in a “results-oriented”
manner. Specifically each Agency was required to:
•		Designate a senior official as Chief FOIA Officer
with overall power over agency compliance and
implementation;

In October 2006, the Attorney General released the
first report based on the implementation plans. The
report presented a very rosy view of the Executive
Order, calling it a “first of its kind FOIA executive
order” and “the most significant administrative
development in its history” and lauding it as an
international standard. The order was described
as having “an immediate and widespread positive
effect on the operations of the federal agencies”. It
recommended minor changes to the administration including a meeting of Chief FOIA Officers,
improvement of acknowledgement letters, a review
of forms and better use of technology. A review of
the same reports by the National Security Archive
was much less cheery, saying that the review “fails
to provide an honest assessment of where agencies'
FOIA programs stand today.” The review noted that
many agencies have still not implemented the 1996
E-FOIA amendments; many plans rely on uncertain funding; there is a lack of recognition of the
resources needed to resolve longstanding backlog
problems; and there is a lack of any cross-agency
authority for FOI.64
In March 2007, the House passed the “Freedom of
Information Act Amendments of 2007” (H.R. 1309),
and the “OPEN Government Act” (S. 849) was introduced in the Senate. S. 849 has passed out of the
Judiciary Committee and is awaiting floor time for
debate and a vote.

Executive Privilege
Underlying many of the Administration’s claims for
denying information is the belief that the Administration is not subject to most requests (even legal)

Government Secrecy: Decisions Without Democracy

23

for information because its release would violate
“executive privilege.” The administration has from
the beginning strongly worked to enhance its
powers in relation to the other branches of government and the public. It has stated its belief that the
Presidency should return to the (largely mythical)
unchecked powers that it held before the Watergate era. As Bush told a press conference in 2002,
“I’m not going to let Congress erode the power of
the Executive Branch.”65

Hiding from Congress

The privilege comes from the constitutional separation of powers and is promoted to protect the
advice given to presidents. Scholar Mark Rozell defines it as “the right of the president and high-level
executive branch officers to withhold information
from those who have compulsory power -- Congress and the courts (and therefore, ultimately,
the public).”66
The claim was first made in the administration of
George Washington, but it was not recognized
by the courts until the 1950s. In cases such as the
Watergate tapes and debates over the files of President Nixon, the Courts found that it is limited and
diminishes over time.67

executive privilege, that they are immune from
testifying before Congress and providing information. Instances include the activities of White House
Counsel Alberto Gonzales when he was nominated
for Attorney General, and Supreme Court nominee
John Roberts’ activities in the Justice Department.

Starting in 2001, the Administration began using
expansive claims of executive privilege to resist
Congressional inquiries into a variety of areas,
including the Boston FBI’s misconduct in the 1960s
that resulted in an innocent man being imprisoned
for 30 years, Justice Department memorandums on
campaign finance prosecutions, and copies of the
President’s Daily Brief relating to perceived terror
threats prior to 9/11. Officials have claimed, under

The claim of executive privilege also has been used
to stymie investigations by Congressional officers.
The General Accounting Office (now the Government Accountability Office), the investigative arm
of the Congress, was asked to review the activities
of the 2001 task force on energy policy chaired by
Vice-President Cheney, which had held a series of
secret meetings. It was widely believed that these
included meetings with controversial compa-

24

Government Secrecy: Decisions Without Democracy

nies such as Enron. The GAO was asked to obtain
information on the meetings, who participated and
what was discussed. The Office of the Vice-President
refused and in February 2002, for the first time ever,
the GAO filed suit to enforce its powers. The case
was dismissed in December 2002 after the court
found that, as there was no personal injury to the
GAO, it could not bring the case. It chose not to appeal the case.
In June 2007, the House Oversight and Government
Reform Committee released letters and other documentation showing the Vice-President asserting that
his office was not bound by Executive Order 13292
on national security classification as it was not “an
entity in the Executive Branch.” This is an odd claim
from an official asserting Executive Privilege.
The 110th Congress has sent numerous requests
for documents to the White House, on such topics
as the White House’s involvement in the hiring and
firing procedures of the Justice Department and
the warrantless surveillance program first revealed
in late 2006. The White House is responding with
assertions of executive privilege, but the new Congress does not appear inclined to back down and
accept these claims without a fight.

Accessing Presidential Records
Executive privilege is also being used to justify limiting access to the historical files of the past presidents. In 1978, following Watergate, the Congress
enacted the Presidential Records Act.68 The Act set
the principle that presidential records are owned by
the public rather than private property of the president and are to be maintained and made public by
the National Archives. The law allows records to be
kept sealed for 12 years and following that period to
be made public subject to nearly all of the exemptions of the Freedom of Information Act. Under an
Executive Order issued by President Reagan, the
President and his predecessors were given 30 days
notice when records were about to be released and
the Archives was required to identify any records
that would affect executive privilege.69 The records
would then be released unless the President or the
previous president claimed privilege. Requestors
could challenge the decision in court.
In November 2001, President Bush issued an Executive Order that restricted access to these records.70
The new order revokes the Reagan order, and in
the words of the House Committee on Government
Reform, “converts the Act’s presumption of disclosure into a presumption of non-disclosure.” Under
the new order:

Government Secrecy: Decisions Without Democracy

•		The release of information must be first approved
by both the current and previous president even
if privilege is not claimed.
•		The current president can withhold documents
even if the previous one disagrees.
•		The current president must follow the wishes of
the previous president to withhold “Absent compelling circumstances”. The Archivist must follow
the wishes of the former president and defend
the withholding even if it is without merit.
•		Persons who challenge the designation of executive privilege must show a “demonstrated, specific
need" for the records.
•		The former president can designate a friend or
relative who can claim the privilege even after the
former president is dead.
•		Requests from the public must be responded to
in 90 days but can be delayed indefinitely.
•		The claim of executive privilege was extended to
the Vice-President.
The American Historical Association and other
groups filed a lawsuit in 2002 challenging the order
as violating the law. The suit is still pending.71 Several bills were introduced in the House and Senate
in the 109th Congresses and gathered bi-partisan
support, but were not adopted.
In March 2007, the Presidential Records Act Amendments of 2007 was introduced in both the House
(H.R. 1255) and the Senate (S. 886). It passed the
House on March 14th and was passed out of the
Senate Homeland Security and Governmental Affairs Committee in June. It is awaiting a floor vote.

Closing the Courthouse Doors
Americans have a long-held presumption that trials
are to be open. The Supreme Court has described
open courtrooms as “recognized as an indispensable attribute of an Anglo-American trial” as far
back in history as could be found.72 However, the
same cloud of secrecy that has enveloped the
executive branch has been advancing on the
judicial branch.
Since 9/11, information about cases has become
increasingly difficult to obtain. Individuals have
been detained secretly, often held for months on
immigration-related charges without any notice
to their families or being given a chance to obtain
legal representation, hearings have been closed,
and filings and briefs have been sealed.

25

In September 2001, Chief Immigration Judge
Michael Creppy (an employee of the Justice
Department, not an independent judge) issued a
memorandum ordering that immigration hearings
in “special interest cases” be closed and prohibiting
disclosure of information about the cases to anyone
but employees and the person’s lawyers.73 Over 700
people were designated as “special interest cases”
and of these 500 were deported.74
The closed hearings were challenged in several
cases. The U.S. Court of Appeals for the 6th Circuit
found that the rules were unconstitutional, decreeing “Democracies die behind closed doors….When
government begins closing doors, it selectively controls information rightfully belonging to the people.
Selective information is misinformation.” 75 In the
3rd Circuit, however, the court ruled for closure of
the hearings, finding that immigration cases did
not have a long history of openness; the court gave
“great deference to Executive expertise”.
The secrecy is not limited to immigration hearings,
though. Court hearings relating to national security
or terrorism are also being regularly closed, and
gag orders are being placed on lawyers to prevent
them from discussing what is happening to their
clients. Briefs and decisions issued at the district and
appeals level are classified or redacted without any
limits. In a case involving a challenge to the PATRIOT
Act, the Justice Department even blacked out a
quote in an ACLU brief from a 1972 U.S. Supreme
Court case that said, “The danger to political dissent
is acute where the government attempts to act under so vague a concept as the power to protect domestic security. Given the difficulty of defining the
domestic security interest, the danger of abuse in
acting to protect that interest becomes apparent.”76
Many cases are not even appearing on dockets.
In 2005, People for the American Way filed a FOIA
request with the Justice Department asking how
many cases have been completely closed. The DOJ
demanded that PFAW pay almost $400,000 and
then rejected the request as too burdensome, saying that the practice was common and that it did
not keep track of the records. A DC Federal Court
ordered the DOJ to conduct the searches.
Nor is the secrecy limited to national security
related cases. The Justice Department is currently
attempting to close the hearings of the U.S. Court
of Federal Claims on whether the drug Thimerosal
causes autism. The HHS has requested that all the
evidence be sealed and not be provided to the

26

Government Secrecy: Decisions Without Democracy

families or the press.77 In a recent prosecution of
an employee of Coca-Cola, the prosecution recommending using the procedures developed to
protect classified information against the defense.

services”.78 This is especially true relating to classified information obtained while employed by the
government.79 The CIA and other agencies have the
power to review all materials that the employee or
former employee wish to publish and censor them.

Gagging The Insiders: .
Public Employees 

There has been an increase in efforts to prevent
public employees, especially scientists, from presenting to the public information which challenges
the views of the administration, especially relating
to climate change.80 At NASA, a junior political appointee with no scientific background81 ordered the
Director at the Goddard Institute for Space Studies

As secrecy in the administration has become more
severe, the importance of whistleblowers has
grown. These insiders, often government officials
who are dismayed by the activities of their fellow

officials, can be invaluable in revealing to the public
information essential to the public interest that
otherwise never would have seen the light of day.
Some of the recent important stories they have
revealed include:
•		The existence of the National Security Agency
policy of warrantless wiretapping of telephone
calls between the U.S. and foreign countries.
•		Abuses at Abu Ghraib prison.
•		The existence of CIA rendition and torture
centers.
•		The substantial no-bid contracts given to
Halliburton and other defense contractors and
price gouging by the companies.
The number of times the administration has started
investigations into leaks has also substantially increased. A recent FOIA request by the New York Sun
found that 94 investigations of leaks of classified
information were started between 2001 and 2006.

Gag rules
In general, public employees have the same First
Amendment rights of free speech as other citizens. However, these rights can be limited in some
circumstances to “promote the efficiency of public

to not speak to conferences or the media. At the
U.S. Geological Survey, scientists must obtain preapproval of all presentations, reports or other public
releases of any material that has “findings or data
that may be especially newsworthy, have an impact
on government policy, or contradict previous public
understanding”.82 The Department of State Inspector General found, at the Bureau of International
Informational Programs, a “virtual censorship” of
speakers who were vetted.83
The designation of “sensitive” information (see
above for discussion) is also being used to restrict
employees’ ability to disclose information of serious
public interest. Employees of Wackenhut Corporation, which provides Transport Security Administration screeners, were required in April 2006 to sign
non-disclosure agreements after several publicly
revealed security problems at DHS headquarters.84
A federal marshal was fired in 2003 for releasing TSA
plans to limit marshals on long distance flights. The
disclosure led to Congressional and public criticism
and a reversal of the plan. In May 2004, the DHS
proposed requiring all 180,000 employees and contractors to sign an agreement85 to not disclose any
information designated as sensitive, including even
information that could be released under FOIA.
The employees would also be subject to random
searches as a condition of employment. This order

Government Secrecy: Decisions Without Democracy

was partially repealed in January 2005 following
protests from employee unions, Congress and civil
liberties groups. The policy is still in force, however,
for contractors.

Plugging the Whistle
At the same time as the government is clamping down on employees’ speech, there has been
a substantial increase in public recognition of
the importance of whistleblowing. In 2002, Time
Magazine made three whistleblowers, including an
FBI agent, their “Persons of the Year”. However, the
protections that are given to whistleblowers are
often inadequate. Some common practices used
against whistleblowers, as noted by the Project on
Government Oversight (POGO), include:
•		Taking away job duties so that the employee is
marginalized.
•		Taking away an employee's national security
clearance so that he or she is effectively fired.
•		Blacklisting an employee so that he or she is unable to find gainful employment.
•		Conducting retaliatory investigations in order to
divert attention from the waste, fraud, or abuse
the whistleblower is trying to expose.
•		Questioning a whistleblower's mental health,
professional competence, or honesty.
•		Setting the whistleblower up by giving
impossible assignments or seeking to entrap him
or her.
•		Reassigning an employee geographically so he or
she is unable to do the job.86

Whistleblower Protection Act
Federal whistleblower protection was first adopted in 1978 in the Civil Service Reform Act and
was extended in 1989 and 1994.87 The revised Act,
now known as the Whistleblower Protection Act,
is intended to protect federal employees from
being punished when they make a disclosure of
information relating to violations of laws, rules or
regulations, gross mismanagement, gross waste of
funds, abuses of authority, or substantial dangers to
public health. Agencies are prohibited from making
“prohibited personnel practices,” such as discriminating on appointments, transfers, promotions,
pay or benefits, or changes of duties, because an
employee has blown the whistle.
Under the Act, the Office of Special Counsel (OSC)
was set up as an independent investigative agency

27

that takes complaints of “prohibited personnel
practices,” recommends corrective or disciplinary
action, and brings cases for employees before the
Merit Systems Protection Board. The OSC can also
receive reports from whistleblowers about illegal or
unlawful activities. Employees who are punished for
whistleblowing can appeal to the Merit Systems Protection Board and then to the U.S. Court of Appeals.
Most observers believe that the WPA has not worked
well at protecting public employees. Congressional
committees and the Government Accountability
Office have conducted a number of investigations
into the effectiveness of the Whistleblower Protection Act and have found serious problems with the
protections and enforcement of the Act.88
The OSC has been a major impediment to whistleblowers. It was criticized by the GAO in 2004 for
allowing a huge backlog of cases.89 During the
backlog, OSC only found for the whistleblower
in four percent of the cases. Following the GAO
report, the OSC controversially “dumped” 1,000
cases without review. When various staff members
complained, they were sent to offices far away on
short notice or were forced to resign.90 Appeals have
been less than effective as well. Since 1999, whistleblowers have won only two cases at the Board, and
the Court of Appeals has been widely criticized for
limiting rights even after successive changes in
the legislation.91
In the 109th Congress, several bills to improve whistleblower protections were discussed and approved
in committees. However, nothing was enacted
before the end of the session. Early in the 110th
Congress, the House passed the “Whistleblower Protection Enhancement Act of 2007 (H.R. 985); it was
referred to the Senate (S. 274) and passed out of the
Senate Homeland Security and Governmental Affairs Committee in June. It is awaiting a floor vote.

National security whistleblowers
Even more problematic are the cases of whistleblowers who wish to reveal classified information.
The 1999 Intelligence Community Whistleblower
Protection Act allows intelligence employees to
report misconduct by officials to the House and
Senate Intelligence Committees and the agency’s
Inspector General. It provides little protection,
however, for the employees. Threats have increased
against whistleblowers who are revealing information on mismanagement of agencies such as the
NSA and FBI and abuses by military contractors.92

28

Government Secrecy: Decisions Without Democracy

First Amendment Protections
The right of a public employee to reveal abuses
has also been undermined in the courts. The U.S.
Supreme Court ruled in May 2006 that public employees who make statements about abuses they
discovered while working were not protected by
the Constitution.93

Official Secrets? The Espionage Act and
other criminal statutes
The threat of jail for public employees and journalists who reveal information in the public interest is
the ultimate penalty. While repressive countries like
China and Russia routinely imprison citizens and
journalists for disclosing embarrassing information
that the governments claim is classified, the United
States, with its strong protections of free speech,
does not have an Official Secrets Act.
The closest law is the Espionage Act adopted in
191794. The Act prohibits the unauthorized disclosure
of classified defense information to enemy powers
with the intent to harm the United States. When the
law was being considered in 1917, the Congress
on several occasions rejected efforts to include
a broader prohibition on disclosure, expressing
concern over the restrictions on free speech and the
possible misuse of the discretionary power given to
the President to determine what was classified.95 It
is generally accepted that this law does not apply to
the publication of state secrets by newspapers and
there has never been a prosecution of a newspaper
in the history of the law.
In the nearly 90 years that the Act has been in place,
there have been only a few cases under the law for
non-espionage-related incidents. In the Pentagon
Papers case, the government attempted to prevent
the publication of a classified history of the Vietnam
War that was leaked to the Congress and newspapers.96 The Supreme Court refused to censor the papers, finding that the government had not met the
heavy burden of justification – of “direct, immediate
and irreparable damage to our Nation or its people”
in ordering the withholding. The case against Daniel
Ellsberg, the source of the material, failed due to
the illegal searches conducted against him. In 1988,
Samuel Morison, a navy intelligence analyst, was
convicted and sentenced to two years in jail for
providing satellite photographs of Soviet installations to Jane’s Defense Weekly, which he worked for
part time. He was pardoned by President Clinton in
January 2001.

In the past several years, the barriers to using this
law have been broken down. In an unprecedented
prosecution, Steven Rosen and Keith Weissman,
staff members of the American Israel Public Affairs
Committee (AIPAC) are being tried under the Espionage Act for receiving information from a Defense
Department employee.97 Following the publication of stories on the National Security Agency’s
warrantless wiretapping of telephone calls, Attorney General Gonzales, Members of Congress,
and a few conservative commentators called for
the prosecution of the New York Times under the
Espionage Act.98 In December 2006, federal prosecutors in New York City cited the Espionage Act
in demanding that the ACLU return all copies of a
leaked memo on media policy on photographing
detainees designated as “Secret”. The subpoena was
dropped following a court hearing where the judge
rejected the government’s bid to seal the hearing
and expressed skepticism that the case was strong
enough to go forward. The government subsequently declassified the document in full.
Attempts have been made in recent years to adopt
an Official Secrets Act. In 2000, the Senate Intelligence Committee included a provision in the Intelligence Authorization Act that would have criminalized any unauthorized disclosure (disclosure
by any person with authorized access to classified
information to any person not allowed to see it) of
information that the discloser could have reason to
believe might be classified. The penalty was three
years in jail. The bill was widely criticized by the media and by Democratic Senators. In November 2000,
President Bill Clinton vetoed the bill saying that
the “provision is overbroad and may unnecessarily
chill legitimate activities that are at the heart of a
democracy.”99 In 2006, the bill was reintroduced in
the Senate by Senator Kit Bond (R-Mo) but gained
little support and was not voted on before the end
of the 109th Congress.100
Not all officials support such a new law. In 2002,
Attorney General Ashcroft issued a report recommending against adopting new statutes on criminalizing disclosures finding that “current statutes
provide a legal basis to prosecute those who
engage in unauthorized disclosures, if they can be
identified” and called for strong procedures for the
identification of government employees who reveal
information.101
These current laws include laws on general theft.
The theft statutes have been used controversially to

Government Secrecy: Decisions Without Democracy

penalize employees who leak information. In 2003,
a Drug Enforcement Agency employee was convicted and sentenced to one year in prison under the
federal anti-theft statute for providing unclassified
information to the UK’s The Times newspaper on
Lord Ashcroft, the UK Conservative Party treasurer,
whose bank in Belize might have been involved in
money laundering.102

Attacking the Messenger: the Media .
and Protection of Sources
The media is a crucial partner in ensuring that
information from insiders is publicized. However, in
order for many of these sources to come forward,
reporters must promise that their identities will not
be revealed, for fear of retaliation. As Justice Potter
Stewart once wrote, “When neither the reporter
nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury’s
subpoena power, valuable information will not be
published and the public dialogue will inevitably
be impoverished.”
The remedy for this situation is a legal recognition
that journalists and those who work with them
have a privilege similar to a doctor/patient or attorney/client, to not have to reveal the identities
of their sources, or provide unpublished works
and other information related the journalist’s work
when they promise their sources that they will not
do so. This right was first adopted by the Maryland
General Assembly in 1896. It is widely recognized
on the state level with 31 states and DC adopting specific “shield laws” to protect these sources.
In nearly all the other states, the courts have
recognized a right based on common law or the
state constitution.103

29

There is no recognition of this right, however, at the
federal level. The Supreme Court ruled in 1973 that
there is no constitutional right of journalists to not
testify before a grand jury.104 The court was sharply
divided and, since then, many federal courts have
found a limited privilege based on the different
opinions in the decision.
Until recently, attacks on journalists to force them
to reveal their sources or testify in court proceedings were relatively rare over the last 25 years.
Under long-standing Attorney General’s Guidelines,
federal prosecutors required the permission of the
Attorney General. It could be sought and given
only in cases where the information sought must
be essential to the investigation and not peripheral,
nonessential or speculative. Reasonable attempts
to obtain the information from alternative sources
must also be attempted.
In the last six years, there has been a boom of cases
where prosecutors have demanded that journalists disclose their sources for a variety of reasons. In
many of the cases, there has been very little point
for forcing the disclosure except as a punitive assault on the reporters who published it.105
In the 109th Congress, a number of bi-partisan bills
were introduced in the House and the Senate to
provide at least a qualified privilege. In May 2007,
the “Free Flow of Information Act of 2007” was introduced in both the House (H.R. 2102) and the Senate
(S. 1267). v

Government Secrecy: Decisions Without Democracy

31

3
Opportunities for Public
Access and Participation
in a Digital Age
The past fifteen years have seen significant changes
in how government agencies operate, due to the
widespread adoption of information and communications technologies (ICTs) such as desktop
computers and the Internet. They have improved
the way government works and opened new opportunities for citizens to follow and participate in
government activities. The technologies can also
significantly improve citizen access to government
information. Information that once was difficult and
time-consuming to collect, analyze, and distribute
can now be easily made available inexpensively to
anyone who wants it.
However, electronic government also creates new
challenges. These include ensuring that access is
available to everyone equally, and that the increased volume of information being created electronically is going to be kept for future generations
to be able to find and use.

Electronic Government 
For over a decade, electronic government (E-government) has held the promise of providing more
responsive and efficient government. There are three
major components to E-government: E-information
- the making of public information available electronically to the public; E-governance – the use of technologies to facilitate consultations, voting and other
democratic activities; and E-services – the better
providing of government services using technologies.
The use of E-government has been steadily increasing as more Americans go online. A 2004 study

by the Pew Foundation found that 77 percent of
Internet users (97 million Americans) had used the
Internet to obtain information from or to contact
government agencies. Internet users are much
more likely to contact government offices than nonInternet users and report a higher level of success
in their interaction with the government.106 Still,
the situation is not ideal; 46 percent of those who
contact the government through the Web reported
a problem.
The E-Government Act of 2002 sets a variety of
standards on electronic rulemaking, records management, digital signatures, web sites standards
and other E-government initiatives. 107 The lead
government agency for electronic government
is the Office of Management and Budget (OMB),
which through the Office of Information and Regulatory Affairs, has long been involved in information
policy. The E-Government Act created an Office of
Electronic Government at OMB and also requires
the OMB to issue policies to organize information to facilitate searching of information across
the government.108

Access to government information online
Information technologies can be extremely powerful at providing access to government information online to facilitate the understanding of
how government is working. Every Congressman,
Senator and Congressional Committee and federal
agency has a web site and many maintain multiple
sites which provide extensive information about
their activities.

32

Government Secrecy: Decisions Without Democracy

Much more needs to be done, though. Government
web sites are complex and often self-serving. Information appears and disappears. Many are formatted in such a way that access to raw information for
analysis is limited. Public access advocates have asked
for years for better management of the government’s
information, and now companies such as Google are
asking agencies to design the databases to allow for
better indexing by their search engines.109
The following are some examples of information
that is available to the public which is used to promote oversight and accountability:

Legislation and regulations
For nearly 150 years, the Government Printing Office has published and made available to the public
information such as the texts of laws, the Federal
Register, the Congressional Record and important
government documents such as the report of the
9/11 Commission. The Federal Depository Library
Program places government documents in over
1200 libraries in all 50 states to ensure that citizens
have access to the documents.
Electronic publication has steadily increased access
to the information available. In 1993, Congress

enacted the Government Printing Office Electronic
Information Enhancement Act to put an index
of documents, the Federal Register, Congressional Record and other records online and act as a
depository online.110 It now maintains thousands
of databases and government documents online,
available for free. Millions of records are accessed
each month.
In 1995, the Library of Congress launched the
THOMAS system to allow for citizens to easily and
freely obtain legislative information. The system
gives access to bills, committee and floor schedules,
votes on specific bills, hearings, reports and other
related information. It received over 150 million hits
in FY 2004.111
It is often difficult for citizens to be able to effectively follow what is going on in the government
and Congress, however, and many areas where information is still difficult to find. There has already
been some consideration in the 110th Congress
about making more information about lobbyists,
campaign financing and travel available. The Open
House Project is examining other areas such as
Congressional Research Service reports, Congressional Committee transcripts and votes, archiving
Congressional web sites, and making changes to

Government Secrecy: Decisions Without Democracy

bills available publicly in an understandable format.112 ReadtheBill.org is calling on the Congress to
enact a “72 hours online rule” to ensure that all bills
and conference reports are available before they
are voted on to give time for members of Congress
and the public to review legislation before it is
approved.113

Electronic Budget Info
In FY 2006, the total budget of the U.S. was 2.7
trillion dollars. According to the CRS, over 1 trillion
dollars per year is given in the form of contracts,
grants or loans.114 Public accountability can reduce
money spent for frivolous or wasteful projects such
as the infamous Alaskan “Bridge to Nowhere,” or
lost though mismanagement and poor contracting in Iraq and following Hurricane Katrina. The
U.S. has historically had a reasonably open process
but the complexity of procurement and spending,
increased secrecy, and attempts to limit the powers
of agency Inspectors General have lessened that.
The International Budget Project ranked the U.S.
as the sixth most open country in the world of 59
countries, below France, the United Kingdom, New
Zealand, South Africa and Slovenia.115
One of the most innovative developments in the
past five years in both access to information and
electronic government was the adoption of the
Federal Funding Accountability and Transparency
Act in 2006. The law was enacted with overwhelming bi-partisan support in the House and the
Senate and by over 150 groups from across the
political spectrum.
The Act requires that the OMB create a new online
database with a “searchable website” about organizations that receive contracts, grants or loans from
the federal government by January 2008. This is to
expand to include credit card transactions, subcontractors and subgrantees by January 2009. The
information will include a description of purpose of
the spending, the amount, and the Congressional
district benefiting.116 Any person or group will be
able to search to see who received money from the
federal government and for what purpose.
Concerns have already been expressed that the
underlying information may be unreliable. The OMB
database will use information from the Federal
Procurement Data System (FPDS), Federal Assistance Award Data System (FAADS), and Grants.
gov. The GAO in 2003 and 2005 expressed concern
over the timeliness and accuracy of the FPDS117 and
found similar problems with FAADS. There was also

33

concern over the General Services Administration
(GSA) initially blocking access to federal contracting
data.  After years of managing a database on federal
contracts, called the Federal Procurement Database
System (FPDS), the GSA contracted out the responsibility.  The GSA initially denied FOIA requests for
the data, claiming that, as the contractor also took
over collecting the data, GSA did not have the database anymore, and that, instead, the data would
have to be purchased from the private contractor. 
Eventually, GSA backed off this controversial position and began having the contractor provide raw
data to those requesting it, free of charge 118

Corporate Activities
The federal government also collects and disseminates information about activities of private corporations in many areas including the environment,
financial records and consumer protection.

Environment
In 1986, following the releases of deadly methyl
isocyanate gas in Bhopal, India killing thousands,
and in Institute, West Virginia injuring hundreds, the
U.S. Congress enacted the Emergency Planning and
Community Right to Know Act.
The law requires that companies provide information to state agencies and the Environmental
Protection Agency on toxic chemicals that they use
or release into the environment. The EPA is required
to maintain a Toxic Release Inventory (TRI) and
make that information widely public using information technology. The information is available online
and citizens can type in their zip code and obtain
information about the releases in their areas.
The data has many users: civil society groups have
combined this data with other records to create
comprehensive search engines for use by citizens
groups;119 the EPA uses the data in developing regulations; and even companies use it to determine
where they should focus their efforts on reducing
pollution. The TRI is considered to have successfully
reduced the amount of toxic materials released in
the U.S. by nearly half.120
As mentioned in the previous chapter, the EPA
decided in December 2006 to limit the usefulness
of the TRI by raising the threshold of pollution that
is to be allowed before the companies must notify
the public.

34

Government Secrecy: Decisions Without Democracy

Finances
One of the earliest efforts to use ICTs to disseminate information was the Security and Exchange
Commission’s Electronic Data Gathering, Analysis,
and Retrieval (EDGAR) system.121 The system allows
investors and others to examine filings made by
public companies. It is also used by companies
to create extended databases and tools to assist
investors. Starting in the 1990’s, the system was put
online. The SEC reports that it was searched nearly
400 million times in FY 2005. In 2005, the SEC began
releasing publicly its Staff Comment letters without
requiring a FOIA request.122

Consumer Information
Other important information that is collected and
is in some part made public includes the safety
of toys and consumer products, autos and food.
One of the first federal information laws was the
1958 Automotive Information Disclosure Act which
required car companies to place price stickers on
new cars.123 On the other hand, the FCC in 2004
overturned a ten-year-old policy and refused to
release information on how often land line and cell
phone companies have outages, claiming that the
release of the information would help terrorists
and harm the companies.124

E-Rulemaking	
One area where there has been significant progress
is in the development of using ICTs to facilitate
public participation in developing federal rules
(e-rulemaking). Each year, 8,000 rules are created by
federal agencies and departments. The standards
for rules are set by the Administrative Procedures
Act of 1946, which determines the process that the
agency must follow in developing regulations based
on the principles of information, participation, and
accountability.125 In a typical rulemaking, the agency
will publish a Notice of Proposed Rulemaking in the
Federal Register and solicit public comments for a
set period. After the period, the agency will review
the submissions and publish a final rule and response to the comments. The rule can be challenged
in court, if it is believed that the agency created it
without justification or that it failed to follow the
requirements of the enabling legislation.
There has been a gradual move to holding rulemakings online. It is generally believed that Internet
rulemakings allow people to more easily identify

rulemakings that affect them and to participate.
The development of the rules themselves benefit
from receiving input from a wider ranger of participants. The E-Government Act of 2002 requires that
agencies create “electronic dockets” and receive
comments via their websites on proposed rules.126
In 2003 the regulations.gov website which gives
access to the rulemakings published in the Federal
Register was launched.
It is not clear whether e-rulemaking substantially
improves citizen participation. The new systems
often duplicate the existing processes that do not
allow for much input into the process. In some cases, the lobby groups are the main beneficiaries.127
Electronic submissions may also be treated less
seriously by officials. The EPA decided in December 2006 to reduce the amount of information on
chemicals released to the environment even after
over 120,000 individuals, groups and state and local
governments wrote letters opposing the proposal
while only 34 supported it.128

E-participation
A more significant step would be the further
development of using electronic networks not
just to provide information, solicit comments or
provide services but to increase public participation in governance beyond rulemaking. These could
include holding online forums, running discussion
lists through electronic mail or blog-type forums.
There have been limited efforts to use these tools
by federal departments thus far.
The use of such tools should not, of course, be
allowed to circumvent the Federal Records Act,
the Presidential Records Act, the Federal Advisory
Committee Act or other accountability legislation
and regulations.

Challenges of Digital 
Government Information
Digital Divide
One barrier to e-government is adequate access
to computers and networks. While there is steadily
increasing use of the Internet, a significant portion
of the population still lacks access. The number of
adults with access to the Internet reached over 70
percent in 2006, but only 42 percent had access to
high speed broadband.129 The level of access is sig-

Government Secrecy: Decisions Without Democracy

nificantly lower for those on limited incomes. Only
53 percent of those with household incomes under
$30,000 per year had access.
Education or even willingness of individuals to use
electronic services, especially those from older
generations, is also a serious problem. Only 32
percent of those over 65 and only 40 percent of
adults with less than a high school education use
the Internet.130 Language may also be a problem.
There are also privacy and security concerns that
cut across demographics and may limit demand for
some services.
Digital-only access may also limit understanding.
There has been a growing move toward only providing access in electronic form. In 2006, the EPA
closed five libraries including its main library at EPA
headquarters, and reduced the times at four others. There is concern that many of the resources in
these libraries will not be converted to digital form
to maintain access and will disappear.131 It addition,
the expert help provided by professional librarians
may also be limited. Also in 2006, the Library of
Congress also stopped collecting certain documents such as dissertations in exchange for access
to a more limited commercial database.132
Thus, for the foreseeable future, any government
information or services should ensure that all persons have equal and equitable access. The role of
libraries, particularly public libraries, is very important here. According to a 2006 survey, nearly 100
percent of all libraries in the U.S. provide some form
of public Internet access, up from on 20 percent in
ten years.133 The libraries are now often taking on
the role of assisting people with using e-government sites. However, these libraries are funded
usually by state budgets and are under constant
financial pressures.

Disappearing documents and web sites
While electronic dissemination of information can
facilitate the release and access to information, it
can also make the job of making it disappear easier.
Following 9/11, many agencies removed information from their web sites or blocked public access to
information that was designated as “sensitive”.
These included:134
•		The United States Geological Survey ordered
librarians to destroy a CD-ROM on water supplies.

35

•		The Federal Aviation Administrative removed
information on enforcement actions.
•		The Environmental Protection Agency removed
Risk Management Plans, chemical hazards,
emergency contingency plans, and access to the
largest database of environmental information.
A review in 2004 by the Rand Corporation of information removed from federal web sites found that
most of the information was of little use to terrorists
and was widely available elsewhere. It also found
that the possible dangers needed to be balanced
against the interests in pubic access such as informing people of potential dangers.135
In other cases, the government has been using
expanded excuses of commercial confidentiality
to justify the removal of information. In 2006, the
Small Business Administration began pulling data
from the Central Contractor Registry on the size of
revenue of small companies after investigations
using the data showed that many of the businesses
given government contracts under the program
were not eligible.136

Managing “Born Digital” Information
Each year, billions of electronic documents are created in federal agencies. More data than ever before is created or collected in email, databases and
other electronic systems. Websites are developed,
updated and merged. Previously physical archives
are being converted to digital form. Document
formats are increasing in number and complexity;
the National Archives has found over 4,500 different
types of files.137 Many different programs and different systems are used to operate and manage them.
Determining what should be preserved and ensuring that it is maintained and indexed in a form that
will be useful both for agencies now and for future
generations are crucial problems. The entire “life
cycle” of the information, from its creation to its
disposal or permanent archiving, must be ensured.
This must be understood to include the ability to
access and use the data in its original format, or in
other ways, over time.
Previously, letters and files were routinely kept
based on a long-standing understanding on how
to handle paper documents. But electronic documents have changed that. Archival systems of
paper-based documents are designed to ensure
that the documents will last at least 100 years. In

36

Government Secrecy: Decisions Without Democracy

comparison, it is estimated that the typical life cycle
for the technologies – the formats and systems on
which the record or our government exists -- is now
only 18 months. Management of these systems is
still evolving, with very little consistency government-wide and virtually no oversight within the
executive branch or from Congress. The challenges
are monumental and they do not decrease if and as
we ignore them. Popular Mechanics magazine has
described this as a potential future “Digital Ice Age”.

What the Public Can Do
Activism/ organizing	
The role of the Internet as a tool to promote grassroots democracy can be extremely powerful. Its
developments has come more from private efforts
then from government bodies. The web has allowed
new groups such as MoveOn to better organize
citizens in ways that were not possible before.
Many websites have emerged to assist citizens in
better tracking the activities of government and
Congress. It is now possible to track new legislation through GovTrack138 or congressional travel139
or spending.140 Sites such as DocuTicker, beSpacific
and the Federation of American Scientists locate
and publish government documents and related
reports on major issues.
Websites, blogs and Wikis are used by millions every
day to share, comment and advocate. The Federal

Funding Accountability and Transparency Act in
2006 was enacted due to citizen and public interest
groups from a wide spectrum using the Internet
to coordinate lobbying efforts to identify which
Senators had placed secret holds on the law and
pressure them to remove them. The use of networks
of plane spotters allowed journalists to be able to
track the flights of CIA aircraft used for “rendition” of
prisoners to secrets prisons.141
Video is now widely available outside of the mainstream media or official channels though services
such as YouTube and MySpace. The availably of
these video sites makes it easier for citizen journalists to show abuses. During the 2006 political campaign, the video of Senator George Allen commenting on the race of his opponent’s campaign worker
seriously changed the tenor of the campaign and
led to his defeat. The widely disseminated video of
an UCLA student being Tasered and other videos
of the LAPD using pepper spray on suspects forced
the police and FBI to address abuses.142
Beyond sharing information, though, the public
can join organizations and coalitions that promote
openness and accountability. A partial list of such
organizations is provided at the end of this report.
The public needs to hold the government’s feet to
the fire – through letters and meetings, in public
forums, and at the ballot box. v

Government Secrecy: Decisions Without Democracy

Appendix – List of Relevant Legislation
Atomic Energy Act of 1946
Classified Information Protection Act
Critical Infrastructure Information Act of 2002
Data Quality Act
E-Government Act of 2002
Espionage Act
The Federal Advisory Committee Act (FACA)
Emergency Planning & Community Right to Know Act
The Federal Funding Accountability and Transparency Act
Freedom of Information Act
Government in the Sunshine Act
Intelligence Community Whistleblower Protection Act
Intelligence Identities Protection Act
Invention Secrecy Act of 1951
Military Whistleblower Protection Act
National Security Act of 1947
Nazi War Crimes Disclosure Act of 1998 (PL 105-246)
NoFEAR Act of 2002
The President John F. Kennedy Assassination Records Collection Act of 1992
Presidential Records Act of 1978
Public Interest Declassification Act of 2000
Whistleblower Protection Act

37

38

Government Secrecy: Decisions Without Democracy

Appendix - Resources
Books and Reports
Report of the Commission on Protecting and Reducing Government Secrecy, 1997
http://www.fas.org/sgp/library/moynihan/index.html
Hammitt et al, Litigation under the Federal Open Government Laws 2004 (EPIC 2004)
Alasdair Roberts, Blacked Out: Government Secrecy in the Information Act (Cambridge University Press 2006)
Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (Kansas
University Press 2006)
Patrice McDermott, Who Needs to Know? The State of Public Access to Federal Government Information
(Bernan Press 2007)
David Banisar, Freedom of Information Around the World 2006, Privacy International.
http://www.privacyinternational.org/foi/survey
Susan Maret, On Their Own Terms: A Lexicon with an Emphasis on Information-Related Terms Produced by
the U.S. Federal Government, October 2006.
http://www.fas.org/sgp/library/maret.pdf
Secrecy Report Card 2006, OpenTheGovernment.org
http://www.openthegovernment.org/otg/SRC2006.pdf
U.S. House Committee on Government Reform. Citizen’s Guide on Using the Freedom of
Information Act (2005)
http://www.fas.org/sgp/foia/citizen.html

Newsletters
Access Reports. http://www.accessreports.com
Policy and News Updates. http://www.openthegovernment.org
Privacy Times. http://www.privacytimes.com
Secrecy News. http://www.fas.org/blog/secrecy
The FOI Advocate. http://nfoic.org/advocate

Websites of FOI related Organizations and blogs
beSpacific. http://www.bespacific.com
The Brechner Center for Freedom of Information. http://brechner.org

Government Secrecy: Decisions Without Democracy

Coalition of Journalists for Open Government. http://www.cjog.net
Cryptome. http://www.cryptome.org
Electronic Frontier Foundation FLAG Project. http://www.eff.org/flag
Electronic Privacy Information Center Open Government Page. http://www.epic.org/open_gov
Federation of American Scientists Secrecy Project. http://www.fas.org
The Freedom of Information Center. http://foi.missouri.edu
Government Accountability Project. http://www.whistleblower.org
The Memory Hole. http://www.thememoryhole.org
National Freedom of Information Coalition. http://nfoic.org
National Security Archive. http://www.gwu.edu/~nsaarchiv
OMB Watch. http://ombwatch.org
OpenTheGovernment.org http://www.openthegovernment.org
Project on Government Oversight. http://pogo.org
Public Citizen FOI Clearinghouse. http://www.citizen.org/litigation/free_info
The Reporters Committee for Freedom of the Press. http://www.rcfp.org
The Right-to-Know Network (RTK NET). http://rtknet.org
Society of Professional Journalists. http://spj.org/foi.asp
Sunlight Foundation http://www.sunlightfoundation.com
Sunshine in Government Initiative. http://www.sunshineingovernment.org
Transactional Records Access Clearinghouse (TRAC). http://trac.syr.edu

Federal Government Sites
Department of Justice Office of Information and Privacy. http://www.usdoj.gov/oip/oip.html
The Information Security Oversight Office (ISOO). http://www.archives.gov/isoo
U.S. Government Portal. http://www.usa.gov
GPO Access. http://www.gpoaccess.gov
Thomas. http://thomas.loc.gov
PACER. http://pacer.psc.uscourts.gov

39

40

Government Secrecy: Decisions Without Democracy

Endnotes
John Adams, A Dissertation on the Canon and Feudal Law, 1765. http://teachingamericanhistory.org/library/index.asp?document=43
1	

	Patrick Henry, The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the
Federal Constitution, June 9, 1788.
2

	Letter from James Madison to W. T. Barry, Aug. 4, 1822, in The Complete James Madison (Harper and Brothers, 1953). Cited in Wiggens, Freedom or Secrecy (Oxford University Press, 1956).
3

	Executive Order 11652 - Classification and Declassification of National Security Information and Material,
June 8, 1972.
4

Woodrow Wilson, The New Freedom: A Call For the Emancipation of the Generous Energies of a People
1913
5

	Louis D. Brandeis, “What Publicity Can Do,” Other People’s Money, p. 92 (1932). Quoted in Respectfully
Quoted: A Dictionary of Quotations. 1989.
6

	See Gary Bass and Sean Moulton, The Public’s Right to Know: A Case Study from the United States, in Calland and Tilley, The Right to Know, the Right to Live (ODAC, South Africa, 2002); OECD PRTR pages: http://
www.oecd.org/env/prtr
7

Reporters Committee for Freedom of the Press, Open Government Guide:
Wisconsin, 5th Edition. http://www.rcfp.org/ogg/index.php?op=browse&state=WI
8

	The Office of the Federal Register. “A Brief History Commemorating the 70th Anniversary of the Publication
of the First Issue of the Federal Register, March 14, 1936.” http://www.archives.gov/federal-register/the-federal-register/history.pdf
9

	Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

10

	For a detailed review, see Lotte E. Feinberg, Mr. Justice Brandeis and the Creation of the Federal Register,
Public Administrative Review, Vol 61, No 3, May/June 2001.
11

	United States Senators Daniel Patrick Moynihan and Ron Wyden, Secrecy in International and Domestic
Policy Making: The Case for More Sunshine, October 2000. http://www.fas.org/sgp/library/wyden.html
12

	Report of the Commission on Protecting and Reducing Government Secrecy, Sen Doc 105-2. 1997. http://
www.fas.org/sgp/library/moynihan/index.html
13

	GAO, Managing Sensitive Information: DOJ Needs a More Complete Staffing Strategy for Managing Classified Information and a Set of Internal Controls for Other Sensitive Information. GAO-07-83, October 2006;
GAO, Managing Sensitive Information: DOD Can More Effectively Reduce the Risk of Classification Errors,
GAO-06-706.
14

Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing, Hearing before the Subcommittee on National Security, Emerging Threats and International Relations, August 24, 2004.
15

16

Secrecy News, Volume 2003, Issue No. 45, May 27, 2003.

	Executive Order 13292.

17

	Secrecy News, FAS Project on Government Secrecy. Volume 2004, Issue No. 42, May 5, 2004.

18

Government Secrecy: Decisions Without Democracy

41

	President John F. Kennedy Assassination Records Collection Act of 1992, PL 102-526.

19

Japanese Imperial Government Disclosure Act of 2000 December 6, 2000; Nazi War Crimes Disclosure Act.
PL 105-246.
20

	Final Report of the Kennedy Assassination Records Review Board, 1998.

21

	Bush Ordered Declassification, Official Says, NY Times, April 10, 2006.

22

	John Prados, “Declassifixation,” The New Republic, April 21, 2004.

23

24	

S. 2660.

U.S. House of Representatives, Permanent Select Committee on Intelligence, Oversight Plan for the 110th
Congress, February 7, 2007.
25	

	U.S. Reclassifies Many Documents in Secret Review, NY Times, February 21, 2006; National Security Archive,
Declassification in Reverse: The U.S. Intelligence Community’s Secret Historical Document Reclassification
Program, February 21, 2006, http://www.gwu.edu/~nsaarchiv/NSAEBB/NSAEBB179/index.htm
26

	Information Security Oversight Office, Audit of the Withdrawal of Records from Public Access at the National Archives and Records Administration for Classification Purposes, April 26, 2006. http://www.archives.
gov/isoo/reports/2006-audit-report.html
27

	Press Release National Archives Releases Second Declassified MOU, April 17, 2006.

28

	The National Defense Authorization Act for Fiscal Year 1999, Public Law 105-261.

29

	William Burr, How Many and Where Were the Nukes?”, National Security Archive Electronic Briefing Book
No. 197, August 18, 2006. http://www.gwu.edu/~nsaarchiv/NSAEBB/NSAEBB197/index.htm
30

	Title VII, FY 2001 Intelligence Authorization Act. It was amended in 2004 to hear appeals from Congressional committees on classification.
31

	U.S. v Reynolds, 245 US 1 (1953).

32

See Chesney, Robert, “State Secrets and the Limits of National Security Litigation”. George Washington Law
Review, 2007 Available at SSRN: http://ssrn.com/abstract=946676	
33

For a very detailed analysis, see Louis Fisher, In the Name of National Security: Unchecked Presidential
Power and the Reynolds Case, University Press of Kansas 2006.	
34

William G. Weaver and Robert M. Pallitto, State Secrets and Executive Power: Political Science Quarterly, Vol
120 No 1, 2005. p86.
35

Memo from WH Chief of Staff Andrew Card on Action to Safeguard Information Regarding Weapons of
Mass Destruction and Other Sensitive Documents Related to Homeland Security, March 19, 2002.	
36

CRS “sensitive but Unclassified” Information and Other Controls: Policy and Options for Scientific and Technical Information, November 4, 2006. p35.	
37

38

Ibid p58.	

39

Ibid p64.	

42

Government Secrecy: Decisions Without Democracy

Jason Program Office, MITRE, Horizontal Integration: Broader Access Models for Realizing Information
Dominance”, December 2004. p5. http://www.fas.org/irp/agency/dod/jason/classpol.pdf	
40

Government Accountability Office, Information Sharing: The Federal Government Needs to Establish Policies and Processes for Sharing Terrorism-Related and Sensitive but Unclassified Information, GAO-06-385,
March 2006.
41

GAO, Managing Sensitive Information: DOJ Needs a More Complete Staffing Strategy for Managing Classified Information and a Set of Internal Controls for Other Sensitive Information. GAO-07-83, October 2006.
42

National Security Archive, Pseudo-Secrets: A Freedom of Information Audit of the U.S. Government’s
Policies on Sensitive Unclassified Information, March 2006. http://www.gwu.edu/~nsarchiv/NSAEBB/
NSAEBB183/press.htm	
43

CRS “Sensitive but Unclassified” Information and Other Controls: Policy and Options for Scientific and Technical Information, November 4, 2006.	
44

45

NSA report ibid p. 21.	

46

Steve Aftergood, The Secrets of Flight, Slate, Nov. 18, 2004.	

47

“No-Fly” Doesn’t Fly, GovExec.com, June 24, 2004.	

White House, Memorandum for the Heads of Executive Departments and Agencies: Guidelines and Requirements in Support of the Information Sharing Environment, December 16, 2005.	
48

49

CRS Ibid, p16.	

50

The Homeland Security Act of 2002, PL 107-296 s 892.

51

Department of Homeland Security Appropriations Act, 2007, PL 109-295, s. 525	

EPA Office of Inspector General, EPA’s Response to the World Trade Center Collapse: Challenges, Successes,
and Areas for Improvement, Report No. 2003-P-00012. http://www.epa.gov/oig/reports/2003/wtc/toc.htm
52

53

EPA, NYC Blamed for 9/11 Health Problems, AP, September 8, 2006.	

54

Death by Dust, The Village Voice, November 28, 2006.	

55

See Fisher p23.	

See GAO, Principles of Federal Appropriations Law: Third Edition: Volume I http://www.gao.gov/special.
pubs/3rdEditionVol1.pdf
56

57

U.S. Military Covertly Pays to Run Stories in Iraqi Press, Los Angeles Times, November 30, 2005.	

58

5 U.S.C. 552

	

Every state, the District of Columbia and most federal territories have their own FOIA laws. See The Reporters Committee for Freedom of the Press, Open Government Guide. http://www.rcfp.org/ogg/index.php
59

Attorney General’s October 12, 2001 Memorandum on the Freedom of Information Act. http://www.usdoj.
gov/oip/011012.htm	
60

Government Secrecy: Decisions Without Democracy

61

43

GAO, Information Management: Implementation of the Freedom of Information Act, May 11, 2005.	

S. 394, OPEN Government Act approved by the Senate Judiciary Committee Sept 21, 2006; S 589, Faster
FOIA Act of 2005, Approved by the Senate Judiciary Committee March 17, 2005, S. 1181, Approved by Senate June 24, 2005.
62

Executive Order 13,392, on improving Agency Disclosure of Information, December 15, 2005. http://www.
whitehouse.gov/omb/memoranda/fy2006/m06-04.pdf	
63

64

Letter from National Security Archive to Attorney General Gonzales, October 19, 2006.	

65

Secrecy News, Volume 2002, Issue No. 21, March 14, 2002.	

Mark J. Rozell, Executive Privilege Revived?: Secrecy and Conflict During the Bush Presidency, 52 Duke L. J.
403 (2002).	
66

67

US v. Nixon, 418 U.S. 563 (1974); Nixon v GSA, 433 U.S. 425 (1977).	

68

Public Law 95-591, codified at 44 U.S.C. 2201-2207	.

69

Executive Order 126.

Executive Order 13233 of November 1, 2001 Further Implementation of the Presidential Records Act.
http://www.fas.org/irp/offdocs/eo/eo-13233.htm	
70

71

See National Security Archive Page. http://www.gwu.edu/~nsarchiv/news/20040430/index.htm

72

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

Memorandum from Michael J. Creppy to Immigration Judges and Court Administrators on “Cases requiring special procedures”, Sept. 21, 2001. http://news.findlaw.com/hdocs/docs/aclu/creppy092101memo.pdf
73

Statement of Lily Fu Swenson Deputy Associate Attorney General Before the House Judiciary Subcommittee on Immigration, Border Security and Claims, Concerning Immigration Removal Procedures Implemented
in the Aftermath of the September 11th Attacks, June 30, 2005.	
74

75

Detroit Free Press v. Ashcroft 303 F.3d 681 (August 26, 2002).	

See The Memory Hole. Justice Department Censors Supreme Court Quote http://www.thememoryhole.
org/feds/justice_redaction.htm	
76

77

David Kirby, The Other Secret Bush Court?, The Huffington Post, Nov. 15, 2006. 	

78

Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968).

	Snepp v United States, 444 U.S. 507 (1980).

79

	Union of Concerned Scientists and Government Accountability Project, Atmosphere of Pressure: Political
Interference in Federal Climate Science, February 2007.
80

81

The New Gag Rules, Science 17 February 2006: Vol. 311. no. 5763, p. 917.

	New Publishing Rules Restrict Scientists, AP, December 2006.

82

	United States Department of State and the Broadcasting Board of Governors Office of Inspector General

83

44

Government Secrecy: Decisions Without Democracy

Report of Inspection U.S. Speaker and Specialist Program Review Bureau of International Information Programs, Report Number ISP-C-06-52, September 2006. http://oig.state.gov/documents/organization/75589.
pdf
	Yost, Guards Say Non-Disclosure Agreements Were Used to Hide Security Flaws at DHS, CQ Homeland
Security – Industry & Contracting, April 19, 2006.	
84

85

DHS Non-Disclosure Agreement. http://www.fas.org/sgp/othergov/dhs-nda.pdf

86

ibid. 82.	

87

5 USC 2302; PL 95-454, 101-12.

88	

Congressional Research Service, National Security Whistleblowers, December 30, 2005.	

General Accounting Office, U.S. Office of Special Council, Strategy for Reducing Persistent Backlog of Cases
Should be Provided to Congress GAO-04-36.	
89

Joint POGO, PEER, GAP letter to members of Congress regarding U.S. Special Counsel, Scott Bloch’s retaliation against employees, January 10, 2005. http://www.pogo.org/p/government/gl-050101-whistleblower.
html. See also PEER, Special Counsel Tags Interns to Close Out Whistleblower Cases; Staff Resignations Leave
Agency Short-Handed, March 9, 2005. http://www.commondreams.org/news2005/0309-07.htm
90

See Project on Government Oversight, Homeland and National Security Whistleblower Protections: The
Unfinished Agenda, April 28, 2005.	
91

92

ibid.88	

93

Garcetti v. Ceballos, No 04-473. May 30, 200689.

94

18 USC 793 et sec.

	Edgar and Schmidt, The Espionage Statutes and Publication of Defense Information, 73 Columbia L.R. 929
(1973).
95

	New York Times Co. v. United States, 403 U.S. 713, (1971).

96

	See FAS page on Selected Judicial Branch Documents on Secrecy, Security, Intelligence and Freedom of
Information for briefs and decisions on the case. http://www.fas.org/sgp/jud/index.html
97

	See e.g. Gabriel Schoenfeld, Has the New York Times Violated the Espionage Act? Commentary, March
2006.
98

99

Statement by the President, November 4, 2000.	

S. 3774. A bill to amend title 18, United States Code, to prohibit the unauthorized disclosure of classified
information; to the Committee on the Judiciary.	
100

Attorney General’s Task Force Report on Unauthorized Disclosures of Classified Information, October 15,
2002. Available at http://www.fas.org/sgp/othergov/dojleaks.html	
101

18 USC 641. See R. Robin McDonald, DEA Employee Gets Prison Term for Leaking to Reporter, Fulton
County Daily Report January 15, 2003; Dmitrieva, Stealing Information: Application of a Criminal Anti-Theft
Statute to Leaks of Confidential Government Information, 55 Florida Law Review, 1043 (2003).	
102

Government Secrecy: Decisions Without Democracy

45

(CRS, Journalists’ Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes, March 8, 2005. Available at http://www.fas.org/sgp/crs/secrecy/RL32806.pdf , Reporters Committee
for Freedom of the Press, The Reporter’s Privilege. http://www.rcfp.org/privilege/index.htm. It should also
be noted that the right of journalist’s confidentiality has been adopted in over 80 countries and has been
recognized by the European Court of Human Rights and the Organisation of American States.).	
103

104

Branzburg v. Hayes, 408 U.S. 665 (1972).	

RCFP, Special Report: Reporters and Federal Subpoenas As reporters facing contempt charges in a number of federal cases around the country, Congress is taking its first serious look at a reporter’s shield law in
decades. Current as of: 11/29/06 http://www.rcfp.org/shields_and_subpoenas.html 	
105

106

Pew Internet and American Life, How Americans Get in Touch with Government, May 24, 2004.	

107

E-Government Act of 2002, PL 107-347.

See OMB, Memorandum on Improving Public Access to and Dissemination of Government Information
and Using the Federal Enterprise Architecture Data Reference Model, December 16, 2005.	
108

109

Google seeks better access to government information, GovExec.com, October 25, 2006.

110

Government Printing Office Electronic Information Enhancement Act of 1993, PL 103-40.

111

Annual Report of the Librarian of Congress, 2004.

112

http://www.theopenhouseproject.com

113

http://www.readthebill.org

See CRS, The Federal Funding Accountability and Transparency Act: Background, overview and Implementation Issues, October 6, 2006.108.	
114

115

The International Budget Project, Open Budget Initiative 2006.	

116

For a detailed review of the legislation, see CRS, Ibid.	

GAO letter to OMB Director Joshua Bolten on Reliability of Federal Procurement Data, December 30, 2003.
http://www.gao.gov/new.items/d04295r.pdf. GAO letter to OMB Director Joshua Bolten on Improvements
Needed to the Federal Procurement Data System-Next Generation, Sept. 27, 2005. http://www.gao.gov/new.
items/d05960r.pdf	
117

Letter from 11 non-project groups to GSA, August 9, 2004. http://www.pogo.org/p/government/gl040801-foia.html
118

119

See the Right-to-Know-Network http://www.rtknet.org	

See Gary Bass and Sean Moulton, The Public’s Right to Know: A Case Study from the United States, in Calland and Tilley, The Right to Know, the Right to Live (ODAC, South Africa, 2002).
120

121

http://www.sec.gov/edgar.shtml	

US Securities and Exchange Commission, SEC Staff to Publicly Release Comment Letters and Responses,
June 24, 2004.	
122

123

Richard L Smith, The 1958 Automotive Information Disclosure Act: A Study of the Impact of Regulation,

46

Government Secrecy: Decisions Without Democracy

Jnl of Industrial Economics, June 1980.
	
124
Christopher Stern, FCC Cuts Public Line To Phone Outage Data, The Washington Post, August 28, 2004.
125

RFF paper. p3	

126

PL 107-116 (December 17, 2002).	

John M. De Figueiredo, E-Rulemaking: Bringing Data to Theory at the Federal Communications Commission, 55 Duke L. J. 969 (2006).	
127

See OMB Watch, Against the Public’s Will, December 2006. http://www.ombwatch.org/info/TRICommentsReport.pdf
128

129

Pew Internet and American Life Project, Internet penetration and impact, April 2006.	

130

Ibid, Pew report.	

131

CRS, Restructuring EPA’s Libraries: Background and Issues for Congress, January 3, 2007.	

132

Thomas Mann, What is Going on at the Library of Congress?, June 19, 2006.	

133

Bertot et al, Public Libraries and the Internet 2006: Study Result and Findings, September 2006.

See OMB Watch, Access to Government Information Post September 11th,http://www.ombwatch.org/article/articleview/213/1/1/; Reporters Committee for Freedom of the Press, Homefront Confidential: How the
War on Terrorism Affects Access to Information and the Public’s Right to Know.
134

Mapping the Risks: Assessing the Homeland Security Implications of Publicly Available Geospatial Information, Rand Corporation (2004). http:www.rand.org/pubs/monographs/2004/RAND_MG142.pdf	
135

136

Small Business, Miami Herald, Dec. 16, 2006.	

137

The Digital Ice Age, Popular Mechanics, November 21 2006.	

138

http://www.govtrack.us

139

http://www.opensecrets.org/travel/index.asp

140

http://www.fedspending.org

141

How planespotters turned into the scourge of the CIA, The Guardian, December 10, 2005.	

142

LA Times, A third incident, a new video, November 16, 2006.	

Government Secrecy: Decisions Without Democracy

47

Credits
Page 8, 24, 32
Dwane Powell Editorial Cartoon ©2005 Dwane Powell. Printed originally in the Raleigh NewsObserver. Reprinted with the permission of Dwane Powell and Creators Syndicate
 
Page 26
Frank and Ernest ©2005 Thaves. Used with the permission of the Thaves and the Cartoonist Group.
 
Page 23
Matt Wuerker Editorial Cartoon ©2006 Matt Wuerker. Used with the permission of Matt Wuerker and the
Cartoonist Group.
 
Page 10
Nick Anderson Editorial Cartoon ©2005 Nick Anderson. Published originally in the Louisville Courier-Journal. 
Used with the permission of Nick Anderson and the Washington Post Writers Group in conjunction with the
Cartoonist Group.
 
Page 17
Signe Wilkinson Editorial Cartoon ©2006 Signe Wilkinson. Published originally in the Philadelphia Daily
News. Used with the permission of Signe Wilkinson and the Washington Post Writers Group in conjunction
with the Cartoonist Group.