Lucy Dalglish, 2004
Dan Christensen, 2005
Sreenath Sreenivasan, 2006
The dean of students at the Columbia University Journalism School explored “Information in the New Age.”
The dean of students at the Columbia University Journalism School explored “Information in the New Age.”
Pete Weitzel, 2007
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Lucy Dalglish ...
I’m here to tell you something I hope you have already figured out. These are very
scary times for anyone who cares about open government, the First Amendment and
the public’s right to know.
In the days immediately following Sept. 11, 2001, the United States government
embarked on an almost unprecedented path of secrecy. The atmosphere of terror
induced public officials to abandon this country’s culture of openness and opt for secrecy as a way of ensuring public safety and
national security.
Veteran journalists knew at the time that they were having trouble getting
stories. But immediately after 9-11, journalists were timid. Television
journalists, in particular, were concerned about not appearing to be too
critical of government officials. And the public certainly didn’t seem to care that the journalists didn’t really know what was going on. The public just wanted to feel safe.
Ironically, it was the foreign media that jumped first onto the secrecy story.
For a few weeks after 9-11, I was besieged with phone calls from foreign
journalists wanting interviews. They asked, Why is the American media
swallowing without question everything the U.S. government is handing out? Isn’t the American media supposed to be free and independent? What did I think about
the American media being the mouthpiece for George W. Bush? And, most
disturbing: Ah ha! Where’s your precious First Amendment now?
By the time the American media became appropriately more skeptical a few months
later, government leaders had taken actions that made it dramatically more
difficult for the media to do its job. And when journalists can’t do their jobs, the voting public does not have the information it needs to
make decisions in this democracy.
You in this room know better than anyone that the press doesn’t operate in a vacuum. It doesn’t have the First Amendment-protected rights to collect and disseminate
information just because it can, or just to sell advertising. It collects
information and disseminates it because of its crucial role in our democracy.
The media collects information and gives it to the public, which hopefully uses
it to make decisions about who is going to govern us and about how we are going
to live as a community. As an old Society of Professional Journalists Project
Watchdog ad campaign once asked: “If the Press Didn’t Tell You, Who Would?”
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The administration of President George W. Bush announced a variety of actions
after 9-11 designed to restrict information from reaching the public,
including:
Action 1: A directive to executive agency heads by Attorney General John Ashcroft that
changes the interpretation of the federal Freedom of Information Act to allow
the agencies to deny access more often to public records. They can do this by
asserting a claim of invasion of privacy or if a breach of national security
can be alleged. Instead of encouraging discretionary disclosure, as had been
the norm under Janet Reno, the new Justice Department said that if you can
devise a reason to withhold a record, we will back you up.
At first, the Justice Department assured us that this shift was merely a “change in tone.” But now we have evidence that less information is getting out. FOIA lawyers
from several agencies have told me that records that have always been released
are no longer leaving the agencies. And a report issued by the Government
Accounting Office last summer says that more than 30 percent of government FOIA
officers say they’re giving out less information under the Ashcroft directive than they did when
Janet Reno was attorney general.
We also have some new vocabulary words promulgated by the Justice Department,
including the concepts of “sensitive but unclassified” and “safeguarding.” In other words, this information is not classified, but it won’t be given to just anyone. Certainly not to the media.
Action 2: There’s a strong likelihood that alleged terrorists who are non-citizens will be
prosecuted in Cuba by military tribunals, which haven’t been used in this country since the 1940s. What we don’t know is how open these proceedings will be to the media and the public. Access
to Guantanamo Bay has been drastically restricted over the past two years.
Action 3: This is probably the most outrageous single action. More than 1,200
non-American citizens have been secretly imprisoned on alleged claims of
immigration violations or as material witnesses. More than 750 of these men
have been secretly kicked out of the country.
Action 4: Web sites for government agencies that were created largely in response to the
Freedom of Information Act amendments of 1996 were taken down after 9-11. Many
have not been fully restored.
Action 5: During the military engagement in Afghanistan, the Defense Department ignored
a 1992 agreement between the media and the Pentagon that provided for pool
coverage of military actions.
Action 6: President Bush signed an Executive Order governing the release of Ronald
Reagan’s White House records that circumvents the Presidential Records Act and
illegally limits access to records.
Action 7: Numerous journalists and newsrooms have been subpoenaed to provide testimony
in legal actions related to 9-11.
Action 8: Over the last several months, the prosecution of Zacarias Moussaoui has been
conducted mostly in secret. Judge Leonie Brinkema truly has her hands full with
this guy, but the government has filed nearly every document under seal. We’ve been moderately successful in persuading the judge that the U.S. Attorney has
been overzealous in efforts to seal records and close the courtroom for
pre-trial hearings.
Action 9: More than 40 men have apparently been arrested and indicted in secret. And
some have already pled guilty. In secret.
Action 10: There recently was a case before the Supreme Court in which there is no public
record of how it got there. This is completely unprecedented in American
history.
Some of these secrecy initiatives, such as the FOIA directive from the attorney
general and the Executive Order on presidential papers, probably would have
happened even without 9-11. This is a presidential administration that places
an extremely high value on secrecy. Other actions, such as the secrecy imposed
on immigration and criminal courts, would have been unthinkable before 9-11.
The secrecy is appalling. It reminds me of Latin America 30 years ago.
Somewhere along the line, the administration and Congress were able to convince
themselves and some members of the public that secrecy equals safety. I just
don’t buy it. No one has demonstrated that an ignorant society is a safe society.
It is understandable and sensible that some information must be kept secret
during wartime because it could pose a direct threat to American military
forces or tip off a terrorist that he is under investigation. But as a rule,
citizens are better able to protect themselves and take action when they know
the dangers they face. Even in the face of terrorism.
In the last two years or so, calmer heads have prevailed in some areas.
• More online information is becoming available from some government agencies.
• Under the draft rules, it appears that any military tribunals will be conducted
publicly, although the UCMJ has open-court rules that are much less protective
of First Amendment rights than civilian court systems. And we’re hearing rumblings that the Pentagon wants to keep them closed.
• The National Archives has released most of the remaining Reagan presidential
papers.
• More than 600 journalists from all over the world were embedded with combat
troops during the war in Iraq. Questions remain, however, about whether the
public was well-served by that system.
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I’d like to describe for you some problematic legislation that is posing real
hazards to the public’s right to know.
USA Patriot Act
This incredibly complicated legislation, passed just weeks after 9-11,
dramatically changes the way government agencies share information with each
other. At least that’s what we were told was the impetus for the law.
As far as journalists and the public are concerned, however, there are
substantial civil liberties issues that got very short shrift during the
limited debate on this law.
Government investigators now can go to the super-secret Foreign Intelligence
Surveillance Court to get warrants to seize “any tangible thing” from libraries and bookstores if they make a showing that the information might
be relevant to a terrorism investigation. There need not be a showing that a
crime has been committed. That is a very low threshold. We also have been told
by the attorney general that Section 215 of the Patriot Act may be interpreted
to apply to newsrooms. So reporters who have interviewed someone linked to
terrorism may find their notes and computers seized despite a 1980 law, the
Privacy Protection Act, that provides for a very high level of proof and
probable cause before a newsroom can be searched in connection with a criminal
case. And, on top of that, the newsroom would be gagged from reporting that it
has been searched.
Just the other day, the American Civil Liberties Union announced that it had
filed a lawsuit challenging a different section of the Patriot Act. But the
suit had to be filed in secret because that’s what the act calls for. When the complaint was released, it was heavily
redacted — the ACLU had to let the government edit the complaint before it was released!
FERC rules
New regulations released by the Federal Energy Regulatory Commission allow the
government to refuse to release some critical infrastructure information to
anyone who does not have a “need” to know it. So the only way you can find out if there’s a problem with, say, a pipeline in your community is to go to the custodian of
those records, demonstrate that you have a “legitimate” need to see the information, and sign an agreement that says you won’t share the information with ANYONE. Now journalists, especially those who write
about science and the environment, use this information every day. Next time
there’s a leak in the Koch or Williams Brothers pipelines, you may not be able to run
a map for your readers and viewers.
