Fort Worth SPJ: First Amendment Awards

Homeland Security Act

This is the Mother of All Acts. We’re still trying to sort it out.

One disturbing part of this legislation is the section that exempts all voluntarily submitted “critical infrastructure information” (CII) from disclosure under the federal Freedom of Information Act. This was intended to apply only to information submitted to the Department of Homeland Security, but last year the department published a proposed rule on “procedures for handling critical infrastructure information” that implements the FOIA exemption for CII. The proposal appears to go far beyond the intent of the law to include information received by other agencies.

The law itself covers only information submitted to the Department of Homeland Security. However, the proposed rules require other federal agencies that receive critical infrastructure information from businesses to pass it on to DHS, where it becomes subject to the FOIA exemption even if it is returned to the agencies that received it in the first place! This is exactly what the proponents of this legislation promised it would not do.

In the past couple of months we’ve discovered another distressing provision in the law that may restrict public access to unclassified information. The Homeland Security Information Sharing Act of 2002 requires the president to “prescribe and implement procedures” for safeguarding “sensitive but unclassified” (SBU) information and allows for setting limits on the use and reuse of such information given to states and localities. Information subject to these procedures includes any information that may aid terrorists or help in preventing terrorism.

Individuals both inside and outside of government without clearance to view classified materials will be asked to sign nondisclosure agreements and will be subject to criminal penalties. According to a recent analysis, more than four million people, most of them “first responders” such as police, firefighters, government workers and health care workers, are subject to these confidentiality agreements. Information that may be critical to business, state and local government, health officials and others may now be deemed “sensitive but unclassified” and subject to restrictions on disclosure to the public. Some of this information could be records that currently are considered public under state open records laws — but the federal law would overrule the state laws.

Vague and overly broad definitions plague the Homeland Security Act. For example, it is possible that architectural and construction documents that reveal flaws in office buildings, failures and weaknesses in bridge construction, and maps showing groundwater contamination may qualify as sensitive information requiring protections from disclosure. These broad strokes risk throwing into a black hole information that may help make communities safer.

We think DHS is likely to use this provision to transfer previously unclassified information into this category, restricting both what and with whom people can share information. If this happens, a host of people unrelated to terrorism or its prevention, from researchers and scientists to community and trade groups, will no longer be able to see these documents.

__

None of these secrecy initiatives is more troubling than the new phenomenon of “super-sealing” cases in the federal court system. In several jurisdictions, we know that there are defendants and immigration detainees who are sitting in jail with no public record of how they got there.

Why should we care about these super-sealed cases? Well, as Alexander Hamilton said more than 200 years ago in Federalist No. 84 (quoting directly from Blackstone’s commentaries on English Common Law): A policy that allows “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten” is a “dangerous engine of arbitrary government.”

Let me tell you about Mohamed Kamel Bellahouel, an Algerian-born waiter who recently had a case before the U.S. Supreme Court. You won’t find anything about this case on the public record. It appears on the Supreme Court docket as M.K.B. v. Warden. What little we know of the case is because a reporter from the Daily Business Review in Miami, Fla., by the name of Dan Christensen has done a marvelous job of reporting and bringing Mr. Bellahouel’s story to light.

Mr. Bellahouel was arrested shortly after 9-11, apparently because he had worked as a waiter at a Florida restaurant where a couple of the hijackers had dined. He was detained on a warrant for violating his 1996 student visa. At some point, he was flown to Virginia, where he is believed to have testified before the grand jury that indicted Zacarias Moussaoui.

Mr. Bellahouel has not been charged with a crime, and he was eventually released on a $10,000 immigration bond. He is appealing his deportation because he is married to a U.S. citizen. But while in jail, he filed a motion for habeas corpus based on the fact that the case against him apparently alleging immigration violations has been sealed. As far as the public docket is concerned at U.S. District Court in Miami and at the 11th Circuit, this case does not exist. The case eventually went to the Supreme Court, which we had hoped would take it to determine, in part, whether it is legal in this country to have a secret justice system.

The Reporters Committee for Freedom of the Press filed an amicus brief in this case in November, and in early January, we and 22 media organizations moved to intervene. The government’s brief to the Supreme Court is completely sealed, and all information in the petitioner’s brief that would identify who he is, what happened to him and even what courts he has appeared before has been redacted.

The motion to intervene was a long shot. The Supreme Court voted last month to not hear the case. Many of us who care about our American system of justice are deeply disturbed by this case.

__

It’s time to take a stand against secret justice.

There obviously is a need to keep secrets in wartime. But in difficult times, the executive branch usually equates safety and national security with secrecy. Fortunately, some courts have recognized that an ignorant society is not a safer society. If open government is destroyed in troubling times, what are we fighting for?

Four times since 9-11, the Reporters Committee has published a White Paper called “Homefront Confidential” that outlines threats to media coverage of important news stories. The report begins with a chronology of events related to government secrecy since President George W. Bush took office. Major secrecy initiatives are discussed in depth. The report concludes with a summary of parallel secrecy actions taken by state governments since 9-11.

Combined with our recent “Secret Justice” report on access to terrorism proceedings, we think this material gives journalists and the public invaluable tools for covering the war on terrorism. Copies of both are available on our web site, www.rcfp.org.

I hope you go to your newsrooms and encourage your writers to report on these encroachments to the public’s right to know. If you’re on an editorial board, speak out. Have someone in your newsroom track down the number of secret court cases at your federal courthouse. If you work in television, remind your bosses that if they pander to public sentiment in the name of patriotism to score bigger ratings, journalism is doomed.

Let me know if the Reporters Committee can help you. That’s what we do.

As an industry, we’ve done a lousy job of telling our readers, listeners and viewers what they’re not getting. Nevertheless, I have noticed recently that American citizens seem less frightened than they were two years ago.

They seem more determined to maintain the rights and liberties achieved over the years. They are objecting to the secret imprisonment of witnesses and immigrants. They are asking hard questions about airline security.

They were glued to their television screens to watch American troops roll into Iraq, but now they are questioning whether the Bush administration lied in setting forth its justification for war. They are wondering about how many people, soldiers and civilians alike, have been killed and injured in Iraq since the “end” of hostilities.

And it’s not just the “liberal” media that’s asking the tough questions. It’s the American Bar Association, immigration rights groups, historians, educators, librarians. This is the way our system is supposed to work.

We are not going to learn everything — nor should we. But we must be engaged in the process. We must let our elected representatives know that we care about information policy. Despite Attorney General Ashcroft’s assertions, it is not un-American to question what your government is doing.

It is the American public’s duty to participate in the democratic process. And it is the media’s responsibility to make sure the public has enough information to do it. The press must zealously guard the public’s right to know. Or we risk losing that right altogether.

— Lucy Dalglish

executive director

The Reporters Committee for Freedom of the Press

First Amendment Awards and Scholarship Dinner

Fort Worth, Texas

April 30, 2004

back to the speakers page

Homeland Security Act

This is the Mother of All Acts. We’re still trying to sort it out.

One disturbing part of this legislation is the section that exempts all voluntarily submitted “critical infrastructure information” (CII) from disclosure under the federal Freedom of Information Act. This was intended to apply only to information submitted to the Department of Homeland Security, but last year the department published a proposed rule on “procedures for handling critical infrastructure information” that implements the FOIA exemption for CII. The proposal appears to go far beyond the intent of the law to include information received by other agencies.

The law itself covers only information submitted to the Department of Homeland Security. However, the proposed rules require other federal agencies that receive critical infrastructure information from businesses to pass it on to DHS, where it becomes subject to the FOIA exemption even if it is returned to the agencies that received it in the first place! This is exactly what the proponents of this legislation promised it would not do.

In the past couple of months we’ve discovered another distressing provision in the law that may restrict public access to unclassified information. The Homeland Security Information Sharing Act of 2002 requires the president to “prescribe and implement procedures” for safeguarding “sensitive but unclassified” (SBU) information and allows for setting limits on the use and reuse of such information given to states and localities. Information subject to these procedures includes any information that may aid terrorists or help in preventing terrorism.

Individuals both inside and outside of government without clearance to view classified materials will be asked to sign nondisclosure agreements and will be subject to criminal penalties. According to a recent analysis, more than four million people, most of them “first responders” such as police, firefighters, government workers and health care workers, are subject to these confidentiality agreements. Information that may be critical to business, state and local government, health officials and others may now be deemed “sensitive but unclassified” and subject to restrictions on disclosure to the public. Some of this information could be records that currently are considered public under state open records laws — but the federal law would overrule the state laws.

Vague and overly broad definitions plague the Homeland Security Act. For example, it is possible that architectural and construction documents that reveal flaws in office buildings, failures and weaknesses in bridge construction, and maps showing groundwater contamination may qualify as sensitive information requiring protections from disclosure. These broad strokes risk throwing into a black hole information that may help make communities safer.

We think DHS is likely to use this provision to transfer previously unclassified information into this category, restricting both what and with whom people can share information. If this happens, a host of people unrelated to terrorism or its prevention, from researchers and scientists to community and trade groups, will no longer be able to see these documents.

None of these secrecy initiatives is more troubling than the new phenomenon of “super-sealing” cases in the federal court system. In several jurisdictions, we know that there are defendants and immigration detainees who are sitting in jail with no public record of how they got there.

Why should we care about these super-sealed cases? Well, as Alexander Hamilton said more than 200 years ago in Federalist No. 84 (quoting directly from Blackstone’s commentaries on English Common Law): A policy that allows “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten” is a “dangerous engine of arbitrary government.”

Let me tell you about Mohamed Kamel Bellahouel, an Algerian-born waiter who recently had a case before the U.S. Supreme Court. You won’t find anything about this case on the public record. It appears on the Supreme Court docket as M.K.B. v. Warden. What little we know of the case is because a reporter from the Daily Business Review in Miami, Fla., by the name of Dan Christensen has done a marvelous job of reporting and bringing Mr. Bellahouel’s story to light.

Mr. Bellahouel was arrested shortly after 9-11, apparently because he had worked as a waiter at a Florida restaurant where a couple of the hijackers had dined. He was detained on a warrant for violating his 1996 student visa. At some point, he was flown to Virginia, where he is believed to have testified before the grand jury that indicted Zacarias Moussaoui.

Mr. Bellahouel has not been charged with a crime, and he was eventually released on a $10,000 immigration bond. He is appealing his deportation because he is married to a U.S. citizen. But while in jail, he filed a motion for habeas corpus based on the fact that the case against him apparently alleging immigration violations has been sealed. As far as the public docket is concerned at U.S. District Court in Miami and at the 11th Circuit, this case does not exist. The case eventually went to the Supreme Court, which we had hoped would take it to determine, in part, whether it is legal in this country to have a secret justice system.

The Reporters Committee for Freedom of the Press filed an amicus brief in this case in November, and in early January, we and 22 media organizations moved to intervene. The government’s brief to the Supreme Court is completely sealed, and all information in the petitioner’s brief that would identify who he is, what happened to him and even what courts he has appeared before has been redacted.

The motion to intervene was a long shot. The Supreme Court voted last month to not hear the case. Many of us who care about our American system of justice are deeply disturbed by this case.

It’s time to take a stand against secret justice.

There obviously is a need to keep secrets in wartime. But in difficult times, the executive branch usually equates safety and national security with secrecy. Fortunately, some courts have recognized that an ignorant society is not a safer society. If open government is destroyed in troubling times, what are we fighting for?

Four times since 9-11, the Reporters Committee has published a White Paper called “Homefront Confidential” that outlines threats to media coverage of important news stories. The report begins with a chronology of events related to government secrecy since President George W. Bush took office. Major secrecy initiatives are discussed in depth. The report concludes with a summary of parallel secrecy actions taken by state governments since 9-11.

Combined with our recent “Secret Justice” report on access to terrorism proceedings, we think this material gives journalists and the public invaluable tools for covering the war on terrorism. Copies of both are available on our web site, www.rcfp.org.

I hope you go to your newsrooms and encourage your writers to report on these encroachments to the public’s right to know. If you’re on an editorial board, speak out. Have someone in your newsroom track down the number of secret court cases at your federal courthouse. If you work in television, remind your bosses that if they pander to public sentiment in the name of patriotism to score bigger ratings, journalism is doomed.

Let me know if the Reporters Committee can help you. That’s what we do.

As an industry, we’ve done a lousy job of telling our readers, listeners and viewers what they’re not getting. Nevertheless, I have noticed recently that American citizens seem less frightened than they were two years ago.

They seem more determined to maintain the rights and liberties achieved over the years. They are objecting to the secret imprisonment of witnesses and immigrants. They are asking hard questions about airline security.

They were glued to their television screens to watch American troops roll into Iraq, but now they are questioning whether the Bush administration lied in setting forth its justification for war. They are wondering about how many people, soldiers and civilians alike, have been killed and injured in Iraq since the “end” of hostilities.

And it’s not just the “liberal” media that’s asking the tough questions. It’s the American Bar Association, immigration rights groups, historians, educators, librarians. This is the way our system is supposed to work.

We are not going to learn everything — nor should we. But we must be engaged in the process. We must let our elected representatives know that we care about information policy. Despite Attorney General Ashcroft’s assertions, it is not un-American to question what your government is doing.

It is the American public’s duty to participate in the democratic process. And it is the media’s responsibility to make sure the public has enough information to do it. The press must zealously guard the public’s right to know. Or we risk losing that right altogether.