Fort Worth SPJ: First Amendment Awards

Pete Weitzel ...

A few years ago, I was at a dinner in Miami that included a longtime federal judge. At one point, our conversation turned to my work with the Coalition of Journalists for Open Government. He gave me a penetrating stare. “Do you know how much trouble you’re in?”

It was scary. Even more frightening, he was speaking as a friend of transparency and of the media. His message: An increasing number of judges are hostile not only to the media but to this idea of open government. You have lost the courts as an ally. Expect things to get worse.

Indeed, it wasn’t long before we had the contempt convictions of Jim Taracani, Judith Miller and the Balco Boys. Several news organizations took a severe financial hit in the Wen Ho Lee case to head off another contempt order. We face an outcome in the AIPAC espionage case that could set a precedent for prosecution of journalists who report classified information.

There is strong sentiment in the Bush administration and its Justice Department, supported by conservative voices in Congress, to take action against those who leak information without official sanction and to restrict the historic open-source culture that drives so much of reporting inside the Beltway.

That makes these perilous times for journalists. Yet there are also positive signs.

We have an oversight-minded new majority in Congress that seems to believe that transparency should be more than just a buzzword. The House recently passed four open government bills by significant, bipartisan margins. Florida’s governor created an open government office, and governors in Pennsylvania and Tennessee said they will appoint public records advocates or ombudsmen. New York’s attorney general named a longtime open government advocate to head Project Sunlight, a plan to create an online database of information on campaign contributions, lobbying and state contracts. The Illinois inspector general asked the legislature to enact a law opening his records.

The media are more united than ever on open government issues, and we just completed a hugely successful National Sunshine Week, with a record number of news and civic organizations across the country participating in dialogue about every individual’s right to know.

So how did President George W. Bush celebrate Sunshine Week? Sorry, that’s classified. But we do know the White House that week opposed all four open government bills and threatened a veto. The four the White House doesn’t like would make the Freedom of Information Act work better, provide new safeguards for whistleblowers, override an executive order delaying release of presidential records, and make public the names of donors to presidential libraries.

That opposition isn’t surprising. This administration came into office determined to tightly control the flow of information. Last Sunday in The Washington Post, Peter Baker told a story about how a Kremlin official assured him the transition to Washington after a reporting stint in Moscow would be easy. The Bush administration, the Kremlin official said, has “adopted some of our techniques with the press.” I didn’t know whether to laugh or cry.

But learn it did, beginning with the “Ashcroft memo,” in which the then-attorney general encouraged agencies to give out less information in response to FOIA requests and pledged his department’s legal help if the nondisclosure was challenged. A few months later, the president’s chief of staff directed agencies to exercise even more rigor in withholding information and also to take down volumes of material posted on internet web sites.

Today the Justice Department is leading the administration’s opposition to FOIA reform legislation. It issued a 12-page letter with section by section objections to the FOIA bill co-sponsored by Texas Sen. John Cornyn. Justice contends that a 2006 presidential executive order calling for improved customer service — an order that halted similar FOIA reform legislation in the last session of Congress — will bring about all necessary improvements. But our studies show that the backlog of requests is still so great that nearly one in three isn’t processed in the same year it’s filed. With most agencies, there’s no response on at least half of the requests within the 20-working day statutory deadline. And the unstated reality is that some agencies use their poor performance record to disguise deliberate delays.

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One of the administration’s secrecy gambits is even more subtle: using unofficial, nongovernment e-mail accounts to conduct government business so that the e-conversation is never part of the official, archival record. Just one instance: The investigation into the firing of eight U.S. attorneys turned up e-mail discussions conducted via unofficial e-mail servers, including ones registered to the Republican National Committee.

We’ve seen government scientists gagged and officials told not to talk to the press without a spokesman present. Indeed, in some agencies, the PIO is little more than a political information officer.

There’s been an explosion in the classification of information, to the point where even those in the secrecy business say it has become counterproductive and, yes, damaging to security. In 2005, there were 15.4 million “decisions” to classify, often involving many pages or many documents.

About 4,000 people in the government have the rank and the training to initially classify information. That should be reassuring. But the head of the Information Security Oversight Office said its spot audits of classified documents show that these experts get it wrong a third of the time.

Another three million government officials make secondary classification decisions, taking information from the already classified documents and incorporating it into a new document. That’s about 98 percent of those 15 million decisions. The people who perform these derivative classifications have security clearance but no special expertise in classification decision making.

Imagine how many times they get it wrong. That’s why experts say that between 50 and 85 percent of the government’s secret information is wrongly classified.

And ratcheting up new classifications wasn’t enough for this administration. The Associated Press reported that more than a million documents — if stacked they’d reach higher than the Capitol dome — have been removed from the National Archives since 2001 in response to a Justice Department directive. President Bush signed an order slowing declassifications and putting a hold on the release of historic presidential records, including those of his father.

We’ve seen an even greater explosion in pseudo-classification, the unregulated “safeguarding” of information so that the public will never see it. The Congressional Research Service counts upwards of 75 different “markings” that agencies put on records to give them protected status. At a recent hearing on information sharing, Rep. Jane Harmon noted that there is no monitoring and no reporting on the use or impact of these markings. “What good is unclassified information about threats to the homeland if we can’t even discuss them at a public hearing where the public is supposed to understand what some of those threats may be?” she asked.

Some of the administration’s secrecy efforts have been uncovered by aggressive reporting and become part of the public dialogue: the monitoring of international bank accounts; secret prisons in foreign lands where kidnapped terror suspects were tortured; a largely hidden military justice system to hold suspects of that war on terror; a wiretapping program set up outside Foreign Intelligence Surveillance Act courts to monitor domestic spying; the FBI ignoring the modest constraints of the Patriot Act to gather records on Americans it considered suspect.

The administration response has been a two-pronged attack on leakers and the media. The Reporters Committee for Freedom of the Press has cataloged federal subpoenas issued to more than 45 reporters in the past three years.

There are also some folks in Congress eager to make new laws that, in the name of national security, would increase secrecy and give the executive branch even greater control over the flow of information. Last fall, the Republican-controlled House voted to condemn the press for its reporting of leaked information on prisons and surveillance.

One report to Congress said that “hundreds of serious press leaks have significantly impaired U.S. capabilities” in the war on terror. The report said the leaks “cost the American people hundreds of millions of dollars, and have done grave harm to national security.” Trouble is, the report also said the details are classified. So the press is confronted with a serious allegation but no facts to dispute.

That and other attacks on the press may have prompted Sen. Kit Bond of Missouri to introduce a duplicate of the Official Secrets Act that Congress passed in 2001 but President Clinton vetoed. A month ago, Sen. Jon Kyl tried to slip an amendment into a data mining bill that would have criminalized the leaking and subsequent publishing of any classified information.

This whole issue of leaks is fascinating — and dangerous. What’s important to remember is that leaking serves to level the Washington playing field, which would otherwise be even more heavily slanted in favor of the incumbent administration.

__

The political drumbeat over the war on terrorism, and the manipulation of the fear factor, have had an impact outside Washington.

A feature of this year’s Sunshine Week was a national FOI audit, the first time anyone had tested the availability of the same public document — in this case a plan for community response to a chemical or hazardous materials spill — all across the country. And guess what?

About one-third of the public officials said “no,” usually adding a comment on national security. Another 20 percent would release only a portion of the plan, which the federal government says must be advertised as public once a year. More than a few officials were convinced that anyone requesting the plan was suspect. Some sent “suspicious person” alerts to other emergency planning offices. Some called police and ran background checks. In one state, every highway patrol office was notified. In Austin, Texas, the FBI was called in.

continued ...

Pete Weitzel ...

It was scary. Even more frightening, he was speaking as a friend of transparency and of the media. His message: An increasing number of judges are hostile not only to the media but to this idea of open government. You have lost the courts as an ally. Expect things to get worse.

Indeed, it wasn’t long before we had the contempt convictions of Jim Taracani, Judith Miller and the Balco Boys. Several news organizations took a severe financial hit in the Wen Ho Lee case to head off another contempt order. We face an outcome in the AIPAC espionage case that could set a precedent for prosecution of journalists who report classified information.

There is strong sentiment in the Bush administration and its Justice Department, supported by conservative voices in Congress, to take action against those who leak information without official sanction and to restrict the historic open-source culture that drives so much of reporting inside the Beltway.

That makes these perilous times for journalists. Yet there are also positive signs.

We have an oversight-minded new majority in Congress that seems to believe that transparency should be more than just a buzzword. The House recently passed four open government bills by significant, bipartisan margins. Florida’s governor created an open government office, and governors in Pennsylvania and Tennessee said they will appoint public records advocates or ombudsmen. New York’s attorney general named a longtime open government advocate to head Project Sunlight, a plan to create an online database of information on campaign contributions, lobbying and state contracts. The Illinois inspector general asked the legislature to enact a law opening his records.

The media are more united than ever on open government issues, and we just completed a hugely successful National Sunshine Week, with a record number of news and civic organizations across the country participating in dialogue about every individual’s right to know.

So how did President George W. Bush celebrate Sunshine Week? Sorry, that’s classified. But we do know the White House that week opposed all four open government bills and threatened a veto. The four the White House doesn’t like would make the Freedom of Information Act work better, provide new safeguards for whistleblowers, override an executive order delaying release of presidential records, and make public the names of donors to presidential libraries.

That opposition isn’t surprising. This administration came into office determined to tightly control the flow of information. Last Sunday in The Washington Post, Peter Baker told a story about how a Kremlin official assured him the transition to Washington after a reporting stint in Moscow would be easy. The Bush administration, the Kremlin official said, has “adopted some of our techniques with the press.” I didn’t know whether to laugh or cry.

But learn it did, beginning with the “Ashcroft memo,” in which the then-attorney general encouraged agencies to give out less information in response to FOIA requests and pledged his department’s legal help if the nondisclosure was challenged. A few months later, the president’s chief of staff directed agencies to exercise even more rigor in withholding information and also to take down volumes of material posted on internet web sites.

Today the Justice Department is leading the administration’s opposition to FOIA reform legislation. It issued a 12-page letter with section by section objections to the FOIA bill co-sponsored by Texas Sen. John Cornyn. Justice contends that a 2006 presidential executive order calling for improved customer service — an order that halted similar FOIA reform legislation in the last session of Congress — will bring about all necessary improvements. But our studies show that the backlog of requests is still so great that nearly one in three isn’t processed in the same year it’s filed. With most agencies, there’s no response on at least half of the requests within the 20-working day statutory deadline. And the unstated reality is that some agencies use their poor performance record to disguise deliberate delays.

One of the administration’s secrecy gambits is even more subtle: using unofficial, nongovernment e-mail accounts to conduct government business so that the e-conversation is never part of the official, archival record. Just one instance: The investigation into the firing of eight U.S. attorneys turned up e-mail discussions conducted via unofficial e-mail servers, including ones registered to the Republican National Committee.

We’ve seen government scientists gagged and officials told not to talk to the press without a spokesman present. Indeed, in some agencies, the PIO is little more than a political information officer.

There’s been an explosion in the classification of information, to the point where even those in the secrecy business say it has become counterproductive and, yes, damaging to security. In 2005, there were 15.4 million “decisions” to classify, often involving many pages or many documents.

About 4,000 people in the government have the rank and the training to initially classify information. That should be reassuring. But the head of the Information Security Oversight Office said its spot audits of classified documents show that these experts get it wrong a third of the time.

Another three million government officials make secondary classification decisions, taking information from the already classified documents and incorporating it into a new document. That’s about 98 percent of those 15 million decisions. The people who perform these derivative classifications have security clearance but no special expertise in classification decision making.

Imagine how many times they get it wrong. That’s why experts say that between 50 and 85 percent of the government’s secret information is wrongly classified.

And ratcheting up new classifications wasn’t enough for this administration. The Associated Press reported that more than a million documents — if stacked they’d reach higher than the Capitol dome — have been removed from the National Archives since 2001 in response to a Justice Department directive. President Bush signed an order slowing declassifications and putting a hold on the release of historic presidential records, including those of his father.

We’ve seen an even greater explosion in pseudo-classification, the unregulated “safeguarding” of information so that the public will never see it. The Congressional Research Service counts upwards of 75 different “markings” that agencies put on records to give them protected status. At a recent hearing on information sharing, Rep. Jane Harmon noted that there is no monitoring and no reporting on the use or impact of these markings. “What good is unclassified information about threats to the homeland if we can’t even discuss them at a public hearing where the public is supposed to understand what some of those threats may be?” she asked.

Some of the administration’s secrecy efforts have been uncovered by aggressive reporting and become part of the public dialogue: the monitoring of international bank accounts; secret prisons in foreign lands where kidnapped terror suspects were tortured; a largely hidden military justice system to hold suspects of that war on terror; a wiretapping program set up outside Foreign Intelligence Surveillance Act courts to monitor domestic spying; the FBI ignoring the modest constraints of the Patriot Act to gather records on Americans it considered suspect.

The administration response has been a two-pronged attack on leakers and the media. The Reporters Committee for Freedom of the Press has cataloged federal subpoenas issued to more than 45 reporters in the past three years.

There are also some folks in Congress eager to make new laws that, in the name of national security, would increase secrecy and give the executive branch even greater control over the flow of information. Last fall, the Republican-controlled House voted to condemn the press for its reporting of leaked information on prisons and surveillance.

One report to Congress said that “hundreds of serious press leaks have significantly impaired U.S. capabilities” in the war on terror. The report said the leaks “cost the American people hundreds of millions of dollars, and have done grave harm to national security.” Trouble is, the report also said the details are classified. So the press is confronted with a serious allegation but no facts to dispute.

That and other attacks on the press may have prompted Sen. Kit Bond of Missouri to introduce a duplicate of the Official Secrets Act that Congress passed in 2001 but President Clinton vetoed. A month ago, Sen. Jon Kyl tried to slip an amendment into a data mining bill that would have criminalized the leaking and subsequent publishing of any classified information.

This whole issue of leaks is fascinating — and dangerous. What’s important to remember is that leaking serves to level the Washington playing field, which would otherwise be even more heavily slanted in favor of the incumbent administration.

The political drumbeat over the war on terrorism, and the manipulation of the fear factor, have had an impact outside Washington.

A feature of this year’s Sunshine Week was a national FOI audit, the first time anyone had tested the availability of the same public document — in this case a plan for community response to a chemical or hazardous materials spill — all across the country. And guess what?

About one-third of the public officials said “no,” usually adding a comment on national security. Another 20 percent would release only a portion of the plan, which the federal government says must be advertised as public once a year. More than a few officials were convinced that anyone requesting the plan was suspect. Some sent “suspicious person” alerts to other emergency planning offices. Some called police and ran background checks. In one state, every highway patrol office was notified. In Austin, Texas, the FBI was called in.

continued ...