Sorry, That’s Classified: How Post-9/11 Secrecy Holds the Public Interest Hostage

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Glenda Bowling wanted to keep an eye on the rocket fuel that had seeped into the drinking water supply for the 14,000 residents of Aberdeen, Maryland, located on the Chesapeake Bay; but increasing government secrecy since 9/11 has hampered Glenda’s work, as well as the efforts of those nonprofits across the country trying to strengthen their communities. As Aberdeen’s story shows, all too often the impacts of secrecy are visible, even if the decisions allowing greater secrecy are not.

The town of Aberdeen, Maryland sits next to an Army munitions testing site. Years ago perchlorate, used in rocket fuel and toxic to humans, was discovered in the drinking water supply. The rocket fuel was traced to the Army’s testing grounds. The area was declared a Superfund site, which released federal dollars. For years, Glenda and other residents worked in a “constructive” relationship with the Army to track water-testing results conducted on the Army grounds. The community group and the Army shared maps to pinpoint where testing wells were located, and planned to ensure the rocket fuel didn’t make it to residents’ homes.

However, that changed on September 11, 2001. First, the Army refused to disclose maps of testing wells. Then the Army said Glenda and the community group members would have to agree not to share the maps and other documents with other members of the community. In addition, they would have to store the documents in locked boxes in their homes and would face criminal penalties if they violated the agreement.

Certainly secrecy is essential to protect our national security. The public should not know, for example, the actual security codes to restricted areas at airports. But openness is also essential so that nonprofits, the press, and others can air weaknesses, woeful choices, and wrongdoing. When unaware of problems, the public becomes complacent and fails to take action on correctable problems that, left unaddressed, may put lives at risk needlessly. This is neither a liberal or conservative agenda: John Dean, Senator Patrick Leahy, and groups like People For the American Way and the Heritage Foundation are all concerned about the increase in secrecy.

Believing their work—and their access to critical information—was important to making their community safe, the Aberdeen group sued. With the help of law students at the University of Maryland School of Law’s Environmental Law Clinic, the group challenged the Army’s proposed restrictions. Eventually, the citizens group worked out a compromise that satisfied the Army’s concerns, allowed the citizen’s group to access key documents without draconian restrictions, and let both continue monitoring the water supply. That is how it’s supposed to work—government and community groups working together to ensure our communities are safe.

Another nonprofit, the Project On Government Oversight (POGO), raised more direct questions about our post-9/11 defenses. A watchdog group known primarily for tracking corporate waste and abuse in military and defense programs, POGO brought to light important weaknesses in security tests at nuclear facilities. The group had several concerns, which included the following: guards were given advance warning of the tests; some tests were only conducted in the daytime; and guards were tested against too small a band of mock terrorists. The group raised concerns in a letter to the Nuclear Regulatory Commission, the government body that oversees the nation’s nuclear plants. And, like any good nonprofit, the group also posted the letter on its Web site. The New York Times picked up the story.

In response, the Commission demanded that POGO remove the critique from its Web site and engage in a behind-closed-doors discussion with POGO’s executive director. The group refused, found a lawyer, and eventually agreed to modify its letter slightly but preserve its freedom to raise questions about the government’s security programs.
In these cases, the community group and the nonprofit fought back against this penchant for secrecy and were successful. Yet nonprofit groups should not have to retain legal counsel or sign confidentiality agreements to exercise their First Amendment right to petition government to redress grievances and, in this case, to help ensure the safety of their families and communities.

Too often, public pressure is the most effective way of creating change to make our communities safer and healthier places to live, and to help our leaders make responsible decisions.

And yet, the courts, Congress, and the executive branch of our federal government have adopted the mistaken doctrine that secrecy makes us safer. The rampant expansion of secrecy at the federal level is breathtaking. It creates unnecessary and potentially counterproductive hurdles for citizens attempting to participate in addressing our communities’ most pressing needs. Congress and the executive branch forge these tools largely without great public attention. So let’s take a moment to look over the federal government’s sometimes arcane tools of secrecy:

Sensitive But Unclassified (SBU). In March 2001, White House Chief of Staff Andrew Card instructed federal agencies to re-examine public availability of information on weapons of mass destruction and “other information that could be misused to harm the security of our nation and the safety of our people.” Using language that has alarmed media organizations and national security experts, agencies were asked to carefully consider disclosure of “sensitive but unclassified” information without defining the term.

Sensitive Homeland Security Information (SHSI). In the Homeland Security Act of 2002, Congress created this new category of information, which includes Card’s SBU information instructing the executive branch to “identify” and “safeguard” this information. The Department of Homeland Security has been assigned the task of developing the SHSI procedures. This applies to information that has previously been disclosed as well as to privately held information. This is particularly disturbing because this could allow government to put vast amounts of information behind closed doors. The provision could foster complacency and a false sense of security on an uninformed public, and deprive communities of the critical information that they need to protect themselves.

The Freedom of Information Act (FOIA). Attorney General John Ashcroft issued a memorandum on October 12, 2002, directing federal agencies to refuse requests for information under the Freedom of Information Act whenever possible, reversing the previous administration’s presumption of disclosure. Two audits—including one by the Government Accountability Office, the highly respected investigatory office of Congress—show the memo did make a dent in agency disclosure practices.

Critical Infrastructure Information (CII) or More FOIA. At the urging of the Bush Administration, Congress passed a new FOIA exemption as part of the law that creates the Department of Homeland Security. Under the law, companies can voluntarily report “critical infrastructure” weaknesses and problems to the Department and have the information declared secret. Once stamped secret, the information cannot be disclosed to the public, even if state or local sunshine laws would require its disclosure. Further, companies get civil immunity, meaning the facts revealed to the Department cannot be used against the submitting company in a civil lawsuit. Companies can also use these secret filings to influence regulations without ever making public why the rule was changed. Moreover, whistleblowers who disclose this information can face criminal penalties.

Risk Management Plans (RMPs). The Environmental Protection Agency (EPA) removed from its Web site information about chemical plant worst-case scenarios, a move industry had been lobbying for, even before 9/11. When publicly available, this information describes the potential disastrous impact of attacks and accidents at chemical plants. The EPA estimates that more than 100 chemical plants each threaten more than a million U.S. residents. Public awareness of so many lives at risk helped create the pressure to improve safety procedures and switch to safer chemicals at many community water treatment facilities around the nation. In the case of Washington, D.C., these changes put the number of lives at risk from millions to near zero at a cost of 50 cents for each water customer.

Sensitive Security Information (SSI). The Transportation Security Administration (TSA), created after the 9/11 attacks, holds the authority to restrict information from the public if it is deemed “sensitive security information” (SSI). Recently TSA proposed expanding the authority of SSI beyond aviation to include maritime facilities and vessels as well. Congress went one step further and included a provision buried deep in a major transportation bill that would expand the category even further. The provision could limit public access to information on wide-ranging transportation issues, including the environmental impact of oil spills, whether nuclear waste shipments are routed by local elementary schools, or even whether truckers of hazardous material have ever been arrested for drunk driving. The provision also would allow the federal government to withhold air pollution impacts and limit public comment on new road projects.

NEPA Exemption. A recent directive from the Department of Homeland Security (DHS) would exempt the agency from a number of requirements under the National Environmental Policy Act (NEPA) including public disclosure of Environmental Impact Statements (EIS). The directive applies to all agencies within DHS. It would hide information that is “classified, protected, proprietary, or is exempted from disclosure by the Freedom of Information Act,” including CII, SHSI, SBU, SSI, and any EIS or its supporting analyses. Classified and proprietary information has always been protected and does not appear in EIS. However, this blanket exemption could hide vast amounts of environmental information that industry and/or the government does not want publicly available.

The examples could go on and on. The alphabet soup can be intimidating and confusing. But the upshot is that there are many ways a government official can withhold information from communities and nonprofits that are concerned with a wide range of issues.

To add to this problem, the 9/11 Commission and Congress separately concluded that the government does not share information effectively among agencies and with the public. There is no easy way, for example, to find out how many contracts WorldCom has with the government, or for how much money, and it is nearly impossible to find out if that company has pending environmental, labor, civil rights, or other violations. Yet the information resides in an electronic format in different parts of the government. In addition, the Department of Homeland Security is still wrestling with how much detail to give the public with its color-coded terrorism warnings.

Many organizations have joined a coalition called OpenTheGovernment.org to better monitor attacks on open government and try to fight back more effectively. Comprised of librarian, journalism, good government, anti-censorship, and environmental groups, the coalition was formed to build off, complement and help many groups that are both fighting government secrecy and strengthening openness within the context of their own work; and that work covers a broad spectrum, from national security and nuclear policy to toxic chemical hazards and free expression. The group seeks to better publicize the problem that government secrecy creates for our organizational missions; create a stronger, active constituency fighting to keep government’s doors open; better monitor attacks on the public’s right to know, and be a catalyst for effective responses. For instance, coalition partners have contributed pieces to a weekly series of op-eds on freedom of information that is distributed through the Knight Ridder/Tribune News Service. These op-eds can be published free of charge in any newspaper, newsletter, or elsewhere, and downloaded from www.krtdirect.com/public/FOI.html, so long as proper credit is given.

To join the coalition, which consists of more than national groups and seeks additional partners, organizations and individuals may go to our Web site (www.openthegovernment.org) and simply sign their name to the following Statement of Values (people can sign up for updates without joining as well):

To protect the safety and well-being of our families, homes and communities, to hold our government accountable, and to defend the freedoms upon which our democracy depends, we believe the public has a right to information held by our government.

The American way of life demands that government operate in the open to be responsive to the public, to foster trust and confidence in government, and to encourage public participation in civic and government institutions. The public’s right to know promotes equal and equitable access to government, encourages integrity in official conduct, and prevents undisclosed and undue influence from special interests.

These are core values that all Americans hold dear. But in today’s climate of fear, we must translate them into action.

While the government vaguely warns us of potential terrorist attacks, it frustrates efforts to make our communities safe by withholding critical information from the public. Instead, during this time of crisis, government must draw upon the knowledge, creativity, and resolve of all Americans. Nonprofits hold the keys in our communities to open those doors. The Glenda Bowlings of our communities—and the nonprofits they work through—are no threat to public safety and our democracy; they are their refuge.