Apr. 22, 2005 – Yesterday, a national security whistleblower finally had her day in court, while public interest advocates intensified their campaigns for a more open government, challenging what they see as a pattern of secrecy and impunity in the name of national security interests.
To public advocates, the case of Sibel Edmonds, a former FBI translator who was allegedly fired for exposing misconduct within the agency, has come to symbolize the expansion of government opacity in the post-9/11 era. The stark resistance Edmonds has faced in attempting to challenge the alleged retaliation against her, say civil libertarians, illustrates how secrecy has cast a dark net over institutions of democratic government.
"Expanded secrecy rules are allowing government agencies to hide their incompetence and to hide their failure to really adequately protect the public," warned Beth Daley, spokesperson for the Project on Government Oversight (POGO), a Washington, DC-based watchdog group. Like many other open-government advocates, Daley sees secrecy not only as detrimental to democracy, but also, ironically, a potential security threat in itself.
Rick Blum, of the national public interest coalition OpenTheGovernment.org, said that the growth in secrecy under the Bush administration -- involving the shrinking of information and oversight resources and the expansion of executive power -- is the product of a bureaucracy given a green light to keep the public in the dark whenever possible. "Itâ€™s a Great Wall being erected between government and the public," he told The NewStandard.
Government Invokes Powers to Silence Whistleblowers
Ashcroft essentially argued that the litigation could not proceed because it would reveal sensitive information.
Advocates point to increasing use of the "state secrets privilege" -- the authority of the executive branch to keep sensitive national security information out of public purview -- as a stark illustration of the administrationâ€™s desire to remain above the law.
Ann Beeson, associate legal director of the American Civil Liberties Union, called that privilege the "ultimate trump card" in the secrecy game. She said it was just one of an array of tools that the government officials use "to avoid accountability for their own wrongdoing."
The use of the privilege statute to hide evidence in Edmondsâ€™ case followed a slew of what the former translator believes were retaliations against her for speaking out about government misconduct. In public testimony, Edmonds has explained that as an FBI employee from September 2001 to March 2002, she perceived evidence of incompetent and illegal practices within the organization â€“ including poor translations, potential espionage and security breaches â€“ and tried to raise those concerns with the Department of Justice and members of Congress. Those actions, Edmonds has charged, prompted the FBI to intimidate and eventually fire her in March 2002.
The courtâ€™s last-minute decision to make the opening arguments closed to the public suggested that the air of secrecy had already penetrated the judicial chamber.
In 2004, the Justice Department retroactively classified information regarding the circumstances surrounding Edmondsâ€™ dismissal, including Senate letters requesting investigation into the case in 2002 and FBI internal briefings that corroborated some of Edmondsâ€™ charges. Although the information had been available to the public for two years, apparently with no threat posed to national security, the Department still used the national security argument to justify its action. The information was eventually re-released after POGO filed a lawsuit in protest.
While the classification order was legally questionable, it ultimately bolstered then Attorney General John Ashcroftâ€™s invocation of the state secrets privilege to have the lawsuit dismissed. Without addressing the actual facts of the case, Ashcroft essentially argued that the litigation could not proceed because it would reveal sensitive information, and that he was using the privilege "in order to protect the foreign policy and national security interests of the United States."
Beeson, lead counsel in the Edmonds trial, told TNS that Ashcroftâ€™s legal maneuver clearly revealed that the Justice Department was using secrecy powers "for tactical advantage in their defense against her case."
Edmonds has appealed the dismissal, and after a nearly three-year legal struggle, the case gained momentum this January with the release of a formerly classified report about Edmondsâ€™ dismissal. Published by the Justice Department Inspector General, the document describes the FBIâ€™s handling of Edmondsâ€™s claims as "significantly flawed" and concludes that her dismissal was in part retaliatory.
The court proceedings that began yesterday have reinvigorated the campaigns of civil libertarians against what they view as the abuse of classification authority and the state secrets privilege.
Government watchdogs argue that often, the information that is classified has no good reason to be hidden.
Beeson, however, remains wary that while the courts are "the primary recourse" for challenging the lack of government accountability, the legal hurdles Edmonds has faced reveal the tendency of the post-9/11 judicial branch to be "more deferential" to executive power in the ever-widening realm of "national security."
Yesterday, the ACLUâ€™s opening statement before the appellate court warned that if the judiciary again denied Edmonds justice, "it will be all too easy for the government to deploy the state secrets privilege to avoid embarrassment or accountability" in the future.
Yet the courtâ€™s last-minute decision to make the opening arguments closed to the public suggested that the air of secrecy had already penetrated the judicial chamber.
Rewriting the Rules
Critics charge that the Bush administration has further skewed the balance between the publicâ€™s right to know and the governmentâ€™s duty to protect security, turning secrecy into the default mode for handling government information.
OpenTheGovernment, with a membership base spanning from civil libertarians to scientists, has outlined the magnitude of government secrecy in terms of sheer numbers. According the groupâ€™s annual report issued earlier this month, an unprecedented 15.6 million requests were made to seal information from the public in 2004.
But the most notable jump in classification decisions came in 2003, the year President Bush issued an Executive Order redefining classification authority to include anything the administration considered related to "defense against transnational terrorism." Executions of classification authority increased that year by nearly three million.
OpenTheGovernment also found that federal employees are opting to classify information for longer periods of time. Of the new classification requests issued, the proportion that would seal information for more than a decade has climbed from the typical rate of about 50 percent in previous years to two-thirds in 2004.
According to public interest groups, those hardest hit by government secrecy are not would-be terrorists, but simply inquisitive citizens.
The release of information to the public has simultaneously dwindled, from 100 million declassified pages in 2001 to fewer than 29 million last year. The government now sits on a backlog of 260 million pages of documents, scheduled for release by the end of 2006, pending official review. OpenTheGovernment estimates that the government will not finish its review until 2013.
Many of these pages, the group points out, could contain information about local environmental hazards, evidence of government misconduct, or, ironically, information that could be useful to the public in preempting a real security threat.
The abuse of the classification system, in Blumâ€™s view, erodes confidence in the government and makes it less responsive to the need of the public. In light of heightened concerns about the countryâ€™s vulnerability to attack, he said, "We canâ€™t equate an agencyâ€™s self-interest with national security."
Outside of the conventional classification system, a host of new designations of "sensitive but unclassified" material has further encumbered information access.
Last month, the Nuclear Regulatory Commission expanded its designation of "Safeguards Information," or information withheld for security reasons. The new designation could prevent public access to plans for emergency evacuation of nuclear facilities and to information concerning safety risks to surrounding communities -- a move that watchdogs criticized as "safeguarding" information while endangering people.
The Transportation Security Administration and the Department of Homeland Security have also become notorious for creating special classification-like categories, preventing the release of any information that could be remotely related to a suspicion of a "terrorist threat."
Government watchdogs also argue that often, the information that is classified has no good reason to be hidden, and that the phenomenon of "over-classification" is another indicator of a counter-productive compulsion to err on the side of secrecy.
Testifying at an August 2004 Senate hearing on the classification system, William J. Leonard, director of the Information Security Oversight Office of the National Archives and Records Administration, conceded that over half of the information selected for classification may technically meet the classification criteria but "really should not be classified." In such cases, he said, "The price we pay for classification outweighsâ€¦ any advantage we perceive we gain."
Stretching the Information Gap
According to public interest groups, those hardest hit by government secrecy are not would-be terrorists, but simply inquisitive citizens.
They point out that the rise in classification has paralleled rollbacks on classificationâ€™s bureaucratic counterweight, the Freedom of Information Act (FOIA), a process for requesting documents from government agencies.
Last February, the Central Intelligence Agency alleged that national security was at stake when justifying its refusal to disclose the 2002 intelligence budget to Steven Aftergood, director of the Project on Government Secrecy, a clearinghouse for information about federal secrecy policies. The CIA successfully argued in a federal district court that revealing how it spent its money "would threaten to reveal intelligence sources and methods."
But Aftergood later reflected in an interview with TNS that beyond oft-cited security concerns, the two underlying forces driving the widening government information gap are "a natural bureaucratic tendency to hoard information" combined with "politically motivated secrecy intended to advance an agenda" -- namely the Bush administrationâ€™s concentration of power.
Last week, the Transactional Records Access Clearinghouse, a policy analysis group that parses federal agency data to track how policies are implemented, recently filed a lawsuit together with the watchdog organization Public Citizen to challenge the Internal Revenue Serviceâ€™s denial of a FOIA request for tax enforcement records. In a statement protesting the IRSâ€™s sudden reversal of its longstanding policy of releasing such information, Public Citizen attorney Scott Nelson quipped, "It appears that there are now three certainties: death, taxes and improper government reliance on national security as a pretext to stonewall FOIA requests."
Watchdogs Learn to Play a New Game
In the eyes of some watchdog groups, secrecy is a double-blow to their work. They report that, increasingly, their public interest role is concentrated around simply protecting the very mechanisms that enable the public to exercise oversight in any arena.
Beeson said that currently, "the primary battle" of the ACLU is "to obtain access to information to hold the government accountable for rights violations" related to the so-called "War on Terror." Merely prying open the door in an investigation, she noted, claims a growing portion of the groupâ€™s advocacy resources.
According to Beeson, ACLU advocates have run up against the secrecy wall in many high-profile cases. Last year, in a lawsuit challenging the Federal Bureau of Investigationâ€™s expanded information-gathering powers under the PATRIOT Act, the ACLU was forced to comply with a federal "gag order" that delayed lawyers from even disclosing the existence of the suit and prevented the disclosure of basic information about their client.
Beth Daley of POGO noted that before the rapid emergence of new government secrecy mechanisms, her groupâ€™s advocacy campaigns were more oriented toward raising public awareness of questionable government practices. "But now that these new rules are being put into place," she said, "thereâ€™s some question about how we will be able to perform our function" in investigating and exposing misconduct.
Just as the government has taken its terror war as a cue for moving toward greater secrecy, advocacy groups have adapted to the post-9/11 environment by doing more of their public interest work behind the scenes.
The ACLU and POGO both act as intermediaries for government employees seeking to blow the whistle on misconduct, enabling them to remain anonymous while disclosing information that exposes wrongdoing to the public, or to members of Congress as they weigh legislation to address government accountability issues. Many of these cases involve national security whistleblowers, who have few official protections from employer retaliation. Because national security employees basically have no legal recourse, said Beeson, "We often donâ€™t have very encouraging advice to give in terms of whether they can go forward directly and make allegations without having their job threatened."
As civil libertarians maneuver within what they see as a more hostile legal environment, they are turning to Congress for legislative checks on government secrecy.
Noting the weakness of existing protections for whistleblowers, Daley said that Congress has "been asleep at the wheel with regard to whistleblower protections." But POGO hopes that this year, legislators will finally wake up to the secrecy problem.
Watchdog groups are pushing for the Federal Employee Protection of Disclosures Act, introduced by Senators Daniel Akaka (D-Hawaii) and Susan Collins (R-Maine), which would consider the revocation of national security clearance -- a tactic used against national security whistleblowers that is essentially tantamount to a dismissal -- as a type of administrative retaliation.
In response to public pressure, Congress is also currently considering the OPEN Government Act, which would establish stricter reporting requirements, guidelines and timetables for agenciesâ€™ responses to FOIA requests.
As open-government advocates cultivate a growing diversity of supporters, from reporters to physicists, they argue that policymakers need to realize what ordinary Americans have slowly discovered: that secrecy tends to serve the keepers of the secrets more than it serves the public interest.
"With greater scrutiny," reflected Rick Blum of OpenTheGovernment, "youâ€™re going to get better decisionsâ€¦ that do a better job of protecting the public."