Media face war, terrorism secrecy bills

From the Spring 2003 issue of The News Media & The Law, page 37.

War and terrorism have dominated news media concerns in the first session of the 108th Congress. Plenty of legislators still believe that communities should not learn about the risks businesses and industry pose to their communities because terrorists who could exploit the risks might also learn about them. The USA PATRIOT Act, which troubled journalists and civil libertarians during the last congress, may have a troubling successor in this session. And a bill seeks open tribunals for persons suspected of terrorist ties.

Freedom of Information measures

Several senators have targeted secrecy provisions in the Homeland Security Act enacted in late 2002. It criminalizes the disclosure of information about the “critical infrastructure” that is voluntarily shared with the government by businesses and industry. It also gave the business submitters of that information immunity from prosecution for wrongdoing the information might reveal.

The government maintains that it must know about vulnerabilities in the infrastructure to keep terrorists from exploiting them. It will do what it has to do — promise them secrecy or immunity — to convince businesses to share what they know.

On the other hand, media and public advocacy groups have argued that a community needs to know about risks and vulnerabilities so that it can insist upon safety measures. In the homeland security-related votes last year, the Senate narrowly rejected a bipartisan bill by Sen. Carl Levin (D-Mich.) that gave less peremptory protection for industry-provided information. Sen. Patrick Leahy (D-Vt.) called the passage of the Homeland Security Act without the Levin amendment the “most severe weakening of the Freedom of Information Act in its 36-year history.”

Not surprisingly, in mid-March Leahy introduced the “Restoration of Freedom of Information Act” to combat those provisions in the Homeland Security Act. Senators James Jeffords (I-Vt.), Joseph Lieberman (D-Conn.), Robert Byrd (D-W.Va.) and Levin joined in sponsoring the bill.

The new Leahy measure does not criminalize disclosure of critical infrastructure information, does not preempt whistleblower protections, and does not prohibit use of the information in civil court cases to hold companies accountable for wrongdoing or to protect the public.

Under the Leahy bill, the only critical infrastructure information that could be protected would specifically pertain to vulnerabilities and threats to the infrastructure. (S. 609)

Several bills before Congress would protect information about risks posed by chemical plants. None require that the public have access to adequate information on how vulnerable chemical plants are, what environmental risks they pose, and whether they have response plans to carry out in the event of an emergency.

Sen. Jon Corzine (D-N.J.) re-introduced a measure, which he had tried to get through the last Congress. His bill requires that people who live near chemical plants must

be able to find out from the Environmental Protection Agency and from the Department of Homeland Security whether chemical plants are complying with the law. But it exempts from the FOI Act’s disclosure requirements all assessments and plans for making the plants safe.

In a floor statement, Corzine said: “The bill exempts all other information produced under the bill, most importantly, the assessments and plans themselves, from disclosure under the Freedom of Information Act. I don’t take FOIA exemptions lightly. I believe strongly that, in general, the public has a right to information collected by the government.”

But the bill includes a requirement for EPA and Homeland Security to develop protocols to prevent unauthorized disclosure of those documents, he said. And it attaches penalties to unauthorized disclosure.

“That’s the essence of the bill,” he said. (S.157)

Corzine’s proposal differs from one sent to Congress by the Bush administration for introduction by Sen. James Inhofe (R-Okla.). In a side-by-side comparison of the two bills, the Community Right-To-Know Working Group points out that the administration bill does not require the Environmental Protection Agency or the Department of Homeland Security to require companies to submit their security plans for review. Records that are not physically held by federal agencies are not covered by the FOI Act.

Similarly, a chemical security bill by Rep. Frank Pallone (D-N.J.) directs chemical companies to keep copies of assessments and plans on site available to governmental officials. It makes no provision for making the records public.(H.R. 1871)

Operational files at the ultra-secretive National Security Agency automatically would be secret and not subject to the FOI Act under a bill proposed by the Pentagon in an appropriations bill introduced in late March by Senators John Warner (R.-Va.) and Levin.

The files, which document how foreign intelligence is technically gathered, are almost always classified and almost never given out, but the statutory exemption would mean that, even if the files became declassified, the agency would not process them in response to a Freedom of Information Act request. However, the legislation provides that every 10 years the Director of NSA and the Director of the CIA would review the files to see if they should be released because of their historical value. (S.747)

The U.S. Supreme Court in February canceled its hearing of an FOI Act case appealed by the Bureau of Alcohol, Tobacco and Firearms because of the enactment of an amendment to the Department of the Treasury spending bill. Rep. George Nethercutt (R-Wash.) introduced the tiny measure, which prohibited expenditure of any funds by the bureau to show who owned weapons that are used in crimes. That information had been ordered disclosed to the city of Chicago by the U.S. Court of Appeals there (7th Cir.). The bureau had appealed but the court sent the case back to the Seventh Circuit to decide if the new law changed the case. Without the information it is impossible for the city (or reporters) to track sales of guns that were used in crimes, but the government insists that disclosure would intrude upon the privacy of gun sellers and owners. (H.J. Res. 2, Sec. 644)

Calling for “Sunshine in Iraq Reconstruction,” Rep. Ron Wyden (D-Ore.) in mid-April called for disclosure of noncompetitive reconstruction contract information in Iraq. News organizations were reporting extensively on the Bush administration’s award of sole source contracts that avoided competitive bidding. Wyden’s bill would force the government to, within 30 days, reveal the amount of the contract, describe its terms and explain how the agency solicited it. (S. 876)

Sen. John McCain (R-Ariz.) introduced an open-government measure to put on the Internet several kinds of congressional documents, including the publications by the Congressional Research Service, which studies issues of interest to Congress at the request of members of Congress. (S.Res. 54)

PATRIOT Act and FISA legislation

On Feb. 7, the text of a draft bill from the Department of Justice, informally known as the “PATRIOT Act II,” was leaked to The Center for Public Integrity, a political watchdog group in Washington, D.C. The bill would allow the government to wiretap people for up to two weeks without a warrant from a court under certain circumstances. It would also relax other restrictions on snooping. The legislation also would curtail disclosures of information available under the FOI Act and would authorize the government to create a DNA database of suspected terrorists.

After reading the draft bill, some members of Congress — mostly Democrats — complained that the Justice Department had concealed its plans to propose legislation. Many also voiced alarm over the draft bill’s potential effects on civil liberties. Justice Department officials have made clear that the leaked bill was merely a draft and has not been sent to anyone in Congress for consideration. The draft bill is titled the Domestic Security Enhancement Act of 2003.

On Feb. 26, Senators Leahy, Charles Grassley (R-Iowa) and Arlen Specter (R-Penn.) released a 37-page report outlining the Senate Judiciary Committee’s congressional findings relating to the FBI and Justice Department’s inability to properly implement the Foreign Intelligence Surveillance Act. The report questioned the FBI’s ability to competently fight terrorism, citing systemic problems within the agency. The three senators also introduced a bill to increase congressional and public oversight of the FBI’s domestic surveillance efforts. That bill, the Domestic Surveillance Oversight Act of 2003, has been referred to the Senate Judiciary Committee. (S. 436)

On March 3, in response to concern over the first PATRIOT Act’s provisions permitting the government to obtain individuals’ library and bookstore records, Rep. Bernie Sanders (I-Vt.) introduced the Freedom to Read Protection Act. The legislation would prohibit the government from applying for search warrants seeking “documentary materials that contain personally identifiable information concerning a patron of a bookseller or library.” Because of a Justice Department official’s remarks before Congress, news media advocates have warned that the government may claim PATRIOT Act authority to search newsrooms as well and that Sanders’ proposed bill may not eliminate this threat. The bill was referred in early March to the House Committees on Judiciary and Intelligence. (H.R. 1157)

In early April, Sen. Orrin G. Hatch (R-Utah) circulated a proposal to eliminate the sunset provision in the original PATRIOT Act. Currently, some of the provisions granting the government increased surveillance and investigative powers are set to expire at the end of 2005. However, Hatch agreed to drop his effort to make the PATRIOT legislation permanent in exchange for Senate approval of a new anti-terror measure aimed at easing restrictions on government wiretapping powers.

On May 8, the Senate passed a bill that allows authorities to use secret surveillance tools to monitor suspects who they cannot affirmatively link with known terrorist groups. The provision, known as the “Moussaoui fix,” is meant to provide the government with surveillance power it did not have when it failed, before September 11, to obtain a warrant to monitor Zacarias Moussaoui, the suspected al-Qaida sympathizer who was believed to be the 20th hijacker. The legislation, which would amend the FISA, will now go before the House. (S. 113)

Military tribunals bill

On March 13, Representatives Adam Schiff (D-Calif.) and Barney Frank (D-Mass.) introduced a bill to give President George W. Bush authority to establish military tribunals used to try “unlawful combatants” in the war on terrorism but making those tribunals open to the public.

The new military courts would be used to try members of al-Qaida, who are not U.S. citizens or residents and accused of knowingly assisting or cooperating in terrorist acts against the United States.

The bill sets forth rules for a full and fair hearing, including providing those accused with counsel. In addition, all military tribunal proceedings are open. Confidential evidence may be kept secret from the public when the government certifies that its disclosure could be used for planning future terrorist attacks or harming military objectives, intelligence sources or methods, or interfering with capture of other al-Qaida members. (H.R. 1290)

Broadcasting issues

Senators Lieberman and Sam Brownback (R-Kan.) announced April 9 their intentions to introduce a bill to fund research on how media — particularly the Internet, video games and computer games — affect children. The senators appeared at a forum sponsored by the Children’s Digital Media Center, an organization dedicated to improving media for children

A press release from Lieberman said the bill would fund a National Institutes of Health program exploring the possible health effects on children.

“We know conclusively that heavy consumption of media violence can have harmful developmental consequences — desensitizing children to the effects of real-life violence, making them prone toward aggressive behavior, and encouraging them to treat violence as an acceptable and effective way to resolve conflict,” Lieberman said.

Senators Grassley and Charles E. Schumer (D-N.Y.) reintroduced the “Sunshine in the Courtroom Act,” to permit televised coverage of federal trials at a judge’s discretion. Similar bills in the 106th and 107th Congresses failed to pass. Despite the fact that all states have some form of electronic media coverage in the courts, federal courts continue to bar cameras. Grassley and Schumer have consistently recommended that change. (S. 554)