Open-government advocates continue struggle for information after September 11

From the Spring 2002 issue of The News Media & The Law, page 34.

By Rebecca Daugherty

In the immediate aftermath of the events of Sept. 11, the U.S. government looked for ways to lock up information. After all, if the public could learn something, terrorists could learn it too.

Government Web sites came down, the administration and Congress looked for ways to protect critical infrastructure information, and the Department of Justice went to court rather than give out the names of hundreds of people it detained in connection with its terrorism probe.

By mid-April, some government Web sites returned. The government, however, continued its fight to keep the names of the detainees secret and considered new secretive measures as well.

White House presses for limits on release of weapon information

White House Chief of Staff Andrew Card on March 19 ordered federal agencies to classify or reclassify information on weapons of mass destruction and to protect “sensitive but unclassified” information. He forwarded memoranda from agency officials detailing how the information would be kept secret.

A memorandum from the Information Security Oversight Office directed agencies to use loopholes in an executive order on classification to protect information that might aid in the creation of weapons of mass destruction.

Such a directive even applied to records more than 25 years old, the longest cutoff date for the life of classification orders. It also told agencies to classify such information if it has never been classified so long as it has never been formally released to the public.

A memorandum from the Department of Justice’s Office of Information and Privacy emphasized that agencies should protect “sensitive but unclassified” information from disclosure by giving “full and careful consideration” to all applicable FOI Act exemptions as instructed by the Oct. 12 memorandum from Attorney General John Ashcroft. (See NM&L, Winter 2001)

Ridge refuses to testify in public

Because Homeland Security Director Tom Ridge is a “presidential adviser” and not a Cabinet official, Congress cannot require him to testify, Ridge claimed before meeting in nonpublic sessions in mid-April with the House Appropriations and Government Reform committees.

The administration has asked Congress for $38 billion to spend on homeland security.

Rep. Dan Burton (R-Ohio) closed the Government Reform Committee meeting, which initially was to be open, without formal testimony under oath. Rep. Dennis Kucinich (D-Ohio) left the meeting in protest.

Rep. Ernest Istook (R-Okla.) said he closed the session before the Appropriations Committee even though Ridge said he was willing to meet publicly.

According to The Daily Oklahoman, Istook said: “I wanted to make sure that we minimized distractions. I wanted to make sure the meeting focused on information, not on pandering to the media.”

In a lengthy letter to Ridge, Sens. Robert Byrd (D-W.Va.) and Ted Stevens (R-Alaska) urged him to testify before the Senate Appropriations Committee.

Assuring Ridge that they had no interest in taking testimony about his private advice to the president, they detailed issues raised in testimony in the House committee hearings on needs for funds.

In the letter, the senators said that “there is no substitute for having the one official testify whom the president has designated as responsible for coordinating the executive branch’s efforts to detect, prepare for, prevent, protect against, respond to and recover from terrorist attacks in our nation’s homeland.”

INS still keeps detainees secret

A panel of appellate judges in New Jersey has granted a stay on the release of the names of federal detainees housed in Hudson and Passaic county jails under contract with the federal Immigration and Naturalization Service.

The Department of Justice refuses to release most of the names of the 300 to 1,000 persons, mostly Arab and South Asian men, who were detained after Sept. 11 because of heightened security.

However, a New Jersey Superior Court judge in late March ruled under New Jersey law that jailers in Hudson and Passaic counties must release the names of prisoners held in New Jersey. More than 300 federal detainees are held in the counties’ jails. Judge Arthur D’Italia rejected claims by the federal government that disclosure of their detainment would “stigmatize” the prisoners.

D’Italia stayed his ruling so that the government could appeal, and the appellate division of the superior court, extended the stay, setting a hearing for May 20 in Hackensack.

However, the appellate panel ordered INS to maintain its prisoners in the New Jersey jail until the court can hold a hearing on the matter.

After D’Italia’s ruling, the INS ordered all jailers to keep the names confidential. (ACLU of New Jersey v. County of Hudson)

In late April, the federal district court in Washington, D.C., had not ruled whether the INS would have to give up detainee names under a federal Freedom of Information Act request in a case filed in December by 16 civil libertarian and First Amendment groups including the Reporters Committee for Freedom of the Press.

The Justice Department in November disclosed the names of 93 persons facing criminal charges in connection with Sept 11 events and made public the charges against 548 persons whom it listed anonymously by country of origin.

The federal government has not made further disclosures. (Center for National Security Studies v. Department of Justice)