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Freedom of Information

Concerns have come full circle

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When Daniel Patrick Moynihan, the former senator, passed away last month, most obituary writers left out a key chapter of the lauded statesman's career: his eloquent defense of the public's right to know what the government does. In one of his last major initiatives in the Senate, Moynihan co-chaired a special commission on "protecting and reducing government secrecy," and used the findings to argue that freedom of information is part of the essence of democracy.

"A case can be made," Moynihan concluded in his 1998 book, Secrecy, "that secrecy is for losers--for people who don't know how important information really is." For those who do know, post-Sept. 11 America has forced some troubling questions: Does a war against terrorism warrant the forfeiture of one of our basic democratic rights, that of open access to information about the government? If so, how much official accountability will be lost along the way? And how much can we afford to trust an increasingly tight-lipped security state?

This is not, of course, the first time the public has struggled to define and protect its right to know. It's always been a contested matter, and the principles were explained long ago. In 1822, James Madison famously observed that "a popular government without popular information, or the means to acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both."

Now is as good a time as any to honor Madison's sentiment. Always vulnerable, today freedom of information is under attack more than usual--more than any point since, say, 20 years ago. Back in the early 1980s, during the Reagan administration's first term, secrecy was back in vogue after the relative openness of the Carter years. Executive orders from the White House thrust national security agencies deep into "top secret" territory, and the CIA and National Security Council used the official cover to stage increasingly drastic covert operations.

The impunity didn't last long. The Iran-Contra scandal began to break in late 1986, spelling the doom of many of President Reagan's shadow wars. During the years of investigations, hearings and trials that followed, Congress and the public suffered hard reminders of the risks of allowing officials (especially high-ranking ones) to maraud about, free from the constraints of oversight.

Never again, openness advocates declared, never again. And indeed, especially after the Cold War ground to a halt, the culture of secrecy waned. In the 1990s, reams of documents were declassified, and Americans were finally granted access to decades of their hidden history. The Clinton administration, for all its petty cover-ups, made some real strides in solidifying a new spirit of access. In 1994, for example, Attorney General Janet Reno heaped praise on the Freedom of Information Act (FOIA) and introduced major steps to strengthen it. From then on, she said, officials would be guided by a "broad philosophy of open government," and operate under a "presumption of disclosure" in handling information requests.

What a difference a few years and a catastrophic terrorist attack against the homeland can make. Contrast Reno's approach with that of Attorney General John Ashcroft. Even before the Sept. 11 attacks, the Bush administration had shown disdain for disclosure. When the war on terrorism began, a stranglehold set in. Ashcroft effectively gutted FOIA enforcement in an Oct. 12, 2001, memo to federal agencies. "When you carefully consider FOIA requests and decide to withhold records, in whole or in part," Ashcroft wrote, "you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."

Since then, a presumption of non-disclosure has gripped the government. FOIA responses are slower and more incomplete, and the government has removed thousands of unclassified public records from archives, libraries and Web sites. In an essay penned last month, Charles N. Davis, executive director of the Missouri School of Journalism's Freedom of Information Center, sounded an alarm over the consequences: "The United States, long a paragon of openness and a champion of transparency, is rapidly regressing from a society based on the right to know to one in which information is made available on a need to know basis."

Taking the long view, much progress has been made since the days of both Madison and Reagan. But looking back two decades from where we are today, it's apparent that in some ways we've simply come full circle. Now, as much as then, protecting and promoting freedom of information is paramount for those seeking the full fruits of democracy.

Jon Elliston is a freelance writer and former reporter for The Independent who specializes in national security and freedom of information issues. He lives in Chapel Hill.

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