THE PRICE OF SECRECY

By William Fisher

During 2004, the Bush Administration issued more secret court orders, spent $148 creating new classified documents for every $1 spent releasing old ones, invoked the ‘state secrets’ privilege in court cases more frequently than ever before, and received 25 per cent more requests for documents under the Freedom of Information Act.

These are among the findings of a new “Secrecy Report Card” prepared by
OpenTheGovernment.org, a coalition of organizations dedicated to lifting the “shroud of secrecy” from local, state and federal governments.

The report, written by Rick Blum, the organization’s director, charges that “Secrecy continues to expand across a broad spectrum of activities. Openness in our government and society is increasingly threatened. A keystone value of our democracy, openness more practically helps root out abuse of power, bad decisions or embarrassing facts that may put lives at risk.”

Among such “embarrassing facts” is that “the military gave U.S. troops in Iraq body armor vests that failed ballistics tests”. Documented by reports obtained under the federal Freedom of Information act (FOIA), this decision was reversed and the body armor recalled once the story was about to hit the newsstands, the report says.

The report reveals that in 2004:

The secretive Foreign Intelligence Surveillance Court – a key tool in the application of the USA Patriot Act -- approved 1,754 orders and rejected none. The Federal Bureau of Investigation (FBI) must request such a court order before it can place anyone in the U.S. under surveillance, but since its founding in 1978 it has denied only four such requests.

For every $1 the federal government spent releasing old secrets, it spent $148 creating new ones -- a $28 jump from 2003. In contrast, from 1997 to 2001, the government spent less than $20 per year keeping secrets for every dollar spent declassifying them.

The government spent $7.2 billion securing classified information, more than any annual cost in at least a decade. With 15.6 million new documents stamped ‘secret’ in fiscal year 2004, the government created 81 percent more secrets than it did in the year prior to the terrorist attacks of September 11, 2001.

The government spent $460 to secure each of its classified documents, in addition to the cost of maintaining its accumulated secrets.

Nearly two-thirds of the 7,045 meetings of federal advisory committees that fall under the Federal Advisory Committee Act were completely closed to the public, undermining one purpose of the law.

The public made 4,080,737 requests for documents under the Freedom of Information Act (FOIA) -- a 25 percent jump in overall requests from the previous year, despite only a 5 percent rise (to $336.8 million) in spending on FOIA. Of the roughly 90 agencies surveyed by the Department of Justice, 84 per cent were unable to keep up with FOIA requests they received.

To reduce their caseloads, agencies may be denying more requests on technicalities than they have in the past or are waiving fees less often. One public interest group, the People For the American Way, was told its request for documents about people detained as part of government anti-terrorism efforts would cost the group nearly $400,000.

The “state secrets” privilege, which allows a sitting U.S. president to withhold documents from the courts, Congress and the public, was used only four times between 1953 and 1976 but, since 2001, has been used 23 times -- 33 times more often than during the height of the Cold War.

At least 62 new state laws expanded secrecy in 2004 while only 38 strengthened open government.

The government now uses at least 50 types of designations to restrict unclassified information deemed “sensitive but unclassified.” Many of these numerous terms are duplicative, vague, and endanger the protection of necessary secrets by allowing excessive secrecy to prevail in our open society.

Over the last decade, whistleblowers helped the federal government recover
$7,626,566,750, according to the latest figures from the U.S. Department of Justice. The large savings for taxpayers comes even as court decisions have undermined whistleblower protections passed by Congress in 1989. The report estimates that 2005 recoveries are likely to total over one billion dollars.

The current report is an expanded edition of the first “Secrecy Report Card” issued last year. It comes “at a time when secrecy continues to expand”, but also “at a time when there is a vocal chorus pushing back against secrecy”, the report says, pointing to several pieces of pending federal legislation designed to give citizens more efficient access to government documents.

Many other open government advocates agree that 2004 has been a discouraging year for transparency.

Steven Aftergood, who heads the Project on Government Secrecy for the Federation of American Scientists, declares, "As a society we seem to be losing our ability to rationally debate complicated policy decisions. Secrecy aggravates the problem by excluding people from the debate, or by narrowing their frames of reference. Nothing less than the future of American democracy is at stake."

Eric R. Biel, Deputy Washington Director and Senior Counsel for Human Rights First, finds, “This report card is another searing indictment of a system out of control. For the most part this rapidly growing secrecy has not contributed to any real increase in national security.”

Maria LaHood, an attorney with the Center for Constitutional Rights, represents Maher Arar in his case against the U.S. government, says, “Canadian citizen Arar sued U.S. Government officials for detaining him in New York on his way home to Canada and sending him to Syria where he was tortured and detained for nearly a year. The U.S. Government has argued that the bulk of Mr. Arar's case cannot be litigated because the reason he was sent to Syria instead of Canada is a state secret, which if disclosed would harm national security and foreign relations. If the Court accepts the Government's position, not only would the Government's policy of sending people to countries to be detained, interrogated and tortured be beyond judicial review, but so could any of the Government's illegal acts done in the name of ‘national security’.”

Beth Daley of the Project On Government Oversight, believes that “The expanding cloak of government secrecy is allowing more incompetence and cronyism to fester similar to the kind we’ve seen this week in the relief effort for hurricane Katrina.”

Timothy H. Edgar, Legislative Counsel for the American Civil Liberties Union, cautions, "Basic information that is crucial to oversight of the government's new spy powers under the Patriot Act -- such as how it is using new powers to obtain personal records -- has been cloaked in secrecy, making it impossible to judge the effectiveness of these powers or their impact on civil liberties."

Dr. Jack N. Behrman, former assistant secretary of commerce and professor emeritus at the University of North Carolina, notes, “The fact of secrecy makes the public question the truthfulness of what is made public. The final result is to weaken the institutions on which America was founded.”

And Brian J. Foley, a professor at Florida Coastal School of Law in Jacksonville, says, "Secrecy is the enemy of freedom. When politicians hide their deeds, citizens are rendered impotent. They're disabled from accepting or rejecting -- or helping shape or even correct -- the actions of the government that is supposed to serve them. It's not a government by, for or of the people when citizens aren't even allowed to discover what it's doing."