FOIA PUSHBACK CONTINUES

William Fisher

Civil libertarians and opposition political leaders last week stepped up their efforts to pull back the “veil of secrecy” they claim has characterized the Bush Administration.

In separate developments, the American Civil Liberties Union (ACLU) sought to obtain the records used by the government to deny U.S. entry to prominent foreign scholars, and four key senators introduced legislation to roll back the “potentially damaging limitations placed on access to government information” in the last few years.

The ACLU, the largest advocacy group of its kind in the U.S., filed a Freedom of Information Act (FOIA) request for records concerning the government’s practice of excluding scholars and other prominent individuals from the U.S. because of their political views.

Citing a serious and growing threat to academic freedom, the organization said, "The government should not be barring scholars from the country simply because it disagrees with what they have to say. Nor should immigration and State Department officials be in the business of determining which ideas Americans may hear and which they may not."

ACLU staff attorney Jameel Jaffer said the FOIA request focuses on a section of the Patriot Act that permits the government to exclude foreign scholars from the country if in the government’s view they have "used [their] position of prominence to endorse or espouse terrorist activity or to persuade others to support terrorist activity."

Jaffer said, “While the provision ostensibly focuses on those who sanction terrorism, news reports suggest that the government is using the provision more broadly to deny admission to those whose political views it disfavors”

The ACLU’s request seeks records concerning the use of Section 411 as well as the names, nationalities and professions of those who have been excluded under the law. The request is directed at the Department of State, the Department of Homeland Security, the Department of Justice and the Central Intelligence Agency.

"Unfortunately, the public has very little information about how the Patriot Act is being used," said Jaffer. "At a time when Congress is being ask to further expand the Patriot Act, the government should be more forthcoming about how it is using the powers it already has."

The USA Patriot Act was hurriedly enacted into law shortly after the September 11th 2001 terrorist attacks on the U.S. It gave Federal law enforcement agencies sweeping new surveillance and detention powers. Parts of the law are due to expire at the end of this year and President Bush has called on Congress to renew the law in its entirety.

In its FOIA request, the ACLU cited several recent cases in which scholars were barred from entering the U.S. Among them:

Tariq Ramadan, a Muslim scholar who was named a "spiritual leader" in Time Magazine’s Top 100 Innovators of the 21st Century series. Ramadan was forced to resign his position at the University of Notre Dame after the government revoked his visa.

Dora Maria Tellez, a leader in the 1979 movement to overthrow Nicaraguan dictator Anastasio Somoza (and later a democratically elected official). She was forced to abandon a teaching position at Harvard University after the government refused to grant her a visa.

A group of 61 Cuban scholars that was refused permission to enter the United States to participate in the Latin American Studies Association’s international congress in Las Vegas last October. The Bush administration deemed the scholars’ entry "detrimental to the interests of the United States."

In a related development, four Democratic senators led by Sen. Patrick Leahy of Vermont introduced the “Restore FOIA Act,” to “strike the appropriate balance between protecting Americans’ right to know and restrictions on public access to corporate filings about infrastructure with the federal government.”

Leahy, the ranking Democratic member of the Senate Judiciary Committee, was joined by co-sponsors Sens. Carl Levin of Michigan, Russell Feingold of Wisconsin, and Joseph Lieberman of Connecticut.

He said the 2002 Homeland Security Act (HSA), “granted an extraordinarily broad exemption to FOIA in exchange for the cooperation of private companies in sharing information with the government regarding vulnerabilities in the nation’s critical infrastructure”. He added, “The law that was enacted undermines Federal and State sunshine laws permitting the American people to know what their government is doing. Rather than increasing security by encouraging private sector disclosure to the government, it guts FOIA at the expense of our national security and the safety and health of the American people. “

The HSA created a new FOIA exemption for “critical infrastructure information’. such as privately operated power plants, bridges, dams, ports, or chemical plants — that might be targeted for a terrorist attack. The Administration promoted language they said would encourage owners of such facilities to identify vulnerabilities in their operations and share that information with DHS. But Sen. Leahy says these provisions “shield from FOIA almost any voluntarily submitted document stamped by the facility owner as “critical infrastructure.”

The senator, long a champion of open-government legislation, said the HSA exemption also “shields the companies from lawsuits to compel disclosure, criminalizes otherwise legitimate whistleblower activity by DHS employees, and preempts any state or local disclosure laws.”

The proposed legislation, he added, “protects Americans’ right to know while simultaneously providing security to those in the private sector who voluntarily submit critical infrastructure records to the DHS.”

In an effort to obtain data on the treatment of ‘critical infrastructure information’ at the DHS, two advocacy organizations filed an FOIA request in 2004, seeking release of the number of (critical infrastructure) submissions and rejections, and of any communications between DHS and submitters. When DHS did not provide answers, the groups filed a complaint, and the D.C. District Court ordered DHS to respond. “We learned that as of February 2005, the critical infrastructure program received 29 submissions and rejected seven of those. We know nothing of the substance of the accepted submissions, what vulnerabilities they may describe, or what is being done to address them”, Sen. Leahy said.

The FOIA “was signed into law by President Lyndon B. Johnson in 1967. It enables citizens to obtain government documents to learn how their government spending tax dollars and implementing laws officeholders enact.

Since the election of George W. Bush in 2000, there has been a dramatic increase in the numbers of documents categorized as “classified” and a corresponding spike in the number of requests for documents under the FOIA.Journalists and public interest groups have complained that the Bush Administration has drawn a ‘veil of secrecy’ over the principle of open government.