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The Day Ashcroft Foiled FOIA
Ruth Rosen, San Francisco Chronicle
January 7, 2002
The President didn't ask the networks for television time. The attorney
general didn't
hold a press conference. The media didn't report any dramatic change in
governmental
policy. As a result, most Americans had no idea that one of their most
precious freedoms
disappeared on Oct. 12.
Yet it happened. In a memo that slipped beneath the political radar, U.S.
Attorney General John Ashcroft vigorously urged federal agencies to resist
most Freedom of Information Act requests made by American citizens.
Passed in 1974 in the wake of the Watergate scandal, the Freedom of
Information Act has been hailed as one of our greatest democratic reforms.
It allows ordinary citizens to hold the government accountable by
requesting and scrutinizing public documents and records. Without it,
journalists, newspapers, historians and watchdog groups would never be
able to keep the government honest. It was our post-Watergate reward, the
act that allows us to know what our elected officials do, rather than what
they say. It
is our national sunshine law, legislation that forces agencies to disclose
their public
records and documents.
Yet without fanfare, the attorney general simply quashed the FOIA. The
Department of
Justice did not respond to numerous calls from The Chronicle
to comment on the memo.
So, rather than asking federal officials to pay special attention when the
public's right to know might collide with the government's need to
safeguard our security, Ashcroft
instead asked them to consider whether "institutional, commercial and
personal privacy
interests could be implicated by disclosure of the information." Even more
disturbing, he
wrote:
"When you carefully consider FOIA requests and decide to withhold records,
in whole or in part, 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."
Somehow, this memo never surfaced. When coupled with President Bush's Nov.
1 executive order that allows him to seal all presidential records since
1980, the effect is
positively chilling.
In the aftermath of Sept. 11, we have witnessed a flurry of federal orders
designed to
beef up the nation's security. Many anti-terrorist measures have carefully
balanced the
public's right to know with the government's responsibility to protect its
citizens.
Who, for example, would argue against taking detailed plans of nuclear
reactors, oil
refineries or reservoirs off the Web?
No one. Almost all Americans agree that the nation's security is our
highest priority.
Yet half the country is also worried that the government might use the
fear of terrorism
as a pretext for protecting officials from public scrutiny.
Now we know that they have good reason to worry. For more than a quarter
of a century, the Freedom of Information Act has ratified the public's
right to know what the government, its agencies and its officials have
done. It has substituted transparency for secrecy and we, as a democracy,
have benefited from the truths that been extracted from public records.
Consider, for example, just a few of the recent revelations -- obtained
through FOIA
requests -- that newspapers and nonprofit watchdog groups have been able
to publicize
during the last few months:
- The Washington-based Environmental Working Group, a nonprofit
organization, has been able to publish lists of recipients who have
received billions of dollars in federal farm
subsidies. Their Web site, www.ewg.org, has not only embarrassed the
agricultural
industry, but also allowed the public to realize that federal money --
intended to support
small family farmers -- has mostly enhanced the profits of large
agricultural corporations.
- The Charlotte Observer has been able to reveal how the Duke Power Co.,
an electric
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- USA Today was able to uncover and publicize a widespread
pattern of misconduct among the National Guard's upper echelon that has
continued for more than a decade. Among the abuses documented in public
records are the inflation of troop strength, the misuse of taxpayer money,
incidents of sexual harassment and the theft of life-insurance payments
intended for the widows and children of Guardsmen.
- The National Security Archive, a private Washington-based research
group, has been able to obtain records that document an unpublicized event
in our history. It turns out that in 1975, President Gerald Ford and
Secretary of State Henry Kissinger gave Indonesian
strongman Suharto the green light to invade East Timor, an incursion that
left 200,000
people dead.
-- By examining tens of thousands of public records, the Associated Press
has been able to substantiate the long-held African American allegation
that white people -- through
threats of violence, even murder -- cheated them out of their land. In
many cases,
government officials simply approved the transfer of property deeds.
Valued at tens of
million of dollars, some 24,000 acres of farm and timber lands, once the
property of 406
black families, are now owned by whites or corporations.
These are but a sample of the revelations made possible by recent FOIA
requests. None of them endanger the national security. It is important to
remember that all classified
documents are protected from FOIA requests and unavailable to the public.
Yet these secrets have exposed all kinds of official skullduggery, some of
which even
violated the law. True, such revelations may disgrace public officials or
even result in
criminal charges, but that is the consequence -- or shall we say, the
punishment -- for
violating the public trust.
No one disputes that we must safeguard our national security. All of us
want to protect
our nation from further acts of terrorism. But we must never allow the
public's right to
know, enshrined in the Freedom of Information Act, to be suppressed for
the sake of
official convenience.
Ruth Rosen is an editorial writer for the San Francisco Chronicle.
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