The Government Domain: Information Checks and Balances

Peggy Garvin of Garvin Information Consulting is author of The United States Government Internet Manual (Bernan Press) and Real World Research Skills (TheCapitol.Net).

This September brought the second annual Constitution Day for the United States. (For further background and resources, see “Back to School for Constitution Day“). Educational institutions across the country held Constitution-related programs and seminars. I attended the program sponsored by the American University (AU) Library in Washington, DC, entitled “Checks and Balances: Classified Information versus the Public’s Right to Know.” Mary Alice Baish, of the American Association of Law Libraries Washington Office, moderated the talk.

The “Checks and Balances” theme nicely links information access to the United States Constitution. This in spite of the fact that — as noted by panelist Tom Blanton, director of the National Security Archive — the only Constitutional mention of information access or restrictions upon it is in Article I, section 5: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy…” Blanton believes that, over time, government secrecy in the name of national security has become the rule rather than the exception described in the Constitution.

Blanton filed his first Freedom of Information (FOIA) request in 1976 when he was a reporter, and he is a font of FOIA history, facts, and anecdotes. The National Security Archive, an independent non-governmental research institute in DC, collects and publishes declassified documents acquired through FOIA. NSA, not to be confused with the other NSA, has an extensive library of declassified documents related to U.S. foreign and military policy. A subset of these is available as the Digital National Security Archive product, an online archive of over 60,000 declassified documents significant to U.S. foreign and military policy. The NSA website provides free access to annotated collections of documents organized around themes, such as Latin America and Nuclear History. None of these documents, or the thousands of others at NSA, would have been available to the public had the organization not systematically researched, filed, and litigated FOIA requests to push the information out of storage.

The second panelist emphasized that disclosure of documents can be vital to understanding history and identifying the real mistakes that we should not repeat. Professor Phil Brenner of AU’s School of International Service talked about his efforts to gain access to documents related to the Cuban Missile Crisis. When Brenner began his research in the 1980’s, the popular and academic view was that we already knew everything worth knowing about the crisis. A famous quote by then Secretary of State Dean Rusk summed up the popular assessment of the event: “We were eyeball to eyeball, and the other fellow just blinked.” According to Brenner, lack of information related to the crisis spawned the policy view that “coercion diplomacy” works, and that the small, brilliant team led by an unflinching Kennedy and working in isolation was a valid model for decision-making in a crisis. A true history, only possible once documents were released in both the U.S. and post-Soviet Russia, proved that ignorance, flexibility, and luck were involved in much greater measure than had been imagined even by the inside players at the time.

Associate Professor Mark Feldstein, from George Washington University’s School of Media and Public Affairs, was the final panelist. Feldstein, a former news reporter, has been in the news himself this year. He became the target of a Federal Bureau of Investigation fishing expedition because he was researching a biography of deceased muckraking columnist Jack Anderson. That tale can be read in a Time Magazine article and other articles linked from Feldstein’s web page. Feldstein was chagrined that he could still seem like a threat after having left journalism for academia. “More than any since Nixon’s time,” he said, “this presidential administration has declared war on the media…on the public’s right to know.” He reflected that the Nixon Administration was actually not as anti-media in comparison. This should cause concern. While not the “voice of the people” they may like to think they are, journalists are a conduit for public information. In the question-and-answer session, Feldstein noted that a free press alone is not a fail-safe. The press does not lead public opinion-they do not want to go out too far-and they operate in a political context. For more on the limits of the press, he recommends the book Now They Tell Us: The American Press and Iraq, by Michael Massing.

During the Q&A, the moderator and panelists also made an effort to note that, despite their remarks about the current administration, secrecy is not the policy of one political party or another. Various presidential administrations and executive agencies throughout the history of the nation have wanted to err on the side of secrecy. Before they get into power, those same players are often strong advocates for disclosure.

The panelists’ key messages were:

• The United States Constitution implies public access to government information as the default, but presidential administrations and executive agencies often want to make it the exception.
• Incomplete disclosure of important historical documents leads to an inaccurate reading of history, from which bad policy is formed.
• Small groups operating in secrecy tend to make bad decisions. (We have learned this by later gaining access to the records of such groups.)
• The current administration believes in active restriction of information in order to restore power to the presidency; decisions to classify information may be made on this general principle, regardless of the facts of the specific case.
• Restriction and classification of information is necessary and proper for national security; however, extensive experience in reviewing declassified documents-some vigorously protected through years of expensive litigation-has shown that too often national security had no bearing on why secrets were kept.
• It is challenging to promote an intangible such as “liberty” over a tangible such as “order,” but historically there are rarely any true trade-offs between the two.

Posted in: Freedom of Information, Government Resources, Legal Research, The Government Domain