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THE ASHCROFT MEMO:

"Drastic" Change or
"More Thunder Than Lightning"?

 

The National Security Archive
Freedom of Information Act Audit

Phase One Presented March 14, 2003

2003 National Freedom of Information Day Conference

 

 
Introduction
Executive Summary
Methodology
Findings Regarding Implementation of Attorney General Guidance Regarding FOIA
Preliminary Findings Regarding Implementation of White House Guidance Regarding FOIA and Classification
Findings Regarding Administration Openness/Secrecy Agenda
Findings Regarding Administrative Processing of FOIA Requests
Further Research
 
FINDINGS REGARDING ADMINISTRATION OPENNESS/SECRECY AGENDA

The backdrop against which the Attorney General and White House memoranda were issued may well be as important as the policies themselves. The access community has seen efforts since the beginnings of the Bush administration to curtail disclosure:

  • Cheney Energy Task Force - In April 2001, Rep. Waxman and Rep. John Dingell, ranking member of the Energy and Commerce Committee, began seeking information about the energy task force headed by Vice President Cheney. The request for information was prompted by news reports that the task force had met privately with major campaign contributors to discuss energy policy. The Bush Administration was unwilling to provide the information, even to the General Accounting Office (GAO), the investigative arm of Congress. The White House took the position that GAO's investigation would unconstitutionally interfere with the functioning of the Executive Branch. Even when GAO voluntarily scaled back its request - dropping its request for minutes and notes - the Vice President's office was intransigent. The Vice President acknowledged only that GAO was entitled to review the costs associated with the task force. The dispute led to GAO filing its first-ever suit against the Executive Branch to obtain access to information. GAO's effort failed at the trial level. In December, the district court in the case issued a decision ruling that GAO has no standing to sue the Executive Branch. GAO then decided not to appeal the decision.
  • Presidential Records Act - When, on January 20, 2001, the Presidential Records Act ("PRA"), 44 U.S.C. § 2201 et seq., 12-year restriction period for records containing confidential communications among President Ronald Reagan, Vice President George H.W. Bush, and their advisers expired, the Bush White House first directed the National Archivist to withhold the records while it "studied" the matter, and then, on November 1, 2001, President George W. Bush promulgated Executive Order No. 13,233 (the "Bush Order"), which purports to give binding directions to the Archivist about how to administer presidential and vice presidential records under the PRA. The Bush Order turned the PRA's public access requirement on its head by granting former Presidents, Vice Presidents, and their "representatives" veto power over any release of materials by the Archivist simply by claiming executive privilege, regardless of the merits of the claim. Only with the "authorization" of a former President or Vice President does the Bush Order permit the Archivist to disclose any presidential or vice presidential records.
  • Detainees Names - In the first few days after the September 11 attacks, some 75 individuals were detained on immigration violations. At the same time as the administration sought increased authority from the Congress to detain foreign individuals on the grounds of national security with no judicial oversight, it picked up hundreds more individuals. The Attorney General announced that 480 individuals had been detained as of September 28; 10 days later another 135 had been picked up; and in one single week during October, some 150 individuals were arrested. As of November 5, the Justice Department announced that 1,147 people had been detained. The Attorney General asserted that the Justice Department was following the "framework of the law" and that detainees' rights were being respected. However, with no information released about the arrests, it was impossible to independently verify that claim.
  • Homeland Security FOIA Exemption - On November 22, 2002, Congress passed H.R. 5005, the Homeland Security Act of 2002 to create a Department of Homeland Security. It was signed into law (Public Law 107-296) by President Bush on November 25th. The law includes a provision (Sec. 204) that will create a broad exemption from the Freedom of Information Act: "Information provided voluntarily by non-Federal entities or individuals that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism and is or has been in the possession of the Department shall not be subject to section 552 of title 5, United States Code" (the Freedom of Information Act).
  • Narrowing FOIA's Central Purpose - The Department of Justice recently sought a tremendously restrictive construction of the central purpose of the FOIA when it was pitted against the release of information from gun trace and sales databases. The DOJ argued in Department of Treasury, BATF v. City of Chicago that only the privacy interests in the information should be recognized, and no broader public interest in law enforcement or gun policy issues. DOJ's position would narrow the reach of the Freedom of Information Act in cases implicating privacy concerns by restricting the FOIA's disclosure requirements only to records that directly "cast light on the [agency] performance." Limiting access to such a narrow category of records would overlook the broad disclosure mandated by the FOIA's legislative history, which requires disclosure for any public or private purpose. (http://www.gwu.edu/~nsarchiv/news/amicus0203/ ).
  • Fee Category and Fee Waiver Litigation - The Department of Justice has also uncompromisingly litigated preferred fee categorization cases where long established rules would counsel in favor of the FOIA requester. These court cases provide reminders that case law can have a strong impact on the openness of government, and that the access community must be on the lookout for even seemingly innocuous cases in which important access issues are litigated.

Finally, it is anticipated that a new Executive Order regarding classification will be issued in April 2003 to replace E.O. 12958 issued by President Clinton ("Clinton EO"). The Clinton EO had changed the administrative dynamic of information classification by requiring agencies to expend resources for any continued classification of a record, whereas under the old executive order agencies had been required to take specific actions and commit resources in order to declassify records which otherwise would retain their classification status indefinitely. Instead of open-ended classification periods, the Clinton EO provided for a ten-year classification period for most records, and automatic declassification after 25 years for most records that had previously been classified under another executive order on classification.

The current draft of the Bush Executive Order, obtained and published by Steven Aftergood of the Federation of American Scientists (http://www.fas.org/sgp), retains some of the basic reforms of the Clinton EO, particularly the threat of automatic declassification without review as a means to force agencies to disgorge their 25-year-old classified files. Also, the draft order emphasizes training for officials on the criminal, civil and administrative penalties for leaking classified information, in lieu of an "official secrets act," described by Attorney General Ashcroft in September 2002 as unnecessary. The draft also includes a single provision that breaks with the status quo, by authorizing emergency disclosure to non-cleared personnel in the event of an "imminent threat to life or in defense of the homeland." Otherwise, the order backtracks on the reforms of the 1990s, by making foreign government information presumptively classified, by encouraging reclassification even of 25-year-old documents if the material is reasonably recoverable, and by giving the CIA a trump card against the decisions of the Interagency Security Classification Appeals Panel (ISCAP) on records involving sources and methods of intelligence. One particularly dramatic cut from the Clinton order removes the two provisions for "when in doubt," which previously encouraged either disclosure or downgraded classification if there were doubts or ambiguities about the necessary level of classification. But doubts are not allowed in the Bush administration.(1)

The Administration has taken only two significant steps to enhance access.

  • Argentina Declassification. - The State Department declassified more than 4,600 previously secret U.S. documents on human rights violations under the 1976-83 military dictatorship in Argentina. Former Secretary of State Madeleine Albright ordered the collection, review and declassification of U.S. records on Argentina following an August 16, 2000 meeting in Buenos Aires with leaders of the Grandmothers and Mothers of Plaza de Mayo, and with the Argentine human rights organization, the Centro de Estudios Sociales y Legales (CELS). The special declassification, initiated by the Clinton Administration was completed by the Bush administration and yielded hundreds of cables, memoranda of conversations, reports and notes between the State Department and the U.S. Embassy in Buenos Aires.
  • Declassification of Iraq Intelligence - Secretary of State Colin Powell used electronic intercepts of Iraqi official communications, current satellite photographs and other intelligence before the United Nations ("U.N") Security Council to demonstrate that Iraq is actively working to deceive U.N. weapons inspectors. In what was viewed as many as an unprecedented display of U.S. intelligence capabilities, Secretary Powell made public information that is specifically exempt from disclosure under the FOIA and prohibited from release by criminal penalties.

Through the Ashcroft Memorandum and the White House Memorandum, the Administration has taken a strong rhetorical position that suggests an increase in secrecy through the aggressive use of FOIA exemptions and classification decisions to prevent the release of government records. It has specifically required the agencies to examine their classification programs and ensure they properly serve the purpose of protecting sensitive information. Yet, Administration policies have directed only small actual changes in policy or procedure, such as re-review of records to identify sensitive or classifiable materials. Instead, guidance has offered suggestions for ways to maintain secrecy without statutory or regulatory changes.

The practice of implementing small changes all tending towards secrecy, instead of taking dramatic steps to restrain access, makes it much harder to evaluate the impact and, indeed, to fight the changes. It is, undoubtedly, more difficult to garner public support for opposition to minor changes when more pressing issues, like an impending war, are competing for public attention. Thus, it is imperative that the access community, remain vigilant in its efforts to stem the slow tide of change and identify the real risks behind incremental policy changes and administrative acceptance of poor FOIA processing performance. Because the Administration's approach does not provide an easy target of attack for the access community, even though there may be a gradual shift over time towards additional secrecy, the access community must rigorously examine each change in policy and advocate, through comments, education and litigation, for these changes to be limited to what is truly necessary to protect the nation's security and the congressional intent behind the FOIA.

Note

1. For additional discussion of secrecy initiatives of the Bush Administration, as well as their impact on the press, see "Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public's Right to Know" (The Reporters Committee for Freedom of the Press, Sept. 2002) (available at http://www.rcfp.org/homefrontconfidential ).

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